Monthly archive

November 2018

November 2018 SDR – Voice for the Defense Vol. 47, No. 9

Voice for the Defense Volume 47, No. 9 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

        1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

        2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

        3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Editor’s Note: the SCOTUS is back in session, but no relevant opinions have been handed down yet. I will refrain from posting a cartoon about the recent confirmation-debacle.

United States Court of Appeals for the Fifth Circuit

United States v. Gomez, No. 17-10690, 2018 U.S. App. LEXIS 27497 (5th Cir. Sep. 26, 2018) (designated for publication) [§ 3B1.1(c) leader-organizer enhancement; application of Dean v. United States, 137 S.Ct. 1170 (2017), to discretionary counts]

        Under U.S.S.G. § 3B1.1(c), a two-level adjustment applies if the defendant was an organizer, leader, manager, or supervisor in criminal activity other than activity involving five or more participants or any otherwise extensive activity. In determining whether a defendant had a leadership role, a district court should consider: whether the defendant exercised decisionmaking authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

        Under Dean v. United States, 137 S.Ct. 1170 (2017), when considering a sentence, district courts must: (1) impose a sentence sufficient, but not greater than necessary, to comply with the four purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation (“parsimony principle”); (2) consider the nature and circumstances of the offense and the history and characteristics of the defendant; (3) consider the need for the sentence imposed to serve the four aims of sentencing; and (4) consider the U.S.S.G. Nothing prevents a district court from imposing a mandatory-minimum sentence under §924(c) and as short as a one-day sentence for the predicate crime.

Editor’s Note: In Dean, the SCOTUS made three holdings:

  • When considering a sentence, district courts must: (1) impose a sentence sufficient, but not greater than necessary, to comply with the four purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation (“parsimony principle”); (2) consider the nature and circumstances of the offense and the history and characteristics of the defendant; (3) consider the need for the sentence imposed to serve the four aims of sentencing; and (4) consider the U.S.S.G.;
  • 18 U.S.C. § 924(c) does not restrict the authority conferred on sentencing courts by § 3553(a) to consider a sentence imposed under § 924(c) when calculating a sentence for the predicate count. Although a mandatory sentence under § 924(c) must be imposed “in addition to the punishment provided” for the predicate crime, the limitation says nothing about the length of a non-§ 924(c) sentence, much less about what information a court may consider in determining that sentence; and
  • Nothing prevents a district court from imposing a mandatory-minimum sentence under § 924(c) and as short as a one-day sentence for the predicate crime.

Editor’s Note: Luckily for Mr. Gomez, this panel followed the law and perhaps saw the absurdity of a 652-month sentence for drug-crimes that did not directly involve death or physical injuries to others.

Texas Court of Criminal Appeals

Beham v. State, No. PD-0638-17, 2018 Tex. Crim. App. LEXIS 815 (Tex. Crim. App. Sep. 12, 2018) (designated for publication) [Tex. Rule Evid. 401 (relevance) and social media]

        Trial court decisions to admit or exclude evidence will not be reversed absent an abuse of discretion and will be upheld as long as it was within the “zone of reasonable disagreement.”

        Under Tex. Rule Evid. 401, evidence is relevant if it has any tendency to make a “fact of consequence” more or less probable than it would be without the evidence. The trial court’s role in determining relevance as a threshold matter is not exclusively a function of rule and logic. The court must rely upon its own observations and experiences of the world, as exemplary of common observation and experience, and reason from there in deciding whether proffered evidence has “any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The determination of relevance depends upon one judge’s perception of common experience. The process cannot be wholly objectified.

        Under Tex. Code Crim. Proc. Art. 37.07 § 3(a), evidence may be offered in the punishment stage as to any matter the court deems relevant to sentencing, including the defendant’s reputation and character. Evidence is relevant to sentencing if it is helpful to the jury in determining the appropriate sentence for the defendant.

        A trial court may conclude within the zone of reasonable disagreement that how a person portrays himself within his social circles gives some useful indication of what his values are.

Facts:

  • Beham was convicted of aggravated robbery for robbing a hotel clerk on December 22, 2013. He was sentenced to 25 years, which was reversed for a punishment hearing only.
  • The State presented five photographs taken from Beham’s “Facebook” profile that show: Beham displaying what appears to be gang-related hand signs, wearing red clothing and accessories (one containing the phrase “Money, Power, Respect” in large font), Beham posing with stacks of money and packaged bags of marijuana, and Beham posing next to a car with other men while he points a gun at the camera.
  • Officer Kirkland, an experienced detective specializing in gang activity, testified over objection that based on his law-enforcement experience, Beham was “holding himself out to be” a member of a criminal street gang. The trial judge found that Kirkland’s testimony would be admissible as it went to Beham’s “character” and allowed the testimony “as long as the State does not attempt to argue that Beham is in a gang.” Kirkland described “indicators” he looks for in determining a person’s gang status and explained that gangs are involved in crimes like aggravated robbery, drugs, thefts, and assaults. Kirkland said that in his opinions, the photographs showed that Beham was “holding himself out as” a gang member. Kirkland admitted that he had never met Beham, had no knowledge of Beham’s involvement in any particular gang, and did not have a “file” on him.
  • Beham received 40 years in TDCJ.
  • The Sixth Court of Appeals reversed Beham’s sentence, holding that Kirkland’s testimony was not relevant to the jury’s determination of proper punishment and that there was no evi­dence presented of the character and reputation of the gang Beham allegedly sought to emulate.

A trial court may conclude within the zone of reasonable disagreement that how a person portrays himself within his social circles gives some useful indication of what his values are.

