Monthly archive

March 2018

April 2018 SDR – Voice for the Defense Vol. 47, No. 3

Voice for the Defense Volume 47, No. 3 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

Class v. United States, No. 16-424, 2018 U.S. LEXIS 1378 (U.S. Feb. 21, 2008)

        * A guilty plea by itself does not bar a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal.

United States Court of Appeals for the Fifth Circuit

United States v. Brown, No. 16-11340, 2018 U.S. App. LEXIS 5225 (5th Cir. March 1, 2018) (designated for publication)

        Under U.S.S.G. § 2B.1.1(b)(18)(A)(iii), a 6-level increase applies if a defendant is convicted under 18 U.S.C. § 1030 and the offense caused a substantial disruption of a critical infrastructure. Under U.S.S.G. § 2B.1.1(b)(18)(B), if (A)(iii) applies, and the offense level is less than 24, a court must increase the level to 24.

        Under U.S.S.G. § 2B1.1(b)(18) cmt. n.14, “critical infrastructure” as means “systems and assets vital to national defense, national security, economic security, public health or safety, or any combination of these matters.”

        “Substantial disruption” means disruption to the critical infrastructures so substantial that is has a debilitating impact on national security, national economic security, or national public health or safety.

United States v. Carbins, No. 16-30998, 2018 U.S. App. LEXIS 3585 (5th Cir. Feb. 15, 2018) (designated for publication)

        Review of the sufficiency of evidence is de novo when a defendant moves for acquittal in the district court.

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), the evidence is sufficient if after viewing it and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference. Although the jury may make factually based inferences, a conviction cannot rest on an unwarranted inference, the determination of which is a matter of law.

        Under 18 U.S.C. § 1028A (aggravated identity theft), during and in relation to a felony enumerated in subsection (c), if a person knowingly transfers, possesses, or uses without lawful authority a means of identification of another person, the person will be punished for two years consecutive to the punishment provided for the felony. Subsection (c) includes theft of Government money under 18 U.S.C. § 641. “Means of identification” is any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including social security number or date of birth.

        Knowledge includes where a defendant exhibits deliberate ignorance.

Editor’s Note: Deliberate ignorance occurs where evidence is presented that the defendant “deliberately closed [his] eyes to what would otherwise have been obvious to [him].” The instruction may be given in conspiracy cases. To the extent that the instruction is merely a way of allowing the jury to arrive at the conclusion that the defendant knew the unlawful purpose of the conspiracy, it is consistent with a finding that the defendant intended to further the unlawful purpose.

  • The proper factual basis for the deliberate ignorance instruction exists if the record supports inferences that: (1) the defendant was subjectively aware of a high probability of the existence of illegal conduct; and (2) the defendant pur­posely contrived to avoid learning of the illegal conduct. In deciding whether the evidence reasonably supports the jury charge, the court reviews the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the government.
  • Under United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015), the deliberate ignorance instruction should be given only in “rare instances” because once a jury learns that it can convict a defendant despite evidence of a lack of knowledge, it will be misled into thinking that it can convict based on negligent or reckless ignorance rather than intentional ignorance. In other words, the jury may erroneously apply a lesser mens rea requirement, or a “should have known” stan­dard of knowledge. The instruction is appropriate only in the circumstances where a defendant claims a lack of guilty know­ledge and the proof at trial supports an inference of de­lib­erate indifference.
  • Under United States v. St. Junius, 739 F.3d 193, 204–205 (5th Cir. 2013), when the government’s theory is that the defendant knew of the criminality, giving the instruction is harmless where there is substantial evidence of actual knowledge.
  • The Fifth Circuit Pattern Jury Instruction 1.37A for Deliberate Ignorance: “You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.”

United States v. Garcia, No. 17-40175, 2018 U.S. App. LEXIS 4235 (5th Cir. Feb. 22, 2018) (designated for publication)

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), the evidence is sufficient if after viewing it and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference. Although the jury may make factually based inferences, a conviction cannot rest on an unwarranted inference, the determination of which is a matter of law.

        Under 8 U.S.C. § 1324(a)(2)(B)(ii) (bringing unlawful aliens into the United States for commercial advantage or private financial gain), “commercial advantage or private financial gain” means that the defendant must seek to profit or otherwise secure some economic benefit from the smuggling endeavor. A smuggler who seeks only her incurred smuggling costs seeks no economic gain but aims to maintain her financial status quo. However, the jury may consider circumstantial indicators of pecuniary motive.

United States v. Huerra, No. 16-11783, 2018 U.S. App. LEXIS 4858 (5th Cir. Feb. 27, 2018) (designated for publication)

        Under the good-faith exception, when officers seize evidence through objectively reasonable reliance on a search war­rant, courts need not suppress the evidence. The fact that a magistrate has issued the warrant can establish that officers executed the warrant in good faith, but officers may not rely on a warrant that was supported only by a bare-bones affidavit. An affidavit is bare-bones only if it is so deficient in demonstrating probable cause that it renders an officer’s belief in its existence completely unreasonable. Affidavits that merely state that the affiant has “cause to suspect and does believe” or “has received reliable information from a credible person and does believe that contraband is located on the premises” are bare bones. This determination is made by evaluating the totality of the circumstances.

        Older tips from a CI are not stale if the affidavit clearly shows a long-standing, ongoing pattern of criminal activity.

        Probable cause exists if there is a fair probability that contraband or evidence of a crime will be found in a place considering all the circumstances set forth in the affidavit. A warrant’s supporting affidavit must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. Technical requirements of elaborate specificity do not apply. Great deference must be given to the state court’s determination that probable cause existed.

        The Sixth Amendment guarantees a fair and impartial jury. A jury is unfair and partial if the jurors had such fixed opinions that they could not judge impartially the guilt of the defendant. Jurors need not be totally ignorant of the facts and issues involved. Jurors are considered fair and impartial so long as they can lay aside an impression or opinion and render a verdict based on the evidence presented in court.

        When a defendant objects to the career-offender finding, the defendant must identify which felony convictions the district court should ignore or explain why it should ignore them.

        Error raised for the first time on direct appeal that could have been (but was not) raised in the district court is reviewed for plain error, which requires showing: (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        Convictions under Tex. Health & Safety Code § 481.112 are not predicate offenses for the career-offender enhancement.

United States v. Herrold, No. 14-11317, 2018 U.S. App. LEXIS 4068 (5th Cir. Feb. 21, 2018) (en banc) (designated for publication)

        Under the Armed Career Criminal Act (ACCA), the sentences of defendants with at least three previous convictions for a “violent felony” or “serious drug offense” may be enhanced.

        When a statute is alternatively phrased (like burglary), com­prised of disjunctive subsections, a court must determine whether the statute sets forth alternative means of committing a single substantive crime (statute is indivisible) or separate elements (defining distinct offenses) (statute is divisible). If a statute is indivisible, a court must compare the statute to its federal generic counterpart and determine whether any part falls outside the federal template (categorical approach). If a statute is divisible, a court must isolate the alternative under which the defendant was convicted and apply the federal template to only that alternative (modified categorical approach).

        Under the categorical approach, the court lines up the elements of the prior offense with the elements of the generic [enumerated] offense to see if they match. If the elements of the prior offense cover conduct beyond what the generic offense covers, then it is not a qualifying offense. The categorical approach does not consider the conduct of the defendant in committing the offense but is limited to the conviction and the statutory definition of the offense.

        Under Mathis v. United States, 136 S.Ct. 2243, 2251–2254 (2016), a statute is divisible (and subject to the modified categorical approach) only if it creates multiple offenses by listing one or more alternative elements (as opposed to merely listing alternative means of satisfying an element). The difference is that a trier of fact must agree on one of multiple elements that a statute lists versus not agreeing on the same alternative means so long as the trier of fact concludes that the defendant engaged in one of the possible means of committing a crime.

        If a statute is “divisible,” meaning it sets out one or more ele­ments of the offense in the alternative, the court applies the mod­ified categorical approach to narrow an offense that otherwise would not be a categorical match with an enumerated offense. Descamps, 133 S.Ct. 2276, 2281 (2013).

        Under the modified categorical approach, a court looks at “Shepard documents”: indictment or information, terms of a plea agreement, or transcript of the plea hearing in which the factual basis for the plea was confirmed by the defendant. This occurs if state law fails to provide a clear answer to the means or elements question, and the “Shepard documents” are reviewed only to determine whether the listed items are elements of the offense. If the Shepard documents reiterate all the terms of the law, then each alternative is only a possible means of commission, not an element that must be proved.

        Under Tex. Penal Code § 30.02(a), person commits an offense if, without the effective consent of the owner, the person: (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. Tex. Penal Code §§ 30.02(a)(1) and (a)(3) are indivisible. Texas courts have held that a jury need not unanimously agree on whether Tex. Penal Code § 30.02(a)(1) or (a)(3) applies to sustain a conviction, and (a)(1) or (a)(3) are not distinct offenses but separate means of committing one burglary offense.

        The ACCA definition of “generic burglary” requires un­law­ful or unprivileged entry into, or remaining in, a building or structure with intent to commit a crime, but Tex. Penal Code § 30.02(a)(3) criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime. Thus, the categorical approach is used.

        Tex. Penal Code § 30.02(a)(3) is nongeneric because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.

Editor’s Note: I have summarized Mathis issues numerous times in prior SDRs. This is a 55-page opinion that goes deep into the history of the ACCA, Mathis, and its progeny. Refer to the online version for the relevant facts and law.

King v. Davis, No. 16-70018, 2018 U.S. App. LEXIS 4259 (5th Cir. Feb. 22, 2018) (designated for publication)

        Under Berghuis v. Thompkins, 560 U.S. 370, 390 (2010), federal courts can deny writs of habeas corpus under § 2254 by en­gag­ing in de novo review when it is unclear whether AEDPA deference applies.

        Under Strickland v. Washington, 466 U.S. 668, 687 (1984), to prove IATC, an applicant must show by a preponderance of the evidence that: (1) trial counsel’s performance was deficient by showing he failed to satisfy an objective standard of reasonableness under prevailing professional norms, with reasonableness assessed under the circumstances of the case viewed as of the time of counsel’s conduct and under the totality of the representation; and (2) he was prejudiced by the deficient performance.

        An IATC claim must identify with particularity the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.

        Trial counsel’s strategic decisions must be informed by a reasonable preliminary investigation. A decision not to investigate an issue must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.

        A defendant’s desire to have a specific defense theory presented does not amount to IATC.

        To prevail on an IATC claim based upon uncalled witnesses, an applicant must name the witness, demonstrate that the witness would have testified, set out the content of the witness’ proposed testimony, and show that the testimony would have been favorable.

Editor’s Note: AEDPA deference refers to 28 U.S.C. § 2254(d). Under 28 U.S.C. § 2254(d), a state prisoner may not obtain relief with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law as determined by the SCOTUS; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of (i.e., considering) the evidence presented in the state court proceeding. See Salazar v. Dretke, 419 F.3d 384, 395 (5th Cir. 2005) (describing standards under 2254(d)); see also Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000) (same), and Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000) (same).

        Determination of 28 U.S.C. § 2254(d)(1): To determine whether the decision of the state habeas court resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the SCOTUS, a federal court must consider whether the “state-court decision . . . correctly identified the governing legal rule . . . and applied it reasonably to the facts of a particular prisoner’s case.” See Williams v. Taylor, 529 U.S. 362, 405–408 (2000), and Harrington v. Richter, 131 S.Ct. 770, 784–786 (2011). A legal principle is “‘clearly established’ within the meaning of this provision only when it is embodied in a holding of this Court,” which means the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision. Carey v. Musladin, 549 U.S. 70, 74, 77 (2006); see also Pippin v. Dretke, 434 F.3d 782, 792 (5th Cir. 2005) (“A trial court’s credibility determinations made on the basis of conflicting evidence are entitled to a strong presumption of correctness and are ‘virtually unreviewable’ by the federal courts.”).

