Monthly archive

December 2017

December 2017 SDR – Voice for the Defense Vol. 46, No. 10

Voice for the Defense Volume 46, No. 10 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

Dunn v. Madison, No. 17-193, 2017 U.S. LEXIS 6630, 583 U. S. ____ (U.S. Nov. 6, 2017)

        (1) Under 28 U. S. C. § 2254(d), to prevail on a federal habeas petition, the petitioner must prove by preponderance of the evidence that the state trial court’s adjudication of the claim: (1) was contrary to or involved an unreasonable application of clearly established Federal law as determined by the SCOTUS; or (2) was based on an unreasonable determination of the facts considering the evidence presented in state court.

        (2) Neither Panetti nor Ford ”clearly established” that a prisoner is incompetent to be executed because of a failure to remember the commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.

Editor’s Note: Because this case does not provide a sufficient background on Panetti, I provide it here:

  • In Panetti, six experts testified: Anderson and Parker (court-appointed), and Conroy, Rosin, Silverman, and Cunningham (defense). Panetti v. Dretke, 401 F. Supp.2d 702, 704, 707 (W.D. Tex. 2004). Anderson and Parker concluded that some portion of Panetti’s behavior could be attributed to malingering, but they believed that his illness was to some degree genuine. Id. at 707. Parker and Anderson believed that Panetti understood the reason for his execution because he could cognitively function since in letters Panetti often communicated in lucid, socially appropriate thoughts. Id. at 708.
  • Panetti’s experts agreed that he had the cognitive functionality to communicate coherently much of the time, but he still suffers from delusions about the world around him. Id. Conroy and Rosin believed that despite his delusions, Panetti understands the State’s stated reason for seeking his execution is for his murders, but does not appreciate the connection between his crimes and his execution. Id. Silverman concluded that Panetti does not associate his execution with the murders he committed in any way. Id. Cunningham concluded that although Panetti understands that the State is going to execute him, his delusions prevent him from recognizing the State as “a lawfully constituted authority,” and instead is “in league with the forces of evil to prevent him from preaching the Gospel.” Id. at 708–709; Panetti v. Dretke, 448 F.3d 815, 817 (5th Cir. 2006).
  • The testimony of experts supports a finding that Panetti suffered from some form of mental illness, which some have diagnosed as a schizoaffective disorder. Panetti, 401 F. Supp.2d at 707, Panetti, 448 F.3d at 817.
  • One of Panetti’s witnesses testified that when a person is schizophrenic, it does not diminish their cognitive ability. “[I]nstead, you have a situation (schizophrenia thought-disorder) where the logical integration and reality connection of their thoughts are disrupted, so the stimulus comes in, and instead of being analyzed and processed in a rational, logical, linear sort of way, it gets scrambled up and it comes out in a tangential, circumstantial, symbolic . . . not really relevant kind of way.” Panetti, 591 U.S. at 955.
  • And, when a person is schizophrenic, he may have interactions that are “[r]easonably lucid . . . whereas a more extended conversation about more loaded material would reflect the severity of his mental illness.” Id. at 684.
  • Per the Fifth Circuit, Panetti knew that: (1) he had committed the murders; (2) he was about to be executed; and (3) the State’s given reason for executing him was the fact that he had committed the murders. Panetti, 448 F.3d at 819–821.
  • The SCOTUS rejected the Fifth Circuit’s conclusions on three grounds.
  • First, Panetti’s delusions did not render him incompetent: First, “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it,” and although Ford requires mere awareness of the State’s reason for executing him rather than a rational understanding of it, “[F]ord does not foreclose inquiry into the latter.” Panetti, 591 U.S. at 959.
  • Second, the SCOTUS observed that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the com­munity, including the surviving family and friends of the victim, to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed. Panetti, 591 U.S. at 958. However, the potential for a prisoner’s recognition of the severity of the offense and the objective of community vindication are called in question if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and pun­ishment has little or no relation to the understanding of those concepts shared by the community. Panetti, 591 U.S. at 958–959 [emphasis supplied].
  • Third, a prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Id. at 959. As the SCOTUS notes, a person sentenced to death for “an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality.” Id. at 959–960. “[T]he beginning of doubt about competence in a case like (Panetti’s) is not a misanthropic personality or an amoral character. It is a psychotic disorder.” Id. at 960.

United States Court of Appeals for the Fifth Circuit

United States v. Iverson, No. 16-51034, 2017 U.S. App. LEXIS 21654 (5th Cir. Oct. 31, 2017) (designated for publication)

        (1) Under U.S.S.G. § 3C1.1, a two-level enhancement for obstruction of justice applies when: (1) the defendant willfully obstructs or impedes, or attempts to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct relates to: (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.

        (2) Lying to a judicial officer to obtain appointed counsel qualifies as obstruction of justice under U.S.S.G. § 3C1.1.

        (3) Allowing private therapists to set restrictions on a defendant’s conduct, without the court having to approve those restrictions, usurps a judge’s exclusive sentencing authority.

United States v. Marroquin, Nos. 16-40367 & 16-40368, 2017 U.S. App. LEXIS 21651 (5th Cir. Oct. 31, 2017) (designated for publication)

        (1) Under U.S.S.G. § 4A1.1, criminal history points are assigned for “each prior sentence” rather than each offense, and the single sentence is assigned one score.

        (2) Under Molina-Martinez v. United States, 136 S.Ct. 1338, 1345 (2016), when a defendant is sentenced under an incorrect U.S.S.G. range, the error will usually result in prejudice to the defendant. The prejudice is even stronger when the correct Guide­lines range is below the defendant’s sentence.

United States v. Soza, No. 16-41689, 2017 U.S. App. LEXIS 21656 (5th Cir. Oct. 31, 2017) (designated for publication)

        (1) Under U.S.S.G. § 2K2.1(a)(4)(B), a base offense level of 20 applies if the offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine” and the defendant was a “prohibited person” when he committed the offense. A “prohibited person” means: (1) per 18 U.S.C. § 922(g)(1), a person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year,” and (2) per 18 U.S.C. § 922(g)(2), a person “who is a fugitive from justice.”

        (2) Review of a district court’s interpretation and application of the U.S.S.G. is de novo, and factual findings is for clear error. Whether the evidence was sufficient to support a U.S.S.G. enhancement requires a finding of fact that is reviewed for clear error. The government has the burden of demonstrating, by a pre­ponderance of the evidence, the facts that are necessary to support the enhancement.

        (3) Failure to object to either the PSR or the district court’s sentence results in review for plain error. Plain error exists if: (1) there is an error, (2) the error is plain, (3) the error affects sub­stantial rights, and (4) the error seriously affects the fairness, in­tegrity or public reputation of judicial proceedings.

        (4) If party wishes to preserve an argument for appeal, the party must press and not merely intimate the argument during the proceedings before the district court. An argument must be raised to such a degree that the district court has an opportunity to rule on it. The raising party must present the issue so that it places the opposing party and the court on notice that a new issue is being raised.

        (5) Under 18 U.S.C. § 921, a fugitive from justice is “any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.” One cannot be a fugitive from justice without having “fled” a state with the express intent of avoiding either prosecution or testimony.

        (6) Where the government has the burden of production and persuasion as it does on issues like enhancement of the offense level, its case should stand or fall on the record it makes the first time around. The district court may provide the government with an additional opportunity to present evidence on remand if it has tendered a persuasive reason why fairness so requires.

Texas Court of Criminal Appeals

Burch v. State, No. PD-1137-16, 2017 Tex. Crim. App. LEXIS 1171 (Tex. Crim. App. Nov. 15, 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. An appellate court must not substitute its own judgment for that of the trial court, and it must uphold the trial court’s ruling if it is within the zone of reasonable disagreement (when there are two reasonable views of the evidence).

        (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) As it relates to IATC on probation eligibility, to show prejudice, a defendant must show that: (1) the defendant was ini­tially eligible for probation; (2) counsel’s advice was not given as a part of a valid trial strategy; (3) the defendant’s election of the assessor of punishment was based upon his attorney’s erroneous advice; and (4) the results of the proceeding would have been different had his attorney correctly informed him of the law.

Editor’s Note: The TCCA finds that we must assume the trial judge disbelieved Burch’s affidavit as well as those of his siblings. However, what about trial counsel’s affidavit (the one that counts), in which counsel also stated that he thought that the judge could grant deferred-adjudication probation? If the hope was to obtain deferred adjudication and the trial court was prohibited by law from granting it, what difference does it make whether trial counsel also believed that juries tended to assess longer sentences on sexual assault cases than judges typically do?

State v. Elrod, Nos. PD-0704-16, PD-0705-16, & PD-0706-16, 2017 Tex. Crim. App. LEXIS 1075 (Tex. Crim. App. Oct. 25, 2017) (designated for publication)

        (1) In determining whether a warrant sufficiently establishes probable cause, a court is bound by the four corners of the affidavit. In interpreting affidavits for search warrants, courts must do so in a common-sense and realistic manner. Probable cause exists when the facts and circumstances shown in the affidavit would warrant a man of reasonable caution in the belief that the items to be seized were in the stated place. A magistrate, in assessing probable cause, may draw inferences from the facts. Although the magistrate’s determination of probable cause must be based on the facts contained within the four corners of the affidavit, the magistrate may use logic and common sense to make inferences based on those facts.

        (2) A magistrate’s decision to issue a search warrant is subject to a deferential standard of review, even in close cases. Under Illinois v. Gates, the process of determining probable cause does not deal with hard certainties, but with probabilities. The evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

        (3) A magistrate’s decision to issue a search warrant will be upheld so long as he has a substantial basis for concluding that probable cause exists. A magistrate’s action cannot be a mere ratification of the bare conclusions of others. A magistrate should not be a rubber stamp. To ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.

        (4) When a probable cause affidavit specifies a named informant as supplying the information upon which probable cause is based, the affidavit is sufficient if it is sufficiently detailed to suggest direct knowledge on the informant’s part.

Gibson v. State, No. PD-1043-16, 2017 Tex. Crim. App. LEXIS 1142 (Tex. Crim. App. Nov. 8, 2017) (designed for publication)

        (1) An argument on appeal must merely comport with the trial objection. Under Tex. Rule App. Proc. 33.1(a)(1)(A), to pre­serve a complaint for review, a party must have presented a timely objection or motion to the trial court stating the specific grounds for the ruling desired. There is no requirement that to preserve error of appeal on an evidentiary issue, a party must make sure the appellate argument comports with the related mo­tion when there is a trial objection that comports with the appellate argument.