  • Trial court decisions to admit or exclude evidence will not be reversed absent an abuse of discretion and will be upheld as long as it was within the “zone of reasonable disagreement.”
  • Under Tex. Rule Evid. 401, evidence is relevant if it has any tendency to make a “fact of consequence” more or less probable than it would be without the evidence. The trial court’s role in determining relevance as a threshold matter is not ex­clusively a function of rule and logic. The court must rely upon its own observations and experiences of the world, as exemplary of common observation and experience, and reason from there in deciding whether proffered evidence has “any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The determination of relevance depends upon one judge’s perception of common experience. The process cannot be wholly objectified.
  • In the punishment context, there are no distinct facts of consequence that proffered evidence can be said to make more or less likely to exist. Deciding what punishment to assess is a normative process, not intrinsically factbound.
  • Under Tex. Code Crim. Proc. Art. 37.07 § 3(a), evidence may be offered in the punishment stage as to any matter the court deems relevant to sentencing, including the defendant’s reputation and character. Evidence is relevant to sentencing if it is helpful to the jury in determining the appropriate sentence for the defendant.
  • A trial court may conclude within the zone of reasonable dis­agreement that how a person portrays himself within his social circles gives some useful indication of what his values are. Although those who portray themselves as loving and devoted husbands, wives, fathers, or mothers are often anything but, the evidence is not without normative relevance simply because it fails to conclusively prove that a defendant has a character flaw.
  • When the State intends to put on evidence of a defendant’s membership in an organization or group, it must make some showing of the group’s violent or illegal activities for the evidence to be relevant to sentencing. Evidence that a person portrays himself as a member of a criminal association may, in some cases, be relevant to the person’s character in sentencing even if the State cannot show that he is a member of such an association.
  • The trial court did not abuse its discretion. The judgment of the court of appeals is reversed and remanded.

Editor’s note: Facebook stupidity strikes again! If you’ve wondered what Facebook for Dogs would be like (I know it’s something you’ve often wondered about):

Briggs v. State, No. PD-1359-17, 2018 Tex. Crim. App. LEXIS 924 (Tex. Crim. App. Oct. 3, 2018) (designated for publication) [applicability of McNeely in the ineffective-counsel context]

        A trial court’s ruling on an MNT is reviewed under an abuse of discretion standard, a deferential standard of review that requires appellate courts to view the evidence in the light most favorable to the trial court’s ruling. A trial court abuses its discretion only when no reasonable view of the record could support its ruling. A trial court’s ruling will be upheld if it is correct on any applicable legal theory, even if the trial court articulated an invalid basis.

        Under Missouri v. McNeely, 569 U.S. 141 (2013), the natural metabolization of alcohol does not present a per se exigency that would on its own fall under an exception to the warrant re­quirement. Exigency in this context must be determined case by case based on the totality of the circumstances. A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search where there is compelling need for official action and no time to secure a warrant. If officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

        Under Villarreal v. State, 475 S.W.3d 784 (Tex. Crim. App. 2014), a nonconsensual search of a DWI suspect’s blood conducted per the mandatory blood-draw and implied-consent statutes in the absence of a warrant or any applicable exception to the warrant requirement violates the Fourth Amendment.

        A plea of no contest or guilty must be free and voluntary. When a defendant enters into a plea, attesting that she understands the nature of her plea and that it is being made knowingly and voluntarily, she has the burden on appeal to show that her plea was involuntary. A plea based on erroneous information conveyed by trial counsel may be involuntary.

        McNeely and its progeny may or may not affect the admissibility of blood-draw results.

Facts:

  • On October 14, 2010, at 2:00 a.m., as Officer Antillon was driving his personal car home after his shift, Sergio stopped on the right shoulder to assist a driver whose truck had collided with the guardrail.
  • Briggs’ vehicle hit the rear of the truck, which then struck Antillon and Sergio. The truck driver was thrown alongside the highway, and Antillon was thrown into the guardrail. Antillon died from his injuries.
  • Briggs did not perform well on the SFSTs and was arrested for DWI.
  • Briggs refused to give a breath or blood sample. She was taken to the police station for processing and advised that she would have to give a mandatory blood sample because she was involved in an accident involving injury or death.
  • About two hours had passed since the accident. Briggs signed the refusal form and was taken to the police station infirmary.
  • Without a warrant, a nurse drew a sample of Briggs’ blood at 5:15 a.m. on October 14, 2010. Her BAC was 0.14 g/dL.
  • Briggs’s blood sample was taken about 3 hours after the accident, and had the police sought to obtain a warrant before getting the sample, it would have taken another 1.5 hours.
  • Trial counsel did not file an MTS.
  • Briggs entered a plea of no contest before the jury to intoxication manslaughter of a peace officer and elected to have the jury decide punishment (slow-plea).
  • The jury found Briggs guilty as instructed by the court, sentenced her to 45 years, and made an affirmative finding that her vehicle was a deadly weapon.
  • Briggs filed an MNT alleging that her plea of no contest was not made knowingly, intelligently, or voluntarily. Briggs argued that the results of her blood draw were a determining factor in her decision to plead no contest instead of going to trial. The issue was whether the admissibility of her blood-draw results was misrepresented to her by her attorney at the time of her plea.
  • Briggs contended that the only reason that she did not go to trial was because she was told she could not refute the blood evidence.
  • The trial court denied the MNT.
  • On direct appeal, the court of appeals held that the plea was involuntary because she was given erroneous advice by her attorney since trial counsel failed to advise her that § 724.012 could not mandate a warrantless blood draw absent exigent circumstances. And, Missouri v. McNeely did not announce a new rule of law, but even if it had, because Briggs’s case was on direct appeal and was not yet final, the April 17, 2013, McNeely opinion and the cases decided since McNeely would apply retroactively.

McNeely and its progeny may or may not affect the admissibility of blood-draw results.

