Monthly archive

March 2018 - Page 2

Shout Outs


Shout to Christopher Till of Comanche for the big NG in a recent delivery of meth case. Chris had filed a motion in limine attempting to block a video and audio recording made of the delivery by a confidential informant—who didn’t happen to make it for the trial. In closing he reminded the jury of a defendant’s right to confront the witness against him (which the court had disregarded in allowing the video), and the jury agreed. Way to go, counselor. The night before trial, Chris sought guidance on the listserve, and he had these kind words for the help he received:
 “Thank you to TCDLA and its members. As a solo practitioner it is comforting to know you have a group of attorneys that have your back. After my post I had several respond, and I received sound advice from the famous Michael Mowla. Thanks to Michael for his willingness to help and his sound advice. I used the cases cited by him and was able to research the topic late Monday night to be ready for trial Tuesday. I was able to make an excellent argument that the video and audio made by a missing confidential informant should not be allowed into evidence. Of course the Judge let in the video anyway, but I was able to keep out the audio. The video clearly showed my client holding a bag of some substance and handing it to the confidential informant. There were of course pictures admitted from the video showing that, as well as cash and a larger plastic bag. I did however try to make a record for appeal. Next thank you it all the presenters at seminars put on by TCDLA. I always get some ideas on how to improve as an attorney. I have not had the opportunity to thank them through the years, however, Thank you! and TCDLA. I am proud to be part of a group that is so willing to share what they have and know for each other.”

Kudos to TCDLA Board Member Laurie Key of Lubbock for her recent NG in in a four-day trial on an Agg Assault Bodily Injury/Deadly Weapon charge in Terry County. The case involved two female cousins, CW the one with a lengthy history of assaultive behavior: She’s known to carry a knife and is ”affectionately” known around town as “Pank the Shank.” CW heard D was sleeping with a man she herself coveted and after downing a few early one morning went searching for D—going from family member to family member “looking for that bitch” and proclaiming she would “get that bitch good.” D was apprised of the situation and went to buy something to drink after work. As she turned from the drink cooler, CW sucker-punched her. D pulled a box cutter from her waistband and took a slice out of her attacker (a 20cm x 6cm abdominal cut). Issue became whether D was justified in using ”deadly force” when CW only used “unlawful force.” Laurie went with reputation and opinion testimony, as well as the history of the complainant. Complainant no-showed. Laurie notes that judge wouldn’t allow her to cross State’s witnesses on these issues, so she “shouted and shouted it was a violation of client’s right to confront. I did not discharge one of their witnesses and recalled all in my case in chief. We were able to get in all reputation and opinion and nickname and even specific acts of violence.” Jury agreed and allowed D, a CNA who hadn’t worked in two years while awaiting trial, to return to her life. Way to fight for your client, Laurie, and see justice done.

A big shout out to TCDLA members Tristan Bouilly, James Rey, and Aaron Shnider for a huge win in a 7-day trial in El Paso County. D was charged with Indecency with a Child by Contact based on a delayed outcry that allegedly occurred when the CW was around 10 years old. CW, now 17, testified extremely well, but D’s team was able to show she had multiple reasons to fabricate these charges—including lies her parents made up about D. Jury apparently agreed and took just 10 minutes to declare D Not Guilty. Defendant expressed major relief to put this case behind him, as the weight of the charges had exacerbated his numerous health issues. Congratulations, team, for a job well done.

A shout out from TCDLA member Michelle Moore, head of the Burnet County Public Defenders, for the team of Nathan Kight, Scott Green, and Amber Ebeling Greer for their recent win on a Agg Assault Deadly Weapon case. D spent six months in the county jail after a dispute with a neighbor over a shed led to a confrontation. Nathan’s cross-exam of state’s witnesses established a self-defense claim, and the jury agreed, setting D free. Congratulations, team, on a job well done.

Congrats to Bowie County Public Defenders Shoaib Daredia and Sylvia Delgado, who recently scored a mistrial in an Aggravated Sexual Assault of a Child jury trial. The pair gained the win following “yet another” release of discovery evidence not previously tendered—from both the city of Waco and the DPS. The jury in the case was deadlocked after more than 15 hours deliberating. D was accused of sexual assault of his 5-year-old cousin, alleged to have happened while he was babysitting. The outcry was made on the day of the alleged incident, and the child was immediately taken to get a SANE examination. The SANE nurse made no attempt to gather or preserve any potential DNA evidence, so Shoaib and Sylvia argued at closing that the state couldn’t meet its burden based on lack of evidence and improper procedure in collection and preservation of physical evidence. After the mistrial, the prosecution offered a plea of Injury to a child and 10 TDC. Counsels informed the state that they would be prepared to retry the case in front of a jury. The State ended up dismissing the indictment and dropped all sexual assault charges. D was able to walk free. Kudos, team, for a job well done.

Congratulations to Mark Griffith of Waxahachie for a good day in court, which he describes this way: “Suppression hearing on a 3rd and State Jail Felony. We had no shot on the State Jail felony. Client has been offered 5 years TDC on the 3rd and 400 days on State Jail felony. Suppression starts and prosecutor told me that I had him on the 3rd-degree felony if my opening remarks were what he thought they would be. They were, with case law. He immediately concedes that one and client gets 100 extra days over his 126 days in jail for State Jail (in which we were not going to win the suppression hearing). Show up, do your best, and good things happen. Kudos to the prosecutor that has complete candor to the Court. Rare in my world.” A good day, indeed, Mark. Kudos on your success.

Shout out to Team Thiessen of Houston for a big win for a client facing 5–99 for an Intoxicated Manslaughter Case enhanced with a prior felony. The jury only found him guilty of the lesser DWI, so he went in facing life and walked out with time served. Dynamic duo Mark and Taly Thiessen expressed thanks to the jury for their verdict and for “remaining true to their doubts.” D registered a .19 four hours after the accident but accident reconstructionist John Eftekhar was able to show the decedent pulled out in front of D .85 seconds before impact, making it unavoidable. The Ts also thanked forensic toxicologist Amanda Culbertson, who found 100% undeniable tampering with the blood vials (which allowed the jury to not even consider the result). Apparently somebody removed and replaced the integrity seals on all the vials sometime between them leaving the nurse on video and when the lab accessed them. Team T also thanked Jacob Shiffer, John Leo, and Steven Wright, who they say stayed the course and provided invaluable insight. Congratulations, Ts, on another in a string of big wins.

Kudos to Suzanne Spencer of Austin, who recently heard the big NG in an Assault Family Violence Jury Trial in Travis County Court at Law #4. D, as Suzanne notes, was a victim of a scorned ex-lover who tried to play the criminal justice system. CW did not appear to be credible: She was hostile toward the 911 operator when she called and actually hung up on them. She failed to cooperate with law enforcement, and testified to a story very different from the one she reported. Investigating officer didn’t do good job of investigating the crime scene, and the alleged injuries didn’t show up in the photos. D maintained his innocence throughout and testified in his own behalf. Suzanne also notes that TCDLA member Angelica Cogliano, a new young up-and-coming criminal defense lawyer by way of Emory Law School, sat second chair for the trial. Bravo, team, for clearing the name of this young man—and a big win.

Not Guilty v. Cerberus: Winning Intoxicated Manslaughter Trials

“Ma’am, we regret to inform you, but your son was killed by a drunk driver.”

“Ma’am, we regret to inform you, but your son has been arrested for killing someone while driving intoxicated.”

n intoxicated manslaughter case is every person’s worst nightmare, whether you or a loved one are charged with the offense or are the victim thereof. You don’t have to be a bad person to be charged with intoxicated manslaughter. And, the only difference between making it to your destination safely after having consumed alcohol, medicine, or drugs or not is pure luck. Why some people’s lives intersect tragically at that one imperfect second is not for us to know.

In order to win an Intoxicated Manslaughter (“Intox Man”) trial, the lawyer needs to not only understand the above, but also to truly feel it and be able to communicate it to the jury. Most lawyers have won a Driving While Intoxicated (“DWI”) trial. The number becomes progressively less as the DWI involves an accident, a breath test, a blood test, and a dead body. Intox Mans are a second-degree felony, with each decedent carrying a possible range of punishment from 2–20 years in prison and a $10,000 fine for the accused if found guilty.2 It’s up to the Judge whether to stack the sentences for each victim. Most attorneys, rightfully, shy away from Intox Man cases because of the need to fully understand the science; the chances of losing are very high; and the punishment years add up fast. However, if you can win a DWI trial with an accident and chemical test, you can win an Intox Man trial—which is simply a complex DWI with a dead body.

In order to handle an Intox Man, one needs to understand and respect the true “beast” that it is. Intox Mans can carry a lot of emotion with juries, because it could happen to anyone and it is every juror’s worst nightmare. It’s a case that has affected every single juror or someone they know. The State rarely loses and is heavily favored. Few lawyers are willing to take these cases to trial for fear of receiving the max. Sometimes, the State can choose to offer probation or a reduction if they don’t feel con­fident in the case. The Intox Man trial is usually believed, by the State, to be rock solid. Trial cases will have bad driving facts, experts backing up the chemical result, and a dead body that will evoke tremendous emotion from the jury. To defeat the Intox Man “beast,” the trial lawyer first needs to know what this beast is and then figure out how to defeat it. No Beast is unconquerable.


In Greek mythology, Cerberus (pronounced /ˈsɜːrbərəs/) is often referred to as the Hound of Hades. He is the monstrous, three-headed dog that guards the gates to the Underworld. Cerberus’ mother was the monster Echidna, half mortal woman and half snake. Cerberus’ father was the monster Typhon, an immortal giant serpent. Cerberus is described as a dog, by most Greek mythological texts, having three heads and the tail of a serpent.3

Cerberus4 prevents the living from entering, and ironically for an Intox Man case, he also prevents the dead from rising or leaving the Underworld. The State, like Cerberus, wants to prevent the client from walking away from killing someone while DWI. The State’s beast of a case contains three separate attacks/heads: 1) intoxication, 2) causation, and 3) a dead body. Each head alone can pull at the heart of a juror enough to destroy the client and render a guilty verdict. When combined, these three heads make for a deadly and vicious case, which the State proudly parades around as unbeatable.

Hercules and the Twelve Labors

Zeus was the sky and thunder god; he was also king of the gods of Mount Olympus. Zeus’ wife was the goddess, Hera. However, Zeus engaged in relations with a mortal woman, Alcmene, and she in turn gave birth to their son, Hercules.

Hercules was a Roman hero/god and was essentially the same person as the Greek divine hero Heracles. Hera, jeal­ous of Zeus’ relations and offspring, made Hercules go mentally insane. While in this period of insanity, Hercules killed his own wife and child. When he awakened from his “temporary insanity,” Hercules was shocked and upset by what he’d done. He prayed to the god Apollo for guidance, and the god’s oracle told him he would have to serve King Eurystheus for twelve years, as punishment for the murders. As part of his sentence, Hercules had to perform twelve Labors, feats so difficult that they seemed impossible.5

Each Labor was increasingly difficult, with the most dangerous labor being the twelfth and final one. King Eurystheus ordered Hercules to go to the Underworld and kidnap Cerberus. The Underworld was ruled by the god Pluto/Hades. No mortal had ever entered the Underworld and returned. So, before making the trip to the Underworld, Hercules decided to take some extra precautions. He visited Eumolpus, a priest who began what were known as the Eleusinian Mysteries. The mysteries were sacred religious rites, and those who learned the secrets of the mysteries would have happiness in the Underworld. Eumolpus initiated Hercules into the Mysteries.

You are Hercules. Hercules was mortal. Statues and descriptions of Hercules’ physical features closely resemble that of the biblical David. Yes, Hercules was known for his strength, which probably came from being the son of Zeus. And like Hercules, the learned DWI trial attorney also has super strength in understanding the laws and sciences of DWI.6 Like Hercules, in order to beat the Intox Man beast, the trial attorney must understand and be shielded by the Mysteries: the DWI sciences. Before any trial attorneys even attempt to take an Intox Man to trial, they need to know the Standard Field Sobriety Test (SFST) manual, Intoxilyzer 5000 and 9000 Manuals, Drug Recognition Evaluation (DRE) manual, infrared spectroscopy, gas chromatography, gas chromatography mass spectrometry, human anatomy, retrograde extrapolation, and various aspects of accident reconstruction. The Intox Man trial lawyer must know the text books, articles, and studies dealing with the above. Significant time must be spent at CLEs and laboratories. While this may all seem like a lot, it’s really the same knowledge that any successful DWI trial attorney already knows. Sure, trials are won on wheeling and causation without needing any scientific DWI knowledge, but if you can see the wheeling or causation issue, the State almost always knows it as well and you can disregard this entire article, because that’s just a causation or wheeling trial. This article aims to defeat the three-headed Intox Man beast that has no loopholes.

Hercules, like biblical David, is a huge underdog. Neither Hercules nor David were supposed to win. In Not Guilty v. Goliath we learned how to beat a blood test DWI, and now many trial attorneys beat those cases regularly. Remember “if it bleeds, it pleads”? The State used to parade those cases around as unbeatable. Hercules and David can and will win because they have heart and precision in their attack.

The Twelfth Labor

Hercules made his way down to the Underworld. He encountered monsters, heroes, and ghosts as he made his way through Hades. Finally, he found Pluto and asked the god for Cerberus. The lord of the Underworld replied that Hercules could indeed take Cerberus with him, but only if he overpowered the beast with nothing more than his own strength.

What’s important to note is that Hercules, although mighty, is nice and politely asks Pluto for Cerberus. The trial attorney must be nice—until it’s time not to be nice. The trial attorney, like Hercules, must respect the Beast. Typically, in a DWI trial, the State and the Defense are both trying to be respectful of the case, while also being educating and likeable to a jury. It’s often been said, “If the jury is laughing with you, you are winning.” An Intox Man is not that type of case. Every Intox Man that I have tried, I have seen the State start out friendly and light-hearted in voir dire. As though the State is so worried about losing the popularity contest that they don’t want to seem too aggressive. Let them. Let them keep it light, because this is a heavy case with nasty facts. Of all the cases for the Defense to be serious, this is it. There are two trial tactics that must be utilized in voir dire by the Defense.

First, you must recognize the serious and tragic nature of an Intox Man case. Usually the court will take a break after the State’s voir dire. Many people visit the bathroom at this time. Jurors may be thinking about the past hour of the State’s voir dire, and the horror of being a juror in an Intox Man trial is racing through their mind. When defense attorneys stand up, they should imagine what is going through all of the jurors’ minds. Empathize with their fear and hate. Stand up, feel the energy in the room, accept the stares and disgust in their mind. “I know what you are all thinking: Mark, how can you represent a person that was drunk and killed someone in an accident?” It’s what you would be thinking as a juror.

Recognize the elephant in the room and then address it with your theory of the case. “I promise you, I’m not here to waste your time. Not every accident is a crime.” Let them know you are exactly like them, you share their fears. “Believe me, this is my worst fear as well. I have a family. I wouldn’t want to be on either side of this case as a parent. This is everyone’s nightmare. This was a tragic accident, but it wasn’t a crime.”

The defense attorney needs to let them know they respect this case to its very core, and they are not here just trying to get someone out of a crime. And we aren’t. We aren’t trying to win a game, or steal closure from a grieving family. We are trying this case because the evidence doesn’t add up, the wreck was unavoidable, a terrible investigation occurred, or the State just wants someone to blame in order to provide a reason for why someone died. The approach by the defense attorney is probably the most important factor in this trial. If you don’t believe in your heart of hearts in the case, you should not take the case to trial. This is not a case that can be won by going through the motions or by throwing spaghetti at the wall and seeing what sticks. Everyone involved in this case will never forget the verdict rendered. The jury should, and will, spend hours combing through the evidence and arguments. Jurors will be hardened, steadfast in their initial opinions. People will cry at the verdict, no matter what it is. You must respect and fear losing an Intox Man trial. Fear is your friend in an Intox Man trial. Fear will make you sincere in your fight.