Hallmark v. State, No. PD-1118-16, 2017 Tex. Crim. App. LEXIS 1143 (Tex. Crim. App. Nov. 8, 2017) (designed for publication)

        (1) If a condition of a plea-bargain agreement that was not agreed-to between a defendant and the State is added by the trial court during the plea-hearing (but before sentencing), and the trial court discusses the added condition during the hearing, if the defendant does not object to the added condition, it becomes part of the plea-bargain and enforceable.

Ex parte Macias, No. PD-0480-17, 2017 Tex. Crim. App. LEXIS 1111 (Tex. Crim. App. Nov. 1, 2017) (designed for publication)

        (1) The double jeopardy clause of the Fifth Amendment attaches when the jury is empaneled and sworn, but does not attach if the trial court lacks jurisdiction over the case.

        (2) When the State appeals under Tex. Code Crim. Proc. Art. 44.01, which includes an appeal of the granting of a MTS, the State is entitled to a stay in the proceedings pending the disposition of the appeal. Under Tex. Rule App. Proc. 25.2(g), once the appellate record is filed in the appellate court, proceedings in the trial court except as provided otherwise by law or by the rules are suspended until the trial court receives the appellate court mandate.

Ex parte McClellan, No. WR-83,943-01, 2017 Tex. Crim. App. LEXIS 1173 (Tex. Crim. App. Nov. 15, 2017) (designated for publication)

        (1) On June 28, 2017, in Ex parte Ingram, PD-0578-16, 2017 Tex. Crim. App. LEXIS 588 (Tex. Crim. App. June 28, 2017) (designated for publication), the TCCA held that Tex. Penal Code § 33.021(c) is not facially unconstitutional because it is designed to protect children from sexual exploitation, not merely “speech.” It proscribes only those communications that are intended to cause certain types of individuals to engage in sexual activity, who are those whom the actor believes to be under age 17 and those who represent themselves be under age 17, when the actor is more than 3 years older than the believed or represented age. When a person represents herself to be under age 17, the actor who solicits such a person will ordinarily be aware of a substantial risk that the person is underage.

        (2) The TCCA refused to answer the question of whether he can raise the issue of the constitutionality of § 33.021(c) for the first time on appeal.

Owings v. State, No. PD-1184-16, 2017 Tex. Crim. App. LEXIS 1112 (Tex. Crim. App. Nov. 1, 2017) (designed for publication)

        (1) When one act of sexual assault is alleged in the indictment, and more than one incident of sexual assault is shown by the evidence, upon a timely request by the defense, the State must elect the act upon which it would rely for conviction once the State rests its case in chief.

        (2) When conducting a constitutional harm analysis of an election error, the reviewing court must reverse a judgment of conviction unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or pun­ish­ment. This determination is made by analyzing the error in the context of the purposes underlying the election requirement: (1) protect the accused from the introduction of extraneous offenses; (2) minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty; (3) ensure unanimous verdicts (all jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred); and (4) give the defendant notice of the offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend. To find beyond a reasonable doubt that the erroneous failure to require an election was harmless (did not contribute to the conviction), the court must determine that these four purposes behind the election requirement were met.

Proenza v. State, No. PD-1100-15, 2017 Tex. Crim. App. LEXIS 1168 (Tex. Crim. App. Nov. 15, 2017) (designated for publication)

        (1) Under Tex. Code Crim. Proc. Art. 38.05, a trial judge is prohibited from commenting on the weight of the evidence in criminal proceedings or otherwise divulging to the jury her opinion of the case. If raised as a freestanding statutory complaint, error under Article 38.05 is subject to non-constitutional harm analysis.

        (2) A trial judge’s improper comment on the evidence is not forfeited by a failure to object to the comment. Although every unscripted judicial comment does not cause reversible error, compliance with Article 38.05 is fundamental to the proper functioning of our adjudicatory system, and it should enjoy special protection on par with other nonforfeitable rights.

Texas Courts of Appeals

Aguillen v. State, No. 06-17-00004-CR, 2017 Tex. App. LEXIS 10159 (Tex. App. Texarkana Oct. 31, 2017) (designated for publication)

        (1) A trial court’s ruling on the admissibility of extraneous offenses is reviewed for an abuse of discretion. An appellate court must uphold a trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. An appellate court will not reverse a trial court’s ruling to admit evidence unless its ruling falls outside the zone of reasonable disagreement.

        (2) Under Tex. Rule Evid. 404(a), evidence of a person’s bad character is not admissible to prove that he acted in conformity with that character on any specific occasion. Under Tex. Rule Evid. 404(b), evidence of other bad acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

        (3) Under Tex. Code Crim. Proc. Art. 38.37 § 1(b)(1), (2), notwithstanding Tex. Rule Evid. 404 and 405, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and sub­sequent relationship between the defendant and the child. Before a trial court can admit such evidence, it must first determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt, then conduct a hearing out of the presence of the jury for that purpose. However, an extraneous offense committed against a third party must have some similarity to the charged offense.

        (4) Extraneous-offense evidence may be admissible as contextual evidence (1) same-transactional evidence (other offenses connected with the primary offense) if the evidence is essential for the State to rationally present evidence of the charged offense, and the facts and circumstances of the instant offense would make little or no sense without also bringing in the same trans­action contextual evidence; and (2) background-contextual evidence (general background evidence), which fills in the background of the narrative and gives it interest, color, and lifelikeness, but is not admissible for one of the other purposes for which evidence may be admitted under Rule 404(b) if it includes an impermissible character component.

Hughitt v. State, Nos. 11-15-00277-CR & 11-15-00278-CR, 2017 Tex. App. LEXIS 10227 (Tex. App. Eastland Oct. 31, 2017) (designated for publication)

        (1) Under Texas Penal Code. Tex. Penal Code § 71.02, a person engages in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the prof­its of a combination, he commits or conspires to commit one or more [enumerated offenses]. A conviction requires an offense enu­merated in the statute.

        (2) Under Tex. Health & Safety Code § 481.112(a), a person need not have exclusive possession of a controlled substance to be guilty of possession—joint possession will suffice. A person commits possession with intent to deliver a controlled substance if she knowingly possesses a drug with the intent to deliver it. Possession is actual care, custody, control, or management. The State must show: (1) that the accused exercised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. The evidence must establish that the accused’s connection with the drugs is more than just her fortuitous proximity to someone else’s drugs.

        (3) Under the affirmative-links rule of Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981), if the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. The rule restates the common-sense notion that a father, son, spouse, roommate, or friend may jointly possess property like a house but not jointly possess the contraband found in that house.

One 2006 Harley Davidson Motorcycle v. State, No. 02-16-00450-CV, 2017 Tex. App. LEXIS 10082 (Tex. App. Oct. 26, 2017) (designated for publication)

        (1) In a civil case, a legal sufficiency challenge may be sustained only when: (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by legal or evi­dentiary rules from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh.). In determining whether legally sufficient evidence exists to support the finding, the reviewing court must consider evidence favorable to the finding if a reasonable factfinder could, and must disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to support the finding. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Any ultimate fact may be proved by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993).

        (2) Under Tex. Code Crim. Proc. Art. 59.02(a), contraband is subject to forfeiture, and property is contraband if used in the commission of certain offenses. A final conviction for an underlying offense is not a requirement for forfeiture.

        (3) Under Tex. Code Crim. Proc. Art. 59.05(b), the State must prove by a preponderance of the evidence that property is subject to forfeiture.

        (4) To prove that property is contraband subject to forfeiture, the State must establish a substantial nexus or connection between the property to be forfeited and some statutorily defined criminal activity. The State may establish the required nexus by showing that a driver of a vehicle was in possession of a felony weight of a controlled substance.

Interpreting and Arguing the Scope of the Michael Morton Act: Defense Counsel Perspective on Scope of the Act

The Michael Morton Act was passed after its namesake was released from jail after serving nearly 25 years for a crime he did not commit. “[T]he Legislature passed the Michael Morton Act to ensure that defendants would receive discovery of the evidence the State had in its possession so that they could prepare a defense against it.” Ex parte Pruett, 458 S.W.3d 537, 542 (Tex. Crim. App. 2015) (Alcala, J., dissenting from denial of writ of habeas corpus).

1)   Best Practices for Obtaining Michael Morton Act Compliance

The State’s disclosure requirements under the Michael Morton Act are triggered by a request for production by defense counsel. As an advocate and zealous defender of the citizen accused, you must make filing your production request a high-level priority in every case. This article details the scope of the Act and may assist with arguments in favor of disclosure of evidence under the Act.

Practice pointers:

a.   Draft a template request for each subcategory of evidence listed in the Michael Morton Act. If you file a single request that is too specific, you may accidentally limit the scope of your request. If you file a request specifically designating “39.14(a),” then the trial court, or court of appeals, may rule that your filing failed to trigger the State’s duty under any of the other subdivisions of the Act.

b.   The request should be specific to each subdivision of the Act, and should include a clear and definite statement of what you are requesting and from whom.

Example I: Defendant requests the State provide an itemized list of all evidence that the State has withheld from production, along with a justification for withholding the same. See Tex. CCP 39.14(c). Note: Upon request, the court should hold a hearing to determine whether any withheld evidence is subject to disclosure.

Example II: Defendant requests disclosure of the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. See Tex. CCP 39.14(b). Note: The from whom piece is of particular import when you are requesting evidence that may be in the care/custody/control of the State but not the prosecutor (e.g.. police department records).

c.   The request does not need to be in motion and order format. The Act is triggered by a request and not by court order. By phrasing the request in motion/order form, you may give the State leeway to argue they need not produce anything until the court orders them to do so. See Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993) (proper Rule 404(b) request for notice does not require court order).

d.   File the individual demands for Article 39.14 disclosure early in your case. The longer you have for investigating your defensive theories, the better your advocacy will be for the citizen you represent.

e.   File Michael Morton Act requests separate from your 37.07, 404(b), and 609(f) requests. If you treat them as separate, independent, unique obligations of the State, you are more likely to get the Court to treat them as separate, independent, unique obligations of the State.

2)   Forthcoming Issues with the Application of the Michael Morton Act

As enacted, the Michael Morton Act provides the following:

Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.

Tex. Code Crim. Proc. Art. 39.14.

