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December 2017 - Page 2

Editor’s Comment: Hurry Up and Wait – By Sarah Roland

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In this season of anticipation, the prominence of the “hurry up and wait” factor is ever-present and undeniable. It always exists in our profession—waiting on clients, waiting to get paid, waiting on judges, waiting on juries—and never seems to end. And the irony of all the waiting is that we are expected to be present, ready, and on time, every time. Consistently showing up ready, unafraid, and on time is half the battle of our profession.

But how often does it happen that we have a client come in to our office after arrest, we file our request under Article 39.14 and maybe an open records request, and then the file just sits for months without any action from the state because the state is waiting on reports from the crime lab, contact with the complainant, prior judgments of conviction from out of state, etc. Consider, the wait for us, as lawyers defending our clients, can be stressful and a time of anxiety. Imagine how that stress and anxiety must be significantly greater for our clients. Should they sign up for the spring semester of college until the case is resolved? Should they move to take that new job? Should they put off having a baby? And so on. As Tom Petty reminded us, “the waiting is the hardest part.”

This is where we, as a profession, need to be more vigilant about filing speedy trial motions.

Recently, the Second Court of Appeals had an opportunity to address and recap speedy trial precedent, particularly as it applies to a defendant already serving time in federal prison. See State v. Marks, No. 02-16-00434-CR (Tex. App.—Fort Worth, October 19, 2017) (mem. op.) (not designated for publication). While the opinion offers no novel legal rules or principles, it serves to remind us that all of us enjoy the right to a speedy trial, and that we should always invoke that right on behalf of our clients. After all, just like the state refusing to disclose information about a confidential informant, the best remedy under the law exists for a speedy trial violation—a dismissal of the charging instrument. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) (remedy for speedy trial violations is dismissal); Tex. R. Evid. 508(c)(2) (remedy for failure to disclose information regarding confidential informants is dismissal).

The Sixth Amendment to the United States Constitution guarantees the accused’s right to a speedy trial. Zamora v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand v. State, 254 S.W.3d 560, 565 (Tex. App.—Fort Worth 2008, pet. ref’d.) In determining whether this right has been violated, courts weigh and balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion fo the right; and (4) prejudice to the de­fen­dant resulting from the delay. See Barker v. Wingo, 407 U.S. 514, 530–32, 92 S.Ct. 2182, 2191–93 (1973) (creating test under federal constitution); Cantu v. State, 253 S.W.3d 273, 280 n. 16 (Tex. Crim. App. 2008) (stating that test under Texas constitution uses same four Baker factors); see also State v. Jones, 168 S.W.3d 339, 346–52 (Tex. App.—Dallas 2005, pet ref’d.) (applying Baker factors to motion to dismiss for alleged speedy-trial violation; State v. Marks, No. 02-16-00434-CR (Tex. App.—Fort Worth, October 19, 2017) (memorandum opinion) (applying Baker factors to motion to dismiss for alleged speedy-trial violation).

The length of the delay is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 321 n. 12, 92 S.Ct. 455, 463 n. 12 (1971). Generally, depending on the nature of the crime charged, courts have found post-accusation delay presumptively prejudicial when it approaches one year. Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 2691 n. 1 (1992); Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).

If a presumptively prejudicial delay has occurred, the State bears the initial burden of justifying the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1192 (1995). It is the State that is responsible for getting a defendant to trial, not the defendant himself. Barker, 407 U.S. at 527, 92 S.Ct. at 2190 (“A defendant has no duty to bring himself to trial”). In fact, the State must try to prosecute a person who is in federal custody even if that defendant is out of state. Smith v. Hooey, 393 U.S. 374, 382–83, 89 S.Ct. 575, 579 (1969). A deliberate attempt to delay a trial, for example, is weighed heavily against the State, while more neutral reasons, such as negligence or overcrowded dockets, are still weighed against the State but less heavily. Munoz, 991 S.W.2d at 822. Bad faith on the part of the State is not a prerequisite to a speedy-trial violation; official negligence can suffice. See Marks, No. 02-16-00434-CR (Tex. App.—Fort Worth 2017) (citing Doggett, 505 U.S. at 656–57, 112 S.Ct. at 2693, and including an in-depth discussion about bad faith).