Second, be nice.7 Someone lost their life and your client survived. However, there will come a time when the defense attorney may need to be stern and aggressive. Allow the jury to give you this power. In voir dire, include a discussion or slide about the Sixth Amendment.8 Ask the jury, “Heaven forbid that you would ever be charged in a case like this. What kind of lawyer would you want/hire?” Keep going until someone says tough or aggressive. “Thank you, I appreciate that. I promise I will be respectful, but I am fighting for his freedom and future. I need to get some information to y’all, and I may have to ask tough questions.”

It helps to know the kind of witnesses and experts the State intends on calling and their reputation for testifying. For example, if an analyst in Lubbock is going to be very difficult and non-responsive, then get that out in voir dire. “Now, I promise I will always be respectful, but what if I can’t even get a witness to agree that the sky is blue?” Most jurors will understand and allow you to be stern. Additionally, when you get crossways with that witness on the stand and simply step back and ask, “can we just agree the sky is blue,” and the witness replies, “I don’t know, I haven’t been outside in a while,” you can just look at the jury and you will all recognize the evasiveness of that witness.9 This simple question can destroy the entire credibility of the analyst. And when the witness gets evasive, the jury gave you permission and understands the need to be not nice.

Fighting Cerberus

Pluto would not just let Hercules “borrow” Cerberus. However, Pluto would not interfere if Hercules could defeat Cerberus without any weapons and with just what he had on. A weaponless Hercules set off to find Cerberus. Hercules wore the skin of the Nemean Lion (First Labor) around his shoulders. When Hercules found Cerberus, he threw the skin of the Lion over two of Cerberus’ heads and strangled the remaining head. He then uncovered one of the remaining heads and strangled it. Then he strangled the last head.

The skilled trial attorney, like Hercules, must systematically knock out the heads of the Intox Man Beast one at a time. Remember the three heads: 1) intoxication, 2) causation, and 3) a dead body. An Intox Man trial should be viewed as an accident DWI blood-test case with a dead body. What is the State’s most emotional weapon? What is the one thing that makes jurors forget about following the law? What does the State keep pushing? What is the one thing that scares every juror? Someone died. Many jurors will base their verdict and punishment solely on the horror of someone dying. The Dead Body is the most dangerous head. Without a dead body, this is just a Class B misdemeanor accident DWI with a chemical test. And plenty of lawyers have won those cases.

The fact that someone died in this case is tragic. Horrible. A nightmare. The worst fact. Deal with your worst facts in voir dire. You’ve acknowledged at the outset that this was a tragic accident. Every person knows that people die every day in automobile accidents. And not every accident is a crime. Towards the end of voir dire, deal with the fact that there is a dead body. Accept it head on. Prepare a slide that says “Pictures of Death.” Additionally, stipulate to the fact that someone died as a result of this accident. “Ladies and gentleman, I told you that I’m not here to waste your time. Someone died in this accident. We are not playing games. In fact, your Honor, State, everyone here, I stipulate that Mr. Smith died in this accident. He is never coming back. Now knowing that, how many people need to see pictures of Mr. Smith dead? How many people want to see pictures of Mr. Smith dissected and the injuries he sustained? I’ve just stipulated to his death. So if the State shows you those pictures, why do you think they are showing you those pictures?”

Most jurors understand that the purpose of pictures of death would just be to play with their emotions. No human likes to feel emotionally manipulated, and jurors will be repulsed by this tactic. Remind them that they have taken an oath to follow the law, and that they are better than basing their judgment on emotion rather than the law. The only purpose of showing pictures of death after the defense has stipulated to death is purely psychological—to try and get the jury to vote on emotion rather than the law. Shame on the State.

If the State does admit such pictures in evidence, remind the jury in closing that the State is just trying to manipulate their emotions. A juror in a case told me that the first thing she did when they got all the evidence for deliberation was to take the pictures of death and turn them upside down and put them in the corner of the room. She reminded all the jurors they were better than letting the State manipulate their emotions and they should all decide the case on the facts and follow the law.10 Remind jurors they are better than being manipulated by the State. All the defense lawyer wants is what the jurors swore to do: follow the law. Has the state proven intoxication, and if so, did that intoxication cause the accident that caused the death?

Beyond a Reasonable Doubt

The next head to handle will be dictated by the State. Do they put on their causation and accident reconstruction first or do they start with the intoxication investigation? Most State attorneys follow the chronological order of what happened that night: the accident and then the intoxication investigation and analysis of the chemical test. Every accident is different; therefore, to summarize how to handle every accident reconstruction would be impossible. First and foremost, you must inspect the scene yourself. Recreate the night as best you can by driving through every scene the jury will hear about. Many times you will see something in the experience of it all. Look for cameras in the area, the lighting, line of sight, distances, marks, character of the neighborhood, traffic patterns, light sequencing, location of the traffic light boxes, possible witnesses, etc. The defense attorney should be familiar with the total station mapping and diagrams of the scene and whether they accurately reflect the scene. A good accident reconstructionist can help educate the defense attorney on lingo like yaw, friction coefficient, drag factor, linear momentum, perception reaction time, hot shock, cold shock, Delta-V, etc. Make sure you and the defense accident reconstructionist visit the scene, together preferably. Ultimately, the sole issue is, did any alleged intoxication cause the accident?

The law is bad for the defense on whether the decedent ac­tually died as a result of something concurrent. For example, it’s very difficult to argue that had they been wearing their seat­belts they would have survived. The State loves to argue: But for the client hitting them, would they have made it home alive even without a seatbelt on? The law is simply against the defense and it takes a specific case to argue concurrent causation. The best causation argument I’ve ever heard came from Dick DeGuerin: “I don’t care if he was drinking iced tea, or Long Island iced tea, this accident was unavoidable.”

Investigate the impact marks, speeds, line of sight, reaction times, and any braking immediately before the accident. Address this in voir dire as well. Obviously you can’t discuss the facts of your case in voir dire, but you can find an example that is relatively similar. For example, if the decedent pulls out from a stop sign at the last second and an accident occurs: “If I’m doing 70 on the feeder, sure the cross traffic can take a right on their red light, but can he just pull right in front of me? Does that person not have to judge whether it’s safe? Does it matter if I’m speeding? If they pull out one second before impact, I don’t care if I’m drinking iced tea or Long Island iced tea, I can’t stop. What do y’all think, did that accident have anything to do with intoxication?” Most likely this will spark a discussion about perception reaction times, which may ultimately aid in an acquittal.

The last and most complex head of an Intox Man trial is whether the client was intoxicated. The possibilities for defense are highly fact dependent. The Intox Man trial lawyer will use every single tool used in a normal DWI trial. The defense attorney must choose the line of attack on intoxication, whether it utilizes 1) an attack on the meticulous grading of the SFSTs, 2) questioning the reliability of the alcohol concentration number, 3) the disconnect defense, or 4) use of retrograde extrapolation—i.e., the client wasn’t intoxicated at the time of the accident. Whatever the defense, follow exactly what you would do in a regular DWI trial. In fact, a jury will follow the law and scrutinize the intoxication evidence even more knowing the ramification of their verdict. Many jurors in a misdemeanor DWI tend to just blindly believe in the intoxication evidence, knowing the punishment for a misdemeanor doesn’t carry significant jail time. Juries tend to be much more critical in an Intox Man trial and will hold the State to their burden because they know 20+ years of incarceration are on the line. The defense attorney should remind the jury in closing that even though this is just guilt/innocence, it’s impossible not to think about the ramifications of their decision. It’s inhuman not to think about the punishment and years in prison that could result from a guilty verdict. And jurors honestly should think about punishment in guilt/innocence because the verdict will invariably impact many friends, families, and their future families.

Completing the Twelfth and Final Labor

Cerberus submitted to the force of Hercules, and Hercules brought Cerberus to King Eurystheus. Afterwards Cerberus was returned safely to Hades, where he resumed guarding the gateway to the Underworld. Presumably, Hercules inflicted no lasting damage on Cerberus, except, of course, the wound to his pride. When Hercules returned to King Eurystheus to attain his immortality, the King was nowhere to be found. So Zeus granted Hercules his immortality for completing his penance of the Twelve Labors.

The State’s case, like Cerberus, cannot sustain a systematic and calculated attack. But recognize that while Hercules may have choked Cerberus, he did not kill him. The trial attorney must not kill the case; it’s the jury’s job to decide its fate. And an over­zealous and aggressive defense attorney is just as effective as an incompetent one. Your closing argument should summarize your theory of the case and entrust it to the jury. As Gerry Spence has long taught, find the villain, promote righteous indignation, and empower the jurors. While it may be the State and Defense putting on their respective cases, the verdict belongs to the jury. As you weave your theory of the case through the facts, recognize and expose the villain. By that, did the State overzealously prosecute this case, did the police perform a terrible investigation, or is the lab biased or unreliable? Whatever the injustice, remind the jurors that this could happen to any of us.

Regardless of the side we are on, the defendant’s or the decedent’s, they and their loved ones and ultimately the people of this country deserve better. Empower the jurors: They have the voice, they have the ultimate decision. Their verdict will invariably impact lives, and they will never ever forget their verdict. The jurors should be proud of their verdict, for they can remember for the rest of their lives they followed the law, they were not swayed by emotion, and they did not compound the tragedy of this accident. They choose whether they remember for the rest of their lives the day they gave a person their life back or the day they labeled a man a criminal forever. The trial attorney fought passionately, and in the end, they humbly return to the jury to surrender the tamed Beast. And if done gracefully, the jury will recognize every Beast has weaknesses.


1. Thank you to my lovely wife, Taly Thiessen, for proofreading and her constant support.

2. TEX. PENAL CODE Sec. 49.08 (West 2003).


4. Cerberus appears in Homer’s Odyssey and Iliad and Hesiod’s Theogony. Cerberus is also portrayed in many sculptures and pottery.


6. Please read “Not Guilty v. Goliath” for a refresher on how to beat blood test DWI cases.

7. Thanks to Dalton from the Double Deuce. The best damn cooler in the bus­iness, other than Wade Garrett, who is not getting old.

8. Thanks to Ryan Deck of Georgetown, Texas, for this idea and slide.

9. Thanks to Lubbock analyst Jim Thomas for refusing to admit the sky was blue.

10. Thank you, Ms. Barker.

March 2018 SDR – Voice for the Defense Vol. 47, No. 2

Voice for the Defense Volume 47, No. 2 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

Battaglia v. State, No. AP-77,069, 2017 Tex. Crim. App. LEXIS 908 (Tex. Crim. App. Sep. 20, 2017) (Alcala, J. dissenting) (designated for publication), cert. denied, Battaglia v. Texas, No. 17-7646 (U.S. Feb. 1, 2018)

Editor’s note:

  • On February 1, 2018, Texas executed my client, John Battaglia. He was convicted of Capital Murder for the May 2, 2001, murders of his nine- and six-year-old daughters, Faith and Liberty.
  • He was sentenced to death on April 30, 2002.
  • The underlying crime was horrific.
  • I was appointed very late in the proceedings (in early 2016) to litigate the issue of whether Battaglia was incompetent to be executed under the standard of Panetti v. Quarterman.
  • Three competent experts observed, “Do these comments sound like those of a competent person who has a rational understanding of why the State wants to execute him?”
  • We obtained two stays of execution but were unable to get the third and final execution date stayed.
  • I had two petitions for writs of certiorari pending: the one cited above and another that was filed against a ruling by the Fifth Circuit, which dealt with the right to investigative funding in a federal ha­beas proceeding.
  • On February 1, 2018, shortly before 9:00 p.m. Texas time (10:00 p.m. in D.C.), the SCOTUS lifted the temporary stay and denied both petitions. Battaglia was executed soon thereafter.
  • I provided all of the facts on the electronic SDR, all of which come from the record (to avoid clutter, I did not provide the citations, but am happy to provide them to anyone who requests them—just send me a direct email).
  • Read the facts online and then you decide whether Battaglia was incompetent-to-be-executed.

The standard for execution-incompetency under Panetti

  • In Panetti, six experts testified.
  • The experts agreed that Panetti had the cognitive functionality to communicate coherently much of the time, but he still suffers from delusions about the world around him.
  • The experts differed about whether Panetti understands the State’s reason for seeking his execution and appreciates the connection between his crimes and his execution.
  • All found that he suffered from schizoaffective disorder.
  • When a person is schizophrenic, it does not diminish their cognitive ability: “[I]nstead, you have a situation (schizophrenia thought-disorder) where the logical integration and reality connection of their thoughts are disrupted, so the stimulus comes in, and instead of being analyzed and processed in a rational, logical, linear sort of way, it gets scrambled up and it comes out in a tangential, circumstantial, symbolic . . . not really relevant kind of way. He may have interactions that are “[r]easonably lucid . . . whereas a more extended conversation about more loaded material would reflect the severity of his mental illness.”
  • “[A] prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it,” and although Ford requires mere awareness of the State’s reason for executing him rather than a rational understanding of it, “[F]ord does not foreclose inquiry into the latter.”
  • Capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community, including the surviving family and friends of the victim, to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed. However, these goals are called in question if the prisoner’s mental state is so distorted by a men­tal illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community.
  • A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. A person sentenced to death for “an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality.” “[T]he beginning of doubt about competence in a case like (Panetti’s) is not a misanthropic personality or an amoral character. It is a psychotic disorder.”
  • Under the Eighth and Fourteenth Amendments, an inmate is incompetent to be executed if he lacks a rational understanding of the reason for his execution due to delusions stemming from a severe mental illness that place his awareness of the connection between his crime and his punishment in a context so far removed from reality that the punishment can serve no proper purpose.

Opinion of the TCCA

  • “Battaglia knows he is to be executed by the State, he knows he was convicted of killing his daughters, and he knows his execution is imminent. There is support in the record that Battaglia is malingering. Even though he denies being involved in the mur­ders of his daughters, there is evidence in the record supporting the conclusion that he comprehends that there is a ‘causal link’ between the capital offense and his imminent execution beyond merely identifying the State’s articulated rationale for the execution. Therefore, the trial court’s decision that Battaglia failed to establish by a preponderance of the evidence that he is incompetent to be executed was within the zone of reasonable disagreement and not an abuse of the trial court’s discretion.” Battaglia, id. at 91–93.

Editor’s Note:

  • The conclusion provided by the TCCA is not the Panetti standard.
  • The TCCA did not find that Battaglia has a rational understanding of the reason for his execution.
  • Rather, the TCCA majority provided explanations of why it believes that there is “support in the ‘record’ that Battaglia is malingering.”
  • The trial court and the TCCA misunderstood the holding and significance of Wood v. Thaler, 787 F. Supp.2d 458, 480–485 (W.D. Tex. 2011).

United States Court of Appeals for the Fifth Circuit

United States v. Alvarez, No. 17-40078, 2018 U.S. App. LEXIS 1613 (5th Cir. Jan. 23, 2018) (designated for publication)

                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.

                Under U.S.C. § 3583(d), conditions of supervised release must be “reasonably related” to one of the four statutory factors in 18 U.S.C. § 3553(a): (1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the pub­­lic from further crimes of the defendant, and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant.

                Under 18 U.S.C. § 3583(d)(2) & (d)(3), a special condition cannot involve a “greater deprivation of liberty than is reasonably necessary for the purposes” of the last three statutory factors and must be “consistent with any pertinent policy statements issued by the Sentencing Commission.”

                Under U.S.S.G. § 5D1.3(d)(5), mental health treatment is appropriate “if the court has reason to believe that the defendant needs psychological or psychiatric treatment.”

                The sentencing court must state in open court the reasons for its imposition of the sentence, including for special conditions. If there is no factual finding, the appellate court may affirm a special condition it can infer the district court’s reasoning after an examination of the record. If the district court’s reasoning is unclear after review of the record, the special condition must be vacated as an abuse of discretion.

Editor’s Note: It is not clear how the district court reached a conclusion that Alvarez needs coercive “mental health treatment.” A good reversal by the Fifth Circuit. Perhaps the district court saw something nobody else saw:

United States v. Ballard, No. 4-15-CR-00077, 2018 U.S. Dist. LEXIS 6819 (E.D. Tex. Jan. 16, 2018)

                Under United States v. Berry, 977 F.2d 915, 919 (5th Cir. 1992), the simultaneous possession of a firearm and ammunition are not separate offenses. Although the Government may try a defendant for being a felon in possession of ammunition and in possession of a firearm, there may not be simultaneous convictions and sentences, and such a simultaneous conviction and sentence violates the double jeopardy clause. The fact that a court may order the sentences to run concurrently does not change the Berry rule. Id.