  • A trial court’s ruling on an MNT is reviewed under an abuse of discretion standard, a deferential standard of review that requires appellate courts to view the evidence in the light most favorable to the trial court’s ruling. A trial court abuses its discretion only when no reasonable view of the record could support its ruling. A trial court’s ruling will be upheld if it is correct on any applicable legal theory, even if the trial court articulated an invalid basis.
  • When Briggs pled no contest in 2012, the Tex. Transp. Code § 724.011 provided that a person arrested for driving while intoxicated is deemed to have consented to a taking of their blood or breath specimen. This implied-consent provision was limited by § 724.013, which provided that if a person refused to submit to the taking of a specimen, the specimen could not be taken except as provided by the mandatory-blood-draw provisions of § 724.012(b), which in turn provided that if a person was arrested under suspicion of DWI and he refused to provide a specimen voluntarily, an officer could require the taking of a specimen if there had been an accident, and as a direct result of the accident, a person has suffered serious bodily injury or death.
  • Under Missouri v. McNeely, 569 U.S. 141 (2013), the natural metabolization of alcohol does not present a per se exigency that would on its own fall under an exception to the warrant requirement. Exigency in this context must be determined case by case based on the totality of the circumstances. A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search where there is compelling need for official action and no time to secure a warrant. If officers can rea­son­ably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
  • Under Villarreal v. State, 475 S.W.3d 784 (Tex. Crim. App. 2014), a nonconsensual search of a DWI suspect’s blood conducted per the mandatory blood-draw and implied-consent statutes in the absence of a warrant or any applicable exception to the warrant requirement violates the Fourth Amendment.
  • The fact that trial counsel did not anticipate McNeely and Villarreal does not impugn the truth or reliability of Briggs’ plea. And, there was other evidence that could have allowed the State to prosecute the case.
  • The TCCA rejects Briggs’ assertion that her lawyer should have anticipated later judicial decisions. McNeely and its progeny may or may not have affected the admissibility of Briggs’ blood-draw results. The trial court’s finding of exigent circumstances was reasonable.
  • The judgment of the court of appeals is reversed.

Carson v. State, No. PD-0205-17, PD-0206-17, PD-0207-17, & PD-0208-17, 2018 Tex. Crim. App. LEXIS 905 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [waiver of the right to an appeal is valid if consideration given by the State]

        A defendant in a noncapital case may waive any rights secured to him by law. A waiver of the right to appeal must be made voluntarily, knowingly, and intelligently. A valid waiver will prevent the defendant from appealing any issue unless the trial court consents to the appeal.

        The State gives consideration for a defendant’s waiver of his right to appeal if the defendant and State negotiate a plea to en­sure that he would have his case heard by the trial court as op­posed to a jury.

Ette v. State, No. PD-0538-17, 2018 Tex. Crim. App. LEXIS 902 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [jury verdict on sentencing controls]

        The assessment of punishment entails the verdict, the judg­ment, and the sentence. The verdict is the written declaration by a jury of its decision of the issue submitted to it in the case. The judgment is the written declaration of the court signed by the trial judge and entered of record showing the con­viction or acquittal of the defendant. The sentence served is based on the information contained in the judgment. A court’s pronouncement of sentence is oral, while the judgment and sentence are the written declaration of the oral pronouncement.

        A trial court has no power to alter a lawful jury verdict unless it is with the jury’s consent and before the jury has dispersed.

        The rule that the oral pronouncement controls over the writ­ten judgment does not apply to unambiguous lawful jury verdicts.

Ex parte Garrels, No. PD-0710-17, 2018 Tex. Crim. App. LEXIS 903 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [double jeopardy and implied consent to a mistrial]

        If a defendant is placed in jeopardy and the jury is discharged without reaching a verdict, double jeopardy bars retrial unless the mistrial was done either: (1) with the defendant’s consent; or (2) based on manifest necessity.

        Consent to a mistrial need not be expressed but may be im­plied from the totality of circumstances.

        It is the State’s burden either to identify some record-based indication that a defendant impliedly consented to the trial court’s mistrial order or introduce evidence to that effect.

        A trial court’s sua sponte declaration of a mistrial does not preclude the State from carrying its burden on the issue of consent. A defendant may consent to a mistrial without expressly moving for one.

        A defendant who does not object to a trial court’s declaration of mistrial despite an adequate opportunity to do so does not impliedly consent to the mistrial merely because the failure to object.

Hernandez v. State, No. PD-1049-16, 2017 Tex. Crim. App. LEXIS 1002 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [legal sufficiency and variance between indictment and evidence presented]

        Under Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), whether the evidence presented was sufficient is determined by comparing the evidence to the elements of the offense as defined by the hypothetically correct jury charge. A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the offense for which the defendant was tried.

        Only material variances will affect the hypothetically correct jury charge. A variance is material if it prejudices the defendant’s substantial rights. Allegations giving rise to material variances must be included.

        Under Tex. Penal Code § 22.02(a)(2), simple assault becomes aggravated if a deadly weapon is used or exhibited in committing the assault. The gravamen of the offense is the resulting bodily injury.

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

        The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. It is not required that each fact “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.

        Under Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012), the hypothetically correct jury charge does not necessarily have to track exactly all the charging instrument’s allegations. Only a material variance between what is alleged and one that prejudices a defendant’s substantial rights renders the evidence insufficient. This happens when the indictment: (1) fails to adequately inform the defendant of the charge against him, or (2) subjects the defendant to the risk of being prosecuted later for the same crime.

Editor’s note: Under Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012), only a material variance between what is alleged and one that prejudices a defendant’s substantial rights renders the evidence insufficient. This happens when the indictment: (1) fails to adequately inform the defendant of the charge against him, or (2) subjects the defendant to the risk of being prosecuted later for the same crime. Three categories of variance are: (1) a statutory allegation that defines the offense (not subject to materiality analysis, or if it is, is always material)—the hypothetically correct jury charge will always include the statutory allegations in the indictment; (2) a nonstatutory allegation that is descriptive of an element of the offense that defines or helps define the allowable unit of prosecution (sometimes material)—hypothetically correct jury charge will sometimes include the nonstatutory allegations in the indictment and sometimes not; and (3) a nonstatutory allegation that has nothing to do with the allowable unit of prosecution (never material)—the hypothetically correct jury charge will never include the nonstatutory allegations in the indictment.