        In the federal court’s assessment of whether the decision was “contrary to, or involved an unreasonable application of, clearly established federal law” under § 2254(d)(1), “the record under review” is “limited to the record that was before the state court that adjudicated the claim on the merits”; “[i]f a claim has been adjudicated on the merits by a state court,” “evidence introduced in federal court has no bearing on § 2254(d)(1) review.” See Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 1401 (2011); cf. Martinez v. Ryan, 132 S.Ct. 1309, 1318 (2012) (a federal habeas petitioner may establish cause to excuse a procedural default as to an IAC claim by showing: (1) state habeas counsel was constitutionally deficient in failing to include the claim in his first state habeas application, and (2) the underlying IAC claim is “substantial,” meaning that it has “some merit.”) and Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013) (applying Martinez to Trevino, a Texas death-penalty case).

        Determination of 28 U.S.C. § 2254(d)(2): A federal court may also grant relief if the state court’s decision resulted in a de­cision that was based on an unreasonable determination of the facts considering the evidence presented in the state court pro­ceed­ing. A determination of a factual issue made by the state habeas court shall be presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (In explaining § 2254(e)(1), the SCOTUS held that “the standard is demanding but not insatiable,” and “. . . deference does not by definition preclude relief.”); Bell v. Cone, 535 U.S. 685, 693 (2002) (explaining that the provisions of the AEDPA “modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.”).

Editor’s Note: The Fifth Circuit in King v. Davis observed, “It strains credulity to think that the jury could be convinced that King’s tattoo collection, which includes numerous symbols associated with white supremacy and an image of a black man hanging from a tree, were not racist.” The counterargument was that King’s tattoos and racial attitudes were not “racist,” but instead part of a self-preservation strategy developed in prison. Which is correct?

Texas Court of Criminal Appeals

Febus v. State, No. PD-1369-15, 2018 Tex. Crim. App. LEXIS 60 (Tex. Crim. App. Feb. 14, 2018) (designated for publication)

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

        Under Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”

        Failure to comply with the requirements of registering as a sex offender under Tex. Code Crim. Proc. Ch. 62 is a “circumstances of the conduct” type of offense, and the “circumstance” at issue is the duty to register. The culpable mental state of “knowledge and recklessness” applies only to the duty-to-register element, rather than the failure-to-comply element. When authorities rebuff attempts to register, the sex-offender may not be criminally liable on the basis that his failure to register was involuntary.

Ex parte Pue, No. WR-85,447-01, 2018 Tex. Crim. App. LEXIS 63 (Tex. Crim. App. Feb. 28, 2018) (designated for publication)

        Under Tex. Penal Code § 12.42(d), except as provided by (c)(2) or (c)(4), if it is shown on the trial of a felony offense other than a state jail felony punishable under 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment for 25–99 years or life. A previous conviction for a SJF punishable under 12.35(a) may not be used for enhancement purposes under this section. 12.42(c)(2) and 12.42(c)(4) address enhancement when the charged offense and previous felony offenses were sexual assault or human trafficking offenses.

        In Texas, only convictions that are “final” can be used for enhancement, and a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. A successfully served probation is not avail­able for enhancement purposes. A probated sentence can turn into a final conviction if probation is revoked. It is the State’s burden to prove finality for purposes of enhancement under Tex. Penal Code § 12.42(d).

        Under the Full Faith and Credit Clause, states must recognize “public acts, records, and judicial proceedings of every other State.” Thus, an out-of-state prior final felony conviction can be used to enhance a sentence imposed in Texas. However, the out-of-state conviction must be a “final” conviction.

        Whether a prior conviction (in or out-of-state) is “final” under Tex. Penal Code § 12.42 is to be determined under Texas law.

Shortt v. State, No. PD-0597-15, 2018 Tex. Crim. App. LEXIS 57 (Tex. Crim. App. Feb. 14, 2018) (designated for publication)

        Courts of appeals have the authority to entertain a defendant’s appeal from an order granting shock probation because Tex. Code Crim. Proc. Art. 42.12 § 23(b) [now Art. 42A.755(e)] authorizes a defendant to appeal from an order granting shock-probation

Editor’s Note: The shock-probation statute is now Tex. Code Crim. Proc. Art. 42A.202, and Art. 42.12 § 23(b) is now Art. 42A.755(e), and reads in relevant part, “[T]he right of the defendant to appeal for a review of the conviction and punishment, as provided by law, shall be accorded the defendant at the time the defendant is placed on community supervision.”

Wagner v. State, No. PD-0659-15, 2018 Tex. Crim. App. LEXIS 59 (Tex. Crim. App. Feb. 14, 2018) (designated for publication)

        Under Tex. Penal Code § 25.07(a)(2)(A), a person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault ,or abuse, stalking, or trafficking case (or an order of protection) communicates directly with a protected individual or a member of the family or household in a threatening or harassing manner.

        Under United States v. Williams, 553 U.S. 285, 293 (2008), to determine whether a statute is vague or overbroad, a court must: (1) construe the challenged statute to determine what the statute covers by applying rules of statutory construction to the statutory text (statutory construction requires the court to interpret a statute by the plain meaning of its language by reading words and phrases in context and construed according to the rules of grammar and usage unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended); and (2) determine if its prohibitions are clearly defined and provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes seriously discriminatory enforcement.

        Tex. Penal Code § 25.07(a)(2)(A) narrowly applies to a limited group of people under a specified set of circumstances and requires evidence that a defendant acted with a culpable mental state in communicating in a harassing manner, such that the com­munications would persistently disturb, bother continually, or pester another person.

        Under Tex. Gov. Code § 311.011(a) and Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017), in determining plain meaning, words and phrases must be read in context and construed according to the rules of grammar and usage. The courts pre­sume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible. If the language of the statute is plain, the courts effectuate that plain language without resort to extratextual sources. If an interpretation of the plain language would lead to absurd results or the language is ambiguous, then the courts may review extratextual resources to discern the legis­lative intent underlying the statutory language. A statute is am­big­uous when it is reasonably susceptible to more than one in­ter­pretation.

        A person communicates in a “harassing manner” if the mode or method by which he communicates is such that it would persistently disturb, bother continually, or pester another person. “Persistently disturb” and “bother continually” require mul­tiple events of harassing communication. “Pesters” means troubling or annoying someone with frequent or persistent requests or interruptions.

        A person of ordinary intelligence would understand that if he has been enjoined from communicating in a harassing manner towards a particular person through one of the specified types of protective orders or bond conditions, then Tex. Penal Code § 25.07(a)(2)(A) prohibits him from intentionally or knowingly sending information or messages to, or speaking to, the protected person in a manner that would persistently disturb, bother continually, or pester another person. This conduct may include persistent, frequent, or continual requests or interruptions that the actor engages in with the knowledge or intent that such conduct would disturb, bother, or pester a person whom a court has already determined needs greater protection than other people based on a risk that the defendant may harm the protected person in the future.

        Generally, a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in all its applications. Under New York v. Ferber, 458 U.S. 747, 770 (1982), and Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002), the overbreadth doctrine allows a challenge to a law that regulates speech if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” The doctrine prohibits the government from “banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”

        Tex. Penal Code § 25.07(a)(2)(A) is not overly broad.

        Under United States v. Williams, 553 U.S. 285, 293 (2008), a statute is void for vagueness if its prohibitions are not clearly defined and fails to provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes seriously discriminatory enforcement.

        A statute is not unconstitutionally vague merely because the words or terms used are not specifically defined, but instead the words or phrase must be read in the context in which they are used, and ordinarily the statute must be construed according to the rules of grammar and common usage. A statute satisfies vagueness requirements if the statutory language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”

        Tex. Penal Code § 25.07(a)(2)(A) is sufficiently clear to provide a person of ordinary intelligence a reasonable opportunity to know that appellant’s course of conduct would be prohibited because it places a person of ordinary intelligence on notice that under circumstances in which a judge’s bond condition or protective order has already restricted his communication with a protected individual, he must not knowingly or intentionally communicate in a harassing manner with the protected individual.

Editor’s Note: A communication that is made in a “harassing manner” or described as “persistently disturb, bother continually, or pester” takes many forms. With the assistance of an unstable person with whom you communicate, it may be as simple as the difference between the contraction “you’re” and the determiner “your”:

Texas Courts of Appeals

Hughitt v. State, No. 11-15-00277-CR & 11-15-00278-CR, 2018 Tex. App. LEXIS 1082 (Tex. App. Eastland Feb. 8, 2018) (designated for publication) (op. on reh.)

        Under Tex. 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.

        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.

        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.

McFadden v. State, No. 06-17-00040-CR, 2018 Tex. App. LEXIS 920 (Tex. App. Texarkana Feb. 1, 2018) (designated for publication)

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

        Under Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”

        Under Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991), when a jury has rejected the claim of self-defense, an appellate court must determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.

        Under Tex. Penal Code § 9.31(a), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. And under Tex. Penal Code § 9.32(a), a person is justified in using deadly force against another when and to the degree the actor reasonably believes the deadly force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force.

        Under Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003), in a self-defense claim, a defendant bears the burden of production, which requires the production of some evidence that supports the justification. Once a defendant produces such evidence, the State bears the burden of persuasion to disprove the raised defense beyond a reasonable doubt. The burden of per­suasion does not require the production of evidence, but rather only requires that the State persuade the jury beyond a reasonable doubt that the defendant did not act in self-defense. A jury verdict of guilt results in an implicit finding against the defensive theory.

        Under Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997), and Woodfox v. State, 742 S.W.2d 408, 410 (Tex. Crim. App. 1987), a trial court is required to charge the jury on any defensive issue raised by the evidence regardless of whether it is strong, weak, unimpeached, or contradicted, and even when the trial court is of the opinion that the testimony in not credible. It is up to the jury whether to accept a defensive theory.

        Under Tex. Penal Code § 9.42, a person is justified in using deadly force against another to protect land or tangible, movable property: (1) if he would be justified in using force against the other under Section 9.41; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

        A person does not have to wait for the actor to complete the of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime before using deadly force since if deadly force could be used only after the actor committed the offense, the defense would never apply.

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

        Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh.), if the defendant did not preserve jury-charge error, review is for egregious harm, which requires the appellate court to consider: (1) the entire jury charge, (2) the state of the evidence, (3) closing arguments of the parties, and (4) any other relevant information in the record. Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.

Editor’s Note: The first two prongs of Tex. Penal Code § 9.42 allow a property owner to use deadly force to defend his person, property, or a family member against arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime, or to stop someone who is fleeing af­ter committing one or more of these crimes. Thus, if a person enters your home to commit arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime, or is fleeing after committing one of these crimes, you may use deadly force to stop him. This is easy for the average citizen to understand.

        The second part of the third prong (“the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury”) is also easy for the average citizen to understand. Obviously, we don’t want homeowners tossing gre­nades or firing hundreds of rounds in every direction using AK-47 or AR-15-knockoffs while trying to protect life or property. This could cause injury or death to the homeowner, a member of his family, or even a passerby.

        However, the first part of the third prong of Tex. Penal Code § 9.42 is confusing, appears to conflict with the first two prongs, and may be difficult for the average citizen to understand. This prong requires the property owner to “reasonably believe that his land or property cannot be protected or recovered by any other means.” If a person enters your house, unless it’s clear that the intruder seeks assistance in an emergency, what legitimate reason would the person have to enter your home? What questions should the homeowner ask the intruder to determine whether he should shoot the intruder? Unless the Legislature meant for us to “hold the suspect at bay if possible for the police to arrive,” what “other means” of protecting one’s person or property did the Legislature have in mind?

Morris v. State, No. 08-16-00153-CR, 2018 Tex. App. LEXIS 1568 (Tex. App. El Paso Feb. 28, 2018) (designated for publication)

        The trial court abused its discretion by using a stunbelt to maintain courtroom decorum rather than for legitimate security purposes.