Editor’s Note: This opinion was decided by Judge Mazzant in the E.D. Tex. and was excellently litigated by Seth Kretzer of Houston. From a 30-year sentence, Seth’s efforts resulted in a 20-year reduction (to 10 years) for his client.

Editor’s Note: I agree with Judge Mazzant that “common sense is not evidence.” But how about “uncommon sense”?

United States v. Broussard, No. 17-30298, 2018 U.S. App. LEXIS 2827 (5th Cir. Feb. 5, 2018) (designated for publication)

                Under DeShaney v. Winnebago Cnty., 489 U.S. 189, 199–200 (1989), and United States v. McKenzie, 768 F.2d 602, 605–606 (5th Cir. 1985), when the State takes a person into custody, the Constitution imposes a duty to assume some responsibility for his safety and general well-being. A law enforcement officer may be held liable for the substantive offense if the evidence shows awareness of a constitutional violation and no effort to prevent the violation.

                Under U.S.S.G. § 1B1.3(a)(1)(A), if more than one base-offense level could apply, the court should determine the base-offense level based on all the acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or will­fully caused by the defendant.

                Under U.S.S.G. § 1B1.3(a)(1)(B), if the case involved “jointly undertaken criminal activity,” the defendant is accountable for “all acts and omissions of others that were: (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity. The is on the specific acts and omissions for which the defendant is to be held accountable in determining the applicable guideline range, not on whether the defendant is criminally liable as a principal, accomplice, or conspirator.

                Under U.S.S.G. § 2H1.1, the district court must apply the greatest base-offense level from: (1) the offense level from the offense guideline applicable to any underlying offense; (2) 12, if the offense involved two or more participants; (3) 10, if the offense involved (A) the use or threat of force against a person; or (B) property damage or the threat of property damage; or (4) 6, otherwise.

United States v. Draper, No. 16-50960, 2018 U.S. App. LEXIS 2975 (5th Cir. Feb. 7, 2018) (designated for publication)

                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.

                Under Fed. Rule Crim. Proc. 11(c)(1), an attorney for the government and the defendant’s attorney may discuss and reach a plea agreement. The court must not participate in these discussions. This is a bright-line rule that constitutes an absolute prohibition on all forms of judicial participation in or interference with the plea negotiation process. This strict prohibition serves to diminish the possibility of judicial coercion of a guilty plea, as pressure is inherent in any involvement by a judge in the plea negotiation process.

                Judges clearly violate Rule 11(c)(1) where their statements could be construed as predictive of the defendant’s criminal-justice outcome; suggestive of the best or preferred course of action for the defendant; or indicative of the judge’s views as to guilt.

                Under Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012), defendants could have viable claims for IATC if counsel fails to communicate a plea offer and the de­fendant loses the opportunity to plead to less serious charges or to receive a less serious sentence.

                Frye appears to encourage the use of Rule 11 plea colloquies to confirm that formal offers have been conveyed. Trial courts may adopt some measures to help ensure against late, frivolous, or fabricated IATC claims. Formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence. To the extent Frye permits judges to engage in such inquiry, it must also allow them to ask reasonable follow-up questions and probe the responses of the parties. Otherwise, a judge would not be able to probe an ambiguous or unclear answer.

United States v. Fairley, No. 17-60001, 2018 U.S. App. LEXIS 1451 (5th Cir. Jan. 22, 2018) (designated for publication)

                Under Milanovich v. United States, 365 U.S. 551, 554 (1961) and 18 U.S.C. § 641, it is a crime to: (1) embezzle, steal, purloin, or knowingly convert to the defendant’s use or the use of another (2) a thing of value of the United States (stealing from the United States); or (1) receive, conceal, or retain (2) a thing of value of the United States (3) with the intent to convert it to the defendant’s use or gain (4) knowing it to have been embezzled, stolen, purloined, or converted (knowingly receiving stolen United States property).

                The verbs in paragraph one of 18 U.S.C. § 641 (embezzle, steal, purloin, and convert) describe illegal acts, while the verbs in paragraph two (receive, conceal, and retain) describe both innocent and illegal acts.

                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.

                The validity of an indictment is governed by practical, not technical, considerations, and its basic purpose is to inform a defendant of the charge.

                An indictment is legally sufficient if (1) each count contains the essential elements of the offense charged, (2) the elements are described with particularity, and (3) the charge is specific enough to protect the defendant against a subsequent prosecution for the same offense. An indictment need not precisely track statutory language.

                A jury instruction must: (1) correctly state the law, (2) clearly instruct the jurors, and (3) be factually supportable. Jury instructions are to be judged not in isolation but must be considered in the context of the entire instructions and the trial record.

                Verdict forms are considered part of the jury instruction, and the USCA5 evaluates the combined effect on the jury. Although verdict forms standing alone may confuse the jury, the confusion may be clarified when considered versus the entire jury instruction. When reviewing a jury verdict form, the court determines whether along with the instructions read to the jury it adequately stated the law.

                Under United States v. Gaudin, 515 U.S. 506, 511 (1995), the Constitution gives a defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged

                Additional jury notations that are not directly responsive to the jury charge and verdict form are surplusage and are to be ignored.

                Under Fed. Rule Evid. 801(d)(2)(E), a statement is not hearsay if it is offered against an opposing party and was made by the party’s co-conspirator during and in furtherance of the conspiracy. To introduce the statement, the proponent must show by a preponderance of the evidence: (1) the existence of the conspiracy; (2) the statement was made by a coconspirator of the party; (3) the statement was made during the conspiracy; and (4) the statement was made in furtherance of the conspiracy. The proponent cannot establish admissibility based on the statement alone, and there must be independent evidence establishing the conspiracy.

                The evidentiary rule of conspiracy is founded on concepts of agency law and differs from conspiracy as a crime. A conspiracy under Fed. Rule Evid. 801(d)(2)(E) may be shown by engaging in a joint plan that was noncriminal.

                The “in furtherance of” element of Fed. Rule Evid. 801(d)(2)(E) is not to be construed too strictly such that the purpose of the exception is defeated. Statements made to encourage loyalty and obedience among the conspirators is a purpose clearly in furtherance of the conspiracy.

Editor’s Note: As well-intentioned as HUD is (and its offspring Freddie Mac & Fannie Mae), the programs have had problems. It was not until 1998 (33 years after LBJ signed the Housing and Urban Development Act of 1965) that HUD opened an enforcement department to investigate HUD fund recipients who violate laws and regulations. Enforcement of the laws and regulations has been weak, and management of the programs has been shaky.

United States v. Ganji, No. 16-31119, 2018 U.S. App. LEXIS 2279 (5th Cir. Jan. 30, 2018) (designated for publication)

                A verdict is affirmed unless viewing the evidence and reasonable inferences in light most favorable to the verdict, no rational jury could have found the essential elements of the offense to be satisfied 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. § 1349 (healthcare fraud), the government must prove beyond a reasonable doubt that: (1) two or more per­sons made an agreement to commit healthcare fraud; (2) that the defendant knew the unlawful purpose of the agreement; and (3) that the defendant joined in the agreement with the intent to further the unlawful purpose. Agreements need not be spoken or formal, and the Government can use evidence of the conspirators’ concerted actions to prove an agreement existed. But, an agreement is a necessary element of conspiracy, and as such, the Government must prove its existence beyond a reasonable doubt.

                When proving an agreement exists by using the concert-of-action theory, the Government must present evidence of the conspirators’ individual actions that, taken together, evidence an agreement to commit an unlawful objective beyond a reasonable doubt.

                Under 18 U.S.C. § 1347 (healthcare fraud), the Government must show that the defendant knowingly and willfully executed a scheme or artifice: (1) to defraud any healthcare benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises any healthcare benefit program’s money in connection with the delivery of or payment for healthcare services.

Mance v. Sessions, No. 15-10311, 2018 U.S. App. LEXIS 1279 (5th Cir. Jan. 19, 2018) (designated for publication)

                Under 18 U.S.C. § 922(a)(3) and (b)(3), and 27 C.F.R. § 478.99(a), an FFL-holder may tender or sell a firearm only to residents of the same state. The law does not apply to the sale or delivery by an FFL-holder of a rifle or shotgun to an out-of-state resident if the FFL-holder meets in person with the out-of-state resident to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both states. Nor does it apply to the sale of a curio, antique, or relic.

                Under District of Columbia v. Heller, the Second Amendment guarantees the individual right to possess and carry weapons in case of confrontation. Self-defense was the central component of the right itself. The American people have considered the handgun to be the quintessential self-defense weapon. In contemplating why a citizen might prefer a handgun over long guns for home defense, whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

                Like most rights, the right secured by the Second Amendment is not unlimited: Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

                In creating the in-state FFL-holder requirement, Congress sough to address issues concerning the sale of concealable weapons by FFL-holders to nonresidents of the State in which the FFL-holder’s places of business are located, activities that tended to make ineffective the laws in the several States and local jurisdictions regarding such firearms.

                The in-state FFL-holder sales requirement is narrowly tailored because: (1) there are more than 123,000 FFL-holders nationwide, and it is unrealistic to expect that each of them can become and remain knowledgeable about the handgun laws of all 50 states and local laws within the states; (2) FFL-holders are not engaged in the practice of law, and the court does not expect even an attorney in one state to master of the laws of 49 other states; (3) the laws of the states differ as to who may lawfully possess a firearm, since all but one state (Vermont) prohibits possession of a firearm by a felon, even then, definitions of “felony” differ; (4) restrictions based on mental illness vary; (5) some states prohibit the purchase of a firearm by drug abusers; (6) some states restrict purchases by those who have abused alcohol; (7) it is reasonable for the government to expect that an FFL-holder in a state master and remain current on the firearm laws of that state.

Editor’s Note: 18 U.S.C. § 921(a)(16) defines a curio, antique, or relic antique firearm as:

(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or

(B) any replica of any firearm described in subparagraph (A) if such replica

       (i)   is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or

       (ii)  uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or

(C) any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle-loading weapon, or any muzzle-loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

Texas Law

  • To be eligible to possess a firearm in Texas, if a person is subject to or completes deferred adjudication for a misdemeanor or a felony, under Texas law, he may possess a firearm.
  • Tex. Penal Code § 46.04 prohibits those who are finally convicted of a felony from possessing a firearm before the fifth anniversary of his release from “confinement” (release from community supervision, parole, or prison).
  • Those placed on deferred adjudication are not subject to the firearms-possession restrictions of Tex. Penal Code § 46.04 because deferred adjudication is “not deemed a conviction for general purposes.” Yazdchi v. State, 428 S.W.3d 831, 838 (Tex. Crim. App. 2014).
  • Tex. Penal Code § 46.04 requires a final felony conviction as an element of the offense. Cuellar v. State, 70 S.W.3d 815, 820 (Tex. Crim. App. Feb. 13, 2002); see also Ramon v. State, No. 13-15-00146-CR, 2016 Tex. App. LEXIS 6343 (Tex. App. Corpus Christi June 16, 2016) (not designated for publication) (because the defendant was not finally convicted of a felony but was merely on deferred adjudication, he could not have been guilty of felon-in-possession of a firearm under Tex. Penal Code § 46.04, so the officer was mistaken in arresting the defendant based on suspicion of a violation of Tex. Penal Code § 46.04).

Federal Law

  • If a person is convicted of a felony F-3 and above, or a SJF where the underlying sentence is more than one year, he is forever prohibited by federal law from possessing or purchasing even a single bullet. 18 USC 922(g)(1).
  • If there is a finding of family violence for any offense, the person will forever be prohibited by federal law from possessing or purchasing even a single bullet. 18 USC 922(g)(9).
  • If there is no finding of family violence, while he is on deferred adjudication for a felony, he still may not under 18 U.S.C. 922(d)(1) possess a firearm because he is considered “under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”
  • Once the person completes deferred adjudication, he is no longer “under indictment for” a crime punishable by imprisonment for a term exceeding one year. To determine what is a “conviction” is determined by the law of the jurisdiction in which the proceedings were held, look at 18 U.S.C. 921(a)(20) and 27 CFR 478.11.
  • Under 18 U.S.C. 921(a)(20), a “crime punishable by imprisonment for a term exceeding one year” does not include (B) any State offense classified…as a misdemeanor and punishable by a term of imprisonment of two years or less…(and for felonies)…shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Also, a conviction that was expunged or pardoned is not considered a conviction.
  • 27 CFR 478.11(b) provides additional guidance:

(b)    A person shall not be considered to have been convicted of such an offense for purposes of this part unless:

(1) The person is considered to have been convicted by the jurisdiction in which the proceedings were held; and

(2) The person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and

(3) In the case of a prosecution for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (i) The case was tried by a jury, or (ii) The person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

  • United States v. Gispert, 864 F.Supp 1193 (S.D. Fla. 1994): Before being indicted and convicted for felon-in-possession of a firearm under 18 U.S.C. § 921(g)(1): (1) the defendant had pleaded guilty to a Florida felony that did not involve family violence, (2) the state court “withheld adjudication and placed him on probation” (which is the same as our deferred adjudication), (3) he successfully completed the deferred probation, and (4) the Florida court terminated his probation and criminal pro­ceedings without ever adjudicating him guilty. Thus, the district court found that this was not a “conviction” under 18 U.S.C. § 921(a)(20) and so as a matter of law, he could not have violated 18 U.S.C. § 921(g)(1).
  • United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001): The defendant was convicted in Texas of delivery of marijuana and injury to a child. He was sent to TDCJ. The trial court granted him shock probation and put him on probation for 10 years. He successfully completed shock probation and was discharged. The Fifth Circuit affirmed his conviction for felon-in-possession of a firearm under 18 U.S.C. § 922(g) because although he was discharged from probation, he did not qualify for the “unless” clause of 18 U.S.C. § 921(a)(20). The court noted that this was a final conviction (as opposed to a deferred adjudication), and under Beecham v. United States, 511 U.S. 368, 371 (1994), what constitutes a conviction under 18 U.S.C. § 922(g) must be determined per the law of the jurisdiction in which the state proceedings were held. In Texas, a final felony conviction is considered a “conviction” for a felony under 18 U.S.C. § 921(a)(20) but deferred adjudication is not.
  • Thus, upon successful completion of deferred adjudication in Texas, there is no “conviction,” so the defendant will not be federally prohibited from possessing a firearm once he is discharged from deferred adjudication community supervision.

United States v. Murra, No. 17-10117, 2018 U.S. App. LEXIS 906 (5th Cir. Jan. 15, 2018) (designated for publication)

                Review of a trial court’s decision to admit expert testimony is for abuse of discretion. A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly er­roneous assessment of the evidence. If the trial court abuses its discretion, reversal will not occur unless it affected the defendant’s substantial rights, which is shown if the ruling affected the outcome of the proceedings. Error does not affect substantial rights if after reviewing the entire record, the court is sure that the error did not influence the jury or had a very slight effect on its verdict.

                Under Fed. Rule Evid. 702, witnesses who are qualified as experts by knowledge, skill, experience, training, or education may provide opinions if: (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case.

                The advisory committee notes to Rule 702 also contemplates where it “might also be important . . . for an expert to educate the factfinder about general principles, without attempting to apply these principles to specific facts of the case.” If so, Rule 702 requires that: (1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony “fit” the facts of the case.

                Factual findings underlying a ruling of psychotherapist-patient privilege is reviewed for clear error, and application of the legal principles are reviewed de novo. Factual findings are clearly erroneous if, on the entire evidence, the court is left with a “definite and firm conviction” that a mistake was committed.

                Under Jaffee v. Redmond, 518 U.S. 1 (1996), a privilege protecting confidential communications between a psychotherapist and patient “promotes sufficiently important interests to outweigh the need for probative evidence.” The privilege covers confidential communications made to licensed psychiatrists and psychologists and confidential communications made to licensed social workers during psychotherapy.

                A person does not forfeit the psychotherapist privilege when she divulges information to her psychotherapist that amounts to allegations that a crime has been committed. The mere assertion that facts were disclosed to third parties (for prosecution) and at trial does not by itself establish that victims or their psychotherapists disclosed the substance of confidential communications.