  • Under Tex. Penal Code § 22.02(a)(2), simple assault becomes aggravated if a deadly weapon is used or exhibited in committing the assault. The gravamen of the offense is the resulting bodily injury.
  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally jus­tified in finding the essential elements of the crime beyond a reasonable doubt. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
  • The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common de­sign to do the prohibited act. It is not required that each fact “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.
  • Under Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012), the hypothetically correct jury charge does not necessarily have to track exactly all the charging instrument’s allegations. Only a material variance between what is alleged and one that prejudices a defendant’s substantial rights renders the evidence insufficient. This happens when the indictment: (1) fails to adequately inform the defendant of the charge against him, or (2) subjects the defendant to the risk of being prosecuted later for the same crime.
  • The court of appeals failed to consider all the evidence. With a proper focus on all the evidence that might have supported a guilty verdict, the variance between the pleading and proof is immaterial.
  • If sufficiency is measured against the second rather than the first assaultive event, then there is a variance, but one that stems from the allegation in the indictment that Appellant struck Molien with his hands. The language of the aggravated assault count alleges “striking with the hands,” but the evidence showed that when Appellant returned to the bedroom with the water, he used one hand to choke Molien while using the other to pour the water down her throat, and the evidence does not show that he “struck” her at that point in time.
  • This variance between the pleading and the proof is not material under Johnson. The variance regarding Appellant’s use of his hands would be one describing only the manner and means by which the bodily injury was caused. Under Johnson, this falls into the second category of variance, a nonstatutory allegation that describes the offense in some way, which is material only when it converts the offense proven at trial into a different offense than what was pled in the indictment, potentially subjecting a defendant to another prosecution for the same offense.
  • The court of appeals erred by failing to consider all the evidence that might have supported the aggravated assault offense alleged in the indictment when conducting its legal sufficiency analysis.

Jacobs v. State, No. PD-1411-16, 2018 Tex. Crim. App. LEXIS 935 (Tex. Crim. App. Oct. 10, 2018) (designated for publication) [right to trial by an impartial jury under Tex. Const. Art. I, § 10]

        There is no significant textual difference between Tex. Const. Art. I, § 10’s right to trial by an impartial jury and the Sixth Amendment right to an impartial jury.

        A trial court has broad discretion in the manner it chooses to conduct voir dire both as to the topics that will be addressed and the form and substance of the questions that will be employed to address them. The Constitution places some limits on the trial court’s otherwise broad discretion to conduct voir dire. Under Mu’Min v. Virginia, 500 U.S. 415 (1991), the SCOTUS held that to be constitutionally compelled, it is not enough that voir dire questions might be helpful. Rather, the trial court’s failure to allow questions must render the defendant’s trial fundamentally unfair.

        A trial court’s limitation on voir dire does not infringe on a defendant’s right “of being heard by counsel” because otherwise nearly every error is of constitutional dimension because the error in some measure deprived the defendant of his right to counsel.

Marks v. State, No. PD-0549-17, PD-0550-17 & PD-0551-17, 2018 Tex. Crim. App. LEXIS 921 (Tex. Crim. App. Oct. 3, 2018) (designated for publication) [tolling of statute of limitations when new indictments are returned]

        A prior indictment tolls the statute of limitations for a sub­sequent indictment when both indictments allege the same conduct, same act, or same transaction.

Smith v. State, No. PD-0514-17, 2018 Tex. Crim. App. LEXIS 920 (Tex. Crim. App. Sep. 26, 2018) (designated for publication) [appeal of a shock-probation order requires its own notice of appeal]

        Under Tex. Rule App. Proc. 26.2(a), to invoke the jurisdiction of the court of appeals, a defendant must file a notice of ap­peal within 30 days after the day sentence is imposed or suspended in open court or after the day the trial court enters an appealable order; or (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

        Under Tex. Rule App. Proc. 27.1(b), a prematurely filed notice of appeal is deemed filed on the same day but after sentence is imposed or suspended in open court or the appealable order is signed. A notice of appeal is not effective if filed before the trial court makes a finding of guilt or receives a jury verdict.

        A shock-probation hearing is not a new trial on punishment. A trial court has no authority to issue a new judgment and sentence five months after adjudication. A grant of shock probation is an order that suspends the execution of a previously pronounced sentence by placing the defendant on community supervision and is appealable by either party.

        A general notice of appeal does not invoke appellate jurisdiction over a shock-probation order. The appeal of a shock-probation order is independent of an appeal from adjudication and sentencing. It is a separate appeal of a separate appealable order, with its own appellate timetable. It requires a separate notice of appeal.

Wood v. State, No. PD-1100-17, 2018 Tex. Crim. App. LEXIS 904 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [indictment charging an attempted offense]

        Under Tex. Penal Code § 19.02(b)(1), Murder occurs if a person intentionally or knowingly causes the death of an individual. Under Tex. Penal Code § 19.03, Capital Murder occurs if a person commits Murder under § 19.02(b)(1) and there is an aggravating factor.

        “Capital murder” describes a sentencing regime rather than a criminal offense. There is no crime of capital murder that is different from murder. Capital murder is Murder accompanied by an aggravating factor that provides the State with a greater range of punishment than Murder.

        The elements necessary to establish attempt under Tex. Penal Code § 15.01 are: (1) a person, (2) with specific intent to commit an offense, (3) does an act amounting to more than mere preparation that (4) tends, but fails, to effect the commission of the offense intended.

        An indictment charging an attempted offense is not fundamentally defective for failure to allege the constituent elements of the offense attempted.

Texas Courts of Appeals

Goswick v. State, No. 11-16-00274-CR, 2018 Tex. App. LEXIS 7527 (Tex. App. Eastland Sep. 13, 2018) [perjury and aggravated perjury]

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

        Under Tex. Penal Code § 37.02, a person commits perjury if with the intent to deceive and with knowledge of the statement’s meaning, he makes a false statement under oath. Under Tex. Penal Code § 37.03, a person commits aggravated perjury if he commits perjury per § 37.02 and the false statement: (1) is made during or in connection with an official proceeding; and (2) is material. Tex. Penal Code § 37.05, it is a defense to prosecution for Aggravated Perjury that the actor retracted his false statement: (1) before completion of the testimony at the official proceeding; and (2) before it became manifest that the falsity of the statement would be exposed.

        Under Tex. Penal Code § 37.04, regardless of the admissibility of the statement under the rules of evidence, a statement is material if it could have affected the course or outcome of the official proceeding. It is no defense to prosecution for aggravated perjury that the declarant mistakenly believed the statement to be immaterial. Whether a statement is material in a given factual situation is a question of law.

        Under Tex. Penal Code § 37.06, the information or indictment or prosecution for perjury or aggravated perjury alleging that the declarant has made statements under oath (both of which cannot be true) need not allege which statement is false. Nor does the prosecution need to prove at trial which statement is false.