Editor’s Note: The court of appeals referenced Deck v. Missouri, 544 U.S. 622 (2005), as a basis of the prohibition against using restraints for any reason other than legitimate security concerns.

  • Deck involved the use of shackles before a jury during the guilt and penalty phases of a trial: “[T]he appearance of a defendant in shackles before a jury during the guilt and penalty phases of a trial can violate the defendant’s Fifth and Fourteenth Amendment rights to due process. Absent a special need, “[t]he law has long forbidden use of routine shackles during the guilt phase” because “[v]isible shackling undermines the presumption of in­no­cence and the related fairness of the factfinding process.” Id. at 625, 630.
  • In Deck, during a death-penalty trial, state authorities required the defendant to wear leg braces that apparently were not visible to the jury. Id. at 624–625.
  • The Missouri Supreme Court upheld the conviction but set aside the sentence. Id. at 625. During the new punishment hear­ing, the defendant was shackled with leg irons, handcuffs, and a belly chain, and trial counsel objected, but was overruled. Id.
  • The defendant was again sentenced to death. Id.
  • On appeal, the Missouri Supreme Court rejected the constitutional claims relating to the shackling, holding that there was no record of the extent of the jury’s awareness of the restraints, no claim that the restraints impeded the defendant from participating in the proceedings, and there was “evidence” of a risk that the defendant “might flee in that he was a repeat offender” who may have “killed his two victims to avoid being returned to custody.” Id.
  • The Missouri Supreme Court concluded there was “sufficient evi­dence in the record to support the trial court’s exercise of its discretion to require shackles,” and the defendant “has not demonstrated that the outcome of his trial was prejudiced.” Id.
  • The SCOTUS rejected the holding of the Missouri Supreme Court.
  • First, the SCOTUS observed that “[T]he law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need,” and the needless shackling of a defendant violates the defendant’s Fifth and Fourteenth Amendment rights. Id. at 626–627.
  • Second, the Court observed that during the punishment phase, “[A]lthough the jury is no longer deciding between guilt and innocence, it is deciding between life and death,” . . . and “[g]iven the ‘severity’ and ‘finality’ of the sanction, (it) is no less important than the decision about guilt.” Id. at 632.
  • Third, the Court held that “courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding,” . . . but “a judge, in the exercise of his or her discretion, (may) take account of special circumstances, including security concerns, that may call for shackling . . . [B]ut any such determination must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial.” Id. at 633.
  • Thus, the SCOTUS held “the Constitution forbids the use of vis­ible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is ‘justified by an es­sential state interest’—such as the interest in courtroom security—specific to the defendant on trial.” Id. at 624.
  • The SCOTUS also held “where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.’” Id. at 635.
  • If the use of shackles for any reason other than legitimate security concerns is prohibited, then the use of a stunbelt for any reason other than legitimate security concerns is also prohibited.

The Intersection of Mental Illness and the Criminal Justice System

When the criminal justice system and the offender with mental disorder collide, it is often a train wreck. The criminal justice system is a system comprised of systemic order, expectations, and rules whereas offenders with mental disorders—by virtue of their mental disorder—are more often scattered, unpredictable and incapable of fitting into such a system. The approach of the defense lawyer when helping a person with a mental disorder must change in order to provide complete, and constitutionally effective, representation.

A complete understanding of competency and insanity laws, in addition to diversionary court programs, is necessary to effective representation of persons with mental illness. Every practitioner should keep abreast of legislative changes to the laws pertaining to competency and insanity. Another invaluable resource is Texas Criminal Procedure and the Offender with Mental Illness (5th Ed. 2016). This text is available for download online at

II. Mental Illness

At the outset it is important to understand what is meant by the term “mental illness” in the context of the criminal justice system. Certainly, mental illness includes neurological brain disorders such as schizophrenia, bipolar disorder, clinical depression, and schizoaffective disorder. After all, the brain is an organ of the body, and like other organs of the body, the brain can become unwell. On the other hand, under the state’s civil commitment laws, the Texas Mental Health Code defines “mental illness” somewhat more broadly than a mere listing of identifiable, neurobiological brain disorders:

“Mental illness” means an illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual disability, that:

  • Substantially impairs a person’s thought, perception of reality, emotional process, or judgment; or
  • Grossly impairs behavior as determined by recent disturbed behavior.

Tex. Health & Safety Code Ann. 571.003(14); Shannon & Benson, Texas Criminal Procedure and the Offender with Mental Illness, p. 12–13 (5th Ed. 2016). Of specific note in the definition of the phrase “mental illness” in the Texas Health and Safety Code is the exclusion of substance abuse as a mental disorder or impairment; conversely, the DSM-5 treats what it terms “substance use disorder” as a mental illness.

According to the DSM-5, “[a] mental disorder is a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dys­function in the individual, as described above” [emphasis added].

Modern research efforts relating to the causes of mental illness indicate that mental illnesses are the result of neurobiological disease, not of weaknesses in character or poor parenting. Shannon & Benson, Texas Criminal Procedure and the Offender with Mental Illness at 15. Though presently mental illness is not curable, mental illnesses is a treatable disease. It is with this frame of reference and focus that all participants in the criminal justice system should view defendants with mental illness.

III. Competency

It is well-established that an incompetent criminal defendant cannot be put to trial without violating due process. Medina v. California, 505 U.S. 437, 453 (1992). The requirement of competency also applies at a proceeding to adjudicate guilt, Marbut v. State, 76 S.W.3d 742, 746 (Tex. App.—Waco 2002, pet. ref’d), and to pleas of guilty or nolo contendere, Tex. Code Crim. Proc. Art. 26.13(b).

A. Informal Inquiry

On suggestion that the defendant may be incompetent, from what­ever source, the trial judge is required to make “informal inquiry” whether there is evidence that would support a finding that the defendant may be incompetent to stand trial. Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001) (“competency inquiry”). The trial court has broad discretion concerning the nature and intensity of this inquiry. It would be considerably unwise for a trial court to dismiss any suggestion of incompetency.

Article 46B is somewhat unclear as to the basis on which a competency situation progresses from an informal inquiry into a formal determination of competency. Dix & Schmolesky, 43 Texas Practice: Criminal Practice and Procedure 31:36 (2011). However, the best practice is to order a competency examination and trial if an agreement on (in)competency cannot be reached. The standard from Sisco v. State is controlling for purposes of determining whether evidence exists to support a finding of incompetency: The judge is to ignore any evidence indicating competency and consider only that indicating incompetency. 599 S.W.2d 607 (Tex. Crim. App. 1980) (panel op.).

B. Competency Standard

Unlike insanity, discussed supra, competency to stand trial concerns the accused’s mental condition at the time of trial. The constitutional standard for competency to stand trial asks whether the defendant has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United State, 362 U.S. 402 (1960). Due process also mandates state procedures that are adequate to assure that incompetent defendants are not put to trial. Pate v. Robinson, 383 U.S. 375 (1966). To that end, the Texas Legislature has codified the constitutional standard for competency to stand trial and has elaborately described the circumstances that require, and procedures for making, a determination of whether a defendant is competent to stand trial. Tex. Code Crim. Proc. Art. 46B, et. seq.

The legislative criteria for competency contemplates a defendant who is at least minimally able to interact with trial counsel in a reasonable and rational way in formulating decisions on how to best pursue the defense. During a competency evaluation an expert shall consider, among other enumerated factors, the defendant’s capacity to:

  • Rationally understand the charges against the defendant and the potential consequences of the pending criminal pro­ceedings;
  • Disclose to counsel pertinent facts, events, and states of mind;
  • Engage in a reasoned choice of legal strategies and options;
  • Understand the adversarial nature of criminal proceedings;
  • Exhibit appropriate courtroom behavior; and
  • Testify.

Tex. Code Crim. Proc. Art. 46B.024. Unless there is good cause shown, an expert who is ordered to conduct a competency examination shall provide the report to all parties no later than 30 days after the date on which the expert was ordered to examine the defendant and prepare the report. Tex. Code Crim. Proc. Art. 46B.026.

A defendant is entitled to representation by counsel, and appointed counsel if necessary, “before any court-ordered competency evaluation.” A defendant is afforded the same right to counsel “during any proceeding at which it is suggested that the defendant may be incompetent to stand trial.” Tex. Code Crim. Proc. 46B.007. The trial court must provide an expert of the defendant’s choice a “reasonable opportunity to examine the defendant,” if this is sought by timely request. Tex. Code Crim. Proc. Art. 46B.021(f).

C. The Competency Trial

Federal constitutional law does not require that competency issues be answered by a jury. Townsend v. State, 427 S.W.2d 55–58 (Tex. Crim. App. 1968). However, where there is a jury trial on competency, the decision of the jury is final and controlling. Ex Parte Morgan, 403 S.W.2d 803, 804 (Tex. Crim. App. 1966). Neither the State nor the defendant is entitled to make an interlocutory appeal relating to a determination of incompetency under Article 46B.005. Tex. Code Crim. Proc. Art. 46B.011.

Subchapter C of Chapter 46B addresses the incompetency trial process. A jury trial is required on the issue of competency upon the request of either party or on the motion of the court. Tex. Code Crim. Proc. 46B.051. For the most part, the rules governing a competency trial are the same for a jury trial on the merits. The Texas Rules of Evidence apply. Tex. Code Crim. Proc. Art. 46B.008. A defendant is entitled to counsel, and if indigent, to appointed counsel. See supra, 46B.006. The Court of Criminal Appeals has also assumed that provisions for change of venue as articulated in the Code of Criminal Procedure apply to competency trials. Penry v. State, 903 S.W.2d 715, 727 (Tex. Crim. App. 1995) (per curium). A unanimous verdict is required. Defense counsel is permitted to question jurors on whether they have any views of the defendant’s guilt. Brandon v. State, 599 S.W.2d 567, 572 (Tex. Crim. App. 1979), vacated and remanded on other grounds, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981). However, the number of preemptory challenges follows the civil rule. There is a presumption of competency, and the bur­den of proof is a preponderance of the evidence rather than beyond a reasonable doubt. Tex. Code Crim. Proc. Art. 46B.003.

Of interesting note, under Manning v. State, 773 S.W.2d 568 (Tex. Crim. App. 1989) (per curium), adopting Manning v. State, 766 S.W.2d 551 (Tex. App.—Dallas 1989), defense counsel can be called by the State in support of its claim that the defendant is competent over a claim by the defendant of attorney-client privilege as long as: (1) the attorney does not reveal the contents of any confidential communications to the attorney by the defendant; and (2) the attorney must testify only to facts and conclusions based on observations and conversations with the defendant that other persons not representing the defendant could have made or had.

D. Procedures After Competency Trial

a. Competent

If, after a jury trial on the issue of competency, a defendant is determined to be competent a separate jury is required for the trial on the merits of the criminal case. Tex. Code Crim. Proc. Art. 46B.053.

b. Incompetent

If, however, a defendant is determined to be incompetent then the court has basically two options:

(1)   release the defendant on bail or
(2)   commit the defendant to a mental health facility or residential care facility.

There is an option to commit the defendant to a jail-based competency restoration program (JBCR). This sounds like an excellent option to avoid the languishing waits in county jails for a bed at the state hospital. However, it is not yet a feasible option. S.B. 1475, 83rd Legislature, Regular Session, 2013, amended Article 46B.090 of the Texas Code of Criminal Procedure to establish a JBCR Pilot Program. As with many things in the government, there have been substantial delays in actually developing and implementing such a program. The workgroup met a couple of times and has published its latest report as of June 1, 2017. As of the submission of this paper, the author is unaware of any JBCR programs in this state.