                The application of the attorney-client privilege is a question of fact to be determined considering the purpose of the privilege and guided by judicial precedents. Factual findings underlying a ruling of attorney-client privilege is reviewed for clear error, and application of the legal principles are reviewed de novo. Factual findings are clearly erroneous if, on the entire evidence, the court is left with a “definite and firm conviction” that a mistake was committed.

                For a communication to be protected under the attorney-client privilege, the proponent must prove: (1) that he made a con­fidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.

                Public disclosure of facts does not destroy the attorney-client privilege with respect to confidential communications about those facts.

                Under Griffin v. California, 380 U.S. 609 (1965), the Fifth Amendment forbids comment by the prosecution, either direct or indirect, on the defendant’s silence. Review of an assertion a Fifth Amendment violation on this ground involves a determination of whether the: (1) prosecutor made an impermissible remark, which is (i) whether the prosecutor’s manifest intent was to comment on the defendant’s silence or (ii) whether the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant’s silence. If there is an equally plausible explanation for the remark, the prosecutor’s intent is not manifest; and (2) remark casts serious doubt on the correctness of the jury’s verdict, which is (i) the magnitude of the prejudicial effect of the remarks (tested by looking at the remarks in the context of the trial and elucidating their intended effect), (ii) the efficacy of any cautionary instruction by the judge (an immediate curative instruction cures alleged harm), and (iii) the strength of the evidence supporting the conviction.

                Review of the interpretation of the U.S.S.G. is de novo, but review of a finding of unusual vulnerability is for clear error and determined on whether the conclusion was plausible considering the entire record.

                Under U.S.S.G. § 3A1.1(b)(1) (vulnerable-victim enhancement), if the defendant knew or should have known that a victim of the offense was a vulnerable victim, the level is increased by two levels. A “vulnerable victim” is a person who is a victim of the offense of conviction and who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct. The enhancement should not be applied if the factor that makes the person a vulnerable victim is incorporated in the offense-guideline.

United States v. Shepherd, No. 15-50991, 2018 U.S. App. LEXIS 1995 (5th Cir. Jan. 26, 2018) (designated for publication)

                Under United States v. Fields, 761 F.3d 443, 479 (5th Cir. 2014), free-standing actual innocence claims may not be brought in a federal habeas proceeding.

                Under the Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20913(a), and 18 U.S.C. § 2250(a), a sex offender must register and keep the registration current in each jurisdiction where he resides. A defendant is subject to SORNA if he: (1) has a state law sex offense requiring registration as a sex offender; (2) travels in interstate commerce; and (3) knowingly fails to register or update his registration as required by state law.

                Under Tex. Crim. Proc. Code § 62.003(a), an out-of-state sex offender is required to register in Texas if his offense falls within the requirements of Tex. Code Crim. Proc. Ch. 62. DPS determines whether an out-of-state offense is substantially similar to a reportable Texas offense.

                To determine whether a guilty plea was valid, a court determines whether the plea represents a voluntary and intelligent choice among the alternative choices to the defendant. The conditions for a valid plea require that the defendant have notice of the charges against him, understand the constitutional protections waived, and have access to the advice of competent counsel.

                Under Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 472 U.S. 52 (1985), the voluntariness of a plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases. The defendant must show that: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness considering all the circumstances; and (2) the deficient performance prejudiced the defense, that there is a reasonable probability that but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

                If a defendant claims that counsel erred by failing to investigate or discover certain exculpatory evidence, the prejudice determination depends on whether the discovery of such evidence would have influenced counsel to change his advice regarding the guilty plea, and may be based on: (1) defendant’s evidence to support his assertion that he would have gone to trial had he known the circumstances; (2) likelihood of success at trial; (3) risks he would have faced at trial; (4) his representations about his desire to retract his plea; and (5) the district court’s admonishments.

United States v. Suarez, No. 16-41267, 2018 U.S. App. LEXIS 863 (5th Cir. Jan. 12, 2018) (designated for publication)

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

                On a sufficiency claim that is preserved, the verdict is affirmed unless viewing the evidence and reasonable inferences in light most favorable to the verdict, no rational jury could have found the essential elements of the offense to be satisfied 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.

                Sufficiency claims not preserved are 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. Plain error on sufficiency of the evidence claims is clear or obvious only if the record is devoid of evidence pointing to guilt, or the evidence on a key element of the offense is so tenuous that a conviction would be shocking.

                To prove a drug conspiracy, the Government must prove: (1) an agreement between two or more persons to violate narcotics laws; (2) knowledge of the agreement; and (3) voluntarily participation in the agreement.

                A conviction, especially one accompanied by an accomplice instruction, may be sustained on the uncorroborated testimony of an accomplice so long as the testimony is not incredible or otherwise insubstantial on its face.

                To support a conviction for possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A), the Government must prove that the defendant had either actual or constructive possession of a firearm and that the possession furthered, advanced, or helped forward the drug trafficking offense. These nonexclusive factors are relevant to determining whether possession is “in furtherance” of a drug trafficking crime: (1) type of drug activity conducted; (2) accessibility of the firearm; (3) type of firearm; (4) whether the firearm is stolen; (5) legality of the possession; (6) whether the gun is loaded; (7) proximity of the weapon to the drugs; and (8) time and circumstances under which the firearm is found. The mere presence of a firearm is insufficient.

                When evidence of more than one firearm is presented to the jury to support a single count of possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A), the jury is not required to agree unanimously on which weapon the defendant possessed.

                Under 26 U.S.C. § 5861(d), possession of unregistered firearms, possession may be actual or constructive. Constructive possession is established when the evidence supports a plausible inference that the defendant had knowledge of and access to the weapon or contraband.

                Under 18 U.S.C. § 924(c)(1)(B)(i), if a person possessed a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon in committing a crime defined in 18 U.S.C. § 924(c), the person shall be sentenced to a term of imprisonment of not less than 10 years consecutive to other sentences.

                Under Alleyne v. United States, 133 S.Ct. 2151 (2013), a mandatory-minimum sentence under 18 U.S.C. § 924(c) is an element of the offense that must be found by a jury beyond a reasonable doubt. Otherwise, the sentence violates the Sixth Amendment. Any fact issue that increases the mandatory minimum sentence must be submitted to a jury and found beyond a reasonable doubt.

Uranga v. Davis, No. 15-10290, 2018 U.S. App. LEXIS 881 (5th Cir. Jan. 12, 2018) (designated for publication)

                Under Gonzalez v. Crosby, 545 U.S. 524 (2005), a postjudgment motion like a motion under Fed. Rule Civ. Proc. 59(e) that is in fact a second or successive § 2254 application is subject to the restrictions of the AEDPA and does not toll the time for filing a notice of appeal. A postjudgment motion should be treated as a successive § 2254 application if the motion adds a new ground for relief or attacks the district court’s previous resolution of a claim on the merits. However, a postjudgment motion should not be treated as a successive § 2254 application if the motion asserts that a previous ruling that precluded a merits determination was in error (denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar) or when the motion “attacks some defect in the integrity of the federal habeas proceedings.”

                Under 28 U.S.C. § 2254(d)(1), habeas relief may not be granted on a claim that was adjudicated on the merits by a state court unless the adjudication of the claim resulted in a decision that was contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the SCOTUS. When a state court fails to adjudicate a claim on the merits, this deferential standard of review is inapplicable, and the federal courts must instead conduct a plenary review.

                Under Brooks v. Dretke, 444 F.3d 328 (5th Cir. 2006), per United States v. Remmer, 347 U.S. 227 (1954), a person is entitled to an unbiased jury under the Sixth Amendment, and bias of a juror may be actual or implied. The determination of implied bias is an objective legal judgment made as a matter of law and is not controlled by sincere and credible assurances by the juror that he can be fair. However, it is only in “extreme situations” implied juror bias may be found, which include where the juror is an employee of the prosecuting agency, the juror is a close relative of one of the participants in the trial or the criminal transaction, or the juror was a witness or somehow involved in the criminal transaction.

Editor’s Note: Always beware of implied juror bias.

Texas Court of Criminal Appeals

State v. Cortez, No. PD-0228-17, 2018 Tex. Crim. App. LEXIS 49 (Tex. Crim. App. Jan. 24, 2018) (designated for publication)

                Under Tex. Transp. Code § 545.058(a), an operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only: (1) to stop, stand, or park; (2) to accelerate before entering the main traveled lane of traffic; (3) to decelerate before making a right turn; (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; (5) to allow another vehicle traveling faster to pass; (6) as permitted or required by an official traffic-control device; or (7) to avoid a collision. “Improved shoulder” means a paved shoulder, and “shoulder” means the portion of a highway that is (A) adjacent to the roadway; (B) designed or ordinarily used for parking; (C) distinguished from the roadway by different design, construction, or marking; and (D) not intended for normal vehicular travel. It is a violation to drive on an improved shoulder if it appears that driving on the improved shoulder was not necessary to achieving one of the seven approved purposes or it appears that driving on the improved shoulder could not be done safely.

Editor’s Note:how would Tex. Transp. Code § 545.058(a) apply on this road?

Lerma v. State, No. PD-1229-16, 2018 Tex. Crim. App. LEXIS 48 (Tex. Crim. App. Jan. 24, 2018) (designated for publication)

                Review of a trial court’s ruling on an MTS is the bifurcated standard of review: The trial judge is the sole trier of fact and judge of credibility of witnesses and the weight to be given to their testimony. Almost complete deference is afforded to the trial court in determining historical facts. Review is de novo re­garding whether the facts are sufficient to give rise to reasonable suspicion.

                When the trial court does not make explicit FFCL, the appellate court views the evidence in the light most favorable to the trial court’s ruling and assumes the trial court made implicit findings of fact supported by the record.

                The ruling of a trial court on an MTS is sustained if it is correct under any applicable theory of law.

                A Fourth Amendment analysis regarding an officer’s stop and frisk is considered as whether the: (1) officer’s action was justified at its inception; and (2) search and seizure were reasonably related in scope to the circumstances that justified the stop.

                Officers are justified in stopping a vehicle when the officers have reasonable suspicion to believe that a traffic violation has occurred. A traffic stop made for investigating a traffic violation must be reasonably related to that purpose and may not be prolonged beyond the time to complete the tasks associated with the traffic stop. During a traffic stop the officer may request certain information from a driver—such as the driver’s license, vehicle registration, and proof of insurance—and run a computer check on that information. An officer is also permitted to ask drivers and passengers about matters unrelated to the purpose of the stop, so long as the questioning does not measurably extend the duration of the stop.

                During a traffic stop, once the officer knows that the driver has a current valid license, no outstanding warrants, and the car is not stolen, the traffic stop investigation is fully resolved and must be terminated. But if an officer develops reasonable sus­picion that the driver or an occupant of the vehicle is involved in criminal activity, the officer may continue questioning the individual regardless of whether the official tasks of a traffic stop have come to an end.

                During a detention, an officer may in certain circumstances conduct a pat-down search of an individual to determine whether the person is carrying a weapon if the officer reasonably believes that the suspect is armed and dangerous, such that the officer can point to specific and articulable facts which reasonably lead him to conclude that the suspect might possess a weapon. Reasonable suspicion in this context is based on an objective assessment of the officer’s actions considering the facts and circumstances sur­rounding the detention. The officer’s subjective fear is not controlling. The question is whether a reasonably prudent person would justifiably believe that his safety or the safety of others was in danger.

                Under Rodriguez v. United States, 135 S.Ct. 1609 (2015), a police stop exceeding the time needed to handle the matter for which the stop was made violates the Fourth Amendment. The officer’s investigation includes the ordinary inquiries incident to the traffic stop such as checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the vehicle’s registration and proof of insurance. Traffic stops are often dangerous to officers, so they may need to take some negligibly burdensome precautions to complete the investigation safely. The legitimate and weighty interest in officer safety may outweigh a “di minimis” intrusion on the occupant’s Fourth Amendment rights, such as requiring a driver and passenger to exit the vehicle during the stop.

State v. Velasquez, No. PD-0228-16, 2018 Tex. Crim. App. LEXIS 52 (Tex. Crim. App. Feb. 7, 2018) (designated for publication)

                Under Tex. Code Crim. Proc. Art. 28.01, the court may set a pretrial hearing and direct the defendant and his attorney and the State’s attorney to appear before the court at the time and place stated in the court’s order for a conference and hearing. At the pretrial hearing, any preliminary matters not raised or filed seven days before the hearing will not be allowed to be raised or filed except by permission of the court for good cause shown, pro­vided that the defendant shall have sufficient notice of such hearing to allow him not less than ten days in which to raise or file such preliminary matters. Thus, the notice requirement applies to the defendant and not the state.

                Tex. Code Crim. Proc. Art. 28.01 requires formal notice of a pretrial hearing only when the court designates a separate, pretrial setting for the hearing, not when the court elects for the hearing to take place on the trial setting itself.


  • Velasquez filed an MTS and served the prosecutor.
  • On the day of trial, prior to empaneling the jury, the trial court decided to hear the MTS.
  • The prosecutor argued that because “motions to suppress in our court” ordinarily “run with trial,” she was not prepared for any hearing pertaining to Velasquez’s motion.
  • The trial judge decided that although it was his practice to run suppression rulings with trial, sometimes he may consider them if “it’s something we can resolve without going to trial.”

The trial court did not err by hearing the MTS before trial, and the state was not entitled to separate notice of the hearing

  • Tex. Code Crim. Proc. Art. 28.01 comes into play only when the trial court exercises its discretion to “set” a pretrial hearing.
  • Under Tex. Code Crim. Proc. Art. 28.01, the court may set a pre­trial hearing and direct the defendant and his attorney and the State’s attorney to appear before the court at the time and place stated in the court’s order for a conference and hearing. At the pretrial hearing, any preliminary matters not raised or filed seven days before the hearing will not be allowed to be raised or filed except by permission of the court for good cause shown, provided that the defendant shall have sufficient notice of such hearing to allow him not less than ten days in which to raise or file such preliminary matters. Thus, the notice requirement applies to the defendant and not the state.
  • The mandatory notice provision of ten days is a condition that a defendant will not be held to the seven-day filing limitation un­less he has been accorded at least ten days’ notice of the pre­trial hearing.
  • Tex. Code Crim. Proc. Art. 28.01 requires formal notice of a pretrial hearing only when the court designates a separate, pre­trial setting for the hearing, not when the court elects for the hearing to take place on the trial setting itself.

Texas Courts of Appeals

Amberson v. State, No. 13-16-00306-CR, (Tex. App. Corpus Christi Jan. 18, 2018) (designated for publication)

                Under Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990), Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000), and Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999), an appellate court reviewing a trial court’s ruling on the admissibility of evidence must utilize an abuse-of-discretion standard of review and must uphold the trial court’s ruling if it was within the zone of reasonable disagreement. The appellate court must review the trial court’s ruling considering what was before the trial court at the time the ruling was made.

                Under Lagrone v. State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997), the abuse-of-discretion standard of review applies to the admissibility of expert testimony.

                Under Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992), one of the factors a trial court could consider in determining scientific reliability is the qualifications of the testifying expert.

                Under Tex. Rule Evid. 701 and Osbourn v. State, 92 S.W.3d 531, 535–36 (Tex. Crim. App. 2002), if a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’ perception; and (b) helpful to clearly understanding the witness’ testimony or to determining a fact in issue. Perceptions refer to a witness’ interpretation of information acquired through his senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted). It is necessary that the witness personally observed or experienced the events about which he is testifying. Thus, the witness’ testimony can include opinions, beliefs, or inferences so as they are drawn from his own experiences or observations. This incorporates the personal knowledge requirement of Tex. Rule Evid. 602 stating that a witness may not testify to a matter unless he has personal knowledge of the matter. There is a provision in Rule 602 for opinion testimony by expert witnesses that allows a person testifying as an expert un­der Tex. Rule Evid. 703 to base his opinion on facts and data that are of a type reasonably relied upon by experts in the field. Thus, expert testimony serves the purpose of allowing certain types of relevant, helpful testimony by a witness who does not possess personal knowledge of the events about which he is testifying. A lay witness’ temporal proximity to the occurrence in question may be different from an expert’s relative removal from the occurrence in question.