        Under Tex. Code Crim. Proc. Art. 38.18(a), “no person may be convicted of perjury or aggravated perjury if proof that his statement is false rests solely upon the testimony of one witness other than the defendant.” This does not apply to prosecutions for perjury or aggravated perjury involving inconsistent statements.

Hardeman v. State, No. 11-16-00244-CR, 2018 Tex. App. LEXIS 6474 (Tex. App. Eastland Aug. 16, 2018) (designated for publication) [lesser-included offenses]

        Under Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016), and Hall v. State, 225 S.W.3d 524, 535–536 (Tex. Crim. App. 2007), to determine whether a lesser-included offense should be given, the two steps are: (1) determine whether the requested lesser-included instruction is in fact a lesser-included offense, which is if it is within the proof necessary to establish the offense charged—the indictment for the greater-offense either: (i) alleges all the elements of the lesser-included offense, or (ii) alleges elements plus facts from which all of the elements of the lesser-included offense may be deduced; and (2) determine if there is evidence that supports the instruction. There must be some evidence that would permit a jury to rationally find if the defendant is guilty only of the lesser-included offense. This requires examining all evidence admitted, not just evidence pre­sented by the defendant. Anything more than a scintilla of evi­dence is adequate to entitle a defendant to a lesser charge. There must be affirmative evidence that the defendant did not commit the greater offense.

        Under Tex. Penal Code § 22.01, assault family violence by occlusion I assault plus committed: (1) against a family member; and (2) by occlusion. Simple assault is a lesser-included offense because it is included within the proof necessary to establish as­sault family violence by strangulation.

        The erroneous refusal to give a requested instruction on a lesser-included offense is charge error subject to an Almanza-harm analysis per Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Under Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005), when jury-charge error has been preserved, the court will reverse if error in the charge resulted in some harm to the accused.

Foreman v. State, Nos. 14-15-01005-CR & 14-15-01006-CR, 2018 Tex. App. LEXIS 7264 (Tex. App. Houston [14th Dist.] Aug. 31, 2018) (designated for publication) [standing to challenge a search, plain-view doctrine, affidavit to support probable cause for a search]

        Under Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004), and Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996), the defendant has the burden to establish standing. Standing is a question of law that may be raised by the court sua sponte. A reviewing court may sustain the trial court’s denial of an MTS if the evidence failed to establish standing as a matter of law even though the record does not reflect that the issue was ever considered by the parties or the trial court. The State may forfeit standing issues through its assertions, concessions, and acquiescence during litigation. Standing is reviewed de novo.

        Under State v. Bell, 366 S.W.3d 712, 713 (Tex. Crim. App. 2012), and United States v. Jones, 565 U.S. 400 (2012), a defendant may establish standing through an expectation-of-privacy approach or an intrusion-upon-property approach. The TCCA has not yet addressed what legal standard should be applied in determining whether a defendant has standing to contest a search under the intrusion-upon-property approach. Under the reasonable-expectation-of-privacy approach, the question is whether a defendant had a sufficient proprietary or possessory interest in the place or object searched.

        Under State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011), a trial court’s ruling on an MTS is usually reviewed under a bifurcated standard of review: almost total deference to the trial court’s findings as to historical facts and review de novo the trial court’s application of the law.

        When the trial court determines probable cause to support the issuance of a search warrant, there are no credibility calls, and the trial court rules based on what falls within the four cor­ners of the affidavit. When reviewing a magistrate’s decision to issue a warrant, appellate courts as well as trial courts ap­ply a highly deferential standard of review because of the constitutional preference for searches conducted under a warrant over warrantless searches. As long as the magistrate had a substantial basis for concluding that probable cause existed, the probable-cause determination is upheld. The affidavit is not viewed through hypertechnical lenses but instead with common sense, recognizing that the magistrate may draw reasonable inferences from the facts and circumstances contained in the affidavit’s four corners. When in doubt, the reviewing court defers to reasonable inferences that the magistrate could have made. When too many inferences must be drawn, the result is a tenuous rather than substantial basis for the issuance of a warrant. Probability cannot be based on mere conclusory statements of an affiant’s belief. Reasonable inferences include evidence of the instrumentalities of the crime, possession of contraband, skills and training of an officer, time (information was not stale), credibility of an anonymous informant, and personal knowledge of the affiant.

        Under Tex. Code Crim. Proc. Art. 18.02(a)(10), property or items constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense may be searched. Property subject to seizure under Art. 18.02(a)(10) is “mere evidence,” which is evidence connected with a crime but does not consist of fruits, instrumentalities, or contraband. A warrant issued under Art. 18.02(a)(10) is an “evidentiary search warrant” or a “mere evidentiary search warrant.” To obtain a search warrant for “mere evidence” under Art. 18.02(a)(10), there must be a sworn affidavit setting forth sufficient facts to establish probable cause that (1) a specific offense has been committed, (2) the specifically described property or items that are to be search for or seized constitute evidence of that offense or evidence that a certain person committed that offense, and (3) the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. But if a warrant authorizes a search for both “mere evidence” and items listed under another ground for search and seizure, the warrant is not a mere-evidentiary search warrant and the additional findings under Art. 18.02(a)(10) are not required.

        Under the Fourth Amendment and State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012), a warrant affidavit must establish probable cause to believe a certain item is at a location.

        Under Illinois v. Gates, 462 U.S. 213, 238 (1983), probable cause exists when under the totality of the circumstances there is a fair probability that evidence of a crime will be found at a specified location. The facts stated in a search-warrant affidavit must be related so closely to the time of the warrant’s issuance that a finding of probable cause is justified. Because of the flexibility in this standard, no law defines precisely what degree of probability suffices to establish probable cause.

        To support a search warrant for a computer, there must be some evidence that a computer was directly involved in the crime. When there is no evidence that a computer was directly involved in the crime, more is needed to justify a computer search.

        Under Illinois v. Andreas, 463 U.S. 765, 771 (1983), the plain-view doctrine is not an exception to the warrant requirement because the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable. If an item is in plain view, neither its observation nor its seizure involves invasion of privacy.

        Under Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009), a seizure is lawful under the plain-view doctrine if: (1) officers must lawfully be where the object can be “plainly viewed”; (2) the “incriminating character” of the object in plain view must be “immediately apparent” to the officers (actual knowledge of the incriminating evidence is not required); and (3) officers must have the right to access the object.