The third Barker factor that a trial court must consider is the defendant’s assertion of his right to a speedy trial. 407 U.S. at 531, 92 S.Ct. at 2192; Munoz, 991 S.W.2d at 825. Consider, then, discussing the right to a speedy trial with your client at the beginning of representation and perhaps including such a request alongside a timely request for discovery pursuant to Article 39.14.

The final Barker factor examines whether and to what extent the delay has prejudiced the defendant. Cantu, 253 S.W.3d at 285. Generally, three interests are considered in determining prejudice: (1) preventing oppressive pretrial incarceration; (2) minimizing the accused’s anxiety and concern; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. But proof of actual prejudice is not required when the delay is excessive, because such a delay “presumptively compromises the reliability of a trial in ways that neither party can prove or even identify.” Shaw, 117 S.W.3d at 890. If an accused can show prejudice, the burden shifts to the State to prove that the accused suffered no serious prejudice beyond that which ensued from ordinary and inevitable trial delay. Munoz, 992 S.W.2d 818.

“Hurry up and wait” is a given in our profession. We deal with it daily. But let’s all remember that there is something we can, and should, do to address the excessive wait times between arrest and trial that some of our clients unnecessarily suffer.

During this holiday season, here’s to hoping we will all be more mindful, less judgmental, ready to forgive, and at peace in the coming year.

Ethics and the Law: A Little Bit Crazy

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Another recent tragic event at the Harris County Jail makes it very clear the severity of mental illness. A defendant who was set to plead to life without parole hung himself with bed sheets. Where were the guards? What happened to this poor soul who chose death over prison? What happened to the family he left? What happened to the family that was set to confront him in court in the witness impact statements?

The following is a question that was asked at a recent capital murder seminar in Houston. For years, courts and lawyers and medical professionals have been dealing with mental issues. The responses here are from members of the Ethics Committee. Lawyers joke about being crazy. There may be some truth to that since any lawyer who has extensive experience in dealing with clients with mental issues soon realizes your mind has to absorb and deal with some crazy things and learn to live with it. There are also some major ethical issues that may show up. One of these questions came up at the capital murder seminar, about taking a client off medication to show a jury what their behavior is like when they’re not medicated.

Question

The question arises with any incompetent client facing years in prison. The attorney believes the client was insane at the time of the offense, but it may be very difficult to prove at trial because of the lack of evidence gathered at the time of the offense. Is it unethical to advise your client and/or his family members to not take prescribed medications given to restore his competence (assuming there is no Order or Forced medications in place)?

I believe my ethical duty is to present the defendant at trial to the jury in the same state as he was in when the offense was committed so as to present his best case to the jury. By medicating him and making him appear sane (and very different from the way he was at the time of the offense), I am doing the client a disservice because the jury cannot see how the client really was at the time of the offense. I feel like I’m hiding the truth from the jury.

Is it unethical to advise a client to risk incompetency in order to record his appearance so that his mental illness can later be displayed to a jury?

Response by Keith Hampton

I would first want a psychiatrist to tell me what physical effects having him go off his meds will have on him physically. I would also want to know your level of confidence that he will look as crazy as you’re anticipating he will. There are lots of people who are insane at the time of the offense, but don’t often appear to be crazy at all.

That said, I am very sympathetic to the desire to have him filmed. I did a survey of all the murder acquittals by reason of insanity in Texas a few years ago, and virtually every one who was acquitted had been filmed at or near the time of the murders. I saw some of these, and it was easy to see why they were acquitted. Video is superior to witnesses recounting the person’s behavior and definitely superior to simply having experts. I won four verdicts of not guilty by reason of insanity for a vet last year, in part because he was filmed by the dash cam shortly after his crimes.