Release on bail, after a determination of incompetency, is permissible if the defendant is ordered to participate in an outpatient program for not more than 120 days. A felony defendant may be released on bail and required to participate in an outpatient treatment program if:

  • The court determines the defendant is not a danger to others and may be safely treated on an outpatient basis;
  • The court determines an appropriate outpatient treatment program is available for the defendant;
  • The court receives and approves a comprehensive plan for the outpatient treatment; and
  • The court finds that the treatment proposed by the plan will be available to and will be provided to the defendant.

Tex. Code Crim. Proc. Art. 46B.072(a)(1). In order to have any realistic chance at release on bail after a determination of incompetency, a tremendous amount of work needs to be conducted before the competency trial. Finding a treatment facility and obtaining a comprehensive treatment plan before the competency trial is a must. Defense counsel must be prepared to offer to the trial court—as soon as the finding of incompetency has been made—evidence in accordance with article 46B.072(a)(1) for any realistic chance for the defendant to be released on bail. This is akin to preparing for the punishment phase in the trial on the merits. The preparation must occur before the trial; it is too late to start preparing when the jury is deliberating, and success is not achieved on an impromptu basis.

Where there has been a finding of incompetency, the trial court shall commit a defendant to a mental health facility, residential care facility, or JBCR program for a period of not more than 60 days if the offense is a misdemeanor and not more than 120 days if the offense if a felony. Tex. Code Crim. Proc. Art. 46B.073. If the defendant is charged with an offense under article 17.032(a) of the Code of Criminal Procedure, then the Court shall enter an order committing the defendant to a maximum-security unit for competency restoration. Id. The Court may grant one 60-day extension under article 46B.080 upon request of the head of a facility or program provider for a defendant who has not regained competency during the initial restoration period. After an initial restoration period and an extension have been ordered, any subsequent orders for treatment must be issued under Subchapter E or F (both dealing with civil commitment).

The court is required to notify the state and defense counsel of the defendant’s return not later than the next business day following the defendant’s return from the state hospital. Within three days of the date of said notice, defense counsel shall meet and confer with the defendant to evaluate whether there is any suggestion that the defendant has not yet regained competency. Tex. Code Crim. Proc. Art. 46B.084.

When the defendant returns to the court after hospitalization, the court must make a determination with regard to the de­fendant’s competency to stand trial. The determination may be made on the most recent report filed under Article 46B.079(c) and other medical and personal history information of the defendant. Importantly, Article 46B.084(a-1) identifies the procedure for objecting to a report filed under Article 46B.079(c). If a party objects under Subsection (a-1), the issue shall be set for a hearing. Tex. Code Crim. Proc. Art. 46B.084(b). The hearing is before the court—except that on motion by the defendant, the defense counsel, the prosecuting attorney, or the court, the hearing shall be held before a jury. Id.

If there is a finding that the defendant is unlikely to be restored to competency in the foreseeable future the Court shall either release the defendant on bail (a highly unlikely scenario) or proceed under Subchapter E or F, both dealing with civil commitment. See Tex. Code Crim. Proc. Art. 46B.071.

If a defendant is ultimately convicted of a criminal offense, the court must credit the defendant’s sentence for any time that he has been confined in a mental health facility, residential care facility, or jail pending trial. Tex. Code Crim. Proc. Art. 46B.009.

It is often impossible for the offender with mental illness to get out of the system. All too often lawyers and courts—the system—is in a rush to hurry and plead the person upon return from the State Hospital. The facts may dictate no other option sometimes. However, consider for a moment what that does to the offender with mental illness. A sentence of incarceration may brand a mentally ill offender as a criminal convict, thus preventing them from obtaining certain helpful governmental services and/or housing. A term of community supervision appears a better option at first—until the stark realization that the “newly competent” offender will be required to adhere to a rigid set of rules while at the same time being required to complete unfamiliar classes. Under such circumstances, community supervision will not last long before adjudication or revocation. Temporarily restored competency for court purposes does not eliminate the mental health issue(s) that will certainly follow the client.

It is worth noting that perhaps due to crowding in the state hospitals or the rapidity with which some courts prefer the docket to be moved (or some combination of the two), it is not uncommon to find your newly “competent” client returned to the county jail heavily medicated. In such situations, it be can difficult, if not impossible, to determine whether your client has been restored to competency or is merely a heavily sedated version of their former self. Be mindful that in such situations, a new problem presents itself, insofar as medication can interfere with your client’s ability to knowingly and voluntarily enter into any sort of plea agreement.

Additionally, there is no prohibition to a subsequent suggestion of incompetency if circumstances so warrant. If a formal competency trial results in a finding of competency, the trial court is not obligated to revisit the issue of competency absent a material change of circumstances suggesting that the defendant’s mental status has deteriorated. Turner v. State, 422 S.W.3d 676, 693 (Tex. Crim. App. 2014, reh’g denied) (internal citations omitted). However, especially when there has been a suggestion of incompetency but no formal adjudication of the issue, due process requires the trial court to remain ever vigilant for changes in circumstances that would make a formal adjudication appropriate. Id. (emphasis added). The latter was precisely the factual situation in Turner.

Mr. Turner was initially evaluated for competency and determined to be competent. The competency reports indicate that not all of the factors in 46B.024 were considered in the evaluation, and the evaluation further noted some concerns that Turner suffered from a paranoid disorder and that Turner was experiencing delusions. Id. at 693. Turner’s lawyers—his first lawyer withdrew due to an untenable attorney-client relationship and another was appointed—expressed concerns to the trial court over their client’s paranoia and its impact on their representation at various points in their representation. Prior to jury selection and again during jury selection, Turner’s lawyers filed a request for a competency examination. The trial court refused to conduct a formal competency hearing, but did order an evaluation of Turner to determine whether he was able to rationally assist his lawyers in the defense of his case. The evaluation made no determination on Turner’s competency but did suggest no significant changes in his functioning since he was initially evaluated. The trial court denied the motion for a formal competency evaluation.

In abating the appeal and remanding back to the trial court for a competency trial, the Court of Criminal Appeals noted that there was no adjudication of the competency issue in this case following any of the evaluations. Id. at 694. Thus, there was no prior judicial competency determination to justify a requirement of a change in circumstances. Id. at 695. In Turner, there was at least some evidence from which it may be rationally inferred not only (1) that the defendant suffers some degree of debilitating mental illness, and that (2) he obstinately refuses to cooperate with counsel to his own apparent detriment, but also that (3) his mental illness is what fuels his obstinacy. Id. at 696. Turner is a necessary case for defense counsel to read and have on hand when representing an obstinate client with mental illness.

IV. Insanity

Insanity is an affirmative defense to prosecution codified in section 8.01 of the Penal Code:

(a)   It is an affirmative defense to prosecution that at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.
(b)   The term “mental disease or defect” does not include an abnormality manifested by repeated criminal or otherwise antisocial conduct.

“Wrong” in the context of 8.01 means “illegal.” Thus, the question for deciding insanity is this: Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?” Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008).

Article 46C.153 instructs that the judge or jury shall determine that a defendant is not guilty by reason of insanity if: (1) the prosecution has established beyond a reasonable doubt that the alleged conduct constituting the offense was committed; and (2) the defense has established by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct. Subsection (b) provides that the parties may, with consent of the judge, agree to both: (1) dismissal of the indictment or information on the ground that the defendant was insane; and (2) entry of a judgment of dismissal due to the defendant’s insanity.

Since insanity is an affirmative defense it must be alleged and proved by a preponderance of the evidence at trial. Tex. Pen. Code 2.04. There is an exception to this rule, though. If a defendant has previously been adjudicated insane and such adjudication has not been vacated, then there is a presumption that the insanity continues and the burden is on the state to prove, beyond a reasonable doubt, that the defendant was sane at the time of the alleged offense. Riley v. State, 830 S.W.2d 584 (Tex. Crim. App. 1992).

Properly admitted opinion testimony of lay witnesses is sufficient to support a finding of insanity. Pacheco v. State, 757 S.W.2d 729 (Tex. Crim. App. 1988). And an expert witness cannot give an ultimate opinion on (in)sanity because the insanity issue is not strictly legal. Were it otherwise, the issue would be tried in hospitals rather than the courts. Graham v. State, 566 S.W.2d 941, 949 (Tex. Crim. App. 1978); see also Schuessler v. State, 719 S.W.2d 320, 329 (Tex. Crim. App. 1986), overruled on other grounds, Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990) (“if a defendant’s evidence is undisputed as to the presence of a mental disease or defect, even if it established medical insanity, it would not necessarily establish legal insanity”).

Chapter 46C addresses the procedures that are to be used in cases where insanity is an issue. 46C.051 requires the defense to file a formal notice of intent to raise the insanity defense. This notice must be served on the State and must be filed at least 20 days prior to trial, or if before the 20-day period the court sets a pretrial hearing, the defendant shall give notice at the hearing. If the notice is not timely filed, then evidence on insanity is not admissible unless the court finds good cause for the failure to give notice. Tex. Code Crim. Proc. Art. 46C.052.

Defense counsel is urged to file such a notice if it is reasonably believed that the defense of insanity will be used. However, be aware that if notice of intention to raise the insanity defense is filed under Article 46C.051, the court may, on its own motion or motion by the defendant, the defendant’s counsel, or the attorney representing the state, appoint one or more disinterested experts to: (1) examine the defendant with regard to the insanity defense; and (2) testify as to the issue of insanity at any trial or hearing involving that issue. Tex. Code Crim. Proc. Art. 46C.101. Further, the court can compel a defendant to submit to such an examination and can even order the defendant confined for a reasonable period not to exceed 21 days to submit to the examination. Tex. Code Crim. Proc. Art. 46C.104.

According to Article 46C.154, the jury cannot be informed by the state, defense, or the court of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. This is unfair, plain and simple. “The absurdity and injustice of this provision is that the jurors will probably not know about the extensive statutory provisions regarding the mandatory procedures to be followed by the court upon the acquittal of a defendant by reason of insanity, including provisions to protect adequately the safety of the community, and may believe—quite wrongly—that a defendant acquitted by reason of insanity is free to walk out of the courthouse at the end of the trial.” Shannon & Benson, Texas Criminal Procedure and the Offender with Mental Illness p. 147.

A. Competency Before Insanity

A defendant must be evaluated for competency prior to being evaluated for insanity at the time of the offense. The focus of competency, see supra, is present ability whereas the focus of insanity is at the time of the offense. The same examiner appointed to evaluate a defendant’s competency to stand trial may also be appointed to examine the defendant with regard to sanity. However, separate written reports must be filed on the two matters. Tex. Code Crim. Proc. Art. 46C.103(a). An examiner must first evaluate a defendant for competency and may not evaluate a defendant for insanity if the examiner’s opinion is that the defendant is incompetent. Tex. Code Crim. Proc. Art. 46C.103(b).


Contrary to what a jury might believe, the return of a verdict of not guilty by reason of insanity is not the end of the proceedings. Upon such a verdict the court shall immediately determine whether the offense of which the person was acquitted involved conduct that: (1) caused serious bodily injury to another person; (2) placed another person in imminent danger of serious bodily injury; or (3) consisted of a threat of serious bodily injury to another person through the use of a deadly weapon. Tex. Code Crim. Proc. Art. 46C.157. If the court makes a finding under Article 46C.157, then the court retains jurisdiction over the person until either the court discharges the person and terminates its jurisdiction—or the cumulative total period of institutionalization and outpatient or community-based treatment and supervision under the court’s jurisdiction equals the maximum term provided by law for the offense of which the person was acquitted by reason of insanity and the court’s jurisdiction is automatically terminated. Tex. Code Crim. Proc. Art. 46C.158. If the court does not so find, then the court shall proceed under subchapter E (civil commitment). Tex. Code Crim. Proc. Art. 46C.159. Pending further proceedings after a finding of not guilty by reason of insanity, the court can order the defendant detained in jail or any other suitable place for a period not to exceed 14 days. Tex. Code Crim. Proc. Art. 46C.160.