        Under Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007), probable cause exists when the known facts and circumstances are sufficient to cause a reasonable person to believe that contraband or evidence of a crime will be found. It requires more than a hunch and must be supported by facts.

        Under Arizona v. Hicks, 480 U.S. 321, 324–328 (1987), if an additional and unjustified search is required to develop probable cause, then the “incriminating character” of the object in plain view is not “immediately apparent.” If an officer must manipulate, move, or inspect an object to determine whether it is associated with criminal activity, then the “incriminating character” is not immediately apparent.

State v. Hill III, Nos. 05-13-00421-CR, 05-13-00421-CR, 05-13-00421-CR, & 05-13-00421-CR, 2018 Tex. App. LEXIS 6413 (Tex. App. Dallas Aug. 15, 2018) (designated for publication) (Schenck, concurring) [prosecutorial misconduct based on selective prosecution]

        Under United States v. Armstrong, 517 U.S. 456, 464 (1996), and Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004), prosecutors have broad discretion in deciding which cases to prosecute. Courts must presume that a criminal prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the State’s duty to bring violators to justice. The presumption of regularity supports prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume prosecutors have properly discharged their official duties. A decision to prosecute violates due process when it is brought in retaliation for the defendant’s exercise of his legal rights. The presumption that a prosecution is undertaken in good faith gives way to either a rebuttable presumption of prosecutorial vindictiveness or proof of actual vindictiveness. The trial judge decides the ultimate factual issue based upon the evidence and credibility determinations.

        Under State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003), and State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995), there is no general authority that permits a trial court to dismiss a case without the prosecutor’s consent. A trial court may dismiss a charging instrument to remedy a constitutional violation, but such dismissal is a drastic measure only to be used in the most extraordinary circumstances.

        Under State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998), a ruling on a motion to dismiss a charging instrument is reviewed for an abuse of discretion. Where there is no constitutional violation or the defendant’s rights were violated but dismissal of the indictment was not necessary to neutralize the taint of the unconstitutional action, the trial court abuses its discretion in dismissing the indictment without the consent of the State.

        Under In re Guerra, 235 S.W.3d 392, 429 (Tex. App. Corpus Christi 2007, orig. proceeding), the absence of an impartial and disinterested prosecutor can violate a defendant’s due process rights. Partiality here is like a conflict of interest in the sense that the prosecutor has a personal interest in the outcome of the criminal prosecution. It also refers to any interest that conflicts with the prosecutor’s duty to seek justice. Thus, the due process rights of a defendant are violated when a prosecuting attorney who has a conflict of interest relevant to the defendant’s case prosecutes the defendant. The mere potential or perceived conflict of interest or mere allegations of wrongdoing are insufficient to establish a due process violation.

Editor’s note: The following is a more comprehensive breakdown of prosecutorial misconduct per the federal constitution (due process clause of the Fourteenth Amendment with the relevant federal cases cited):

  • Generally, “[s]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see U.S. Const. Art. II, § 3 (the executive branch “shall take care that the laws be faithfully executed”).
  • There is a rebuttal presumption that a criminal prosecution is brought in good faith. United States v. Chemical Foundation, Inc., 272 U.S. 1, 14–15 (1926) (The “presumption of regularity” supports prosecutorial decisions, and “in the absence of clear evidence to the contrary, courts presume that (prosecutors) have properly discharged their official duties”); Yick Wo v. Hopkins, 118 U.S. 356, 373–374 (1886) (“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution”).
  • The presumption that a criminal prosecution is brought in good faith is rebutted if a prosecution is brought for an improper purpose. Due process and equal protection of the law are violated, and a court has the right and duty to protect defendants from prosecutorial decisions that are based on unconstitutional motives or are executed in bad faith. Heckler v. Chaney, 470 U.S. 821, 832 (1985) (A selective-prosecution claim asks a trial court to exercise judicial power over a “special province” of the executive branch).
  • Prosecutors are public officials who must serve only the public’s interest. Berger v. United States, 295 U.S. 78, 88 (1935). A prosecutor cannot hide behind the cloak of “prosecutorial discretion” and avoid judicial scrutiny if the decision to prosecute was motivated by improper reasons.
  • Vindictive prosecution occurs where the prosecutor seeks “[t]o punish a person because he has done what the law plainly allows him to do . . .” United States v. Goodwin, 457 U.S. 368, 372 (1982). A prosecutor “may not increase the charge against a defendant solely as a penalty for invoking a (constitutional right).”
  • A defendant proves prosecutorial vindictiveness in two ways: (1) prove actual vindictiveness by presenting objective evidence that the prosecutor’s actions were designed to punish a defendant for asserting legal rights; or (2) show sufficient facts to give rise to a presumption of vindictiveness. Goodwin, 457 U.S. at 380–381
  • To prove actual vindictiveness, the defendant must show by a preponderance of the evidence that the prosecutor’s actions were executed “solely to ‘penalize’ [the defendant] and could not be justified as a proper exercise of prosecutorial discretion.” Goodwin, 457 U.S. at 380 n.12. This is done by “presenting objective evidence that the government acted solely to punish him for exercising his legal rights, and that the reasons proffered by the government are pretextual.” A finding of actual vindictiveness requires “direct evidence” such as evidence of a statement by the prosecutor . . .
  • To show facts that give rise to a presumption of vindictiveness, “[c]ourts will apply the presumption of vindictiveness only where there exists a ‘realistic likelihood of vindictiveness.’” Blackledge v. Perry, 417 U.S. 21, 27 (1974); Bordenkircher, 434 U.S. at 365 (presumption of vindictiveness should not apply where the prosecution had done no more than “openly pre­sent the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution”).
  • A claim of selective or vindictive prosecution “is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” United States v. Armstrong, 517 U.S. 456, 463 (1996) (the standard is “demanding,” and there is a “background presumption” that what a defendant must show in the first instance to obtain discovery (through a hearing) “should itself be a significant barrier to the litigation of insubstantial claims”); United States v. Mezzanatto, 513 U.S. 196, 203 (1995) (explanation of “background presumption” as it relates to the voluntary waiver of legal rights). The “demanded standard” does not prevent a defendant’s legitimate claims from being heard at a hearing when they are supported by “some evidence,” and a defendant presents “some evidence” merely by showing that he has a “colorable claim.”
  • To discover documents and other evidence relevant to a claim of an improper prosecution, a defendant must establish a “colorable claim” of a constitutional violation. See United States v. Kahl, 583 F.2d 1351, 1355 (5th Cir. 1978). A “colorable basis” is some evidence tending to show the essential elements of the claim. The defendant must “offer sufficient evidence to raise a reasonable doubt that the government acted properly in seeking the indictment.”
  • Once a hearing is held on the presumption-of-vindictiveness method, the defendant must show by “exceptionally clear evidence” that the prosecution was initiated for an improper reason. Gregg v. Georgia, 428 U.S. 153, 199 (1976); McCleskey v. Kemp, 481 U.S. 279, 297 (1987) (exceptionally clear evidence required before a court may hold that prosecutorial discretion has been abused).