But back to the question of ethics. If the court has ordered him to take his meds, I think you can tell a client to disobey a law­ful order of a court so long as the client is willing to accept the consequences.

Response by Michael Mowla

When I deal with what I believe to be an incompetent client, I immediately seek an evaluation, and if the client clearly shows ideations of incompetence, paranoia, schizophrenia, etc., I have the evaluation videotaped. I work closely with a qualified shrink, but I stay out of her way so that she can do her job. The shrink appreciates my knowledge of her field, and also appreciates that I don’t micromanage.

In 1963, congress passed an Act called the Community Mental Health Centers Act. After this act, states began receiving federal and state support to offer mental health treatment.

Dr. Geoff Grubb, a childhood friend who became a psychiatrist and was involved in prison reforms with Federal Judge William Wayne Justice, has many stories about his experiences dealing with inmates with mental issues. One thing he has stressed in communicating with me is that we as lawyers should gather all records that exist so that a defendant can be properly evaluated. His recommendation is to get client to do a family tree going back as far as possible to try and find the source of the mental problem. Often it will be discovered there is a history of mental illness in the best of families, which may explain and help the doctor diagnose and treat the illness.

Federal Corner: Maintaining a Premises for the Purpose of Manufacturing or Distributing a Controlled Substance – By F. R. Buck Files Jr.

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When I go to the doctor, I expect to get answers to my questions. What’s wrong with me? What do you need to do to make me feel better? How long will that take?

I always assume that my doctor is going to order that some tests be run. When the results come in, he will be able to answer my questions and give me his diagnosis and prognosis. Then I will have a reasonably certain understanding of what my condition is and what needs to be done in the future to improve it. There are, of course, exceptions to these generalities; however, I am usually comfortable in knowing what to expect after talking with my doctor.

Not so in the federal criminal justice system. Take, for example, our client who has been indicted after law enforcement officers bought drugs from him at a place where he lived. The Government furnishes us with the discovery in the case, and we find that the evidence against our client is overwhelming. We negotiate what we believe to be a favorable plea agreement on behalf of our client. The plea agreement usually contains language that puts us and our client on notice as to the uncertainty of the outcome of the case—e.g.,

The defendant understands that the sentence in this case will be imposed by the Court after consideration of the U.S. Sentencing Guidelines Manual (U.S.S.G. or guidelines). The guidelines are not binding on the Court, but are advisory only. The defendant has reviewed the guidelines with defense counsel, but understands that no one can predict with certainty the outcome of the Court’s consideration of the guidelines in this case. The defendant will not be allowed to withdraw the plea entered pursuant to this agreement if the sentence is higher than expected, so long as it is within the statutory maximum. The defendant understands that the actual sentence to be imposed is solely in the discretion of the Court.

        The parties understand that the Court is not bound by these stipulations. Furthermore, the parties specifically agree that other specific offense characteristics or guideline adjustments may increase or decrease the appropriate sentencing range.

Our client enters his plea of guilty, and we wait for the Presentence Investigation Report to be completed. When we receive it, we review it with fear and trembling, knowing that some probation officers seem to delight in finding ways to increase a defendant’s advisory Guideline level. And then we appear in front of a United States District Judge, wondering what his reaction will be to our plea agreement and the Presentence Investigation Report.

Many clients find it difficult to understand why we cannot predict—with certainty—what the outcome of their cases will be. In federal drug prosecutions, where the drug transaction occurs or what is found there when a search warrant is executed can increase the advisory Guideline level by two levels. See United States Sentencing Guideline § 2D1.1(12), which reads as follows:

If the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, increase by 2 levels [emphasis added].

So what does “maintaining a premises” mean? On October 20, 2017, a panel of the United States Court of Appeals for the Seventh Circuit affirmed the convictions and sentences of Daniel Cantreras, holding that a two-level increase in each case for “maintaining a premises for the purpose of manufacturing or distributing a controlled substance was proper.” United States v. Contreras, ___F.3d___, 2017 WL 4707506 (7th Cir. Oct. 20, 2017) [Panel: Circuit Judges Kanne, Rovner, and Sykes. Per Curiam]. The Court’s opinion gives us a good overview as to the analysis that is to be conducted in each case in order to determine whether a defendant has maintained such a premises.