Additionally, if a person is found not guilty by reason of insanity, the verdict is an acquittal; however, the person cannot have the record expunged under Chapter 55. Tex. Code Crim. Proc. Art. 46C.155.

C. If No Insanity, Then Diminished Capacity?

There are mentally ill defendants who are competent to proceed and not insane at the time of the commission of the offense. These defendants fall in a gray area as they cannot be labeled as incompetent or insane, but still have a mental illness that affects perception and/or functioning. The question is what can be done to defend these cases where incompetency and insanity cannot be raised.

There is no statutorily prescribed diminished-capacity defense due to mental illness in Texas. However, it is possible to introduce evidence to negate the mens rea element of the charged crime. This obviously includes the ability to introduce evidence of mental illness and how said mental illness affects or impacts on the formation of intent. The standard for admission of such evidence is relevance and the accused’s constitutional due process right to present a defense. Be aware that no jury instruction will be provided, however, given that inability to formulate the necessary mens rea is not a statutory defense.

V. Mental Health Court

Jail and/or prison are particularly bad places to be for the mentally ill. Solitary confinement is a reality for many inmates with mental illness. In September 2017, Texas quietly eliminated the use of solitary confinement for punitive reasons; solitary confinement still remains an option in Texas prisons for “administrative segregation” (gang affiliation, etc.). This is part of a larger, national shift towards reform or elimination (in some states) of the use of solitary confinement in prisons. The conditions of incarceration, and certainly solitary confinement, only serve to exacerbate the symptoms of a mentally ill inmate or provoke recurrence. Inmates with mental illness are much more likely to be injured in prison fights. The Department of Justice reported that 20% of inmates with mental illness were injured in jailhouse fights compared to 10% of inmates without mental illness. In local jails, inmates with mental illness are three times as likely to be injured. Http:// (May 15, 2014) (last visited 10/30/2017). To be clear, the corrections system is not designed nor is it equipped to provide mental health treatment and/or services. There can be no doubt that some solution other than warehousing mentally ill people is necessary—and certainly more humane and civil.

In that vein, some counties have created mental health court programs for adult and/or juvenile offenders. Mental health courts are specialty diversionary courts directed at adults and juveniles with severe mental illness. The court is created under the authority of Section 76.011 of the Government Code. It is important to be familiar with the parameters and admissions criteria for the mental health court as it provides a long-overdue positive alternative to incarceration.

VI. Mitigation

Mitigating evidence is not evidence that excuses certain conduct but rather evidence that would help lessen any potential punishment received based on the conduct. Defense lawyers have a constitutional duty to clients to fully investigate and present mitigating evidence during the punishment phase of a criminal proceeding. Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v. Smith, 539 U.S. 510 (2003). In January 2011, the Texas State Bar Board of Directors adopted the “Performance Guidelines for Non-Capital Criminal Defense Representation” (hereinafter “Guidelines”). Performance Guidelines for Non-Capital Criminal Defense Representation, available at “The guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime.” Blackburn, J., and Marsh, A., The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar Journal 7 (July 2011). “They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Id. According to Guideline 4.1, B.9

Counsel should consider whether expert or investigative as­sistance, including consultation and testimony, is necessary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to:

a.  The preparation of the defense;
b.  Adequate understanding of the prosecution’s case;
c.  Rebut the prosecution’s case or provide evidence to establish an available defense;
d.  Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a know­ing and intelligent waiver of constitutional rights; and
e.  Mitigate any punishment that may be assessed after a ver­dict or plea of guilty to the alleged offense.

We all have our own unique experiences—both good and bad—that mold and shape us as people and the decisions we make. We all have something mitigating in our past. The amount and strength of mitigating evidence for clients with past or pres­ent mental health issues, however, is often abundant. And mental health problems are actually very common. According to, in 2014:

  • One in five American adults experienced a mental health issue;
  • One in 10 young people experienced a period of major depression; and
  • One in 25 Americans lived with a serious mental illness, such as schizophrenia, bipolar disorder, or major depression.

The vast majority of people with mental health problems are no more likely to be violent than anyone else. (last visited 10/30/17). People with mental health issues often have some sort of traumatic life experience and/or a family history of mental health problems. Mentally ill people are also grossly disproportionately victimized by violent crime. Id. Such evidence can be challenging to obtain directly from the client for many reasons. Thus, it is better practice to obtain medical records directly from providers via subpoena and provide those records directly to the defense expert, if any. In the author’s experience, it is extremely helpful to have an expert to help fully explain to the jury mental health issues and the impact those issues have had on the client’s life.

VII. Conclusion

The mentally ill client is among the most challenging type of client to effectively represent. It can be discouraging and frustrating to represent a mentally ill client who repeatedly asks the same questions, completely shuts down, and/or becomes agitated at seemingly insignificant occurrences. The mentally ill client takes more of the lawyer’s time, patience, compassion, and understanding. For people with mental illnesses—who often face inordinate poverty, unemployment, crime, victimization, family breakdown, homelessness, substance use, physical health problems, and stigma—contact with the criminal justice system can exacerbate prevailing social marginalization, disrupt treatment and linkage to service systems, or represent the first occasion for treatment. Prins, Seth J., “The Prevalence of Mental Illness in U.S. State Prisons: A Systematic Review,” Psychiatr Serv. (online at As defense lawyers we are charged with protecting the constitutional rights of all those whom we represent. It is our job to speak and advocate for those who cannot do so themselves even when to do so is challenging.

TCDLA & NACDL, Helping Each Other

From the archives: This article by TCDLA’s first president appeared in the March 1988 issue of Voice for the Defense.

The National Association of Criminal Defense Lawyers (NACDL) was founded in 1958 to serve as a professional association of persons actively engaged in the defense of criminal cases. Until 1972 the Association was composed of and led by a small group of many of the best trial lawyers in the country. Their cooperation with each other was significant in the development of a powerful and effective trial bar in criminal law. It was open only to those who wanted the Association to be a select group, an exclusive organization of lawyers striving to help each other, but without any form of structure that would encourage education, legislative action, or benefit to the practitioner not yet recognized.

In 1972 all of that changed. The change was brought about by the fusion of ideas predominately originating in Texas by way of a then little-known organization called the Texas Criminal Defense Lawyers Association, which had been organized the previous year to combat prosecutorially oriented groups that were endeavoring to enlarge police powers in the State of Texas.

The issue in 1972 in Monterey, California, at the annual meeting of NACDL was whether the Association was to be a closed group, or whether it should be an organization of those trying to improve the practice of criminal law by striving to help each other in the courts and in the legislature through education and communication.

In August 1972, I had just completed my year as the first pres­ident of TCDLA with Charlie Tessmer, Bill Walsh, Joe Goodwin, and Percy Foreman, who were on the first Board of Directors of TCDLA and also on the Board of Directors of NACDL, and it was thought that we should inject into the NACDL Annual Meeting our TCDLA experiences of the past year. With the blessings of the leadership of NACDL, and after a call to Tony Friloux of Houston, who was president of TCDLA (later to become president of NACDL in 1978), it was decided that Bill Ried, general counsel of TCDLA, be transported from Austin to Monterey at National’s expense, to show the Association TCDLA’s method of operation. Ried did an excellent job of convincing the Association that it needed to administer the Association in a way to develop future programs, including a quarterly publication. Motions were made and passed at that time to adopt the Texas system and to hire Ried on a part-time interim basis as the executive secretary of National. Ried was to remain as general counsel of TCDLA. NACDL was to share office space with TCDLA in Austin, which it did until it moved to Houston.

NACDL’s mandate adopted in Monterey in 1972 and published in the first edition of the then embryonic Champion provided as follows:

1.  Provide a national organization representing lawyers actively engaged in the defense of criminal cases;
2.  Protect the rights of an accused to a fair and impartial trial;
3.  Improve the administration of justice through legislation or rules of court;
4.  Reject proposed legislation that derogates constitutional rights in criminal cases;
5.  Establish a school to improve the skills and knowledge of criminal defense lawyers;
6.  Urge the selection and appointment to the bench of well-qualified and experienced lawyers;
7.  Improve correctional institutions and provide opportunity for rehabilitation of those convicted of crimes;
8.  Provide a forum for mutual exchange of information regarding the administration of justice.

In 1972, NACDL had 333 people on its membership rolls; TCDLA had 500 people on its rolls. At the present time, NACDL is approaching 6,000 members and has over 25 affiliate membership groups. It is officed in Washington, D.C., with a full-time staff of 7 individuals, including 2 lawyers, and operates on a budget of something close to one million dollars a year. Many of TCDLA’s members have been and are members of NACDL’s Board of Directors. Four of our TCDLA founding members have been presidents of NACDL: Percy Foreman in 1963, Charlie Tessmer in 1972, Tony Friloux in 1978, and yours truly in 1987.

After establishing its office in Austin and hiring part-time clerical help to work with Ried, NACDL, in its very first year, was able to establish a college for criminal lawyers in Houston, the National College for Criminal Defense Lawyers, contributing some $12,000 and obtaining from the American Bar Association a similar amount.

The Association also formed the National Association of Criminal Defense Lawyers Foundation to foster a tax-exempt fund of the Association in order to provide scholarships to the National Criminal Defense Lawyers College and to undertake other activities. NACDL publishes 10 editions of the Champion magazine each year and the Washington Digest every other month, holds continuous legal education seminars at quarterly board and membership meetings, maintains over 40 committees on various legal and administrative subjects (including a lawyers’ assistance strike force and an amicus curiae committee), lobbies on important criminal defense and individual rights issues, and provides a variety of other services.

As mentioned above, one of our staff lawyers, Scott Wallace, employed on a full-time basis in the national office, monitors all proposed legislation on criminal matters emanating from the Congress and provides able staff assistance to the Senate and House Judiciary Committees in drafting and communicating NACDL’s views on legislation proposed in the Congress. The legislative committee of NACDL working with Wallace provides testimony and lobby activity not only in the Congress, but also before the Attorney General of the United States and other federal administrative and executive authorities.

The question has been asked, why should we in TCDLA join either individually or as an affiliate of NACDL? NACDL and TCDLA pretty much fostered the growth of each other in a cooperative effort resulting in much of both associations’ accomplishments.

When TCDLA was established, it was thought that at least one-third of its budget each year would be programmed into legislative activity, one-third into CLE and amicus work, and the remaining one-third into administration.

Although TCDLA is uniquely suited to do the above, it is apparent that NACDL is not. NACDL cannot and should not be appearing before state legislatures, conducting seminars on state substantive and procedural law, and handling state amicus problems.

On the other hand, TCDLA has no business expending sums of money in Washington. NACDL’s views are regularly solicited by congressional committees on their own initiative on criminal defense issues. Committee staff and members have frequently commented very favorably on the high level of expertise and the practicality and usefulness of the comments and suggestions of NACDL witnesses. Recent example: The Sentencing Act of 1987 was being rushed through the Congress without hearing, but democrats in both houses refused to let it proceed until the views of NACDL had been solicited and considered. NACDL was successful in striking several (certainly not all) of the most objectionable provisions of the legislation.

Other concerns of NACDL in Washington: Congressional legislation on government department cooperative efforts on information sharing, reporting of legal fees received—including sources and identity of clients concerning these monies—to the government immediately upon receipt of these monies, and subpoenaing of attorney’s records and attorneys by the Department of Justice before grand juries around the country. Some 400 attorneys have been subpoenaed in the last few years before grand juries at the behest of the various United States Attorneys. Through its strike force and its dialogue with the Attorney General in Washington each month, NACDL has been successful in the representation of many of these lawyers. We are also greatly concerned with legislation that would allow forfeiture of assets, particularly those assets that are not connected with the facilitation of or as a result of crime.