                Under Tex. Rule Evid. 702, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

                Under Tex. Rule App. Proc. 44.2(b), the violation of an evidentiary rule that results in the erroneous admission of evidence is nonconstitutional error. Under Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011), an appellate court must disregard nonconstitutional error unless it affected substantial rights, which are affected when the error has a substantial and in­jurious effect or influence on the jury’s verdict. If the error had no or only a slight influence on the verdict, the error is harmless. A conviction will not be overturned for nonconstitutional error if after examining the entire record the court determines that the error did not influence the jury or influenced the jury only slightly

Bates v. State, No. 07-16-00386-CR, 2018 Tex. App. LEXIS 591 (Tex. App. Amarillo Jan. 18, 2018) (designated for publication)

                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.

                Under Rushing v. State, 546 S.W.2d 610, 611 (Tex. Crim. App. 1977), Tex. Code Crim. Proc. Art. 13.04, and Tex. Code Crim. Proc. Art. 21.06, an offense may be alleged to have occurred in whichever county it is being prosecuted in so long as the offense occurred within 400 yards of the county, and the in­dict­ment does not need to specifically aver that the offense occurred within 400 yards of the county. Further, when the offense may be prosecuted in either of two or more counties, the indictment may allege the offense to have been committed in the county where it is prosecuted.

                Under Tex. Rule App. Proc. 33.1, to preserve a complaint for appellate review, an appellant must have raised the issue at the trial court level stating the specific grounds for objection and received an adverse ruling.

                A defendant’s entitlement to a pleading of the State’s intent to enhance the defendant’s punishment by proof of prior felony convictions is a right that must be specifically invoked or else it is forfeited.

                Under Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006), when a defendant offers no defense to the enhancement allegations and does not request a continuance to prepare a defense, notice given at the beginning of the punishment phase satisfies due process.

Editor’s Note: Under Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004), the proper sequence for objections is:

1.  Make a timely, specific objection. If the objection is overruled, error preserved.

     If objection is sustained, then

2.  Make a request for an instruction to disregard, then

3.  Move for a mistrial (and pursue your motion until you obtain a ruling from the court)

State v. Bernard, No. 14-15-00822-CR, 2018 Tex. App. LEXIS 614 (Tex. App. Houston [14th Dist.] Jan. 23, 2018) (designated for publication)

                Review of a trial court’s ruling on a MTS is the bifurcated standard of review: The trial judge is the sole trier of fact and judge of credibility of witnesses and the weight to be given to their testimony. Almost complete deference is afforded to the trial court in determining historical facts. Review is de novo re­garding whether the facts are sufficient to give rise to reasonable suspicion.

                Under State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008), when the trial judge makes express FFCL, considering the evidence in the light most favorable to the trial court’s ruling, the appellate court upholds the findings if it is supported by the record and correct under any theory of law applicable to the case.

                Under Berkemer v. McCarty, 468 U.S. 420, 439 (1984), and Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011), a warrantless automobile stop is a Fourth Amendment temporary detention and must be justified by reasonable suspicion. The reasonableness of a temporary detention is determined from the totality of the circumstances. Reasonable suspicion is present if the officer has “specific, articulable facts that, combined with rational inferences from those facts, would lead the officer reasonably to conclude that the person is, has been, or soon will be engaged in criminal activity.” An officer’s stated purpose for a stop can neither validate an illegal stop nor invalidate a legal stop because the stop’s legality rests on the totality of the circumstances viewed objectively.

State v. Doyal, No. 09-17-00123-CR, 2018 Tex. App. LEXIS 1049 (Tex. App. Beaumont, Feb. 7, 2018) (designated for publication)

                Under Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013), whether a statute is facially constitutional is a question of law that is reviewed de novo. If there is a reasonable construction that will render the statute constitutional, it must be upheld. Courts presume the statute is valid and that the Legislature did not act unreasonably or arbitrarily. The burden normally rests upon the person challenging the statute to establish its unconstitutionality.

                Under Ex parte Lo, the First Amendment limits the govern­ment’s power to regulate speech based on its substantive con­tent. Content-based regulations are those that distinguish favored from disfavored speech based on the idea or message expressed. When the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed. Content-based regulations (laws that distinguish favored from disfavored speech based on the ideas expressed) are presumptively invalid, and the government bears the burden to rebut that presumption.

                Under Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973), strict scrutiny is applied to content-based regulations. If the statute punishes conduct and not speech, a rational-basis level of review to determine if the statute has a rational relationship to a legitimate state purpose. Before a statute will be invalidated on its face as overbroad, the overbreadth must be real and substantial when “judged in relation to the statute’s plainly legitimate sweep.” A statute should not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional application. Statutes are not necessarily unconstitutionally vague merely because the words or terms employed in the statute are not specifically defined.

                Under Tex. Gov. Code § 311.011(a), when a statute does not define the words used, plain meaning is applied. Words and phrases shall be read in context and construed according to the rules of grammar and common usage.

                Under Kolender v. Lawson, 461 U.S. 352, 357 (1983), the void-for-vagueness doctrine invalidates a statute if it fails to define the offense in such a manner as to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited.

                Under Tex. Gov. Code § 551.143(a), the Texas Open Meetings Act TOMA requires that meetings of governmental bodies be open to the public, and a crime occurs when a member or group of members of a governmental body knowingly conspire to circumvent the openness by meeting in numbers less than a quo­rum for secret deliberations. “Deliberation” means “a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business.” “Governmental body” includes a county commissioners court.

                “Meeting” means (A) a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or (B) except as otherwise provided by this subdivision, a gathering: (i) that is conducted by the governmental body or for which the governmental body is responsible; (ii) at which a quorum of members of the governmental body is present; (iii) that has been called by the governmental body; and (iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control.

                “Meeting” does not include the gathering of a quorum of a governmental body at a social function unrelated to the public business that is conducted by the body, the attendance by a quorum of a governmental body at a regional, state, or national convention or workshop, ceremonial event, or press conference, if formal action is not taken and any discussion of public business is incidental to the social function, convention, workshop, ceremonial event, or press conference.

                “Quorum” means a majority of a governmental body unless defined differently by applicable law or rule or the charter of the governmental body.

                Tex. Gov. Code § 551.143 describes the offense with sufficient specificity that ordinary people can understand what conduct is prohibited. Is provides reasonable notice of the prohibited conduct. It is reasonably related to the State’s legitimate interest in assuring transparency in public proceedings. The alleged overbreadth is not real and substantial when judged in relation to its plainly legitimate sweep.

In re D.L., No. 14-17-00058-CV, 2018 Tex. App. LEXIS 546 (Tex. App. Houston [14th Dist.] Jan. 18, 2018) (designated for publication)

                In a juvenile proceeding, a reviewing court reviews the sufficiency of the evidence to support a finding that a juvenile engaged in delinquent conduct using the standard applicable to criminal cases.

                When reviewing the legal sufficiency of the evidence, under Jackson v. Virginia, 443 U.S. 307, 309, 319 (1979), the court views all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The trier of fact is the sole judge of the weight and credibility of the evidence and may draw reasonable inferences from basic facts to ultimate facts. Each fact need not point directly and independently to the guilt of the appellant, if the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Direct evidence and circumstantial evidence are equally probative.

                Under Tex. Penal Code § 30.05(a), a person commits criminal trespass if he enters or remains on or in another’s property, including a vehicle, without effective consent, and if the person had notice that entry was forbidden. Because the statute does not specify a culpable mental state, the State must prove that the de­fen­dant acted intentionally, knowingly, or recklessly.

                Under Howard v. State, 333 S.W.3d 137, 139 (Tex. Crim. App. 2011), where the jury charge asks whether a defendant acted using more than one mental state (“intentionally or knowingly” here) a reviewing court considers the evidence applying the lesser of the two alleged mental states.

                Under Tex. Penal Code § 6.03(b), a person acts knowingly, or with knowledge, when he is aware of the nature of his conduct or that the circumstances exist.

                There is no support for the notion that “acting startled” at the appearance of a police officer or riding in a vehicle in public after curfew are circumstances from which a jury may reasonably infer a consciousness of guilt for the specific element of the charged offense.

                Under King v. State, 638 S.W.2d 903, 904 (Tex. Crim. App. 1982), although presence at or near a crime scene and flight from a crime scene are circumstances from which the jury may draw an inference of guilt, neither are by themselves sufficient to sustain a guilty verdict.

Drain v. State, No. 07-17-00276-CR, 2018 Tex. App. LEXIS 809 (Tex. App. Amarillo Jan. 30, 2018) (designated for publication)

                Under Tex. Penal Code § 3.03(a) and LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992) (en banc), should a pros­e­cution for multiple crimes arising out of a single criminal trans­action result in multiple convictions, a sentence for each con­viction must be pronounced and run concurrently. This lim­its the trial court’s discretion under Tex. Code Crim. Proc. Art. 42.08(a), which provides that if the defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case, and in the discretion of the trial court, the judgment in the second and subsequent convictions shall begin when the judgment and the sentence imposed or sus­pended in the preceding conviction has ceased to operate, or the sentence imposed or suspended shall run concurrently with the other cases.

                Under Tex. Code Crim. Proc. Art. 42.02, “sentence” means that part of the judgment, or order revoking a suspension of a sentence, that orders the punishment to be carried into execution. When combined with Tex. Penal Code § 3.03(a), the legislature’s intent was to have the execution of multiple sentences occur in unison when § 3.03(a) applies.

                Under Tex. Code Crim. Proc. Art. 42.02 and Tex. Penal Code § 3.03(a), when a person is sentenced for case 1 and case 2 that were prosecuted in the same trial but arose from the same criminal transaction, and case 1 is probated while case 2 is not probated, both sentences begin running at the same time, so even if the probated sentence (case 1) is later revoked, the prison sentence for case 1 does not “add-on” to the time already served for the sentence for case 2.

The “Business Duty” Rule for Business and Public Records

The prosecution often seeks to introduce business records at trial to prove relevant evidentiary points contained within those records. Often times, whether in state or federal court, the prosecution will attach a business records affidavit to the exhibit to overcome any hearsay objection. The affidavit typically purports to establish: (1) the records were made at or near the time by or from information transmitted by someone with knowledge; (2) the records were kept in the course of a regularly conducted activity of a business; and (3) making the records was a regular practice of that activity. These business records are often admitted without objection from the defense—not because there’s not a valid objection, but because the defense attorney failed to recognize the “business duty rule” applicable to the exhibit proffered by the prosecution.

Consider the following situations a defense lawyer might face at trial:

Scenario 1: In a money laundering trial, the government seeks to introduce business records from Western Union to show your client sent money to an alleged drug dealer in another state;

Scenario 2: In a drug trafficking trial, the government seeks to introduce business records from a hotel to establish your client was registered there and was in the area when the drug transaction took place;

Scenario 3: In a probation revocation hearing, the state seeks to introduce the business records of the probation de­partment to establish your client’s progress in a drug treatment program. The records reflect the supervising officer was informed by the treatment provider that your client was not attending the program as ordered; or

Scenario 4: In a mortgage fraud trial, the government seeks to introduce title company records contained in the file of the Department of Housing and Urban Development to establish the physical location of the title company.

Are any of these records admissible for the purposes sought by the prosecution? Said another way, do these “business records” comply with the business duty rule? If not, then none of them are admissible for the purposes for which they may be offered.

The “Business Duty” Requirement

The “business duty” requirement was established in common law.1 “Under the business duty requirement, the record is not admissible unless the person reporting the information had a business duty to do so. In other words, was the information reported in the regular course of regularly conducted activity.”2

As explained in Weinstein’s treatise on federal evidence:

To satisfy Rule 803(6), each participant in the chain which created the record—from the initial observer—reporter to the final entrant—must generally be acting in the course of the regularly conduct business. If some participant is not so engaged, some other hearsay exception must apply to that link of the chain.3

Importantly, the business duty requirement still applied after the adoption of the Federal Rules of Evidence.4 Indeed, abolishing the business duty requirement would lead to the introduction of double hearsay by way of a business record in violation of Fed. R. Evid. 805.5

Perhaps the Court of Criminal Appeals explained the business duty requirement best in Garcia v. State, 126 S.W.3d 921, 929 n. 2 (Tex. Crim. App. 2004):

[A] delusional person might call Crimestoppers to report that George Washington was cutting down a cherry tree on the Capitol grounds. Although Crimestoppers has a business duty to accurately record all incoming calls and to keep the records as part of its business records, the caller had no business duty to report accurately. His statements may be contained within a business record, but they are not admissible to establish the fact that George Washington was, in fact, cutting down a cherry tree, although they would be admissible to establish that the person did call and make a report of some type on a given day.

Indeed, there are numerous cases holding that records kept in the ordinary course of business may still be inadmissible if the evidentiary point in the records the proffering party seeks to prove was provided to the business by someone without a business duty to the business. One court held that a sales receipt with a defendant’s name and address was not admissible to prove the defendant lived at the address indicated on the receipt since the person making the purchase had no business duty to the store to give accurate information.6 Similarly, other courts have held that records of Western Union were inadmissible to prove who purchased a particular money order.7 Likewise, hotel registers have been held inadmissible if they were offered to show that a particular guest was registered at the hotel.8

The Garcia court also recognized the business duty requirement as it applied to Tex. R. Evid. 803(6) and Tex. R. Evid. 803(8). In particular, the Court of Criminal Appeals held that a person’s statements made to a Battered Women’s Shelter could not be admitted as a business record of the shelter:

The State laid a proper foundation for admission of the shelter’s business records under Rule 803(6). The records themselves were admissible, but that does not mean that all information, from whatever source or of whatever reliability, contained within those business records is necessarily admissible. When a business receives information from a person who is outside the business and who has no business duty to report or to report accurately, those statements are not covered by the business records exception. Those statements must independently qualify for admission under their own hearsay exception—such as statements made for medical diagnosis or treatment, statements concerning a present sense impression, an excited utterance, or an admission by a party opponent.9

Similarly, Willis v. State, 2 S.W.3d 397, 401 (Tex. App.—Austin 1999), involved a probation revocation hearing in which the state used a probation officer to sponsor records indicating the defendant had committed a felony, by stealing fish hooks, while on probation. The Court of Appeals held this was error and reversed the District Court’s order revoking probation:

At trial the State contended and now on appeal contends that the narrative report was admissible as a record of regularly conducted activity. See Tex. R. Evid. 803(6). The sponsoring witness testified that he had no personal knowledge that appellant had stolen the fish hooks. When Exhibit 3 was offered in evidence, appellant objected that no one in the “probation department had direct knowledge of whether [appellant] stole the fish hooks” and that it was an “allegation which is hearsay.” “Documents inadmissible under 803(8)(B) may not be admitted under 803(6) . . .” [citations omitted] . . . Moreover, “Inadmissible hearsay testimony does not become admissible simply because it is contained within an admissible document or transcript [citations omitted].

In a recent federal court trial, the government attempted to prove venue through closing documents that listed the address at which the closing took place. Their problem? The records came from HUD and HUD had not created the closing documents. The government was only prepared to call the custodian from HUD and not the custodian from the title company. Since the title company had no business duty to HUD, the HUD records were not admissible to prove the address where the closing took place.10 Ultimately, the HUD files were introduced for other purposes, but not for “the truth of the matters asserted.” Still, the government mistakenly believed it could prove the closing location from the documents contained in the HUD file. After the court sustained the defense objection, the prosecutor could not understand: “I just don’t understand how something can be hearsay that’s—it’s in evidence pursuant to hearsay exceptions.”11

How to Avoid a Business Duty Hearsay Objection

There are ways around a business duty objection to documents otherwise admissible as business records. First, if the business maintaining the records verified the information contained in the records, most courts would hold the records admissible over a business duty objection. So, although Western Union does not verify the identity of a person sending a money order, it does identify the person picking it up. Thus, even though Western Union records may not be admissible to show who sent a particular money order, they could be admissible to prove who received the same money order.12 The same argument would apply to hotel registers if the party seeking to introduce the hotel register could prove the hotel verified the identity of its guests by reliable means.13 Second, as noted by the court in Garcia, if the underlying statement from the person not having a business duty satisfied an independent hearsay exception—“such as statements made for medical diagnosis or treatment, statements concerning a present sense impression, an excited utterance, or an admission by a party opponent”—the information provided by that person would be admissible for the truth of the matters asserted therein.14 Third, if the underlying statement from the person not having a business duty is not introduced for the truth of the matter asserted, there is no business duty objection. In the HUD example above, it was permissible for the government to introduce HUD records to show what matters were contained in the HUD files, but it could not introduce the records to prove the accuracy of what was written in the records since they were not created by HUD.15


The importance of reviewing business records offered through a records custodian affidavit (or through a live witness) to determine (1) what the prosecution is trying to prove with the records, and (2) where the information in the records orig­i­nated, cannot be understated. If the prosecution tries to use the records to prove the truth of information contained in the records, but that information was provided by a person not having a business duty to the business maintaining the records, you should object to the admissibility of the records. Sometimes the prosecution may overcome the objection by having a witness explain the business’ information verification process or by identifying an independent hearsay exception, but often the prosecutor will not be prepared to respond. Lastly, even if your objection is overruled because the judge does not understand the business duty requirement, you will have preserved error for the appeal.


1. Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual § 803.02[7][c] at 803–53 (Lexis-Nexis 2015).

2. Id.

3. 5 Weinstein’s Federal Evidence, § 803.08[8][2] (2d ed. 2004).

4. United States v. Vigneau, 187 F.3d 70, 74 (1st Cir. 1999) (“[D]espite its language, the business records exception does not embrace statements contained within a business record that were made by one who is not a part of the business if the embraced statements are offered for their truth”), cert. denied, 528 U.S. 1172 (2000).

5. Federal Rules of Evidence Manual § 803.02[7][c] at 803–54.

6. United States v. Patrick, 959 F.2d 991, 1000–02 (D.C. Cir. 1992).

7. Vigneau, 187 F.3d at 74–77; United States v. Cestnik, 36 F.3d 904, 908 (10th Cir. 1994), cert. denied, 513 U.S. 1175 (1995).

8. United States v. McIntyre, 997 F.2d 687, 698–700 (10th Cir. 1993), cert. denied, 510 U.S. 1063 (1994).

9. Garcia, 126 S.W.3d at 926–27.

10. United States v. Brown, No. NO. 4:12CR87 (E.D. Tx.)

11. Id.

12. United States v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995).

13. McIntyre, 997 F.2d at 698–701; United States v. Lieberman, 637 F.2d 95, 100–01 (2d Cir. 1980) (“Lieberman’s objection to the admission of the hotel guest card was that the lines showing the guest’s name and address had been filled in by the guest, not the hotel’s employee. This objection missed the mark. We do not view the applicability of the business records exception as depending on the purely formal matter of whether the guest supplies the information by writing it on the card, or by stating it so that it may be written on the card by the employee. The latter process would not suffice to make the business records exception applicable to prove the identity of the guest unless the employee were able in some way to verify the information provided for example, by examining a credit card, driver’s license, or other form of identification . . . By the same token, however, if such verification is obtained by the employee, we see no reason why the guest card that has been filled in by the guest himself would not qualify as a business record and thus be admissible for the truth of its statements.”).

14. Garcia, 126 S.W.3d at 926–27. See also Bondi v. Bic Corp., 947 F.2d 1531, 1534 (6th Cir. 1991) (Hospital record was admissible even though it included the statement of the mother of the patient. Despite the fact that the mother did not have a “business duty” to the hospital, the mother’s statements constituted a “party admission” allowing the hearsay within the hospital records to be introduced for the truth of the matters asserted therein.).

15. See also Hoselton v. Metz Baking Co., 48 F.3d 1056, 1061–62 (8th Cir. 1995) (Records of accounting business containing statements by persons without a “business duty” to the business were admissible because the statements from others were not offered to prove the truth of the matters asserted, but merely to show that the plaintiffs were on notice of certain expectations that the defendants had in the negotiation.).

March 2018 Complete Issue – PDF Download



23 | Not Guilty v. Cerberus: Winning Intoxicated Manslaughter Trials – By Mark Thiessen
29 | The “Business Duty” Rule for Business and Public Records – By Clint Broden

6 | President’s Message
10 | Interim Executive Director’s Perspective
12 | Ethics and the Law
15 | Federal Corner
19 | Shout Outs

5 | CLE Seminars and Events
33 | Significant Decisions Report

President’s Message: Remembering the Lawyers at the Alamo – By David E. Moore


I can still remember my first trip as a child to the Alamo. I was probably five years old, a tow-headed, crewcut kid, and it didn’t matter to me if it was broiling that summer day in San Antonio. My coonskin cap was not coming off my head regardless of my level of dehydration as the beads of perspiration rolled down my face.

This was where my heroes had fallen. There is no telling how many times by then I had watched Fess Parker or John Wayne in their roles as Davy Crockett. I had a gold-colored 45 record that I had just about worn out as I listened over and over again about “the thirteen days of glory at the siege of the Alamo.” My favorite toys were the plastic images of coonskin-topped soldiers.

I still remember standing there in front of the Alamo, looking up into the sky at the chapel. In a way, I was relieved by the sweat pouring down from under my cap, because it helped mask my tears.

Now, way past grown, I have to tell you I still get a little lump in my throat every time I see it. Years ago, on one of my annual sojourns to TCDLA’s Rusty Duncan conclave, I decided to spend a few hours there in the Daughters of the Republic of Texas library. My goal that day was to learn more about a specific group of Alamo defenders who paid the ultimate sacrifice. I wanted to learn more about the lawyers who died there.

Of course, I knew about Travis being a lawyer. But I did not know about the six others. Micajah Autrey, Peter James Bailey, James Butler Bonham, Daniel William Cloud, John M. Hays, and Green Berry Jameson all practiced law before dying together in the Alamo in the predawn hours of March 6, 1836.

Once I explained what I was looking for, the folks there were an immense help. They even had a file on the subject that they brought out for me. Among the papers there was a well-documented article published in the November/December 1999 edition of The Houston Lawyers, written by Gretchen Allen and Brad Allen. I learned from their article the stories of Travis and the others and leaned heavily on their information as a base for further research.

 My curiosity was further stoked a couple of years ago when I read William Davis’ terrific book Three Roads to the Alamo, an excellent treatment of Crockett, Bowie, and Travis and how they all arrived at their common appointment with fate. The detail of the research by Davis into each of the “Big 3” amazed me. I was particularly happy to learn more about Travis, whose star in history has in my opinion been both unfortunately and unfairly outshone by the popularity and marketing of Crockett and Bowie. Travis was certainly not just window dressing for the other two.

William Barret Travis

Travis, who was born in South Carolina, first started training in the law after moving to Claiborne, Alabama, at the feet of James Dellet, a giant in the Alabama legal community. In February 1829, Travis was admitted to the bar. But times were tough for him. Facing mounting debts, and perhaps a rocky marriage, he decided to leave his family behind and head for Texas.

Travis told his wife that he would send for her, his son, and their unborn daughter after he got settled in Texas. The son later came, but his wife and daughter remained in Alabama. Travis established his practice in Anahuac, eventually moving to San Felipe.

Travis proved to be a thorn in the side of Mexican authorities and was ultimately incarcerated for over 50 days. In 1835, he led a group of twenty-something men in a successful raid against an outpost of Mexican soldiers in Anahuac.

As events unfurled leading the Texans toward the road to independence, he continued to ply his trade as a lawyer. From his office in San Felipe, his legal practice grew. He handled maritime law, probate issues, and debt collection, defended civil cases, and also did some criminal defense work. He even handled a matter for James Bowie.

As Travis’ legal practice blossomed, his rather tenuous marriage fell apart completely. After inquiries from a lawyer representing his wife back in Alabama, Travis responded that he had no desire to reunite with his wife, and that all he wanted was his son and his freedom.

In October 1835, the “Come and Take It” battle occurred in Gonzales igniting the revolution. Travis and others formed a local company of men in San Felipe, and Travis was named as their lieutenant. About a week later, the San Felipe group arrived in Gonzales. Stephen F. Austin then assumed command of the 300 or so men who had rallied to Gonzales and led them on to San Antonio.

As the Texans grew frustrated with Austin’s mishandling of the “army,” there was a growing realization that they should organize themselves in a more professional manner. It was early during this process that Travis was approached about taking a commission with the artillery, but he declined the position. He was later appointed as a lieutenant colonel of the cavalry.

Travis was ordered to head to the Alamo to reinforce Colonel James Neill. Shortly after Travis’ return to San Antonio, on February 12, 1836, Neill took an emergency family leave of 20 days, which left Travis in charge of the 50 or so army “regulars” at the Alamo. He uneasily shared the overall command with Bowie, who led the 100 or so “volunteers” there.

Although Sam Houston wanted to withdraw the Texas forces and blow up the Alamo, the garrison received direct orders from Governor Smith and the ruling council to stay put. Travis set about improving their defensive position and began a constant process of sending dispatches for reinforcements, the most famous being his “Victory or Death” message penned on February 24th. Travis’ eloquent pleas for assistance and his very public unwavering commitment to hold on as long as possible stirred hearts all over the county to respond and assist in the struggle.

But, they would not be able to relieve the besieged Travis. On the morning of the final assault by the Mexican army, Travis was among the first to fall as he manned his post.

Micajah Autrey

Autry was born to a Quaker family. After serving in the War of 1812, he took up teaching and later began the study of law. He was admitted to the bar in Nashville, Tennessee, in 1828. In 1835, Autry headed for Texas.

His wife stayed behind and he wrote her a series of letters about his journey. In a letter dated December 7th, he told her: “I feel more energy than I ever did on anything I have undertaken. I am determined to provide for you a home or perish.”

Later from Nacogdoches, he wrote her that he had fallen in “with a small company of select men, four of them lawyers.” He went on to tell her: “I go whole hog in the cause of Texas. I expect to help them gain their independence and also form their civil government, for it is worth risking many lives for.”

He asked her to relay a message to his brother. “Tell brother Jack to think of nothing but coming here with us. Tell him to study law as this will be the greatest country for the profession, as soon as we have a government, that was ever known. . . .”

Autry enlisted in Nacogdoches and soon left in the company of Crockett, Bailey, Cloud, and others as they continued their trek to the Alamo.

Peter James Bailey III

Born in Kentucky in 1812, Bailey is the only lawyer of the group who had a formal law degree, which he received from Transylvania University in 1834. He traveled to Texas from Kentucky with his close friend, Daniel Cloud, looking for a place to establish a law practice. Enlisting in Nacogdoches, he was with the group who left there with Crockett and others to head to the Alamo.

John M. Hays

Hays is a recent addition to this list. For a long time, it was generally accepted that there were only six lawyers who died at the Alamo.

Apparently, there had been unsubstantiated claims through the years that Hays had practiced in Tennessee before coming to Texas. Corroboration of Hays being admitted to the bar in Tennessee was eventually unearthed by the State Bar of Texas History and Preservations Committee.

While serving in the Alamo, the detachment of men there elected two representatives to leave and travel to the constitutional convention at Washington on the Brazos. Hays apparently threw his hat in the ring for one of the spots, as did James Bonham. Hays and Bonham lost in their respective bids for election to Jesse Badgett and another lawyer and famous Texan, Sam Maverick. As Maverick and Badgett left just ahead of the Mexican Army to head for Washington, Hays and Bonham remained inside the Alamo.

James Butler Bonham

A childhood acquaintance of Travis in South Carolina, Bonham developed a reputation for his temper. He was admitted to the South Carolina bar in 1830. Once, while representing a widow in a hearing, Bonham physically beat his opposing counsel after that lawyer failed to show Bonham’s client the proper respect that Bonham felt she was due. During the beating, when the presiding judge attempted to intervene, Bonham, already upset with the judge for failing to take a stand against the opponent’s earlier improper remarks, threatened that if the judge got off the bench, Bonham would rearrange his nose as well. Bonham was held in contempt and wound up spending 90 days in jail for his actions.

After moving to Alabama to practice law, Bonham raised a group called the Mobile Grays to come to assist Texas. Bonham arrived here in November 1835 and briefly opened a law practice in Brazoria. He sent a personal message to Sam Houston that he was volunteering his services for the cause of Texas, and that he was willing to serve without any form of compensation.

While stationed at the Alamo, Bonham acted as a courier for Travis on multiple occasions, carrying Travis’ pleas for reinforcement. During the desperate defense of the mission, Travis sent out 15 to 20 couriers. Of them, only Bonham and a couple of others ever returned. Somewhat distantly related to Bowie by marriage, Bonham on one occasion used Bowie’s horse to carry him through the Mexican lines.

Bonham returned from his last ride for help on March 3rd. He carried a message from Three-Legged Willie Williamson exhorting Travis to hold on, claiming that 600 to 700 reinforcements would be arriving soon. They never came. Bonham never left the Alamo again.

Green Berry Jameson

Jameson was among the first of this lawyer group to come to Texas. Arriving in 1828, he opened a law office in San Felipe.

Jameson enlisted in the Texas army in Gonzalez and participated in the Siege of Bexar in December 1835. He remained at the Alamo under the command of first Neil, and later Travis and Bowie. Jameson was appointed engineer of the Alamo defenses. As such, Jameson was in charge of bolstering the walls and the placement of the mission’s cannons. He had an unenviable task of trying to prepare defense works over such a large area with not enough assets.

Once the Mexican army began to arrive in San Antonio, Bowie chose Jameson to deliver a message to the Mexicans. Over Travis’ furious objections, Bowie sent Jameson out under a white flag to meet and discuss whether a parley had been called for by the Mexicans. As he rode out, Jameson carried a note signed by Bowie which curtly asked, “I want to know if a parley has really been called.”

Jameson met with his Mexican counterparts on the bridge spanning the river. Shortly into the meeting, Jameson wheeled his horse and returned with the written Mexican response that they refused to parley “with rebellious foreigners to whom there is no recourse left, but if they wish to save their lives, then to place themselves immediately at the disposal of the Supreme Government.”

Travis, still infuriated that Bowie had sent Jameson out, interpreted the response as a demand for unconditional surrender. Jameson supposedly tried to convince Travis that some on Santa Ana’s staff had discussed the possibility of the hope for “some honorable conditions.” But, the window for negotiations soon closed and Travis ultimately responded to the Mexicans with a cannon shot.

Jameson spent his final days attempting in vain to shore up and repair the mounting damage from the Mexican cannon barrages as best he could. On the morning of the 6th, Jameson fell within his inadequate but valiantly attempted efforts of fortification.

Daniel William Cloud

Daniel Cloud was the good friend and prospective law partner of Peter Bailey. From Natchitoches, Louisiana, as the pair were on the doorstep of Texas, Cloud sent a letter to his brother detailing their journey through several states looking for a fertile place to open their law office.

He talked about their passage through Illinois. While he was impressed with the land, they kept moving because “law dockets were not large, fees low, and Yankee lawyers numerous.”

He had little positive to say about Missouri, lamenting that “there is less litigation in this State than any other state in the union.”

Cloud went on to say that had they stayed in Arkansas, they would have done well with “dockets and funds being large.”

But, he told his brother that they were called to Texas by something more than just the prospect of a thriving law practice. They were being drawn to Texas for additional reasons. He said: “Ever since Texas had unfurled her banner of freedom, and commenced warfare for liberty or death, our hearts have been enlisted in her behalf . . . [W]e have resolved to embark in the vessel which contains the flag of Liberty and sink or swim in its defense.

“If we succeed, the Country is ours. It is immense in extent, and fertile in its soil, and will amply reward our toil. If we fail, death in the cause of liberty and humanity is not cause for shuddering. Our rifles are by our side, and choice guns they are, we know what awaits us, and we are prepared to meet it.”

So, yeah, I still get a little lump in my throat. I am privileged to be able to honor these lawyers in this small way, and I am very proud to be a member of our profession that they so valiantly represented inside those mission walls almost 200 years ago. As I pass by the Alamo now, I get that emotional stirring, but it is not based upon some fantasized made-for-TV characterization of those who died there. Instead, I think of men, of lawyers who were real people just like us, who believed so strongly in the concept of liberty that they were willing to die for it. Makes me wonder what price we would be willing to pay today.