When Does a Driver Have to Submit to a Law Enforcement Officer’s Request to Take a Breath or Blood Test? What Every Driver Should Know

In Texas, there appears to be significant confusion among citizens, law enforcement, and even lawyers as to when it is proper for a law enforcement officer to ask for a breath or blood specimen. Many people have the misconception, especially police officers and courts, that a driver gives deemed consent to submitting a test when they obtain their driver’s license. This “misconception” is based upon Texas’ deemed consent law, found at Section 724.011 of the Texas Transportation Code. It provides:

Sec. 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.

A close reading of this statute makes clear that deemed consent is conditional on the police following the deemed consent law and not when a driver obtains a license. Accordingly, deemed consent is conditioned on three things happening before a proper police request—better known as a “statutory warning”—can be made.

Note that the required language of a “statutory warning” is found at section 724.015. Properly provided, it allows the officer to threaten certain coercive penalties for the driver’s noncompliance. That section, in pertinent part, states:

Sec. 724.015. INFORMATION PROVIDED BY OFFICER BEFORE REQUESTING SPECIMEN. Before requesting a person to submit to the taking of a specimen, the officer shall inform the person orally and in writing that:

(1) if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent pros­ecution;

(2) if the person refuses to submit to the taking of the specimen, the person’s license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 180 days;

(3) if the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person;

(4) if the person is 21 years of age or older and submits to the taking of a specimen designated by the officer and an analysis of the specimen shows the person had an al­co­hol concentration of a level specified by Chapter 49, Penal Code, the person’s license to operate a motor vehicle will be automatically suspended for not less than 90 days, whether or not the person is subsequently prosecuted as a result of the arrest;

(5) if the person is younger than 21 years of age and has any detectable amount of alcohol in the person’s system, the person’s license to operate a motor vehicle will be automatically suspended for not less than 60 days even if the person submits to the taking of the specimen, but that if the person submits to the taking of the specimen and an analysis of the specimen shows that the person had an alcohol concentration less than the level specified by Chapter 49, Penal Code, the person may be subject to criminal penalties less severe than those provided under that chapter;

(6) if the officer determines that the person is a resident without a license to operate a motor vehicle in this state, the department will deny to the person the issuance of a license, whether or not the person is subsequently prosecuted as a result of the arrest, under the same conditions and for the same periods that would have applied to a revocation of the person’s driver’s license if the person had held a driver’s license issued by this state; and

(7) the person has a right to a hearing on the suspension or denial if, not later than the 15th day after the date on which the person receives the notice of suspension or denial or on which the person is considered to have received the notice by mail as provided by law, the department receives, at its headquarters in Austin, a written demand, including a facsimile transmission, or a request in another form prescribed by the department for the hearing.

According to terms of section 724.011, the first condition is met only where the person being requested to provide a specimen has been arrested. Hence, as per the deemed consent statute, it is improper for an officer to give a “statutory warning” to a driver unless that person has first been arrested. And so, what is clear is that Texas does allow legal limited coercion to get a blood or breath test; however, that coercion can only be utilized after there has been an arrest. Further, there is nothing that prevents an officer from asking for a consensual blood, breath, or urine test, either before or after an arrest, provided there is no coercion threatened of any nature. There is no deemed consent for the taking of urine.

Turning now to conditions 2 and 3, we must now look at the statutory provisions of section 724.015, entitled “Information Provided by Officer Before Requesting Specimen.” That section provides:

Before requesting a person to submit to the taking of a spe­ci­men, the officer shall inform the person orally and in writing . . . [emphasis added].

As so, this language, too, makes clear that deemed consent also requires that officer to do two more things before a driver can suffer any coercive consequences. Specifically, he must provide an oral warning and he must also provide a written warning (as is noted in the first referenced section of 724.015, supra). Again, this is done with a form designated a “Statutory Warning, better known as a DIC 24.” This section requires the officer to both read it out loud and provide it in writing to a driver after an arrest. This is so because the legislature wanted the citizens to know that stated penalties might occur if there was a refusal to a properly made test request.

The requirement that there be two required simultaneous methods of providing the same warning is a realistic legislative recognition that a person, being subjected to a DWI investigation, is going to be nervous and perhaps not fully capable of understanding his/her rights or the possible consequences of a refusal. Without question, the legislature understood that there was a better chance of a person understanding both the request and consequences of refusal where they hear and read the same message. That said, both means of delivering that message, an oral and written presentation, must be made before the request for a blood or breath test can be made. Until this happens, there is no deemed consent.

In drafting the bill that later became the law, Section 724.015, words were important! Under our Code Construction Act, the legislature’s use of certain words leaves no doubt that the use of the term “shall” mean it is the officer’s required duty—i.e., “the officer shall inform.” We know this because the Act at Section 311.016 says:

The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:

(1) “May” creates discretionary authority or grants permission or a power.

(2) “Shall” imposes a duty.

Accordingly, the legislature’s use of the word “shall” (duty) instead of “may” (discretionary) leaves no doubt that both the written and oral warnings must be meaningfully given before a breath/blood test can be lawfully given pursuant to the deemed consent statute. That understood, our law does not allow for any discretion about the need to provide the totality of the dual warnings. That same lesson is applicable to the word “and,” which is to be distinguished from the word “or.” Therefore, absent a proper “statutory warning” being provided, there is no deemed consent and no penalty for a refusal.