NACDL held its first Strength and Numbers educational program in October 1986 to assist state and local criminal defense organizations to build their associations. Strength and Numbers II is planned for May 1988 in Austin, Texas. NACDL officers and members have repeatedly offered to use NACDL’s resources in a variety of ways that would benefit state and local organizations, and in fact, because of Strength and Numbers I, many new state organizations have come into existence to carry out programs in the field of criminal law in their own jurisdictions.

When NACDL appears before the various congressional committees or before the executive branch of the government in Washington and elsewhere to speak for all of our interests, it needs to speak from strength; it needs to be able to tell the people with authority that NACDL does in fact represent the views of the practitioner in the field of criminal law. In order to do this it needs to have the backing of each individual lawyer and each individual criminal law association. In other words, we need you and you need us.

April 2018 Complete Issue – PDF Download



24 | What’s New and What’s the Same at This Year’s Rusty Duncan
27 | The Intersection of Mental Illness & the Criminal Justice System – By Sarah Roland
35 | From the Archives: TCDLA & NACDL, Helping Each Other – By Hon. Frank Maloney

6 | President’s Message
9 | Interim Executive Director’s Perspective
11 | Editor’s Comment
13 | Ethics and the Law
17 | Federal Corner
21 | Shout Outs

5 | CLE Seminars and Events
38 | Significant Decisions Report

President’s Message: Protecting the Dream – By David E. Moore


In the 27 years I’ve been a member of TCDLA, I have had the opportunity to make a lot of great friends. I’ve also had the good fortune to go on some terrific TCDLA trips. Napa, New Orleans, Banff, Santa Fe, Monterrey, cruises, just to name a few, and they have all been memorable. As I write this, we are nearing the 50th anniversary of the assassination of Dr. Martin Luther King Jr., and I want to share with you my favorite.

I believe it was 2008, the year of Rick Hagen’s presidency. Rick decided that year to take a president’s retreat to Memphis. It was going to be a small group, and Pam and I eagerly signed up to go.

We had a great time! We stayed at the Peabody Hotel, where we all enjoyed more than one cocktail while waiting to watch the duck parade. One night, while enjoying BBQ at Rendezvous, we ran into football legend Archie Manning, who was kind enough to pose with us for a few photos.

We went to the Rock-n-Soul Hall of Fame. Then we had a private tour at Sun Records. I still have in my office a photo of me crooning into one of Sun’s original microphones in front of Elvis’ photo, as former TCDLA president Mike Heiskell’s youngest son Mason looks on with a puzzled expression.

It was all such a blast! But, I had no idea that a moment was coming on that trip that would impact me to my core.

You see, Mike and his wife Anita had arranged something truly special for our group. Anita had grown up in Memphis, where Reverend Samuel “Billy” Kyles was her preacher. Reverend Kyles had spent Dr. King’s last hours here on earth with him there at the Lorraine Motel in Memphis. And, Reverend Kyles was going to have lunch with us.

One group made our way to the National Civil Rights Museum, built on the site where King was assassinated by James Earl Ray. The museum is so poignant, memorializing the struggle of African Americans from slavery through today’s ongoing civil rights movement. The museum incorporates the Lorraine Motel, preserving the room where King had spent his last hours, the nearby boarding house from where Ray fired the fatal shot, and the balcony where the mortally wounded King fell.

We had lunch there at the museum with Reverend Kyles. There were about a dozen of us as best I recall. I don’t remember what we ate, but I will never, ever forget Reverend Kyles or his message.

As he addressed us, he began by laying for us the framework of why King had come to Memphis in 1968. Fifty years ago, on February 1, 1968, two black Memphis sanitation workers were crushed to death while working in unsafe conditions during a storm. That same day, a dispute had arisen when 22 black employees who worked in the Memphis sewer system were sent home without pay while their white supervisors were allowed to stay on and be compensated. With these two incidents as the catalyst, on Valentine’s Day, approximately 80% of the black sanitation workers of Memphis went on strike.

The mayor of Memphis resolved to crush the strike, and negotiations to settle the dispute went nowhere. Reverend Kyles along with Reverend James Lawson asked King and the Southern Christian Leadership Conference to come and support the workers in their struggle.

King, who was a champion of not only racial equality issues but also of economic equality, agreed to lend his support. Together they planned a march on March 28th. King was apparently concerned about making sure that the march followed his tenet of nonviolence. Many people believe he saw this march in Memphis as a practice run for a later poverty march on Washington, D.C., and it was vitally important to him that they be able to complete the demonstration in a peaceful manner.

Unfortunately, that was not to be as violence broke out in the rear of the march and looting ensued. A 16-year-old was shot and killed by the police. Dr. King, Reverend Kyles, and the other leaders of the march had to be escorted to safety. According to Reverend Kyles, Dr. King was deeply troubled by the violent turn as he left Memphis.

King and the SLLC were asked to come back for another march. After lengthy discussions and assurances that the protest would be conducted in a nonviolent manner, Dr. King agreed to return.

Problem was, the city filed for an injunction barring the second march, which was scheduled for early April. King was served with the injunction when he returned to Memphis on April 3rd.

Reverend Kyles told our group that King was tired when he arrived. There was a rally scheduled that night at the Mason Temple, headquarters of the Church of God in Christ. The weather that night was threatening. Because he was worn out, and expecting the crowd to be affected by the storms, King planned to stay at the Lorraine Hotel and rest. He asked Reverends Kyles and Lawson along with leaders of the SLLC to go on without him and he asked Ralph Abernathy to speak in his stead.

When the group arrived at the church, Reverend Kyles said they were surprised by both the size of the turnout and the group’s enthusiasm. Abernathy got on the phone to Dr. King and told him that the attendees were there not to hear Abernathy or the others, but in anticipation of hearing from King.

King obliged, and although he was tired and weary, he headed into the stormy night and to the church, where the crowd was waiting.

Somehow, he was able to reach within himself and summon up the energy to give one of his greatest oratory performances. That night he delivered his famous Mountaintop Speech.

We are all familiar with the speech. King took to the podium in the pulpit and told the congregation that if he could live in any age in history, that he would choose to be with them in Memphis, then and there. That they were there to fight injustice and to demand that the sanitation workers, as God’s children, be entitled to fair treatment by the City of Memphis.

Kyles told us how King exhorted the crowd that the march, and the movement, must be conducted with nonviolence. King told the gathering that their methodology was not through bricks, bottles, and Molotov cocktails, but through peaceful pro­tests and economic boycotts.

King told the congregation that they couldn’t give up their struggle, that they had to see it through. He told them they had to march, they had to do it out of concern for their brothers, the sanitation workers. He implored them “either we go up together, or we go down together.”

During the speech, King touched on the injunctions that were still pending against the march (the injunction was lifted the next day).

King told them: “We’re going into court tomorrow morning to fight this illegal, unconstitutional injunction. All we say to America is, ‘Be true to what you said on paper.’ If I lived in China or even Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But, somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is to protest for right. And so just as I say we aren’t going to let dogs or water hoses turn us around, we aren’t going to let any injunction turn us around. We are going on!”

Reverend Kyles believed that Dr. King had a premonition of his impending death. He told our group how there was a loose shutter on the church that night, and that on occasions the storm winds would blow it closed with a loud bang. Kyles told us how this happened more than once during the speech, and how he saw King flinch and look around each time it did.

Nevertheless, King pressed on. He told the crowd how he had been stabbed in the chest by a deranged assailant in New York, and how the surgeons there later told him how close he’d come to death.

In his stirring conclusion, King famously said: “And then I got to Memphis! And some begin to say the threats were out. What would happen to me from some of our sick white brothers?”

King went on: “Well, I don’t know what will happen now. But it doesn’t really matter with me now, because I’ve been to the mountaintop! And I don’t mind. Like anybody, I would like to live a long life. Longevity has its place. But I’m not concerned about that now. I just want to do God’s will. And he’s allowed me to go up to the mountain. And I’ve looked over. And I’ve seen the Promised Land! I may not get there with you. But I want you to know tonight, that we, as a people, will get to the Promised Land!”

He ended: “I am so happy, tonight. I’m not worried about anything. I’m not fearing any man! Mine eyes have seen the glory of the coming of the Lord!”

The crowd erupted. Dr. King went back to his room at the Lorraine.

Reverend Kyles and his wife had invited King and several others to their house for supper on the following evening on April 4th. Reverend Kyles knew all too well that those who traveled in the cause and struggle for equality were often relegated to catching meals as best they could. He and his wife planned a soul food banquet for King and the rest of the group.

Kyles told our gathering how he had gone that afternoon to the Lorraine to bring King, Abernathy, Jesse Jackson, and others to his home. King wasn’t ready, and he protested to Kyles that they had plenty of time.

Kyles described for us how he, King, and Abernathy then spent King’s final hour. With the injunction lifted earlier in the day, Kyles described King as being in a playful mood. Three preachers, laughing and joking. As he got ready, King asked Kyles to pick out a tie for him for the evening.

As Reverend Kyles continued, you could have heard a pin drop in our room.

He described how they finally left the hotel room and stepped out on the balcony.

He told us how King had stopped at the rail to speak to Jackson below in the parking lot. They were all planning to attend another rally that night after dinner with the Kyles. King told the band leader to be sure to play one of King’s favorites, “Take My Hand, Precious Lord.”

Reverend Kyles told us how he implored the group to come on or they would be late. As he took a few steps away, the shot rang out.

He told us of the aftermath. The blood, the confusion. He described trying to help King and then ultimately removing a pack of cigarettes that were clutched in King’s hand. (King didn’t want children to know he smoked as he thought it set a bad example.) Kyles told us he still had the pack somewhere at his home.

As we all tried to stifle tears, Kyles told us, “Martin Luther King, Jr. could have done anything, could have been anything. A Ph.D. at 27, a Noble Peace Prize Winner at 35, one of the greatest orators ever. He could have been a U.N. ambassador, a university president, the leader of a mega church. But here he was dying on the balcony of a cheap hotel in Memphis helping garbage workers.”

As Reverend Kyles finished addressing us, he said, “They could kill the Dreamer, but they didn’t kill the dream!”

Wow! I still get misty-eyed (and more determined) just writing this.

I always hoped that we would bring Reverend Kyles to San Antonio as a keynote speaker at our Rusty Duncan seminar. I regret that we did not get that done. We lost him in 2016. I will never forget, as long as I live, that day he spent with us in Memphis.

Now 50 years later, I wonder, as I sit here today, what he and Dr. King would think of our nation and our leaders now. I would imagine they would be stunned by current events. I personally believe in Heaven, and I think that when we die, we are reunited with friends and loved ones. I would imagine that when Reverend Kyles saw Dr. King again he would have told him that King’s message had survived, and that our country had made slow but significant strides. But, I can’t help thinking that they would both be heartbroken over what has happened since Reverend Kyles’ passing.

So, what about us as criminal defense lawyers? What can we do? How do we ensure the dream doesn’t die?

Every day we have an opportunity to not only protect but also fulfill the dream. We do it when we stand up to represent the indigent defendant. We do it when we care about that client that nobody else in the courtroom cares about. We do it when we expose racial bias or racial profiling. We do it when we speak out against racially insensitive comments by our judges or politicians. We do it when we as a group fight against the criminalization of poverty. We do it when we rail against unfair and unjust sentencing guidelines. We do it as we stand up for the welfare of mentally handicapped. We do it every day when we defend our Constitution. And, we do it when we rise and try to protect the least of God’s children.

Interim Executive Director’s Perspective: Why We Do What We Do – By Melissa J. Schank


Better that ten guilty persons escape than that one innocent suffer

—Sir William Blackstone

When I started with TCDLA I was for the death penalty, a firm believer of an eye for an eye. The first year I traveled to over 30 TCDLA/CDLP seminars. Two always stick out in my mind as having a huge impact on my life and my beliefs. I attended a Prairie Dog seminar in Lubbock and listened to George Parnham present about the Andrea Yates case. The facts in the case gave me a clear understanding of events that lead to the tragic drowning of her five beautiful children. I still have a hard time grasping that no action could be taken against her husband at the time. This case really highlighted postpartum depression and the need for educating the public.