Many questions relating to the scope and interpretation of the Michael Morton Act remain unanswered. First, the savings clause in SB 1611 applied the Michael Morton Act without retroactivity. This means the Act only applied to criminal cases that occurred on or after January 1, 2014. Given the nature of the criminal justice system, the large number of cases reaching plea bargains, and the small percentage of cases going to trial, there have been few opportunities to raise questions relating to the Michael Morton Act. And to make the number of possible cases interpreting the Act even smaller, consider that the State must not only withhold the evidence, they must be caught withholding it during the course of the trial.

A) To What Evidence Does the Michael Morton Act Apply?

The items and information produceable under the Michael Morton Act are far more varied than the disclosure required under Brady v. Maryland. Article: “The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, Or Not,” 48 Tex. Tech L. Rev. 893, 903 (hereafter “Fundamentally Change”).

Subsection (a) of article 39.14, which creates the request and disclosure doctrine, extends to documents, papers, statements, and objects “that are in the possession, custody, or control of the state or any person under contract with the state.” Tex. Code Crim. Proc. Ann. art. 39.14(k). Given that “the state” is not defined within the Act, and that prior versions of article 39.14 did not overlap with Brady v. Maryland, the reach of the prosecutorial duty to find and disclose non-Brady material remains somewhat unclear, but the requirement of disclosure of Brady material in subsection (h) certainly suggests that adherence to the constitutional understanding of “possession” should control in some cases. Tex. Code Crim. Proc. Ann. art. 39.14(h); see e.g. Tex. R. Evid. 615.

“Fundamentally Change,” 48 Tex. Tech L. Rev. 893, 910.

Here, the Act outlines its applicability in the first sentence, providing “the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.” Tex. Code Crim. Proc. Ann art. 39.14(a).

While the goal of the Michael Morton Act is admirable, the statutory language leaves much to be desired. For instance, in the first sentence—where the dispute over the scope of the Act arises—the language is particularly problematic. It contains 146 words, including the word “or” 10 times, the word “and” 7 times, and 18 commas. Further, the Act as a whole contains but 4 sentences containing 264 words, 23 commas, and 22 conjunctions. And lest we forget, when engaging in statutory construction, we generally presume that “the entire statute is intended to be effective.” Ex parte Forward, 258 S.W.3d 151, 154 (Tex. Crim. App. 2008); see also Tex. Gov’t Code § 311.021.

B)    What Does “as Soon as Practicable After Receiving a Timely Request” Mean?

Does the Michael Morton Act apply pre-indictment? The answer turns on the interpretation of the phrase “as soon as practicable after receiving a timely request.” Illustrative is Justice Alcala’s concurring opinion denying mandamus relief in In re Carrillo, No. WR-83,345-01 (Tex. Crim. App. Jun. 24, 2015) (not designated for publication). There, the trial court refused to order discovery be produced pre-indictment. Alcala’s concurring opinion stated: “I observe that, as an individual who has been charged by a formal criminal complaint by the district attorney’s office, relator plainly falls within the provisions of Article 39.14 that require that discovery be provided ‘as soon as practicable.’” Id. at 4. “[B]y delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the ‘as soon as practicable’ language into ‘as soon as practicable after return of indictment by the grand jury.’ The statute does not impose any such condition on the State’s discovery obligations.” Id. at 4–5. In re Carrillo was decided on the same date as In re Lewis, WR83,367-01, 2015 WL 4775939 (reaching the same conclusion without Alcala’s concurring opinion).

Ultimately, Justice Alcala denied mandamus relief. She reasoned that “language appears to afford the State some discretion in determining a practicable time frame for turning over discovery.” Id. at 5. She further noted that “Relator may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time. Furthermore, if relator is convicted of the charges of which he is accused, he may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Id. at 6. Ouch! Justice Alcala’s opinion, while unpublished, likely sounded the death knell for mandamus relief for violating the Act. She implied that compliance was not a ministerial duty and the Defendant would have an adequate appellate remedy. The good news, though, was Justice Alcala’s interpretation of the “as soon as practicable” language. By refusing to hold that a pre-indictment request for discovery was untimely, Justice Alcala left opened the door to pre-indictment discovery under the Act. Practitioners should take advantage of this opportunity, especially in cases where an immediate fact investigation is paramount.

Further complicating the analysis is the 11th Court of Appeals conclusion that the trial court lacks jurisdiction to consider a discovery challenge prior to indictment. See In re State ex rel. Munk, 494 S.W.3d 370, 376 (Tex. App.—Eastland 2015, no pet.).

C)    Does the Michael Morton Act Apply to Extraneous Offenses?

The Act probably applies to extraneous offenses, but we don’t know for sure. The key inquiry is whether the extraneous offense information sought via discovery “contain[s] evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.” See Tex. Code Crim. Proc. Ann. art. 39.14(a). Note this is not a Brady style “exculpatory evidence” requirement, but only a materiality requirement. Brady evidence is specifically covered in Tex. Code Crim. Proc. Ann. art. 39.14(h). Id. The legislature’s choice of the words “any matter involved” in the action probably meant that extraneous offense information was included since extraneous offenses are relevant to punishment proceedings in the event of a conviction. Further, if the State intends to use the evidence, it’s probably within the broad scope of “any matter involved in the action.” This is all the more true when one considers the requirement of Tex. Code Crim. Proc. Art. 37.07 that extraneous offense must be proven beyond a reasonable doubt.

However, one caveat regarding this argument is that subject to application of the last antecedent rule of construction with regard to categories of evidence to which the possession language in the Act applies, the extraneous offense evidence must be in the possession of the State. What constitutes in the “possession of the State” has been well litigated within the scope of Tex. R. Evid. 615 and will likely appear as a key piece of the appellate court analysis on this question. In Jenkins v. State, 912 S.W.2d 793, 819 (Tex. Crim. App. 1995) (op. on reh’g) the Court of Criminal Appeals held that Rule 615 only required a prosecutor to produce witness statements that were “in the prosecutor’s possession” or in the possession of the “prosecutorial arm of the government.”

When interpreting Rule 615 in the past, we have stated that a party possesses a statement “if it is within [the party’s] control or readily accessible” [Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. ref’d & pet. dism’d)] or in the party’s “actual or constructive possession.” Williams v. State, 940 S.W.2d 802, 805 (Tex. App.—Fort Worth 1997, pet. ref’d); Jordan v. State, 897 S.W.2d 909, 918 (Tex. App.—Fort Worth 1995, no pet.).

Exclusion of extraneous offense discovery may be possible to the extent it is not in the possession of the “State.” However, to exclude offense reports or witness statements of law enforcement officers—also expressly discoverable—would defeat much of the purpose of the Act and would violate the general principle of statutory construction regarding the primacy of the specific provision over the general. See “Fundamentally Change,” 48 Tex. Tech L. Rev. 893, 910, citing Tex. Gov’t Code Ann. § 311.026. It will be interesting to watch the development of this area as creative defense counsel will have an argument under 39.14(c) that the State has an obligation to disclose anything they are withholding.

D) Does the Michael Morton Act Apply to Punishment Evidence?

The legislature’s choice to use the word “any” as frequently as it did when enacting this statute would suggest this is a simple question. The answer should be simple, but the question is also one of first impression. Punishment for a crime is, without a doubt, a “matter involved in the action” as contemplated by the legislature’s choice of that phrase in Article 39.14(a). But again, the inquiry will become “is the evidence in the possession of the State?”

It is difficult to imagine a scenario in which the State is using punishment evidence that is not in their possession. The argument for including punishment evidence within the scope of the Michael Morton Act is similar to the argument that extraneous offense information is within its scope: (1) it’s relevant to the proceeding, and (2) it’s in the State’s possession. It stretches the bounds of credibility to believe a prosecutor would attempt to use punishment evidence that is not “in the prosecutor’s possession” or in the possession of the “prosecutorial arm of the government.” This is especially true where possession is understood to occur “if [the evidence] is within [the party’s] control or readily accessible.” Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. ref’d & pet. dism’d).

E) Is Tex. Code Crim. Proc., Art. 37.07 Disclosure Sufficient to Satisfy the State’s Burden Under the Michael Morton Act?

Disclosure pursuant to Article 37.07 would provide notice, but not inspection or the ability to duplicate the evidence. Article 37.07 sec. 3(g) provides:

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

Tex. Code Crim. Proc., Art. 37.07

Consequently, without the opportunity to duplicate, compliance with Article 37.07 is not compliance with Article 39.14.

F) Does the State Satisfy Its Production Obligation Under the Michael Morton Act by Providing Notice of Extraneous Offenses Pursuant to Tex. Code Crim. Proc. Art. 37.07?

To the extent these provisions are not in conflict with the spirit or the text of the Act, it’s unlikely that “notice” is the functional equivalent of “production” required under the Act. Simply providing a list of extraneous acts to defense counsel would not comply with the production mandate of the Michael Morton Act. Moreover, allowing notice to supplant disclosure would violate the fundamental cannon of statutory construction to not render any statutory language meaningless. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008) (court must not interpret a statute in a manner that renders any part of the statute meaningless or superfluous). In other words, holding that the Michael Morton Act applied only to the State’s case-in-chief would render the legislature’s choice of the words “any offense report” entirely superfluous. This would “defeat[] the very purpose of the legislature’s carefully chosen words.” Ritchie v. Rupe, 443 S.W.3d 856, 898 (Tex. 2014).

If Article 37.07 notice were sufficient, its sufficiency would have been incorporated into the Michael Morton Act via a clause specifically stating the Michael Morton Act was supplemental to Article 37.07. In the absence of such a clause, a court should not assume Article 37.07 notice shields the State’s non-disclosure of evidence. Article 37.07 notice requires only the date on which, and county in which, the bad act occurred and the name of the victim. That would be a woefully incomplete offense report and should not satisfy the “inspection and duplication” provision of the Act.

G) Is Tex. R. Evid. 404(b) Notice Sufficient to Satisfy the State’s Burden of Production Under the Act?

For the same reasons that Article 37.07 notice is likely insufficient, compliance with Rule 404(b) is likely insufficient to satisfy the production mandate of the Michael Morton Act. Rule 404(b) provides:

[Crimes, wrongs, or other acts] evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.

Tex. R. Evid. 404(b)(2)

As with Article 37.07, Rule 404(b) creates a notice obligation triggered by the timely request of defense counsel. Importantly, notice is not production. And where there is no conflict between the Michael Morton Act and Rule 404(b), a court is mandated by canons of statutory construction to give full effect to both.