[An Overview of the Opinion]

Daniel Contreras pleaded guilty to various drug-trafficking offenses in three separately charged criminal cases assigned to three different district judges. When calculating the guide­lines range at sentencing, each district judge applied an upward adjustment of two offense levels after finding that Contreras maintained a premises—his home—“for the purpose of manufacturing or distributing a controlled substance.” See U.S.S.G. § 2D1.1(b)(12). Contreras appeals his concurrent 87-month sentences, arguing that each judge erred by not comparing the frequency of legal activity to the frequency of illegal activity that occurred at his residence. We affirm the sentences because the eight drug transactions that Contreras conducted at his home support a finding that drug trafficking was a primary use of the residence, not an incidental or collateral one.

[The Indictments]

On January 7, 2015, a grand jury returned three indictments against Contreras, charging him with drug trafficking offenses including distribution of cocaine, possession with intent to distribute cocaine, conspiracy, and unlawful use of a telephone to distribute drugs.

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In summary, the government alleged that Contreras engaged in a total of seven drug transactions from his home in the two-month period of March and April 2013, and one more in the fall of that year.

[The Guilty Pleas and the Presentence Investigation Reports]

Contreras pleaded guilty to all counts in each of his three cases, with the exception of one count of distributing 500 grams or more of cocaine, which was dismissed . . . The probation officer who prepared the presentence investigation reports concluded (and both sides agreed) that Contreras’ base offense level in each case was 30, and proposed in each case to add two levels under U.S.S.G. § 2D1.1(b)(12) because Contreras had “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” In his objections to the presentence reports and at his sentencing hearings, Contreras consistently argued that the two-level adjustment did not apply.

[The Sentences Imposed]

Judge St. Eve, the first to sentence Contreras, concluded that the two-level adjustment should be added to Contreras’ offense level. Based upon the eight transactions involving wholesale quantities of cocaine that occurred at Contreras’ residence, she found the sale of drugs at the premises to be more than incidental; in fact, she said, the residence was “integral” to the transactions. At the next sentencing hearing, Judge Leinenweber explained that the adjustment applied because the drug activity was “almost . . . regular,” not occasional. At the final sentencing hearing Judge Zagel also applied the two-level increase, adopting the same rationale as the other two judges, without elaboration. The defendant and his attorney (the same for each case) were present at each hearing.

        After crediting Contreras with a three-level reduction for acceptance of responsibility, each judge found the total offense level to be 29. Contreras’ criminal history category of I resulted in a guidelines range of 87–108 months’ imprisonment in each case. All three judges imposed 87-month sentences, each to run concurrently with the others.

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[The Defendant’s Argument on Appeal]

On appeal Contreras contends that each district judge improperly applied the two-level increase to his offense level for maintaining premises for drug distribution. He primarily argues that the judges failed to expressly compare the legal uses of his premises with the unlawful uses. Contreras relies upon Comment 17 to section 2D1.1 of the sentencing guidelines, which states that judges should “consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.” Relying on a different part of the same comment, Contreras contends that drug trafficking was not a “primary or principal” use of the premises, but rather an incidental use of the home by “an ordinary drug dealer” (his term). Finally, Contreras argues that the adjustment does not apply because there were no “tools of the trade” found at his residence. None of these related arguments carries the day.

[The Court’s Response]

Contreras is correct that, for § 2D1.1(b)(12) to apply, manufacturing or distributing a controlled substance must be a “primary or principal” use for the premises. U.S.S.G. § 2D1.1 cmt. n. 17. But drug distribution does not need to be the sole use of a premises in order for it to constitute a “primary” use; it simply must be “more than incidental or collateral.” United States v. Acasio Sanchez, 810 F.3d 494, 497 (7th Cir. 2016); see United States v. Evans, 826 F.3d 934, 938 (7th Cir. 2016). Although Contreras cites this language, his analysis seems to mistakenly equate “primary” use with “most frequent.”