Rusty Yates remarried and began to bring his new wife to visit Andrea in the mental hos­­pi­tal, but attorney Parnham put an end to any continuous abuse. The compassion George showed for Ms. Yates and his ongoing contact overwhelmed me. To this day, he still keeps in touch with her. When my family and friends then talked about this case, I found myself advocating for our justice system, trying to explain why mitigating factors were so relevant—explaining details to all who would listen. Women are still hesitant to come forward or even acknowledge that they have a postpartum illness. Fourteen years later I am even more of an advocate of a justice system that placed Andrea in a mental institution. There needs to be an awareness of these symptoms so that women may get the help they need:

  • “Baby Blues” don’t get better;
  • sadness or guilt consumes your thoughts;
  • you lose interest in things you enjoy;
  • you have trouble making decisions;
  • you worry you won’t be a good mom;
  • your sleep pattern has changed;
  • you’ve had big, stressful changes in life;
  • you think about harming yourself.

The other seminar I attended that changed my way of thinking is the Innocence Seminar cosponsored with the Criminal Defense Lawyers Project and Innocence Texas (formerly Innocence Project of Texas) in Dallas. Timothy Cole was a student at Texas Tech who was wrongfully accused of rape and imprisoned in 1985. He died in prison in 1999 due to insufficient healthcare in the prison and was not exonerated until after his death. Inno­cence Texas continued the fight, leading to his exoneration on April 7, 2009. (He was later pardoned in 2010.) Michele Mallin, herself the victim of rape, presented at the seminar I attended and gave an account of what lead up to the misidentification and the court proceedings. She spoke about misidentification and wrongful conviction. I could feel her remorse and how this has affected her even 20 years later. This case was particularly sad for me, listening to Timothy’s family recount events, hearing what they went through and how they fought all those years to have him exonerated. The Legislature subsequently passed the Timothy Cole Act, increasing compensation for exonerees—the start of an ongoing battle.

Each year TCDLA, CDLP, and Innocence Texas continue to put on two seminars, Innocence for Students and Innocence for Lawyers. The seminars have had numerous exonerees and their defenders present and share their stories. Attendees including myself are impacted, learning how to continue the fight for justice.

I remember a dreadful gloomy day when I was at the Tim Evans Texas Criminal Trial College and an execution was scheduled in the Walls Unit of Huntsville Prison. Some people protested outside with signs, while others jumped up and down with excitement, which I just couldn’t understand. That night I couldn’t sleep thinking about the process, “what if they were innocent”: Did they have sufficient evidence, and would it matter? The process seemed inhumane. That was just one of the many nights I couldn’t sleep, thinking about the what-ifs and ways to make changes.

In the last ten years we’ve had an outrageous number of executions in Texas—169. I have listened to more than 20 exonerees present. I have talked with them, their families, and built relationships. I keep in touch with some on Facebook and see them in their daily lives. I am ashamed that at one point in my life I was for the death penalty, which ignores the fact that innocent people are executed. These seminars changed my view on the death penalty. Now I truly understand the quote above. I commend our capital defenders.

Our criminal defense attorneys do yeoman’s work, making life-saving pleas, creating new laws, and bringing light to the criminal justice system. I am very proud to say I work for TCDLA. I do not try to change my family’s and friends’ beliefs intentionally (okay, maybe a little). I just try to give them another view and hope with the information and insight I provide that they will have a better understanding of cases. If I can give one person an inside look at what defense lawyers do—show their dedication and compassion, and how they defend those accused of a crime—it is genuinely a rewarding feeling.

Editor’s Comment: Listen Up, Legislature – By Sarah Roland


Trials are always interesting. You can never predict exactly what’s going to happen. There’s always something that doesn’t go quite as planned—a witness that says or does something unexpected or a piece of evidence that seemingly comes out of nowhere. This truism rings even truer when accomplices and jailhouse informants enter the cast of characters that appear in trial. The wheels go off the track.

Both classifications of witnesses are inherently untrustworthy at best. Even the Legislature recognized the inherent untrustworthiness of these types of witnesses as evidenced by the language in Articles 38.075 (jailhouse informant statute) and 38.14 (accomplice witness statute). Both statutes have an explicit corroboration requirement for these types of witnesses. And a trial court must sua sponte include an instruction pursuant to Articles 38.075 and 38.14 when applicable to the case. Phillips v. State, 463 S.W.3d 59, 65 (Tex. Crim. App. 2015)(jailhouse witness instruction required); Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998)(accomplice witness instruction required).

It’s bad enough when an accomplice or a jailhouse informant testifies for the State. But, what about when both types of witnesses—an accomplice and a jailhouse informant—testify for the State? Certainly, a jury instruction pursuant to each article is required. Can an accomplice provide the necessary corroboration for a jailhouse informant and vice versa, though? Can each classification of witness—each of which must be corroborated by other sufficient evidence—provide the corroboration for the other? Most certainly, the answer is no. After all, how could one inherently untrustworthy witness plus another inherently untrustworthy witness yield trustworthy testimony? That would be nonsensical. However, as common sense as it may be, there is currently no explicit statutory authority to support this answer. This is likely because the legislature didn’t anticipate the scenario where both a jailhouse informant and an accomplice testify. As we all know, though, this is the scenario in many of our serious felony cases.

Recently, in a concurring opinion on the refusal of discretionary review, the Court of Criminal Appeals addressed this very issue. Mata v. State, No. PD-0890-17 (Tex. Crim. App. Feb. 28, 2018)(Hervey, J., concurring)(refusing discretionary review because no egregious harm shown from lack of jury instruction). The concurrence is wonderfully direct, on point and worth the read:

HERVEY, J., filed a concurring opinion in which RICHARDSON, NEWELL, and WALKER, JJ., joined.

I agree with the Court’s refusal of Desirae Monique Mata’s petition for discretionary review because she cannot show that she suffered egregious harm from the erroneous jury instruction. However, I write separately to address an important topic.

Corroboration of Accomplices and Jail House Informants

Mata argues in her second ground for review that the court of appeals erred to rely on accomplice testimony to corroborate “jail house” informant testimony and on “jail house” informant testimony to corroborate accomplice testimony. Compare Tex. Code Crim. Proc. art. 38.14, with id. art. 38.075. The accomplice-witness statute states that “[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. . . .” Tex. Code Crim. Proc. art. 38.14. The “jail house” informant statute states that “[a] defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.” Id. art. 38.075.

As is evident from the statutes, they implement the same prophylactic corroboration requirement, and we have said that they do so for the same reason,

Article 38.075 was enacted in recognition that incarcerated individuals have an incentive to provide information against other incarcerated individuals and that this testimony should be corroborated. Article 38.075’s legislative history recognizes that [t]he veracity of an in-custody informant’s statement can be highly suspect, and that [t]he testimony of [an] in-custody informant should be corroborated by at least one other piece of evidence. Jailhouse-witness testimony is inherently unreliable due to the inmate’s incentive to better his circumstances.Similarly, accomplice-witness testimony must be corroborated because it is inherently unreliable due to the strong likelihood of finger-pointing. The testimony of an accomplice witness is un­trustworthy, and it should be received, viewed, and acted on with caution.

Phillips v. State, 463 S.W.3d 59, 66 (Tex. Crim. App. 2015) (footnotes omitted).

The corroboration requirement in both statutes refers to “other evidence,” but the statutes do not refer to each other. The “other evidence” requirement makes sense when there is tes­timony at trial from only an accomplice or a “jail house” informant, but what if there is—as in this case—testimony from an accomplice and a “jail house” informant? Can the accomplice’s testimony corroborate the “jail house” informant’s testimony and vice versa? The language of the statutes indicate that they could, but I am not convinced that is what the legislature intended because such an interpretation would seem to undermine the pol­icy reason for the existence of both statutes. If the statutes exist to ensure that a person is not convicted on only unreliable testimony, why would it be okay to allow that so long as two un­reliable witnesses testify instead of only one?

Perhaps the legislature considered this possibility and rejected it, although the legislative history does not indicate that is so. It is also possible, however, that the legislature did not consider such a scenario. Neither the judiciary nor the legislature has the ability to foresee every conceivable consequence of a law, and while it is not for the judiciary to add or subtract from lawful statutes enacted by the legislature, Seals v. State, 187 S.W.3d 417, 421 (Tex. Crim. App. 2005), the legislature may want to consider examining the interplay between these two statutes to ensure that they operate as intended when there is accomplice and “jail house” informant testimony in the same case.


With these comments, I concur in the Court’s disposition.

Ethics and the Law: Forked Tongue


The phrase “speaks with a forked tongue” means to deliberately say one thing and mean another—or to be hypocritical or act in a duplicitous manner. In the longstanding tradition of many Native American tribes, “speaking with a forked tongue” has meant lying, and a person was no longer considered worthy of trust once he had been shown to speak with a forked tongue. This phrase was also adopted by Americans around the time of the Revolution, and may be found in abundant references from the early 19th century—often reporting on American officers who sought to convince the tribal leaders with whom they negotiated that they “spoke with a straight and not with a forked tongue” (as for example, President Andrew Jackson told the Creek Nation in 1829). According to one 1859 account, the native proverb that the “white man spoke with a forked tongue” originated as a result of the French tactic of the 1690s, in their war with the Iroquois, of inviting their enemies to attend a Peace Conference only to slaughter or capture them.


A recent call from one of our members concerned prosecutors he was dealing with who he believed were lying. The caller also had to deal with a client making demands that he file frivolous motions. Word was sent out to our committee members, and several excellent suggestions were made to the lawyer.

The past month we have received many calls about difficult clients or clients who make unrealistic demands.

I would direct the attorney to 1.02: A lawyer has to abide only as to plea to be entered, whether to waive jury, and whether client testifies. Comment 1 explains that while clients have ultimate authority to determine the objectives, they are subject to the lawyer’s professional obligations—which includes not bringing a baseless or meritless motion.

When dealing with difficult clients, remember to document all calls and correspondence. Always get a waiver of the attorney/client privilege before talking with family members or friends of your client. Many calls have come in where the caller is complaining that the court-appointed lawyer will not talk to the mother or other concerned family members. Unless there is some real reason not to talk to your client’s family, get your client to sign a waiver. An example follows.

You ever get that feeling that something you’re doing might be . . .  unethical? Stop right there! There’s an app for that—or, rather, a TCDLA committee. The Ethics Committee will get back to you within 24 hours. Save the number in your phone: (512)646-2734 or 888-ETHICS4 (888-384-4274). Reminder: Don’t post ethical dilemmas on the listserve or on social media, as you never know who’s looking.

Several years ago, while preparing a sentencing memo for a felony case, I asked my client to bring all his diplomas, letters of recommendation, and resume so I could put it in the memo. The memo was filed and included in the documents the client brought to me. The client was granted probation partly based on the contents of the memorandum I presented to the court. Ten years later, when the client and his sisters were fighting over assets in their mother’s estate, the probate lawyer got a copy of the memo I had filed and was able to prove all the diplomas from college were fake. Be wary when presenting documents without checking them out yourself. My client had spoken with forked tongue, and, luckily, he had finished his probation. It happens often so be wary.

The form on the facing page can be found on the TCDLA website in the Members Only section (Brief, Motion & Memo Bank/Voice Motions).

The following missive was in response to a request for advice from the Ethics Committee:

“To you and the TCDLA Ethics Committee, thank you all so very much for your help with my DA disqualification issue and helping me work through it. A special thanks to Michael Mowla, Brent Mayr, Keith Hampton, and Pat Metze for prompt written responses. What an incredible breadth of knowledge we all have at our beck and call. And, Robert, thanks so much for always answering that phone of yours on practically the first ring. The Texas criminal defense bar is in such good hands.”