H) Does the Distinction Between Punishment Evidence and Extraneous Offense Evidence Matter?

The difference between punishment evidence and extraneous offense evidence should not matter. But it could be given significance depending upon whether the evidence is in the possession (whether actual or constructive) of the State. Ultimately, the distinction is one of form over substance. If the State intended to use extraneous offense evidence, it would likely be at the punishment stage of trial. The common-sense exceptions are offenses, like DWI 3rd or DWLI with priors, where the extraneous offense is a jurisdictional element. In that case, the argument that the Michael Morton Act applied becomes even stronger as that evidence related directly to a jurisdictional element of the offense.

I) If I Suspect a Michael Morton Act Violation, What Should I Do?

During trial, if you suspect the State may have violated the Michael Morton Act, the most important actions are: (1) object and delineate with specificity the evidence the State withheld, (2) move for a continuance to adequately investigate and prepare against the evidence, (3) articulate harm on the record, and (4) obtain adverse rulings. Because the Michael Morton Act’s purpose was to avoid trial by surprise, the court of appeals would likely interpret untimely disclosure in a way similar to a Rule 404(b) or an Article 37.07 violation. If the court admits the evidence and denies your motion for continuance, continue to object pursuant to the applicable rules and statutes. Consider requesting a running objection to the court’s denial of your continuance and to admission of the evidence. Lastly, work hard to develop the trial court record showing how the non-disclosure of evidence resulted in harm to your client.

File Safe

We, as defense attorneys, are quickly becoming inundated with data. The purpose of this article is to proffer some form of potential solution to the problem created by an increase in material we, presumably, are obligated to personally review.

When I first started practicing as a defense attorney, cell phones were virtually nonexistent in the landscape of information that the prosecutor would have. Don’t get me wrong: They did exist, but not in the form they are today. Previously, all a cell phone was capable of was making and accepting phone calls. There were no cell phones with the ability to text, take or modify photographs, take or modify videos, interface with Facebook/Twitter/Snapchat, etc.—not to mention text messages, emails, and GPS information. In today’s world, police officers routinely seek out affidavits to both acquire the accused’s cell phone and perform searches within it. Luckily, the United States Supreme Court has helped a little in this regard.1 Most surprisingly, our very own Court of Criminal Appeals, shortly prior to the United States Supreme Court, also held that a warrant was required to search the contents of a cell phone.2 The problem now has become that it is commonplace for the police to obtain those warrants only then to obtain the entire contents of the phone.

This is only the tip of the problem. Not only have cell phones changed the landscape; so has the digitization of almost every other type of media. Previously, we had videotapes, audio tapes, and actual photographs. Now we have digital video, digital audio, and digital photographs, and the list keeps increasing depending on what is dreamed up next. The only limit on the number and size of these files seems to be the space available on the storage device. In addition, this digitization process includes all sources the prosecutors seek information from—e.g., hospitals, emergency services, phone providers, and more. We now have, in addition to in-car video (both front facing and client facing), body camera video. We have video from inside the sally ports, video from the book in process, video from the intox room, etc. Lately, jails have taken to recording every phone call made and making those recorded calls available to the prosecutor. Here in Denton, the county jail is also providing video visitation, which is being recorded. This only represents the available information from the prosecution. This is important as, pursuant to the Morton Act3 and Schultz v. Comm’n for Lawyer Discipline, SBOT Case No. D0121247202, December 17, 2015,4 it is incumbent on the prosecution to turn all this information over to the defense attorney.

The problem that all of this digitized evidence creates is two-fold: how to properly store such mass quantities of digital evidence and finding the time to personally review each and every piece provided. I’m not going to deal with the time issue at this point as it seems to me to be a huge gray area. The purpose of this article is to propose that each of us find a way to store these files pursuant to the obligations imposed on us.

Let’s begin with what our collective obligations are in storing our clients’ files. Pursuant to Rule 1.14(a) of the Texas Disciplinary Rules of Professional Conduct, we are to maintain our clients’ files for five years after the representation ends. Of course, that is just a rule of thumb. I presume that the safer course of action would be to maintain each file until five years after the sentence has been completed, whether that sentence results in some form of probation or incarceration. For purposes of this article, I am presuming the above storage time period is being used.

Many lawyers are utilizing cloud storage of some sort. There are various opinions floating around the states indicating that use of such storage is satisfactory, provided proper safeguards are in place. If you wish to utilize such a method, please review the necessary privacy policies, encryption policies, and file ownership policies. Also, you will need to have something in place should your cloud storage provider cease operating. The last thing you want to happen is for your client files/data to be locked away outside your ability to retrieve them and have your client show up wanting a copy of something. Of course, it is incumbent on us to make sure we house those files until the appropriate time period expires.

For those not using cloud storage, I will walk you through my recent efforts to find a way to resolve this storage issue. I have stacks of DVDs from when the local prosecution used to burn copies of the in-car digital video pertaining to my client. That’s not the medium to transfer discovery any longer. As a result of the increase in digital information, the local prosecution is now requesting flash drives rather than DVDs, which are limited to approximately 4.7 GB—unless, of course, they are double layer. I recently delivered a 2-terabyte portable hard drive for purposes of copying the requested data. As this started increasing, I went online and purchased numerous flash drives in multiple sizes. Once I did so, the thought that was the genesis of this article hit me: “Where can I keep all of this data?” Keeping up with something as small as a flash drive is problematic. I have devised a way to physically store them within each file, but that won’t solve two problems: physical file destruction and technology advancements.

I have been scanning and digitizing the contents of my physical files for years. Upon the resolution of a client’s case, I gather all the digital information and place it in an archive. My digital files are an exact duplicate of the physical ones. I maintain physical files during the active portion of the client’s case in order to have the information readily accessible.5 Once the case is concluded—not immediately, but on a routine basis—I have my staff purge the physical files. This is, of course, after the archive process has taken place. Should a client come and request something from their file, it is a simple matter to print it for them.

Due to the increase in data, my archive files began to overwhelm my backup system.6 After hitting that new issue, I was forced to find a separate solution for these enormous files—one that would accommodate the file retention requirements. Archiving PDF files, unless something absolutely huge is present, is a relatively minor issue, and that has become the predominant file type and size in the client’s file itself. Those continue to migrate to my regular archiving and backup systems, as do the photographs and other smaller files. When it comes to the video files or larger data driven files, those are now housed on my NAS (Network Attached Storage). That has become my solution to the storage problem. I created a networked desktop running an operating system dedicated to such a solution. There are presently four 4 TB drives in a RAID (redundant array of independent disks) configuration available for housing all of this data. I haven’t looked lately, but I believe, due to the RAID configuration, there is approximately 13 TB realistically available. I chose the RAID configuration in order to ensure that the data was properly protected from hardware failures. Now, when I receive these large data files, I go through a process that uploads those files to my storage unit, and I also copy them to a portable hard drive for day-to-day use. The NAS is truly there to ensure that I will have access to the files no matter what. By use of this system, in addition to the archiving process set forth above, I have found that I can readily reproduce a client’s file in its entirety upon request.

The other issue, technology advancement, is something that each of us need to keep in mind. By example, not too long ago I happened to have a matter in—at that time—the very new Tarrant County civil courthouse. The courtrooms are equipped with all manner of digital devices and interfaces. As I was waiting, I was chatting with the bailiff about the system and its use. I jokingly said that technology would quickly cause them problems, and he informed me that as new as that building was, it already had. Apparently, Apple, in redesigning the iPad with a different port, had already caused an interface problem. I’m not sure that any of us can completely stop this type of situation from happening. Cassette tapes, 8 tracks, and videotapes, if they exist in a case, will be hard to access at this point as there are few if any machines available to play them. The same, eventually, will be true of DVDs, CDs, and flash drives.

Storing your files in the cloud may insulate you, to some degree, from this issue. That will depend upon how future-proof your cloud access presently is. As I don’t utilize, in a third-party way, those services, my need for preservation of access to the files themselves had to be considered. I recently had a hard drive fail. If you keep them in operation long enough, each of you will have this problem. I use systems that aren’t necessarily mainstream, so I had to pick some manner that would withstand some of these changes. Local Area Networks (LANs) have been around for quite some time. The advances in the way they operate (not the wireless type) are not as rapid and earth-changing as other hardware. Since I view the hardware as relatively stable, the choice to utilize it in ensuring file access was easy. Essentially, my systems can all speak to that storage device, and I utilize long-running applications7 to both upload and download files.

Each of you will need to formulate your policies with regard to the manner in which you comply with the rules. This was so much easier when the most we had was a videotape from a stop or pictures from an assault. Now, even the simplest of misdemeanor prosecutions provides an exponential increase in the digital size of our files. As an example, I have a simple burglary of a vehicle case where there are two audio interviews, five video interviews, eight homeowner security videos, and eleven photographs provided. That is just the digital portion. I also have 25 PDF files from the prosecutor’s office. The property alleged to have been taken from the vehicle is a small flashlight and a knife.

I also have a Class B possession of marijuana charge that I was provided four very large video files: two body cam videos (one from the patrol officer and one from the bicycle officer) and two in-car videos. While the volume of information seems disproportionate to the charge itself, this is a regular occurrence. This is the very reason I believe each of us needs to consider our obligations and the methods we use to comply. This problem will likely never get smaller or stagnate, and we, as defense attorneys, need to prepare for this rapid increase in digitization of our files. I hope this helps you in your future efforts to keep your files in order.


1. Riley v. California, 573 U.S. ___, 134 S.Ct. 2473 (2014).

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

3. Tex. Code Crim. Proc. Ann. art. 39.14.

4. Opinion.pdf.

5. Yes, I am aware of services such as Dropbox, that would allow me electronic access, but I am simply not as comfortable with that as I am with actual paper documents. I am sure that many of you are utilizing those products. I am just an old dog.

6. I regularly back up both active and archived files to a portable encrypted hard drive and take those off site as most IT professionals recommend.

7. File Transfer Protocol (FTP) is what I use most easily but the reality is that I could just drag and drop as with most present day operating systems.

Alibi as a Defense

According to Black’s Law Dictionary, alibi is “a defense based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time” and “the quality, state, or condition of having been elsewhere when an offense was committed.” Black’s Law Dictionary (10th ed. 2014). While not being present is a defense available in both State and Federal Court, the execution of such a defense is dramatically different in the two arenas.