[Unlawful Purpose v. Lawful Purpose]

And contrary to Contreras’ argument, to determine whether drug distribution was a primary or incidental use, the district courts are not required to apply a simple balancing test that compares the frequency of unlawful activity at the residence with the frequency of lawful uses. As we have noted, applying such a test would immunize every family home that is also used for drug distribution from being deemed an illegally maintained “premises”; the amount of lawful activity in a home is all but certain to exceed the amount of illegal activity. United States v. Flores-Olague, 717 F.3d 526, 533 (7th Cir. 2013) (“Congress in enacting [21 U.S.C.] § 856 and in directing the Commission to adopt § 2D1.1(b)(12) surely intended to deter the manufacture and distribution of illegal drugs in ‘crack houses’ where children are being raised”) (quoting United States v. Miller, 698 F.3d 699, 707 (8th Cir. 2012)). Instead of merely weighing the amount of legal activity against the illegal activity, the sentencing court should focus on both the frequency and significance of the illicit activities, including factors such as quantities dealt, customer interactions, keeping “tools of the trade” and business records, and accepting payment. Flores-Olague, 717 F.3d at 533; United States v. Edwin Sanchez, 710 F.3d 724, 732 (7th Cir. 2013), vacated on other grounds, Sanchez v. United States, ___ U.S. ___, 134 S.Ct. 146, 187 L.Ed.2d 2 (2013).

        In these cases each judge considered both the frequency and significance of illicit activities in determining that the two-level increase applied.

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[Applying the Law to the Facts]

In this case, the applicability of § 2D1.1(b)(12) turns on whether drug-dealing was a primary use of the home—whether it was frequent and significant enough. It was.

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[Seventh Circuit Precedent]

Furthermore, our conclusion in Sanchez that, on the facts of that case, warehousing drugs was more than an “incidental” use of the home does not amount to a rule that storing drugs in the home is a prerequisite for applying § 2D1.1(b)(12), although Contreras would have it that way. Courts look to all the relevant facts of a particular case in determining whether a primary purpose of a dwelling is drug trafficking. See Flores-Olague, 717 F.3d at 533. Similarly, although Contreras emphasizes the absence of scales, baggies, firearms, or other equipment associated with drug trafficking, there is no rule that “tools of the trade” must be found in the residence for it to be considered a premises maintained for the purpose of distributing drugs. Indeed we rejected an identical argument in Sanchez, concluding that “tools of the trade” may suggest that drug trafficking was a principal use of the premises, but that is “not the only relevant inquiry.” Sanchez, 810 F.3d at 497 (citing Flores-Olague, 717 F.3d at 533).

        And even if Contreras could successfully differentiate his case from Sanchez, he would still run up against our recent decision in United States v. Winfield, 846 F.3d 241. In Winfield, the defendant argued that evidence of four drug sales in a twelve-week period was insufficient to demonstrate that drug distribution was a primary purpose of his home. We concluded otherwise, and upheld the application of the adjustment over the defendant’s argument that his case was not “the sort of multi-kilogram, long-going storage case that supports a premises enhancement.” Here the government presented evidence of a greater number of transactions (seven) occurring at his home in a shorter period of time (two months). It follows that Contreras’ cases are at least as likely to warrant the adjustment.

The case law in the United States Court of Appeals for the Fifth Circuit is consistent with the Seventh Circuit’s opinion in Contreras; e.g., see United States v. Haines, 803 F.3d 713 (5th Cir. 2015) [Panel: Circuit Judges King, Smith, and Elrod. Opinion by Judge Elrod. Affirmed in part, vacated in part, and remanded.]