Interim Executive Director’s Perspective: Transition – By Melissa J. Schank


The best part of your story is when it changes.

—Bella Bloom

As I reflect on the last 13 years, I want to thank Joseph Martinez for sharing his wealth of knowledge and allowing me to gain all the experience that has prepared me for this moment. I have some very large shoes to fill, but thanks to Joseph’s guidance—as well as our leadership, members, and staff—the transition will be smooth.

Under President Moore’s direction, the staff will work closely with the Executive Committee to ensure continued success. Your staff is here to serve our members, and they are ready and willing to interact and provide any support needed. I am proud to work alongside them; they are dedicated, hardworking, and loyal to TCDLA.

I encourage each of you to get to know the staff; we have several who have been with us more than a decade. Staff members are cross-trained and can assist you with most anything, and if they don’t know the answer they will find it!

Miriam Duarte (formerly Rendon), your Database Coordinator, has been with TCDLA for more than 11 years. She can run any reports and statistics involving membership, seminars, or publications. She is your go-to person for any questions regarding auto-draft (save $$$), membership, and listserves. Are you on the lawyer locator? Send her your specialty areas and start marketing yourself.

Craig Hattersley, your Communications Director, in his ten-plus years with TCDLA has an abundance of institutional knowledge. He is responsible for all the marketing brochures and communication pieces, the Voice, and final publication products. He creates every piece of art we use for the website or anything that comes out of our office. Craig is available to assist local affiliates with any marketing needs. We offer our members logos to place on their websites or for business card templates. Craig does so many more things, detailed weekly on our Board Loop reports. He is essential to our success. Send Craig articles to print in the Voice.

Cristina Abascal, your Accounts Payable Clerk, has also been with TCDLA for more than ten years. She is responsible for writing some 2,500-plus checks a year—and securing two signatures for every single one. She promptly deals with all reimbursements, bills, and payroll. If you have any questions about your reimbursements, she is always happy to help.

Mari Flores has served TCDLA as our Controller for more than six years, mastering the intricate aspects of TCDLA, CDLP, and TCDLEI finances. All our audits during her years have received clean audit reports with no negative findings. She is invaluable to all our organizations. Mari is available to answer any questions you may have regarding our budget, income, or expenses.

Rick Wardroup, a veteran of six years with TCDLA, continues to work endless hours as our Capital Assistance Attorney. He is passionate and dedicated to his work on Capital Defense and Mental Health. He updates and/or edits our publications, as well as putting together an overwhelming number of our course agen­das and materials. On the forefront of capital defense, he is always available to assist members with any legal questions.

Amanda Rivera (formerly Martinez), our Program Coordinator, has been with TCDLA five years total. Shreika Madison, our other Program Coordinator, has been with us more than a year. Amanda and Shreika are essential to our TCDLA and CDLP organizations, responsible for staging more than 48 unique live seminars a year. They work with over 470 speakers and 90 course directors each year to ensure agendas are up-to-date and papers turned in, sending out marketing ma­te­rials and doing the little things like making PowerPoints work. The efforts they put in make the seminars run seamlessly.

Keri Steen, your Seminar Clerk for two years, has mastered all aspects involving seminars and membership. Some of her key responsibilities include the Tim Evans Texas Criminal Trial College and Roundtop, besides applying for CLE and managing over 75 online CLE courses. She is one of the friendly voices that will greet you when you call for assistance.

Maxx Trejo, Seminar Clerk, processes all orders we receive, working quickly to make sure you have the latest publication in hand. Maxx markets all our events and merchandise on Facebook and Twitter. He also makes sure everything is processed correctly and helps pack the various bins we take to seminars.

We have three staff members who have joined us this year: Beth Richter, Elisa Jaramillo, and Talia Underwood. They are furiously working each day to take in and learn all the details the job entails while still answering phones with a smile. They have been working our seminars and getting to know our organization and members. All our staff members are essential to daily grind that makes TCDLA run efficiently. Please feel free to contact any of them. They are here to serve you.

I am grateful for the opportunity to work with the finest criminal defense lawyers and staff in Texas. I recognize the sacrifices and impact each of you makes daily. I am excited to continue this journey with all of you and be a part of the continued victories and achievements of TCDLA and TCDLEI. I anticipate a smooth transition because together we are one voice—and a mighty force to be reckoned with!

Ethics and the Law: Nunca Sabes


To ethically represent an accused citizen, you must be sure they know the consequences of a plea or finding of guilt. Judge Herb Ritchie, formerly a partner in the law firm of Ritchie and Glass, recently was a guest speaker at the Wednesday Appellate Update class in Houston. Greg Glass shared some of the forms and agreements used by the law firm. They are included in this article. In the law practice these days it is very important to correspond in person, by phone, by letter, or in a jail visit. Failure to communicate is one of the leading causes of a grievance. These forms may help you stay out of that trap. Get a good fee agreement or at least a letter of acknowledgment when you are hired. To be safe, document every phone call or visit or action you take on your client’s behalf. Nunca sabes.

The hotline has been busy as lawyers call with their headaches and heartaches. Some of the problems are easy to solve and some not. It is important to remind our members about the hot/help line. Several have called after not hearing from the state bar hotline for days. Hopefully, the new state bar president can improve that feature of our membership. All the CLE events and meetings are important, but nothing is more important than helping a fellow lawyer in need.

Some of the same questions are repeatedly asked. One such: The statute of limitations on a grievance is four years. You’d be advised to keep the file or a copy for at least this long. All the calls we get are confidential, so there is no worry about your business being put out on the street.

Joseph Connors, one of our first selections to be on this committee when it was started in 2011, recently was in charge of presenting the Hidalgo Bar Association annual meeting. It was a delightful event. After my presentation, a local judge came and introduced himself and asked me if I knew there were judges in the room. He was concerned that some disparaging comments were made about judges. Since we were in the Rio Grande Valley, I answered “nunca sabes.” For the gringos and gringas in our organization, it means “you never know.” Such as you never know what the future holds. About a week later I got an email from the judge advising me that one off his brethren judges had been arrested by the Feds and accused of taking bribes. Some of the good deals lawyers were getting were allegedly the result of some greasing of the palm of the accused judge.

Another issue frequently raised involves lawyer advertising. A lot of beginning lawyers get a website and then it begins. Pay a few hundred dollars and start becoming a member of all the companies that are inviting you to be one of the top 100 best lawyers in Texas. Pretty soon you can put all those seals on your website hoping to impress potential accused citizens. Then after a while you can start listing all the cases you have won or got a favorable result. Remember when this is done, the state bar advertising review committee has to approve the ad. The lawyers who are claiming to have all those great results need to be aware that a disclaimer may be needed stating that you cannot promise all those great results in all your cases

Remember your stock and trade: time and advice. The following forms may help you make sure you get paid for your time. Always advise your client about consequences of a plea or conviction. Nunca sabes and primero dinero.

With thanks to Joe Connor, Ramon Villagomez, Judge Herb Ritchie, and Gregg Glass.

Note: These motions are available for members on the website in the Members Only section (Brief, Motion & Memo Bank/Voice Motions).

Federal Corner: The Courthouse Was Closed to the Public—But the Trial Continued – By F. R. Buck Files Jr.


It must be such an irritation for a judge to have folks wander into the courtroom when the lawyers are conducting their voir dire examinations of the jury panel. In response to this irritation, some judges began to close their courtrooms during the voir dire—even in the trials of criminal cases. Then the Supreme Court held that a defendant’s Sixth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire examination of prospective jurors—and courtrooms began to remain open. Presley v. Georgia, 130 S.Ct. 721 (2010).

Seven years after Presley, the Supreme Court discussed whether the violation of the right to a public trial is structural error. Weaver v. Massachusetts, 137 S.Ct. 1899 (2017). The opinion reads, in part, as follows:

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), this Court “adopted the general rule that a constitutional error does not automatically require reversal of a conviction.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (citing Chapman, supra). If the government can show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” the Court held, then the error is deemed harmless and the defendant is not entitled to reversal. Id., at 24, 87 S.Ct. 824.

        The Court recognized, however, that some errors should not be deemed harmless beyond a reasonable doubt. Id., at 23, n. 8, 87 S.Ct. 824. These errors came to be known as structural errors. See Fulminante, 499 U.S., at 309–310, 111 S.Ct. 1246. The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the defining feature of a structural error is that it “affect[s] the framework within which the trial proceeds,” rather than being “simply an error in the trial process itself.” Id., at 310, 111 S.Ct. 1246. For the same reason, a structural error “def[ies] analysis by harmless error standards.” Id., at 309, 111 S.Ct. 1246 (internal quotation marks omitted).

* * *

An error can count as structural even if the error does not lead to fundamental unfairness in every case.

* * *

[A] violation of the right to a public trial is a structural error [emphasis added].

So, if a defense lawyer is confronted with a closed courtroom or a closed courthouse and objects, he or she is probably going to win on appeal because the structural error issue has been preserved. What happens, though, when the lawyer does not object? That was a fact situation that recently confronted a panel of the United States Court of Appeals for the Seventh Circuit. United States v. Anderson, ___F.3d___, 2018 WL 663089 (7th Cir. 2018) [Panel: Circuit Judges Easterbrook, Rovner, and Hamilton (opinion by Rovner)]. The Court held that in the ab­sence of an objection at trial regarding an alleged violation of the defendant’s Sixth Amendment right to a public trial, the plain error standard of review was applicable, as opposed to an automatic reversal being required because any error would be structural—and the defendant lost.

Judge Rovner’s opinion reads, in part, as follows:

[The Charges, the Verdict and the Sentence]

On September 23, 2014, a grand jury returned a five-count indictment against Deangelo Anderson, charging him in counts one and two with armed robbery of a bank and bran­dishing a firearm in furtherance of a crime of violence (i.e., the bank robbery), and in counts three, four, and five with unlawful possession of a firearm as a felon, possession of crack cocaine with intent to distribute, and possession of a firearm in furtherance of a drug trafficking offense. He was tried before a jury on April 4 and 5, 2016, and on April 5 the jury returned a verdict acquitting him of counts one and two, and convicting him of counts three, four, and five. The district court sentenced him to 96 months’ imprisonment, comprised of 36 months on counts three and four, to be served concurrently, and 60 months on count five, to be served consecutively to the sentence on counts three and four.

[Anderson’s Issue on Appeal]

Anderson now appeals that conviction and sentence to this court. He argues that he is entitled to a new trial because he was denied his Sixth Amendment right to a public trial when the proceedings continued beyond the hours when the courthouse was open.

* * *

        The trial began on April 4, 2016, and concluded with a jury verdict on April 5. After the verdict, Anderson filed a motion for a new trial based on a claim that the trial court violated his Sixth Amendment right to a public trial by allowing the trial to proceed on both days beyond the time at which the courthouse was locked for the night. The court denied the motion, and Anderson appealed.

[The Chronology of the Trial]

The first day of trial included jury selection, opening statements, and the testimony of thirteen witnesses.

* * *

The testimony of the last three witnesses extended beyond the 5:00 p.m. time at which the doors to the courthouse—but not to the courtroom—were locked. The detective’s testimony, which regarded chain-of-custody matters, began at 4:58 p.m. and ended at 5:21 p.m. He was followed by a forensic scientist, who testified from 5:22 p.m. to 5:34 p.m. confirming that dye stains in the Honda Civic contained chemicals commonly associated with bank dye packs. Finally, the forensic investigator who concluded the testimony for the day testified on direct and cross-examination from 5:38 p.m. to 6:18 p.m. regarding his unsuccessful efforts to locate fingerprints and obtain DNA from the firearm, ammunition, and crack cocaine baggies recovered from Anderson’s vehicle. Prior to the testimony of each of the last two witnesses, the trial court held sidebar conferences, but no objection to the testimony was raised at those times [emphasis added].

        On the following day, the government presented the testimony of seven additional witnesses, and the court also entertained closing arguments, followed by the jury instructions, deliberations, and verdict. All of the witnesses testified before 5:00 p.m. Closing arguments by the government began at 4:01 p.m. and concluded at 4:38 p.m. The defense commenced its closing arguments at 4:39 p.m., finishing at 5:21 p.m. The government rebuttal occurred from 5:22 p.m. until 5:38 p.m., and the court instructed the jury immediately afterward. The jury retired to deliberate at 6:09 p.m., but the court briefly went on record at 6:40 p.m. and again at 7:56 p.m. to address notes from the jury. The jury reported a verdict at 9:16 p.m., and was discharged at 9:20 p.m. [emphasis added].

[The Sixth Amendment Right to a Public Trial]

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. Amend. VI. Public trials are viewed as preserving the integrity of the justice system, by deterring the use of the courts as a means of persecution, encouraging unknown witnesses to come forward, preventing perjury, and imbuing the proceedings with the gravitas and sense of responsibility that facilitates a just process. See Walton v. Briley, 361 F.3d 431, 432 (7th Cir. 2004). A violation of the right to a public trial is a structural error, and therefore if objected to at trial, can be reversed without any need to show prejudice. Weaver v. Massachusetts, __U.S. __, 137 S.Ct. 1899, 1907, 198 L.Ed.2d 420 (2017) [emphasis added].

        Anderson did not object at trial to the continuation of proceedings beyond 5:00 p.m. [emphasis added].

* * *

[The Sixth Amendment Right to a Public Trial Is Not an Absolute One]

Anderson alleges on appeal that, despite the failure to object, automatic reversal is required because the error is structural and was raised in the trial court in a post-trial motion.

        We agree with the government that the plain error standard set forth in Federal Rule of Criminal Procedure 52(b) applies in this case. Under the plain error standard, “an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (internal quotation marks omitted).

* * *

The Sixth Amendment right to a public trial is not an absolute one that forbids any exclusion of spectators regardless of context. In fact, courts have upheld the closure of the courtroom in a number of circumstances, such as where se­curity or safety concerns require it. Peterson v. Williams, 85 F.3d 39, 42 (2d Circuit 1996); Presley v. Georgia, 558 U.S. 209, 213–15, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010).

[The Triviality Standard]

Moreover, we have recognized that some exclusions of spec­ta­tors from a trial simply do not rise to the level of a violation of the right to public trial. Braun v. Powell, 227 F.3d 908, 918 (7th Cir. 2000). As we noted in Braun (adopting the approach of Peterson), this triviality standard differs from a harmless error assessment:

A triviality standard, properly understood, does not dismiss a defendant’s claim on the grounds that the defendant was guilty anyway or that he did not suffer “prejudice” or “specific injury.” It is, in other words, very different from a harmless error inquiry. It looks, rather, to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant—whether otherwise innocent or guilty—of the protections conferred by the Sixth Amendment. Braun, 227 F.3d at 918, quoting Peterson, 85 F.3d at 42.

  In assessing whether a closure rises to the level of a Sixth Amendment violation, we consider the extent to which the closure implicates the values underlying the public trial right: “(1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury.” Peterson, 85 F.3d at 43, citing Waller v. Georgia, 467 U.S. 39, 46–47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Braun, 227 F.3d at 918. A trivial violation that does not run afoul of those values will not present a Sixth Amendment violation.

* * *

[There Was No Closing of the Courtroom]

[H]ere there was no total exclusion of spectators from the court, nor did the locking of the courthouse impact a significant portion of the case. The doors of the courthouse were locked at 5:00 p.m. as part of the security measures for the courthouse. The doors to the courtroom itself remained open, and any persons who were in the building prior to 5:00 p.m. could attend the trial in its entirety. Nor did the lateness of the hour render that unlikely. On the first day of the trial, the testimony extended for just over an hour past 5:00 p.m., terminating at 6:18 p.m. Although Anderson points to the testimony of three witnesses that extended beyond 5:00 p.m. that day, the testimony of the first witness began prior to 5:00 p.m. and ended at 5:21 p.m. Anyone wishing to be present for that testimony could have heard it by arriving when that testimony began at 4:58 p.m. Potential spectators arriving after 5:00 p.m. would have heard little of the testimony regardless, as they would have to navigate the normal courthouse electronic security and proceed to the courtroom, and the testimony ended at 5:21 p.m. The only potential impact was on the ability to attend the testimony of the forensic witnesses who testified from 5:22 p.m. to 6:18 p.m., and Anderson does not even argue that their testimony concerning the chemicals used in dye packs and the inability to obtain fingerprint or DNA evidence was a significant part of the trial. See Gonzalez v. Quinones, 211 F.3d 735, 739 (2d Cir. 2000) (noting that any exclusion during a chemist’s testimony would be trivial because “the testimony . . . was brief (under 20 minutes), perfunctory, and uncontested”).