State Court

In State Court, it is a myth that the defense must disclose information surrounding the use of an Alibi defense to the Prosecution. A cursory search of both the Penal Code and Code of Criminal Procedure demonstrates that the word “alibi” rarely comes up. Alibi is neither enumerated as a Defense, Tex. Penal Code § 2.03, nor as an Affirmative Defense, Tex. Penal Code § 2.04. The Code of Criminal Procedure reveals that while § 39.14 requires the defense to disclose expert witnesses and § 46C.051 requires that the defense provide notice of their intent to raise the Insanity Defense, there is no such provision assigning any affirmative defensive duty to provide notice of alibi to the State.

The question arises how to approach jury instructions for alibi. Case law indicates that the defense is not entitled to an instruction. Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App. 1998). “The defensive issue of alibi involves nothing more than the presentation of evidence and argument that a defendant was not present at the scene of the crime to commit the crime.” Id. at 250. Giesberg eliminates any right to such an instruction because “a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction.” Id. In his dissent, Justice Baird points out that the CCA has seized discretion from the trial court by outright eliminating any right to an alibi instruction. Id. at 252. Giesberg provides a disquieting history lesson: The Court’s interpretation of the lack of legislation defining specific defenses further eroded potential instructions associated with defenses that had been previously available.

Federal Court

The approach to an alibi defense is completely different in the federal system. Rule 12.1 lays out a mandatory framework by which the defense is required to timely provide information to the Government. F.R. Crim. P. 12.1. The requirements include written notice of any intended alibi defense that includes “each specific place where the defendant claims to have been at the time of the alleged offense” and “the name, address, and telephone number of each alibi witness on whom the defendant intends to rely.” F.R. Crim. P. 12.1(a).

While Rule 12.1 requires that the defense notice the Government of the alibi defense, along with requiring the defense to provide witnesses, there is a duty on the Government, once the defense has provided an alibi disclosure, to provide in writing the names and contact information for witnesses that “the government intends to rely on to establish that the defendant was present at the scene of the alleged offense” and “each government rebuttal witness to the defendant’s alibi defense.” F.R. Crim. P. 12.1(b)(1)(A)(i)-(ii).

There is a continued duty to disclose this information as the case moves forward. F.R. Crim. P. 12.1(c). Interestingly enough, as far as alibi disclosures are concerned, the defense can “unring” the bell. In the event that the defense discloses an alibi defense, and subsequently withdraws that notice, “evidence of an intention to rely on an alibi defense” is inadmissible. F.R. Crim. P. 12.1(f).

While alibi is available in both federal and state criminal litigation, lying behind the log with an alibi is only viable in State Court, as disclosure of such a defense is mandatory in Federal Criminal litigation.

How Lubbock’s “Prairie Dog Lawyers” Seminar Got Its Name

Your Honors, this case was tried before the Honorable James N. Browning, Judge of the 47th Judicial District, but that is not the only reason it should be reversed.

—Prairie Dog Lawyer Tom Turner, circa 1900
Argument before the Amarillo Court of Appeals

The Lubbock Criminal Defense Lawyers Association’s upcoming 37th annual seminar—set January 5–6 at the Texas Tech University School of Law—has been an important and popular continuing legal education event for decades. About ten years ago, a new name was adopted for the course: “The Prairie Dog Lawyers Advanced Criminal Defense Seminar.”

Most folks naturally assume the name is an innocuous reference to Lubbock’s semi-famous Prairie Dog Town, a third-rate tourist attraction teeming with the semi-cute little furry creatures. Instead, the title carries quite a bit more weight. The Prairie Dog Lawyers were a celebrated generation of pioneer attorneys and judges who brought a measure of justice to 19th century West Texas, generating many inspiring and humorous narratives.

The most famous Prairie Dog Lawyer was Temple Lea Houston, youngest son of the iconic Texas hero Sam Houston. The younger Houston’s adventures as a Panhandle trial lawyer in the 1890s inspired several books and an NBC television series starring Jeffrey Hunter, “Temple Houston” (1963–1964).

I’m not entirely sure how it was decided to name our annual seminar the “Prairie Dog,” but I believe it evolved from a conversation I had in about 2006 with Austin lawyer Keith Hampton, a fellow legal historian. We were comparing notes on an old book, The Prairie Dog Lawyer, by Charles E. Coombes, published in 1945. The manuscript is a treasure-trove of stories about law practice on the Texas South Plains and the Panhandle from the 1880s through the turn of the last century.

The foreword, written by Amon Carter—founder of the Fort Worth Star-Telegram—includes a transcript of a delightful speech delivered by the noted humorist, 7th Court of Appeals Judge R. W. Hall, at the 1929 Texas Bar Association meeting at Amarillo. Though filled with archaic language and sometimes offensive humor (which has been deleted here), the text is essential Texas legal lore:

The Prairie Dog Lawyer
By Judge R. W. Hall

        I have been requested to respond to the usual toast “The Prairie Dog Lawyer,” one of whom I am and proud of it. As applied to those of our profession who came to the wide-open spaces of Northwest Texas when they were peopled with prairie dogs, coyotes, jackrabbits, bad men, and worse women, the phrase “Prairie Dog Lawyer” was not intended in any sense to be laudatory or eulogistic. As then used and intended, it was a nickname, and worse, for it was often applied as an epithet. While it originated in a spirit of ridicule, many of those who were so classified made it famous and respected, just as others in the past who have been called in derision Quakers, Methodists, Crusaders, Rebels, Yanks, Cowpunchers, Clodhoppers, and Sky Pilots have made such names honorable and have baptized and christened them in martyrs’ blood and glorified them by deeds of heroism and sacrifice. This is emphatically true of most of those original old pioneer Prairie Dog Lawyers who lived and died in the years that are gone and whose cases have been appealed to the bar of the Judge of all the Earth. Because I knew and loved them I approach my subject with bowed head and my hat in hand.

        Prominent among such heroes were Judge Frank Willis, Governor Jim Browning, Senator Bill Plemmons, Judge Will Boyce, Senator John Veale, Sam Madden, Lorenzo Dow Miller, Dave Hill, Temple Houston, Gip Brown, B. M. Baker, S. P. Huff, H. H. Wallace, Woodman, and others whom I might mention and who have gone over the Great Divide. When measured and weighed by the Decalogue and the Sermon on the Mount they were not all perfect, but they were strong, rugged characters, true to their clients and their profession; their sterling qualities, their loyalty to each other and the eternal principles of justice, is a rich heritage, of which those of the tribe who are still here are justly proud. While they came here from other sections of Texas and from other States, they were always true to the best interests of the Panhandle. In the stormy days of the “Land Jumpers,” and “Fence Cutters,” and “Cattle Rustlers,” they stood in solid phalanx battling for the law and its supremacy. They were like the Irishman who said, “Every man should be loyal to his native country whether he was born there or not.”

        To paraphrase what someone has said of Texas—it is impossible to tell a lie on the Prairie Dog Lawyer. Whatever you say, be it good or bad, it is true of some of them, sometime, somewhere, somehow, and to some extent.

        With few exceptions, the typical Prairie Dog Lawyer never saw even the outside of a law school, and in his estimation a diploma would have been a woeful waste of good shoestring material. The State Examining Board is trying to change all that. The only sheepskins in his possession covered his “Sayles’ Justice’s Guide” and “White & Wilson’s,” four omniscient, omnipresent, and omnipotent volumes, all which legal Pentateuch he could find good law on either side of any question. The ubiquitous law-book man with his decennial revisions and annual supplements is changing that.

        The Prairie Dog Lawyer was a powerful advocate. He was sorter weak on the law occasionally, but strong and long and awfully loud on the facts, so he didn’t need much written law in his business, though he frequently had to appeal to the unwritten law in behalf of his client.

        On one occasion Lorenzo Dow Miller and Hoover had a case in a remote county before an alleged justice of the peace. His Honor ran a saloon on the lower flood and had what was denominated a hotel in the second story. Court was held in the back end of the saloon. When the testimony was all in, Hoover vehemently insisted that the law was one way. Then Miller went into eruption and with more vehe­mence, insisted that the law was the other way. His Honor, who was both judge and jury, drummed on the poker table with his fingers while he listened to the flow of legal lava. Finally Miller pulled out his fee in the case, which happened to be a $10.00 gold piece, threw it on the table in front of the judge and said, “Here’s $10.00 to back up what I say is the law. Now, Hoover, put up or shut up.” There wasn’t a law book within 60 miles. Hoover only had $2.00 in his pocket. But, assuming all the dignity of the King of Clubs (which Hoover can do if necessary) he told the judge that such a proceeding was an insult to the intelligence of the court and that was no way to decide a question of law. His Honor drummed on the table for a few minutes and then said: “Well, Mr. Hoover, money talks. You must ante or drop out of the game. If you ain’t willing to back your judgment on what the law is, she goes again’ you.” And Hoover lost his cause.

. . .

        Few Prairie Dog Lawyers could tell you the difference between an executory devise and a contingent remainder, but they all knew the difference between two pairs and a bobtail flush. Right here I pause long enough to beg you not to be too severe in your judgment. This was long ago when there was no radio, no yo-yo, automobile, country club, moving picture show, Sunday baseball, or cow-pasture pool, and the boys had to play something. The eternal triangle with its glaring headlines didn’t monopolize the front page, because there wasn’t any front page. Wives had not organized the Mutual Aid Societies for semiweekly pistol practice, because women had not commenced to wear children’s clothes in those good ole days. Speer on Marital Rights had not been written, and they didn’t know they had any rights. So, all things considered, while a friendly game of draw with a nickel ante and a two-bit limit was neither strictly legal nor ethical, it was far better than organizing oil-less oil companies, hot air gas trusts, and promoting blue sky corporations to fleece an unwary public.

        In those days horse stealing and cattle rustlin’ were the two unpardonable sins in this country. If a fellow stole a horse, and the evidence was sufficient to convict (to use modern judicial nomenclature), his case was not justiciable. Why waste time and money trying a thief? If the evidence was weak and there was danger of an acquittal, the culprit was hanged to the first cottonwood limb and there was no case to try. If a man was suspected of using his branding irons in the dark of the moon, and a calf with his brand on it was found sucking another man’s cow, the calf’s testimony against him was conclusive and indisputable. The case was not considered judiciable and the county was saved the expense of a trial. To state it in the judicial phraseology and nomenclature of today, the “Basic Data” shown by the partiality of the cow for her mal-branded offspring and the super-imposed inferences to be drawn from the calf’s drawing upon his differently branded source of supply was a postulate marked by unequivocation and provided a concept which negated the implication of innocence or mistake in handling a branding iron. “In other words” the “collaboration” of the cow and calf “intersee” left an “evidentiary margin” for the presumption of innocence, but ex vi necessitate was proof, ex Cathedra as it were, “justifying a decretal presently enforceable” and “resultant”—and they hung the thief forthwith.