[The Defendant’s Position on Appeal]

. . . Iturres–Bonilla argues that the district court erred in applying a two-level sentencing enhancement because Iturres–Bonilla “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” USSG § 2D1.1(b)(12). Iturres–Bonilla objected to the imposition of this enhancement. The district court overruled the objection, finding that Iturres–Bonilla had maintained “the spot” for the purpose of making heroin transactions, as evidenced by Berry’s trips there to receive heroin and the lack of food, clothes, and personal items found when officers searched “the spot.” The thrust of Iturres–Bonilla’s argument on appeal is that “the spot” was not just for drug transactions, but was more generally maintained to be a safe meeting place. He does not appear to be challenging the conclusion that he maintained the premises [emphasis added].

[The Court’s Response]

A district court’s application of § 2D1.1(b)(12) is a factual finding reviewed for clear error. See United States v. Barragan–Malfabon, 537 Fed.Appx. 483, 484–85 (5th Cir.2013), cert. denied, ___U.S. ___, 134 S.Ct. 716, 187 L.Ed.2d 574 (2013) (district court did not clearly err in determining that a primary use of the home was the storage of controlled substances for distribution purposes); United States v. Chagoya, 510 Fed.Appx. 327, 328 (5th Cir.2013) (“[Defendant–Appellant] has not shown that the district court clearly erred in assessing him an increase in offense level under § 2D1.1(b)(12)”). The district court did not err. The Sentencing Guidelines specify that “distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises.” USSG § 2D1.1 cmt. n. 17. The district court made factual findings, supported by the record, showing that one of the main purposes for the apartment was drug distribution. Iturres–Bonilla has not shown how the district court’s decision was erroneous. His sentence is affirmed.

My Thoughts

  • In Contreras, the Court refers to Application Note 17 to the Commentary on United States Sentencing Guideline § 2D1.1 and notes that “. . . the district courts are not required to apply a simple balancing test that compares the frequency of unlawful activity at the residence with the frequency of lawful activity.” This is important for us—and our client—to understand.
  • Whether a defendant has maintained a premises is going to be determined on a case-by-case basis. Perhaps my cynicism is showing, but I believe that it is safe to say that there will be a two-level upward adjustment if enough drugs were found on the premises or if enough drug transactions took place at the premises. What’s enough? That’s what each case is about.
  • The lesson from these cases is simple: Always warn your client of the possibility of an upward adjustment if drugs are found at a premises that he maintains. Then he won’t be surprised when he reviews the Presentence Investigation Report.

Shout Outs

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A big shout out to Facebook fave Casie Gotro for the recent mistrial declared in her Waco Twin Peaks case, following yet another release of discovery evidence not previously tendered—from both the city of Waco and the DPS. The jury in the case was deadlocked after more than 14 hours deliberating (according to a courthouse source, no more than six jurors favored a guilty verdict). The case against the president of the Dallas Bandidos, the first of the 155 to be tried, was ostensibly the one sure win that prosecution could build on for successive trials. D was charged with engaging in organized criminal activity with an underlying offense of murder, engaging in organized criminal activity with an underlying offense of aggravated assault, and a charge of directing the activities of a criminal street gang for his alleged involvement in the 2015 shootout at the Twin Peaks restaurant in Waco. The TCDLA Facebook page was alight with indignation from fellow warriors over the course of events, amid news that the cost of the prosecutions already approached $1 million—not even taking into account civil actions that may ensue. Kudos from all for one particular TV clip showing Casie at the bat: http://www.kcentv.com/news/twin-peaks-defense-attorney-calls-prosecutors-behavior-criminal-/489500387. A new trial has been set for the spring.

In other adventures in the Twin Peaks muddle, Clint Broden of Dallas turned his case every which way but loose. In a hearing sought to disqualify the DA in his case, Clint called him to testify, then looked to subpoena the same to testify in defense of his D. When the dust settled, Judge Johnson of McLennan County recused himself, then the DA recused himself and his office. Three defense attorneys from Houston were appointed as special prosecutors and a retired judge brought in on his case. Stay tuned for further developments.