Federal Corner: Waiting for the Supreme Court to Address Riley and the Border Search Doctrine – By F. R. Buck Files Jr.


Almost four years ago, the Supreme Court held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Riley v. California, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) [Opinion by Chief Justice Roberts, in which Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Alito filed an opinion concurring in part and concurring in the judgment].

Writing for the Court, Chief Justice Roberts concluded his opinion with this admonition to all law enforcement officers:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” Boyd, supra, at 630, 6 S.Ct. 524. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant [emphasis added].

What the Court has not addressed is whether the holding in Riley impacts the Border Search Doctrine.

In the first fifteen days of March, the United States Courts of Appeal for the Fifth and Eleventh Circuits were confronted with that issue. See United States v. Molina-Isidoro,___F.3d___, 2018 WL 1101361 (5th Cir. March 1, 2018) [Panel: Circuit Judges Davis, Haynes, and Costa. Opinion by Judge Costa], and United States v. Vergara, ___F.3d___, 2018 WL 1324589 (11th Cir. March 15, 2018) [Panel: Circuit Judges William Pryor, Jill Pryor (dissenting), and Clevenger. Opinion by Judge William Pryor]. Each Court determined that the holding in Riley did not apply and affirmed the defendant’s conviction and sentence.

I ran this query through WestLaw’s All Federal database: da(after 2/28/2014) & Riley & “border search.” In addition to Molina and Vergara, there were twenty-three District Court cases, but only one Court of Appeals case that included those two terms: United States v. Gonzalez, 658 Fed.Appx. 867 (9th Cir. 2016) [Panel: Circuit Judges Rawlinson and Bea, and Judge Eaton, sitting by designation (Memorandum Opinion)]. The opinion devotes only twenty-nine lines to the defendant’s Riley argument and ends with this comment:

Riley did not address border searches, and expressly acknowledged that “even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.” . . . Thus, Riley does not provide sufficient justification to excuse Gonzalez’s untimely filing of her motion to suppress.


[An Overview of the Opinion]

After discovering kilos of meth in the suitcase Maria Isabel Molina–Isidoro was carrying across the border, customs agents looked at a couple of apps on her cell phone. Molina argues that the evidence found during this warrantless search of her phone should be suppressed. Along with amici, she invites the court to announce general rules concerning the application of the government’s historically broad border-search authority to modern technology for which the Supreme Court has recognized increased privacy interests. See Riley v. California, __ U.S. __, 134 S.Ct. 2473, 2489–91, 2493, 189 L.Ed.2d 430 (2014). We decline the invitation to do so because the nonforensic search of Molina’s cell phone at the border was supported by probable cause. That means at a minimum the agents had a good-faith basis for believing the search did not run afoul of the Fourth Amendment.

* * *

[The Facts in More Detail]

Molina attempted to enter the United States at a border cross­ing in El Paso. Customs and Border Protection officers “detected anomalies” while x-raying her suitcase. When they questioned Molina, she acknowledged owning the suitcase but claimed that it only contained clothing.

        At a secondary inspection area, in response to questions about her travels, Molina said she had delivered clothing to her brother in Juarez, Mexico, and would be flying home to Tijuana, Mexico, from El Paso. At that point, an officer opened Molina’s suitcase and noticed a modification. After rescanning the suitcase, the officers located an “anomaly . . . covered by electrical tape.” That anomaly was a hidden compartment, which held 4.32 kilograms of a white crystal substance. A drug-sniffing dog alerted officers to the presence of narcotics, and the crystal substance field-tested positive for methamphetamine. Later laboratory tests confirmed that result.

* * *

        Either at that point, or during the questioning, agents searched Molina’s phone, looking at Uber and WhatsApp. They did not ask for, and Molina did not provide, consent for that search. The agents found the following (paraphrased) conversation on Molina’s WhatsApp:

Molina advised Raul that she was headed to El Paso, and requested [that] Raul . . . send her the information for the Uber. Molina advise[d] Raul that she had arrived in El Paso. Raul responded that he sent her the information for the Uber. Raul sent a picture [o]f a credit card, front and back, and told Molina to use that credit card information to pay for [the] Uber. Raul sent information regarding a hotel located in Juarez, Mexico. Raul directed Molina to Hotel Suites in Colonia Playas, Room #10, and advised Molina that the stuff [was] located there. Molina advised Raul that she [had] arrived [at] the room but no one was there. Raul stated he w[ould] get a hold of them. Molina then responded that the guy [had been] asleep [but had now] opened the door. Raul sent another picture of a Southwest Airlines flight itinerary. The itinerary listed Molina as the passenger o[n] a flight departing El Paso at 5:15 p.m. with a final destination of Ft. Lauderdale, Florida. Molina advised Raul that she got the stuff and was headed back to El Paso.

* * *

[The Court Avoids the Fourth Amendment Issue]

We do not decide the Fourth Amendment question. The fruits of a search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment.

* * *

[The Border Search Doctrine]

The agents searching Molina’s phone reasonably relied on the longstanding and expansive authority of the government to search persons and their effects at the border.

* * *

This evidence made it highly likely Molina was engaged in drug trafficking and created a fair probability that the phone contained communications with the brother she supposedly visited (or whoever was the actual source of the drugs) and other information about her travel to refute the nonsensical story she had provided. Indeed, the incriminating evidence obtained against Molina even before the phone search was so strong that we doubt the information from WhatsApp was needed to convict her. But the government used that evi­dence during the bench trial and does not urge harmless error.

        The existence of probable cause means the only way Molina can show the search was unlawful is if a warrant was required. But as we have already explained, no court has ever required a warrant to support searches, even nonroutine ones, that occur at the border. Although our court had not addressed border searches of an electronic device at the time of this search, a number of circuits had and none had required a warrant.

* * *

[The Riley Issue]

Molina argues that Riley changes all that. Although most circuits to decide the issue had applied the search-incident-to-arrest doctrine to cell phones, the Supreme Court took a different view. In doing so, it relied on the heightened privacy interest in smart phones given their immense storage capacity and the inapplicability of the traditional search-incident-to-arrest rationale to these searches. But Riley left open the possibility that “other case-specific exceptions may still justify a warrantless search of a particular phone.”

        That caveat means it was reasonable for the agents to continue to rely on the robust body of pre-Riley caselaw that allowed warrantless border searches of computers and cell phones. What is more, not a single court addressing border searches of computers since Riley has read it to require a warrant [emphasis added].

* * *

[The Officer Acted in Good Faith]

Given the state of the law when agents looked at the apps on Molina’s phone, it was eminently reasonable for them to think that the probable cause they had to believe it contained evidence of drug crimes made the search a lawful one.

* * *

Because the officers acted in good faith in searching the phone, the judgement of the district court is affirmed.


[An Overview of the Opinion]

This appeal presents the issue whether warrantless forensic searches of two cell phones at the border violated the Fourth Amendment. U.S. Const. amend IV. Hernando Javier Vergara appeals the denial of his motion to suppress evidence found on two cell phones that he carried on a cruise from Cozumel, Mexico, to Tampa, Florida. He argues that the recent decision of the Supreme Court in Riley v. California, __ U.S. __, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014)—that the search-incident-to-arrest exception to the warrant requirement does not apply to searches of cell phones—should govern this appeal. But we disagree. The forensic searches of Vergara’s cell phones occurred at the border, not as searches incident to arrest, and border searches never require a warrant or probable cause.

* * *

[The Facts in More Detail]

Vergara returned to Tampa, Florida, on a cruise ship from Cozumel, Mexico, with three phones: a Samsung phone inside a bag in his luggage, an LG phone, and an iPhone. Christopher Ragan, an officer with Customs and Border Protection, identified Vergara and searched his luggage. When Ragan found the Samsung phone in Vergara’s luggage, he asked Vergara to turn the phone on and then looked through the phone for about five minutes. During this search, Ragan found a video of two topless female minors. After watching a few seconds of that video, Ragan called investigators for the Department of Homeland Security.

        After viewing the video and interviewing Vergara, Terri Botterbusch, a special agent with the Department of Homeland Security, decided to have all three phones forensically examined. Agents later returned the iPhone to Vergara’s niece after a forensic examination revealed that it did not contain any child pornography.

        A forensic examination of the Samsung and LG phones conducted that day revealed more than 100 images and videos, “the production of which involved the use of a minor engaging in sexually explicit conduct and the visual depictions were of such conduct.” Neither the earlier manual search nor the forensic examinations damaged the phones. A grand jury later indicted Vergara on two counts: (1) that he “did knowingly transport in and affecting interstate and foreign commerce one or more visual depictions, the production of which involved the use of a minor engaging in sexually explicit conduct and such visual depictions were of such conduct”; and (2) that he “did knowingly possess numerous matters that had been shipped and transported using any means and facility of interstate and foreign commerce, including by computer, which matters contained visual depictions of minors engaging in sexually explicit conduct and the production of which involved the use of minors engaging in sexually explicit conduct.” See 18 U.S.C. § 2252(a)(1), (b)(1); 18 U.S.C. § 2252(a)(4)(B), (b)(2).

[Vergara Loses the Suppression Issue]

Vergara filed a motion to suppress the evidence obtained from his cell phones. The court held a suppression hearing, at which Ragan and Botterbusch testified, and later denied Vergara’s motion.

* * *

[The Riley Issue in the District Court]

The district court also rejected Vergara’s argument that Riley v. California, __ U.S. __, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), required the agents to obtain a warrant before conducting the forensic search. It reasoned that Riley did not apply to border searches. It agreed with the government that “if [Vergara] had entered the country with child pornography images in a notebook, the notebook would have been subject to inspection, and he cannot be allowed to insulate himself from inspection by storing child pornography electronically on his cell phone.” And it concluded that, in any event, the search was supported by reasonable suspicion.

* * *

[The Border Search Doctrine]

The forensic searches of Vergara’s phones required neither a warrant nor probable cause. “The Supreme Court has consistently held that border searches are not subject to the probable cause and warrant requirements of the Fourth Amendment.”

* * *

The “longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless ‘reasonable’ has a history as old as the Fourth Amendment itself.”

* * *

[The Court Rejects the Riley Issue]

Vergara argues that Riley required a warrant for both the manual and the forensic searches of his phones, but he challenges only the forensic searches because no evidence from the manual search was admitted as evidence against him. In Riley, the Supreme Court addressed the constitutionality of warrantless manual searches of cell phones following the arrest of two defendants in the United States. 134 S.Ct. at 2480–82. And the Supreme Court expressly limited its holding to the search-incident-to-arrest exception. It explained that “even though [that] exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone” [emphasis added].

* * *

We affirm Vergara’s judgment of conviction and sentence.

My Thoughts

  • Since the count is now twenty-six wins for the Government and zero for the defendant, why am I even concerned with Riley and the Border Search Doctrine? Because, I would answer, I have read Judge Jill Pryor’s dissent in Vergara which reads, in part, as follows:

                  In this case we decide for the first time whether a warrantless forensic search of a cell phone at the United States border comports with the Fourth Amendment.

    * * *

                  I agree with the majority that the government’s interest in protecting the nation is at its peak at the border, but I disagree with the majority’s dismissal of the significant privacy interests implicated in cell phone searches, as articulated by the Supreme Court in Riley v. California, __ U.S. __, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). Because Riley did not involve a border search, I acknowledge that I can, at best, attempt to predict how the Supreme Court would balance the interests here. But my weighing of the government’s heightened interest at the border with Vergara’s privacy interest in his cell phones leads me to a result different than the majority’s. I respectfully dissent because, in my view, a forensic search of a cell phone at the border requires a warrant supported by probable cause [emphasis added].

  • Surely Judge Pryor cannot be the only Court of Appeals Judge with this view. Eventually, the Supreme Court will write on this issue—hopefully, sooner rather than later. Until then, defense lawyers must continue to raise the Riley issue.