        As I have indicated, there was no such thing as a law library in all this broad expanse of country and what few we knew were not rigidly enforced. But, we could advise our clients what the law was today, with reasonable assurance that it would be the same next Wednesday.

        As in the time Israel’s greatest apostasy, those were the days in which “every man did that which was right in his own eyes,” and most men settled their legal and equitable difference by an appeal to the stern arbitrament of a Colt’s fourth-some-odd, which hung conveniently in its holster on his hip.

. . .

        In his rounds, the district judge, as a matter of form, carried the revised statutes of ’79 with him. On one occasion, in going from one county seat to the other, it was necessary for Judge Willis and the lawyers to wade the Canadian River. The stream was badly swollen, but not navigable, at which time the quick sands were extremely treacherous. Woodman, who was more than six feet tall, was leading the procession, holding the statute above his head in both hands to keep it dry. In fact, the code was the only dry thing in the procession . . . Judge Willis, who was short and stumpy complected (he was undressed in one-piece-bathing-revue-costume), was wading immediately behind Woodman. Willis stepped into the quick sands and commenced to sink. He called to Woodman for help. Woodman insisted that with the precious statute in his custody, he could not help the Court. The Court said: “Woodman, drop the statutes. Let the law go to Hell and save the Court.”

        This is still the slogan in many localities. When it becomes necessary to save the Court, the law is secondary consideration and must be thrown overboard, always.

        They tried cases under high pressure. They fought like gladiators and contested every inch of the ground. They practiced law because they loved it and not for revenue only. The profession had not then been commercialized and a lawyer’s ability was not measured by the size of his fees and his balance in the bank.

        To them the jury was the court of last resort, and its verdict was generally final. There were few appeals. They had no court stenographer and the district was 200 miles wide and 400 miles long. An appeal took lots of time and labor. A new lawyer drifted into the district who knew how to appeal. He was at once frowned upon and ostracized because, as Amos Fires expressed it, “That fellow is going to work us all to death with his fool appeals.” Although they were fighters to a finish the verdict was usually the finish, and as soon as the smoke of battle had cleared away and the dust had settled in the arena, all parties (including the Court) repaired to that popular corner where the cowpuncher made his headquarters when in town; and together the one drowned his disappointment and the other celebrated his victory, with their feet on the same rail. The most genial spirit of fraternity prevailed and no one harbored malice or ill-will because of what happened during a trial.

        Tom Turner appealed one case, and when he went to argue it in the Appellate Court, he said: “May it please Your Honors, this case was tried before the Honorable James N. Browning, Judge of the 47th Judicial District, but that is not the only reason it should be reversed. There are twenty-seven others in the record.” Someone told old big-hearted, lovable Jim what Tom had said, and it took Jim nearly all day to get in a good humor again.

        Many of them, like the saddle-bag lawyer of East Texas did years ago, went around the immense district with the Court, but they traveled in buckboards and in hacks. Their lodging place was wherever the shadows of night overtook them and with a Parker to sleep on and a Suggins for a cover, they dreamed under the star-spangled canopy of heaven to the music of the coyote’s chilling serenade.

            But my time is limited. In conclusion let me say that when the Epic of the Panhandle has been written by some genius who has dipped his pen in inspiration and has faithfully portrayed in flowing words the thrilling scenes of those old days that are gone never to return, the Prairie Dog Lawyer will be the central figure in that grand picture.

The State of Public Opinion vs. Public Defender

When one reads about public defender offices, topics tend to center around the problems that public defenders face. There are articles dedicated to the lack of appropriate funding, the often times unmanageable caseloads, and being short staffed. There are even pieces on public defender offices being disciplined for neglecting clients. As I browsed the World Wide Web, digging through public defender association websites, newspapers, and blogs, I came to the realization that there is very little on the advantages of being a public defender and the few I did find could be summed simply: we get trials, we argue a lot, we have resources, and poorer lawyers are happier.

I am here to tell you that there is so, so much more to it than that.1

Public defenders are in the perfect position to attack systemic issues of injustice such as transport fees, attorney’s fees, and other court costs. We are able to observe and attack bad law enforcement practices, and can go even further than that—we know which law enforcement officer is a bad apple and which one does his best to do his job correctly. We can tell by the name alone on the search warrant affidavit if we are going to have to fight the warrant, and which officer has a habit of making bad stops and bad arrests.

That being said, despite a few bad-apple officers, over time a sort of mutual respect has been built up between our office and law enforcement. Law enforcement understands why we are here—that we have a job to do just like they do—and being on good terms has proven to be beneficial. Some law enforcement investigators are more willing to speak with us about a case that we are prepping for trial, to explain their notes in more detail, and we are able to get reports and videos from the police department directly if need be. We are still adversarial in court when we need to be, but many officers have come to learn that sitting through a rough cross is meant to educate them, not attack them personally.

Our relationship with law enforcement also allows us to monitor the jail population. Our investigators get a jail log every day, which helps them keep up with 15-, 30-, and 90-day relief. If someone is at their 90 days and they are not our client, we have no shame in nudging either the attorney assigned/hired or the court to make sure that they receive relief as well. And speaking of investigators, we have them. They are built into our office. We do not have to ask the court for money to hire an investigator, and we also do not have to ask the court for money to hire an expert. We have a small budget that keeps us from needing to convince a judge for funds to properly do our jobs.

Another advantage is that we are a part of the community. We have built relationships not only with law enforcement, but with our clients, judges, and prosecutors. Yes, I said prosecutors. This may come as a surprise to some, but many of the prosecutors in our small jurisdictions are agreeable. That is not to say that tiffs do not occur, but unlike in big cities, we see the same prosecutors day in and day out. Burning a bridge for one client could mean burnt bridges for the rest (a con, but that is an article for another day). In a way, it is like a game of chess, ensuring that our relationship with a prosecutor is not tarnished all while zealously advocating for our clients. Despite this game, however, there is a trust between the prosecutors and our office, and I do not think that one person I work would say that’s a disadvantage.

So, while there are still major issues that need to be addressed in public defender offices across the country, there are also many advantageous reasons, some of which didn’t make the cut for this article, to working in a public defender office. And hopefully one day, I will come across something on the internet that highlights these advantages and more—and showcases that public defenders are more than just numbers and struggles.


1. Shout out to Michelle Ochoa who “voluntold” and encouraged me to write this!

The Importance of the Presumption of Innocence

Although Sam had been taken into custody well before noon, it was after six o’clock by the time his wife, Muriel, arrived at my office with Sam’s dad.

It had been after three o’clock before he completed the booking process and was allowed a phone call. He hadn’t wanted to worry Muriel and had tried to call his dad, but wasn’t able to reach him. By the time he convinced the guard to allow him another phone call it was nearly four.

He’d told Muriel not to worry, that it was all a big mistake, but of course she was very upset to hear that Sam was in jail. By the time she got to my office, her face was red and tear-stained.

She hadn’t known what to do, and it had taken her nearly an hour to find Sam’s father, Ben Minor; then he’d called the only lawyer he knew, a family lawyer who referred him to me. It was nearly 5:30 by the time the lawyer called me, asking me to wait for Ben and Muriel to come to my office. All they knew when they got there was that Sam had been charged with some sort of theft from the United States mail, and was in the County Jail. They were sure there was some mistake, because Sam just wasn’t the kind of man to do a thing like that.

There was nothing new about this scenario, of course. The families of most young men who find themselves afoul of the law begin by believing there has been some sort of mistake.

Unfortunately, however, it usually turns out that the mistake has been made by the one who finds himself in jail. By calling the booking desk at the jail, I was able to verify that he was, indeed, charged with mail theft, and bail had been set by the Federal magistrate at $200,000. Due to the hour, I was not able to learn anything more from official sources, all of whom had shut down for the day. I explained what little I could under the circumstances to Ben and Muriel, and promised to call them as soon as I’d had a chance to talk with Sam.

I went straight from the office to the jail. They brought Sam down from the Federal floor to the attorney conference room. I introduced myself, told him about his wife and father coming to see me and explained that I was there to do what I could to be of help.

He told me straight off that he had no idea why he was in jail, and that, like his wife and father, he was sure there had been some mistake made.

He was employed as an airline freight handler. He met all the flights for his airline, and picked up all the air freight and mail cargo. He would deliver the mail to the post office en route to the airline freight terminal from the flight line.

He’d met all the flights that morning, from the time his shift began at 5:00 a.m. until he’d been called into the boss’ office about ten o’clock.

He could sense that something was wrong when the boss walked out of the office as he walked in, leaving him alone with two men in suits.

They asked if he was Sam Minor and, when he said that he was, introduced themselves as agents of the Federal Bureau of Investigation. They told him that they were investigating a theft from the United States mail.

He was about to tell them he’d be happy to help in any way he could when one of them cut him short, advising him that he was a suspect in the matter.

Sam had reacted incredulously, and the degree of his disbelief multiplied when the man began reading him his Miranda warnings: “You have the right to remain silent,” etc.

They then told him that a shipment consisting of two bread loaf–size wooden boxes containing solid gold jewelry had arrived via air mail that morning, but that only one of the two boxes had reached the post office.

They knew that only he had had access to the gold, knew from his boss that he had been at work all morning, and demanded to know where he had stashed the stolen gold.

Sam had insisted that he knew nothing about the missing gold. He remembered the two wooden boxes, he said, precisely because they were wooden; wooden boxes were unusual if for no other reason than that they added so much to the weight and thus the added cost of air mail postage. He’d had no idea they contained gold, he said, but was sure he had delivered both to the post office.

They simply were not buying that story, though, and a short time later advised Sam that he was under arrest (I later learned that another agent had by that time secured a warrant for Sam’s arrest). He’d been taken to jail, where the things I’ve already described had taken place.

Sam seemed particularly worried about Muriel, and how she was taking his arrest. He explained that she was 3½ months pregnant and had been having a difficult time of it. He was really worried that his arrest was going to cause her additional problems.