        Similarly, the closing arguments in the case began well before the courthouse doors were locked at 5:00 p.m. The government concluded at 4:38 p.m., and defense commenced at 4:39 p.m. As the defense concluded by 5:21 p.m., anyone seeking to attend presumably would have entered the building by 5:00 p.m. Only the government rebuttal, and the subsequent jury instructions, response to questions, and announcing of the verdict, occurred after 5:00 p.m. It is an insignificant possibility that persons would seek to attend the trial only to witness the government rebuttal and subsequent jury interaction.

        And as the district court noted, Anderson “makes no claim that any spectators present in the courtroom were required to leave at 5:00 p.m., that anyone tried to attend after 5:00 p.m. but could not get in, or that anyone was actually excluded from the courtroom at any time.” Therefore, we are not presented with a case in which friends or relatives of the defendant, or anyone else for that matter, were actually excluded because the courthouse was locked at 5:00 p.m. See In re Oliver, 333 U.S. 257, 271–72, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (noting that all courts have held that a defendant is entitled to have friends and relatives attend his trial); Braun, 227 F.3d at 917 (same); United States v. Perry, 479 F.3d 885, 890–91 (D.C. Cir. 2007).

* * *

[The Court’s Reasoning and Conclusion]

[W]e do not have any factual findings by the district court as to the availability of that access generally, so we do not base our decision on that.

        Nevertheless, the closure in this case was a minimal one because anyone in the building before 5:00 p.m. could attend the trial in its totality, and there were only minimal proceedings after 5:00 p.m.

* * *

We simply cannot conclude that the partial closure of only the outside doors in this case, with the trial still accessible to those in the building and with relatively minimal proceedings after closure, implicated the values of the Sixth Amendment such as ensuring a fair trial, reminding the prosecutor and judge of their responsibility, encouraging wit­nesses to come forward, and discouraging perjury. Peterson, 85 F.3d at 43, citing Waller, 467 U.S. at 46–47, 104 S.Ct. 2210; Braun, 227 F.3d at 918. In light of the law in this area establishing that trivial violations do not run awry of the Sixth Amendment, Anderson has failed to demonstrate an error that is “plain” or “obvious” as required under the plain error standard.

[A Stern Warning to District Judges]

Certainly, district court judges seeking to continue criminal proceedings beyond the closing hours of a courthouse should ensure that members of the public have a means of access to that courthouse. In some cases, such as in Walton, the failure to do so will violate the Sixth Amendment. The closure in this case was trivial and did not violate those Sixth Amendment rights, but to avoid such questions in the future, the court should ensure that some means of access to the courthouse is available for trials that run after hours.

My Thoughts

  • The Court’s admonition to the district judges of the Seventh Circuit was not surprising—and is good advice for all federal judges and for our Texas judges as well.
  • So, what happens if the judge fails to follow that admonition and continues the trial of a case in a courtroom or courthouse that has been closed to the public? Object, object, object!
  • Anderson, to me, is such a common-sense case and the opinion is easy reading.

Shout Outs


Kudos to TCDLA Director Keith Hampton for his big save in front of the parole board. For the first time since 2007, the Texas Board of Pardons and Paroles voted to recommend a lesser sentence for a death row inmate. The board voted unanimously in favor of clemency for Thomas Bartlett Whitaker, halting a scheduled execution. Gov. Greg Abbott then approved the recommendation, the first such approval after 30 denied. Keith was also the attorney for the 2007 grant of clemency—for Kenneth Foster Jr. Congratulations, Keith, for the latest in a string of big wins.

A big shout out to SDR Editor Michael Mowla for working overtime trying to save the life of a man gone off the deep end. Michael was appointed to represent D, who suffered from a severe delusional disorder, shortly before his first execution date—which he got stayed. Before he could set a date to determine competency, Michael faced a judge arguing that he wanted the next execution date set. (“He actually asked me if I would ‘agree’ to a date. Yeah, right.”) Judge went ahead anyway. Michael fought it in state trial court and lost, then got the execution stayed by the TCCA. His expert, the state’s expert, and one of the court-appointed experts agreed that he was incompetent to be executed, using the correct standard under Panetti. Michael lost the case in the TCCA 8–1, then took it to federal court. The trial judge immediately set a third execution date. Michael fought it through federal district court, the Fifth Circuit, and by the day of the third execution date, had two petitions for certiorari and motions to stay execution pending in the SCOTUS. The SCOTUS delayed the execution for about three hours before they denied the petitions and motions. Shortly after he was executed, Michael notes, the trial judge posted the news on his Facebook page.
 Michael says: “At first [he] wanted to ‘fire’ me, believing I am (in his words) a ‘faggot Muslim Arab c**ksucker who is in cahoots with the DA and judge’ (he wrote this in a letter to the court—shows just how severely delusional he was). Eventually he came around and liked me, especially after the stays of execution. And, he found out that I am an ethnic Georgian, a Georgian Orthodox if anything, married to a woman, and my favorite beer is Duvel. Identity politics matter sometimes! Ha.”
 Hats off to you, Michael, for fighting until the bitter end. You did everything you could to save this man’s life.

And another shout out to the professor, M. Mowla, for his latest win in the CCA, this one on the issue of whether a defendant has a right to appeal from an order of shock probation if that order imposes an unconstitutional condition. The Court said yes it did, 5–4, deciding that the Court of Appeals erred when it dismissed D’s appeal for want of jurisdiction because (1) Texas Code of Criminal Procedure Article 44.02 allows appeals from a criminal action and a hearing on a motion for shock probation is a criminal action; and (2) the issue appealed was an unconstitutional imposition of restitution. Keep the wins coming, MIchael.

Kudos to Jack and Terri Zimmermann for a huge victory in the highest military appellate court. D, an active-duty Air Force Lieutenant Colonel and squadron commander, was charged in 2015 after a woman accused him of a 1997 rape. In the preliminary hearing, Terri established that the hearing officer found no probable cause—but that was only a recommendation and the command sent the case to trial anyway. The trial judge dismissed the case with prejudice on constitutional due process speedy-trial grounds (he found actual prejudice from the 18-year pre-charging delay). The government appealed and the intermediate appellate court reversed. Terri and Jack appealed to the Court of Appeals for the Armed Forces, the highest military appellate court. After oral argument on the due process issue, the court sua sponte ordered briefing on the statute of limitations issue, and ultimately reversed its own precedent. Congratulations, Jack and Terri, after a long and difficult battle.

Shout out to TCDLA Board member Jason Cassel of Longview for his wins in two murder appeals in the past couple months—in Kirkland v. State and McFadden v. State. In Kirkland, Jason got a 40-year sentence overturned due to erroneous instruction in the punishment phase. In short, the instruction as given had improperly required her to prove insanity beyond a reasonable doubt before the jury was authorized to even consider that in assessing punishment. In McFadden, the conviction overturned was where defendant asked for, but did not receive, a jury instruction on defense of property. Jason credits co-counsel Christie Merchant for her work on the cases, as well as trial lawyers Tim James and Sean Hightower for preserving the issue in McFadden. Good job all around, people. And especially to Jason for fighting the good fight.

A shout out to Brian Bouffard of Fort Worth for his work in the continuing saga of the Twin Peaks mass indictments. District Judge Ralph Strother dismissed cases against 13 of the bikers indicted in the May 2015 shootout, leading Brian to remark: “Though McLennan County prosecutors are ‘re-evaluating’ the cases, the fact is that an ethical district attorney’s office evaluates cases before they are indicted, instead of indicting people just to see if they will be intimidated enough to plead guilty . . . To the great credit of these innocent men, none of them, and none of us as their counsel, blinked. Jorge Salinas, a decorated United States Marine with two combat tours and an honorable discharge, an innocent man, did not blink. As his lawyer and his friend, I could not be more proud of him.” Stay tuned as events further unravel in the Waco cases, chronicled in the Facebook posts of member Robert Callahan. At press time, the latest development had Judge Strother asking the Texas AG’s office to pitch in and help on some of the remaining cases, but the state demurred, citing a lack of resources.

Kudos to Mark Griffith of Waxahachie for his recent string of successes. “After trying a case for a client for Continuous and getting the not guilty,” he says, “there were three other sexual allegation cases still pending. Today I was able to make the call that makes this job so rewarding. The other three cases were dismissed while waiting on trial dates. Client broke down weeping as I told him it was ALL over. There are bad days in this work and then there are days like this that make it awesome.” Congratulations, Mark. Keep up the good work.

Kudos to TDCLA member Bill Mason of Cleburne, who recently got a Not Guilty from a jury on count two (Indecency with a Child by Contact) of a two-count indictment in February. Count one (Sexual Assault of a Child by Contact) was declared a mistrial. Nine witnesses were called during the trial, and the jury deliberated for more than 12 hours—sending out notes 11 times requesting various parts of the trial testimony and review of video exhibits. After being instructed with an “Allen Charge” (“Dynamite Charge”), the jury was unable to arrive at a unanimous verdict on count one (a note from the jury indicated that 8 members voted not guilty). The case involved a 2 males and 2 females (one being the complainant) in a hotel room, doing drugs and alcohol. According to testimony from the mother of the 15-year-old complainant, she had run away from home 7 times since August 2016 (offense date was January 2017). D was 20 years old at the time of the alleged offense. Bill credits TCDLA member DeeAnn Strother of Joshua for her help on defense. Congratulations, team, on a job well done.

Why We Do What We Do

A special shout out this month for a couple guys who really didn’t care to be mentioned: Jim and Jeep Darnell. Sorry, guys, but this was an extraordinary case that serves as a prime example of what drives us in our work, and it deserves to be heard.

D, a teacher in a very low-income part of El Paso recognized several times as teacher of the year, was charged with first- and second-degree injury to a child and criminally negligent homicide. Prior to teaching, she had been a single mother playing basketball at UTEP—and obtained a bachelor’s degree then a master’s degree on the way to becoming a high school business teacher. She also suffers from a genetic heart defect that killed her mother when she was barely out of college. While a teacher, she married a veteran of tours in Iraq and Afghanistan who had sustained a traumatic brain injury and suffered from PTSD to the point he does not sleep at night but just paces their home. Her husband has two kids from a prior marriage, one developmentally challenged, and they had two kids together. Her first daughter, valedictorian of her high school class, went on to play basketball in college and graduated early with both an undergrad degree and a PhD.

D’s charges arose when she was in the middle of standardized testing week at school. Her medication for her heart condition had just been changed that week, and she was physically and mentally exhausted. Her husband tried to help her that morning by loading their vehicle with their infant daughter, toddler daughter, and all the sundry bags for two daycares and mom’s books for school. But he placed the bags in the back seat of the vehicle near the children and not where D always put them in the front seat. His son, who went to the high school where D taught, sat behind her with the infant and toddler.

She was unable to eat breakfast that morning, though she needed to before taking her meds. Contrary to her normal routine, she dropped the toddler off at daycare, then drove through McDonald’s for breakfast before continuing. She left McDonald’s and instead of driving to the daycare, she assumed her normal route and went straight to the high school while her infant was asleep in her car seat covered by a blanket—right next to her developmentally challenged stepson. She arrived at school and she and her stepson got out of the car and went in. That afternoon they returned and discovered the infant, passed away from heat exhaustion.

At trial, the State put into evidence the 911 call by a student standing near the vehicle, and in that call you can barely hear the 911 operator or the student over the blood-curdling screams coming from D. Witnesses heard the screams from all over campus: “My baby, my baby, I dropped her off at daycare. Take me, God, take me.” The trial judge was forced to look away from the jury and wipe tears from his eyes hearing the recording.

They rushed the baby to the hospital where she was pronounced dead, and D had to be taken as well in shock. At the hospital, the doctor informed her that her baby was dead, and in testimony it came out that she held the baby in her arms, sobbing and rocking her.

As Jeep relates: During trial, D testified to all that happened to her that week and that day, sobbing throughout. The folks from Kids and Cars helped find an expert who testified in support of the lapse and replacement of memory in D’s brain that morning because of the change in routine. Her husband testified despite his challenges. Her college basketball coach flew in from Arkansas to testify, her college teammates testified, her preacher who had moved to Abilene came and testified. The school nurse testified. Other teachers and students testified. Even students who were never in her class testified as to her character. Everyone cried. Even a janitor who was an eyewitness called by the State began to cry on the witness stand—and told her he was so sorry for her and began to cry.

The State wanted her to die in prison and felt no remorse for the plight this woman suffered and would suffer for the rest of her life. But, as the trial judge noted, it was the only time in his memory that the best person in the room was the defendant.

He directed out the first-degree count at the close of the State’s evidence, but sent the second-degree count to the jury as well as the criminally negligent homicide count. After two hours the jury decided not guilty on the second-degree injury to a child count, but after two days of deliberation—and just before the judge was going to hang them on the criminally negligent homicide count—the jury returned a verdict of guilty. Although they found her guilty, the jurors would not speak to the State’s attorneys after the trial because they were so angry. “Instead,” Jeep says, “members of the jury met us with our client as we tried to get to the elevators and stopped and prayed with her.”

At the punishment trial a few weeks later, Jim and Jeep called 26 character witnesses to testify, and the judge placed her on non-reporting community supervision for two years.

“We appealed to the 8th Court of Appeals on one issue: The evidence was insufficient to support the verdict when analyzed under the appellate standard of ‘moral blameworthiness’ that does not appear in the pattern jury charges. The 8th Court reversed and rendered. The State filed a PDR in its quest to further destroy a woman who could never be punished any worse than she would punish herself for the rest of her life. On February 7, the Texas Court of Criminal Appeals denied PDR and our client is fully and finally acquitted of all charges. I have tried not to cry just writing this email. They don’t make clients like this very often.”

Thanks for sharing that, Jeep. You and your dad did yeoman’s work bringing justice to this poor woman, and it’s a story to remind us all why we do what we do.

How It’s Done

Bill Trantham of Denton sent along this note that illustrates what our members will go through to see justice properly done. A big shout out to Bill for his efforts in this poor lady’s behalf:

I got appointed some time back on a lady who obviously to me was not competent to stand trial and would not have been able to assist me in her defense.

 I did the normal and filed to have her examined for fitness to stand trial. Kelly Goodness found she was not. The client was then sent to the State Hospital to see if she could be made competent. It was obvious the system was not working when they asked she be kept for an additional period when the first time period expired.

 This was for a case of criminal tresspass and failure to I.D.

 After a couple of months she returned, competent but drugged up as the usual returns from the State Hospital. I cleared her cases with a plea to the criminal trespass and dismissal of the other.

 While talking to her, I asked who would come for her on release. She replied her mother from El Paso. Unless her mother was on the way, which she was not, the client would be released with no money, what she wore when arrested, and no one to help her. Not a good scenario.

 I called her mother, who was shocked and said she had no money to buy a bus ticket or assist her daughter due to January being slow for business and paying her bills and would likely be so till March.

 I immediately contacted the Sheriff’s Office and worked with them to get her to the bus depot in Denton. They imme­diately offered to have the transport officers take care of it.

 I then got a bus ticket, but it would be 5:30 pm before the bus would leave and my client was going to exit the jail about 11:00 am. Talking with the Chief of the Jail led to finding a ticket warrant for failing to pay an A Train bill. He contacted the JP, who agreed to pull the warrant about 4:45 pm. This allowed the client to go to the common room in the jail and have lunch and dinner before going to the bus stop in Denton.

 The next hurdle was for a change of bus and a 4½-hour layover in Dallas waiting for the El Paso bus. I got around this by having my sister, who lives in Dallas, go to the Dallas bus station and take the client to McDonald’s for a couple of hours and then put her on the right bus home. $67 for the bus ticket and an additional $100 I gave her was the total cost.

 It all worked a miracle it seemed to me. I called and thanked the sheriff’s office, and they were all thrilled they could help.

 The difference between dumping the homeless person at the jail door and seeing that she got home—where at least her family was there to help—made my day.