Congratulations to Katie Bishkin of Dallas for a big trial court reversal out of the Ft. Worth Court of Appeals. The Court ruled that the domestic violence memo program D completed was an “authorized pretrial intervention program” and therefore immediately expunction eligible as a matter of law. As officemate Danny Clancy pointed out, this was the first time a Texas court of appeals has taken up the issue of what it means to be an authorized pretrial intervention (or diversion) program within the meaning of the expunction statute: “The takeaway here is that so long as your client is being supervised by CSCD while participating in a diversion program (and assuming the DA does not require a waiver of right to expunction), he or she should be expunction eligible immediately upon completion of the program and dismissal of the case.” Kudos, Katie, for setting the bar a little bit higher.

Shout out to assistant PD Shoaib Daredia and Chief PD Rick Shumaker of the Bowie County Public Defenders Office for their work on a two-count indecency by contact case. The jury returned a not guilty on Count 1, touching of the breasts, and guilty on Count 2, touching of the genitals. State asked for at least ten years in punishment and offered ten years pretrial. The jury returned a punishment of 4½ years. Rick notes that the CAC interviewer claimed that in 1,600 interviews she “had never been wrong in her opinion that the child’s ‘behavior’ was consistent with having been sexually assaulted.” Such perfection is commendable. Good job, team, on a tough assignment.

Congrats to Laura McCoy of Mount Pleasant for her win the second time around on an indecency with child – sexual contact. Laura was court-appointed last November in the case, which ended in a mistrial (8 NG, 4G). D was a 71-year-old man accused by his step-great-grandson of fondling him . A step-grandson testified at the first trial in regards to crazy extraneous offenses under article 38.37, but he moved to California and the State didn’t get an out-of-state subpoena for him for the retrial. Laura credits Hilary Sheard for coming through in the clutch with an outline that helped her keep out that prior testimony. The jury only took an hour to return a not guilty verdict. Laura says she used the Tylenol example from David Ball’s new criminal defense book in voir dire and closing arguments, her first time trying it, and it proved effective. Way to go, Laura.

Kudos to Steve Gordon and Brian Salvant of Fort Worth for their efforts in a capital murder trial leading to a LWOP for D, convicted of murder during a violent fight in a burglary attempt. Jury returned the verdict after just two hours deliberating. Congratulations, guys, for saving another life.

Shout out to John Gioffredi for a righteous decision in a recent DWI trial in Denton. With a .20 breath test, there was no application for probation, a 12-hour sentence, and$0 fine. Judge Vahlenkamp credited her with 12 hours back time, with a 180-day DL suspension, 90 days credit for ALR suspension. So all she has to do is pay $354 in court costs. Nice work, John.

Congratulations to Juan Ramon Flores of Laredo, sitting second chair to Fausto Sosa on a murder trial muddied by circumstance: a jail call from co-defendant to defendant recorded by State and introduced, on theory that conversation involved them laying out an alibi. Later, when D arrested, State theorized, the exculpating statements he made to investigators matched the jailhouse calls. Court allowed the calls to come in. All’s well that ends well, though: Jury deliberated for four hours and came back with two of the two-word verdicts (for Murder and Burg habitation with intent to commit OTH felony). Kudos, guys, especially considering the trial’s particulars.

Kudos to Lane Haygood for a big win in Runnels County District Court. D was a school teacher indicted on two counts of indecency by contract. As Lane described events on the listserve: “DA indicted both cases with the date of November 11, 2016, knowing his proof was going to show September 2, 2016, for Count One and November 11, 2016, for Count Two. Used that to back-door in extraneous offenses over my objection that the State could have amended the indictment as soon as it knew of the variance in the dates and shouldn’t be permitted to use Texas’s liberal ‘on or about rules’ to provide notice of one date and then prove another when the State knows, ahead of time, that there is a variance problem.” Lane did force the State to make an election, and everything did work out in the end. After 3½ hours of deliberation, a “very fair-minded jury” returned two not-guilty verdicts. Congratulations, Lane, on a good win in a tough case.