I didn’t know what to believe. I was just meeting Sam, knew nothing about him, and had no idea just what the government “had” on him.

He had just given me a motive, however. He had a pretty young pregnant wife who was having a troubled (translate “expensive”) pregnancy and was working in a relatively low-paying job with rather limited future prospects. Many a man has stolen for less cause.

I explained that I would get in touch with the United States Attorney’s office the next day to see what I could learn about the case. He said he’d be all right overnight, just tell Muriel and his dad not to be worried about him. I then realized just how little he understood of the situation he was in.

“You’re likely to be here a good deal longer than overnight,” I told him. Making a $200,000 bond would cost about $20,000, perhaps more, and neither he nor his father could afford any such sum.

Getting the bail reduced was going to require a hearing before the Federal Magistrate, and local rules entitled the U.S. Attorney to five working days’ notice before any such hearing could be held.

I was hopeful that we could arrange a more reasonable bail at such a hearing, but pointed out that five working days was a full week, and he was likely to be in jail at least that long.

It was at that point—when the only one he’d talked to all day who was trying to help him told him that he was about to spend at least a week in jail—that the enormity of the situation really completely sank in.

Tears welled up in his eyes as he protested: “But Mr. Priest, I swear to you, I’m not guilty. I don’t know nothing about that gold.”

I promised to come back the next day, after talking to the U.S. Attorney, and tell him what I’d learned.

I went home, called Muriel, and gave her and Ben a report, explained that I’d see the prosecutor the next day, and promised to get back with them after doing so.

The next morning I called the U.S. Attorney’s office and was advised that the case had been assigned to Ray Jahn, an experienced AUSA (Assistant United States Attorney) with whom I had previously dealt on a number of occasions. Ray was a good prosecutor—tough but fair. Unfortunately, on that particular morning he was out of the office—he’d gone to Austin on something or the other.

I left word for Ray that I would be representing Sam, and asked that he call me as soon as he got back in town. He in fact got back with me later that morning from Austin.

“Pat,” he said, “I understand that you represent that kid, Sam Minor.”

I acknowledged that I did, and thanked him for calling. “I’ll tell you what,” he said. “I’m feeling like Santa Claus. Just tell him that if he’ll give the gold back I’ll let him have pretrial diversion.”

That was very good news. Ray was giving the young man a chance to walk away from this entire matter—without a prosecution, not merely without a conviction. All he had to do was tell where the gold was and he’d be “on the ground” by nightfall, with no other obligation than to attend three or four lectures on the general subject of Thou Shalt Not Steal.

“Thanks, Ray. I’ll go talk with him right away,” I said, “but I’ve gotta tell you, so far he’s telling me he knows nothing about it.”

“Right,” said Ray, “knows nothing about it. Well, just tell him this offer’s only good for 24 hours.”

I wasn’t able to get back to the jail to see Sam until after 5:00 that day (Perry Mason is absolutely the only lawyer there is who handles only one case at a time). I must’ve had a big smile on my face there in the conference room, though, as I could see Sam’s face light up when he saw mine, clearly sensing that I had good news.

“Sam,” I said, “you are a lucky devil! The prosecutor’s willing to let you off with pretrial diversion if you’ll just return the gold.”

He didn’t understand what I was talking about, he said, and would I explain what I meant?

I explained what pretrial diversion meant, that he’d just have to go to three or four counseling classes and the entire matter would be dropped. All we had to do was tell the FBI where the gold was.

Sam sat there for a good long while with his head bowed, obviously letting what I had told him sink in and giving it thought.

At last, his head came up and his eyes met mine. Once again, I could see that his eyes were brimming with tears, and his voice was choked as he spoke.

“Let me see if I understand what you’re telling me. If I stole the gold and would tell where it was, I could get out of jail today, is that right?”

I acknowledged that it was.

“But,” he continued, “if I didn’t steal the gold and don’t know where it is, I’ll be in here for at least another week, may not get out then if you can’t get the bail reduced enough, and I’ll have to pay you a bunch of money to prove I’m not guilty. Is that right?”

It didn’t seem like the time to explain that the prosecutor had the burden of proving his guilt, so I just agreed that he was pretty close to right.

“Mr. Priest, I swear to God—I don’t know nothing about that gold! I didn’t steal it!”

I left him sitting there, head down, choking back the tears. I went on home and called Muriel and explained the day’s developments. She cried a little on the phone, but thanked me for calling. I promised to keep her advised.

The next day I called Ray Jahn and advised him of developments. He said it was too bad we couldn’t work it out and he’d see me at the bond hearing. I had a conference with Muriel and Ben a couple of days later explaining what we’d need to prove at the bond hearing, which had been set for the next week. I also went by the jail to see Sam again to explain to him what would be involved.

Otherwise, I spent most of the time until the day of the hearing working on other cases for other clients. On the day of the hearing, Ben and Muriel met me at my office and we walked over to the Federal Courthouse. At the entrance, we submitted to the humiliating but mandatory search of Muriel’s purse and my briefcase, walked through the metal detectors, and took the elevator to the magistrate’s floor.

As we got off the elevator, an FBI agent, who had obviously been waiting for us, walked rapidly over to where we were. “Mr. Priest?” he asked. “May I speak with you in private, sir?”

I agreed, of course, anticipating that he wanted to convey some further offer the government was prepared to extend to Sam.

After we had walked a few feet down the hall, he stopped, turned to me, and said: “Mr. Priest, I’m afraid there has been a serious mistake made. An employee of the post office confessed this morning that it was he who took the gold shipment. All charges against Mr. Minor are being dropped. Please extend our sincere apologies to him and to his family.”

I was flabbergasted, and more than a little embarrassed, for as he spoke those words I realized that I had no more given my client the presumption of innocence than had the FBI, and that I was as surprised as they that someone else had confessed.

I try to remind myself of Sam’s case from time to time. I’ve been a judge for most of the time since I represented Sam, and this case has helped me remember the presumption of innocence and its important role in keeping our system fair. Let’s hope none of us ever forgets.

December 2017 Complete Issue – PDF Download



22 | Interpreting and Arguing the Scope of the Michael Morton Act: Defense Counsel Perspective on Scope of the Act – By Jason Niehaus & Sarah Pierce
27 | File Safe – By Chris Raesz
30 | Alibi as a Defense – By Jonathan Hyatt
32 | How Lubbock’s “Prairie Dog Lawyers” Seminar Got Its Name – By Chuck Lanehart
36 | The State of Public Opinion vs. Public Defender – By Jessica Canter
38 | The Importance of the Presumption of Innocence – By Judge Pat Priest

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

5 | CLE Seminars and Events
41 | Significant Decisions Report

President’s Message: When Santa Came to Town – By David E. Moore


You better watch out!
You better not cry!
You better not pout!
I’m telling you why,
Santa Claus is coming to town!

I don’t know about the rest of you, but for me, December is usually a slow month insofar as new clients coming through the door. In most years, I can’t wait for mid-January to roll around to get back in the flow. I typically view anything new that comes in from mid-December on as a gift.

I wonder if that was the state of affairs in late December 1927 for lawyers J. K. Baker of Coleman and J. Lee Cearley of Cisco. I can imagine the two attorneys hoping to end the year with one more file to open. Well, be careful what you wish for.

On December 23, 1927, Marshall Ratliff strolled down the bustling streets of Cisco dressed in a Santa Claus outfit, complete with a mask. The streets were crowded with last-minute Christmas shoppers, and as Ratliff made his way, children flocked to him and ran alongside. As Santa neared the First National Bank of Cisco, he stepped inside. Some of the children who had been understandably excited to see St. Nick followed him into the bank. Among those were twelve-year-old Laverne Comer, ten-year-old Emma May Robertson, and six-year-old Frances Blassengame, who entered a few moments later with her mother.

When Ratliff walked into the bank, cashier Alex Spears called out “Hello Santa!” Ratliff did not respond, and the teller again shouted “Hello, Santa!” Spears knew Ratliff, who was from Cisco, but he couldn’t recognize him behind the mask, and Santa remained eerily silent.

Suddenly, there were shouts of “Hands up! This is a robbery.” Can you imagine the terror in the minds of those in the bank, especially the kids? Three armed bank robbers . . . no, wait, there was now a fourth, as Santa himself was standing there with a pistol in his hand!

Santa’s helpers were Robert Hill, Henry Helms, and L. R. Davis. All but Hill were ex-cons. Ratliff had been caught robbing banks previously with his brother, Henry Ratliff. The Ratliff brothers had received prison sentences—18 years for Marshall while brother Henry got 10. They both had been conditionally pardoned by Governor Ma Ferguson. Very shortly thereafter, Henry Ratliff was revoked for a burglary or he probably would have been right there in the Cisco bank alongside his brother, Santa.

With their guns drawn and barking at the bank employees, Ratliff pulled a sack from under his Santa suit and proceeded to fill it with cash and bonds. While this was happening, in walked Mrs. Blassengame with little Frances in hopes of seeing Santa up close.

Mrs. Blassengame immediately realized a robbery was in progress. She quickly reopened the door and pushed Frances back outside hollering, “Run! Run!” Although one of the robbers threatened to shoot her, Mrs. Blassengame skedaddled through the door and ran for the police department a block away screaming, “They’re robbing the bank! They’re robbing the bank!” as she ran.

As the robbers finished grabbing what loot they could, the police and many citizens who had now been alerted, ran toward the bank and took up positions toward the front of the bank. Police Chief “Bit” Bedford stationed himself at one end of the alley that ran alongside the bank, while Cisco Officer George Carmichael covered the other end.

Many citizens armed themselves to assist. It’s hard to tell if they were compelled into action as a result of a sense of civic duty, or if they themselves had deposits in the bank, or maybe the reward was the reason. For you see, there had been such an epidemic of bank robberies in those days that the Texas Bankers Association had offered a $5,000 reward for dead bank robbers. Whatever their motivation, the people of Cisco rallied to the bank.

As the robbers started to exit the bank into the alley where the getaway car was parked, gunfire erupted. The robbers grabbed hostages and held them as human shields. They snatched the two girls, Laverne and Emma, along with Marion Olson, a Harvard College student who was home for his holiday break.

Holding the hostages in front of them, the robbers blazed away toward both ends of the alley. And, despite the human shields, some folks were firing back. In the hail of gunfire Chief Bedford and Officer Carmichael were mortally wounded. Several other folks were wounded including Spears. College student Olson was also hit, but he managed to leap from the moving bandit car despite having a gun to his head. Of the bank robbers, Ratliff had been shot and so had Davis—Davis mortally so.

Ratliff and his cohorts sped up the street with their two remaining hostages. The citizens and a last surviving officer pursued. At the edge of town, the robbers, with their car shot up and one tire running on a rim, stopped and commandeered another vehicle. At gun point, they ordered the driver, 14-year-old Wood Wilson Harris, and his family from their car. The Harrises obliged and ran from their vehicle.

Ratliff, Hill, and Helms carried the two girls, the wounded Davis, and the sack of loot to the Harris’ vehicle. The townspeople at this point had closed in on them, and the two groups continued to exchange gunfire. The bandits must have been stunned when they learned that young Woodrow had outsmarted them by taking the keys with him as he and his family scurried away.

As the gang started to retreat to the original getaway car, Hill was hit. They abandoned the wounded Davis and the sack of money in the Harris vehicle, grabbed the girls, piled into their shot-up car and drove away. The townspeople were apparently delayed at the Harris vehicle long enough, taking the dying Davis into custody, to allow Santa and the rest of the gang to escape.

Some miles down the road, they pulled into a pasture. They told the girls to lie down, cover their eyes and start counting. As they counted, the three remaining robbers slipped away into the brush. The trio remained on the lam for several days, managing to steal a couple more vehicles and evade capture.

Ratliff and Hill were both suffering from their wounds, Ratliff especially so. Near the small community of South Bend, close to the Brazos, they were spotted by police and chased in a running gun battle by two carloads of officers. The second car contained Cy Bradford, a well-known West Texas lawman who had already participated in more than his share of exchanges of gunfire in the oilfields and coal mines of the area.

The robbers pulled off the roadway and jumped from their vehicle headed for thick brush, shooting over their shoulders as they went. While the other officers lagged behind, Bradford sprinted from his car with a shotgun in an attempt to cut them off. Bradford, firing as he ran, dropped Ratliff. Continuing forward, he also wounded and knocked down Hill and Helms, but the two of them were able to scramble to their feet and reach the cover of the thick brush. They got away, but Santa was captured.

When they took Ratliff, he was armed with six pistols, a shotgun, and several belts of ammunition. He was also shot six times, including once in the chin, matching the location of a bullet hole in the recovered Santa mask. Helms and Hill were captured a couple of days later near Graham without more gunfire.

Lawyers Baker and Cearley got their end-of-year, close-out case. They were appointed to represent Santa Claus! Back then, I guess conflicts didn’t matter, as Cearley was also appointed to represent Robert Hill.

The two lawyers must have drawn the ire of the local community for representing such a reprehensible defendant. But, they certainly did their best for their now infamous client.

Ratliff was tried first in the county seat of Eastland for armed bank robbery, which was then apparently a capital offense. The lawyers tried to change venue, based on the fact that there was a dangerous combination of bankers and bank stockholders who were colluding to ensure convictions of bank robbers. Testimony was developed that the local banks had in fact contributed to the aforementioned bounty for dead bank robbers, but the witnesses apparently convinced the judge that bounty only applied to those bank robbers killed in the act, not those convicted and sentenced to death. The lawyers also sought to move the case on pretrial publicity. The State put on ten witnesses to testify Ratliff could get a fair trial. Motion to change venue denied.

The voir dire was obviously heavy on who had heard what and what opinions the venire had formed. Also, the State took a lot of time to ask in detail about those who might have reason to hate the banks and bankers, while the Defense focused on asking about shareholders and those who had deposits in banks. In the end, the jury was comprised mostly of farmers and oil field workers.

The defense team then argued that nobody could identify Ratliff as having been in the Santa outfit and therefore nobody could place him in the bank. That was true, until young Emma testified that Santa, during the getaway, had lifted his mask to check on his injured chin. She told the jurors that as he did so, she got a good look at him and that she could identify Santa as Ratliff, the man in the courtroom. The healing bullet wound lining up with the hole in the mask didn’t help either.

But, the two lawyers somehow managed to avoid the death penalty and talked the jury into a 99-year sentence. While heading back to his cell, Santa reportedly said, “That’s no hill for a high-stepper like me!”

Ratliff was quickly tried again, this time for the murder of Chief Bedford. Baker and Cearley raised double jeopardy as an issue. Denied.

A renewed motion to change venue. Denied.

With all else failing, the lawyers apparently also argued that Ratliff was acting in self-defense as a result of the illegal bounty and the attacking mob of citizens. All to no avail. This time, Santa got the death penalty.

Helms was also convicted, and received the death penalty. He died in the electric chair.

When it came time for Hill’s trial, Cearley had learned from his representation of Ratliff. Hill pled guilty and put on what we today would recognize as a mitigation trial. Hill, crying on the stand, apologized. He told the jury that as an orphan, he had been raised in State homes. At 21, and with no criminal history, he had been led astray by the older ex-cons. The jury spared him the death sentence. He subsequently escaped, and was recaptured, three separate times from the penitentiary. He later made parole, apparently never to be arrested again.

But the story was far from over for Baker and Cearley’s infamous client, Ratliff the Santa Claus Bandit. Having exhausted his appeals, Ratliff filed a motion saying that he should be spared execution because he was now quite insane.

Helms had filed a similar motion and although Helms repeatedly chanted “Ain’t—Gonna—Sing” throughout the process, the Court had rejected his claim of insanity.

Ratliff, who while waiting on Death Row would sing the old hymn “When the Roll Is Called Up Yonder, I’ll Be There” from his cell as condemned men were led to the execution chamber, had now himself fallen into apparent lunacy and had developed his own monotonous, repetitive chant: “The Lord have mercy on my soul.”

Ratliff was transferred from Huntsville back to Eastland for the sanity hearing. But, the lawyers never got the chance to present their motion.

Ratliff, had convinced the jailers that he was incapable of caring for himself—so they fed him, bathed him, and tended to his needs as he would sit or lie in an almost catatonic state. They became lax. One evening, as they made their rounds checking cells, Ratliff made his way to a desk where he retrieved the pistol of Deputy Tom Jones. As Ratliff tried to locate keys to escape, Jones confronted him. Ratliff shot him three times. The other deputy, Pack Kilborn, rushed in and was able to wrest the gun from Ratliff and subdue him.

The next evening, after it had become apparent that Deputy Jones would not survive, a crowd estimated at over one thousand surrounded the jail. Kilborn repeatedly asked them to disperse and let justice run its course. The mob would have none of it, and Kilborn was overrun.

The Santa Claus Bandit was pulled from his cell. The nude Ratliff was dragged to a spot about a block from the jail. There, under a guy-wire running between two telephone poles, they hurriedly tied his hands behind his back. A rope was tied around his neck, and the other end thrown over the wire above. The naked prisoner was then hoisted into the cold November night.

As he was ascending, the rope broke, and he plummeted back to the ground. As he lay there stunned, he murmured, “God have mercy and forgive me.”

As the crowd scurried to fix the rope problem, I guess someone thought it indecent to hang him naked in front of the crowd, so someone tied a sack around his waist.

With their rope issues resolved, they slipped a noose over Ratliff’s head. Again, they began to pull him skyward. Ratliff was now trying to say something.

Someone suggested they let him down to speak. The men on the other end of the rope obliged and lowered him for a moment . . . just long enough for him to get the words out, “Boys forgive me,” before they pulled him back into the air for a final time.

They left him there for 30 minutes. The next day they exhibited his body in front of a local store until a judge ordered them to take him away, to be held for his mother to come claim his body.

The next day, Deputy Tom Jones succumbed to his wounds. His was the final death related to the Santa Claus Robbery.

The district judge ordered the grand jury to convene that day to investigate who was responsible for the lynching. The prosecutor decried the mob action and told the papers he would vigorously prosecute anyone who was indicted. The governor pledged to give assistance if asked.

But, the local defense lawyers would not get any new December business out of the hanging. No new files were to be opened. The Governor was never asked for assistance. The judge’s grand jury never returned an indictment. And the prosecutor, Joseph Jones, brother of Deputy Tom Jones, never had an indictment to prosecute.

And that my friends, is the story of The Santa Claus Bandit.

P.S.: Don’t tell this one to the kids! Happy Holidays!

Executive Director’s Perspective: Season’s Greetings – By Joseph A. Martinez


As the holiday season approaches, we give thanks to our TCDLA members for their support over the past year. We know we are a stronger association because of you. We hope you and your family have a wonderful holiday season.

Special thanks to our course directors, Gary Trichter (Bandera), Bobby Barrera (San Antonio), and Michael Gross (San Antonio), for the 13th Annual DWI seminar held at the historic Menger Hotel in San Antonio. Thanks to their efforts we had 109 attendees.

Special thanks to our course director, Rick Wardroup (Lubbock), for the Capital Litigation and Mental Health seminar held in Houston in November. Thanks to their efforts we had 119 attendees.

TCDLA/CDLP has held Legislative Update CLE—Part I (DVD) or Part II—with Allen Place and/or Shea Place. We have had or will have updates in the following cities. We thank the respective Course Directors.

Location Course Director(s)
Kaufman CountyRichard Brand & Courtney Stamper
Hill Country Criminal Defense Lawyers/KerrvilleLou Cano & Hunter Moose
El Paso County OfficeRene Flores, Nicole Maesse & Jeep Darnell
Cen-Tex Bar Association/MexiaMichelle Latray
Bee County Regional PD/BeevilleMichelle Ochoa
Hidalgo County/EdinburgAbner Burnett
Williamson CountyR. Scott Magee
Fort Bend CountyPaul Tu & Alberto Salcedo
Denton CountyCaroline Simone
Montgomery County Criminal Defense LawyersScott Pawgan & Brian Burns

We invite you to attend the following board meetings to be held in Austin at the Wyndham Hotel: 8:00 am, Texas Criminal Defense Lawyers Educational Institute, 10:30 am, Texas Criminal Defense Lawyers Association

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 TCDLA Home Office (512-478-2514) for a list of the DVDs and accompanying CLE credit.

Don’t have a local criminal defense bar in our area? Would you like to re-energize or jump-start your organization? Are you interested in forming a local criminal defense bar and need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key (Lubbock), , or Carmen Roe (Houston), , co-chairs of the TCDLA Affiliate Committee.