Interestingly, just because a proper statutory warning is pro­vided, it does not mean that that driver cannot decline or re­fuse submission to the test. Indeed, the driver can! However, if that is done, the State can then proceed to impose two limited and particularized penalties: suspending a driver’s license and telling a jury about the driver’s failure to submit to testing. The purpose of the latter penalty is to allow the State to infer a concept called “guilty mind” to a jury—i.e., the driver thought he was guilty of DWI and was trying to hide evidence of his guilt.

Here, regarding “guilty mind” it is of import that not all refusals will be admitted into evidence. Admissibility depends on relevance and potential harm. For example, it is arguable that a driver’s refusal, based on his/her desire to first have the advice of a lawyer before agreeing or refusing, has no relevance unless the officer first informs the driver that there is not a right to an attorney for that purpose. This is true because Texas courts have long held that no inference of guilt can occur by the invocation of the rights (e.g., to have the help of a lawyer or to remain silent).

Section 724.013, regarding a driver’s right to refuse to provide a specimen, provides:

PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.

Sadly, almost every right a citizen has will have an exception to it, and the “right to refuse” (no pun intended) is no exception. For example, under very limited circumstances, an officer can forcibly take blood if there are “exigent circumstances” to do so (e.g., the substances that are causing impairment are dissipating in the driver’s body) and there is simply not time to secure a search warrant. The other example is that a search warrant is procured that authorizes the forceful taking of blood. A search warrant is a judicial order based upon an affidavit—i.e., a sworn narrative of events that the officer provides to a judge for the purpose of establishing probable cause that the driver committed the offense of DWI, and that the alcohol/drug/controlled substance evidence of that crime is in that person’s blood and is dissipating.

Further, a search warrant is not supposed to be automatically issued upon an officer’s request. Simply because an officer requests a warrant does not mean that it should be blindly granted. Indeed, if the judge, upon review of the officer’s affidavit, determines there are insufficient facts to establish probable cause (i.e., facts showing the driver probably committed the offense of DWI and not a naked hunch or suspicion or a simple conclusion), the warrant request must be denied. Said another way, getting a search warrant is not automatic as it is conditioned on a factually sufficient affidavit showing probable cause being provided to a neutral and detached judge. Lastly, if a warrant is issued, the driver needs to know that he/she can forcibly be made to provide blood samples so long as the officer uses limited and reasonable force.

In conclusion, there is no deemed consent for a taking of a urine test. Moreover, there is no deemed consent for a breath or blood test unless the following three conditions have been met:

1.   the driver is under arrest,
2.   an oral statutory warning was provided, and
3.   a written statutory warning was provided and that said warnings occurred before a test request was made.

Further, simply because the three conditions are met does not mean that a driver has to agree to the taking of any requested specimen. Indeed, many argue that it is better to refuse testing because breath test machines are not warranted fit by their manufacturers for breath testing, and because the breath provided is not preserved for a subsequent checking of that machine’s accuracy and reliability. That same logic applies to the taking of the blood sample. This is so because there is no guarantee that it will be done in a sanitary place by individuals who are properly trained to take the sample and analyze it. And knowing about the problems in breath and blood testing, some argue that the best evidence of sobriety is where that driver refuses testing because then there is no risk that erroneous test evidence or infection can occur.

Finally, from a lawyer and driver’s economic perspective, a driver is probably better off declining to submit to any testing because a no-test case is easier to defend, easier for the jury to understand, shorter to defend, and generally costs less to defend.

Pat Priest: A Profile in Judicial Courage

A. Just call Priest.

The following scenario played out hundreds of times in the Bexar County Courthouse over the last four decades: Some thorny issue of substance or procedure would arise during a trial or hearing, and the judge would call a brief recess to solve the problem. The judge would retire to chambers and close the door, but no books would be consulted, no computers queried. Instead, the judge would get on the phone with Judge Pat Priest, who would answer most questions off the top of his head, completely and accurately.

Armed with this newly acquired knowledge, the sitting judge would return to the bench, confident and ready to rule. Sometimes the judge would freely acknowledge the assist received, sometimes not. Regardless, experienced lawyers knew exactly what had happened, and whether or not counsel benefited from the ruling given, they at least knew the ruling they got was sound, since it had come from a scholar. And Pat Priest was a legal scholar. He graduated from St. Mary’s law school magna cum laude in 1969 even though he had worked full time to help support his family. Board certification in criminal law was initially offered to Texas lawyers in 1975, and Priest was certified in the inaugural group. He was an adjunct professor of law at St. Mary’s, teaching Criminal Law and Procedure and Trial Advocacy. In 1998 he authored, and thereafter regularly updated, a respected legal treatise—Texas Courtroom Criminal Evidence. Over the years he taught thousands of lawyers and judges at seminars, in the courtroom—and over the telephone.

B. Judge Priest let lawyers be lawyers.

To be sure, intelligence and legal knowledge are valuable qualities, but, as we all know from experience, these alone do not make a great judge. A judge who is biased, or lazy, or mean—or all of those—is a menace, and brains make such a judge worse, not better. Besides being learned in the law, Judge Priest was revered for his fairness by both the prosecution and the defense, never favoring one side over the other. He had a strong work ethic and always gave the public its money’s worth, arriving early and staying all day, Monday through Friday. He had a sense of humor. He was patient and respectful to every litigant and lawyer who appeared before him. He listened to arguments and ruled thoughtfully, he did not put time limits on voir dire, he did not punish people or lawyers for going to trial, and he did not bust plea bargains. He would not rule in your favor every time, of course, but you always knew his rulings were honest, and if you got an adverse ruling he would never try to trick you into waiver on appeal.

Pat Priest1 was elected to the 187th Judicial District Court of Bexar County in 1980, and he served there until retiring in 1994. In 1995, he became a Visiting Judge and later a Senior Judge, and he presided regularly in civil, criminal, and juvenile courts all over the State of Texas until 2018. He died in San Antonio on October 12, 2018, at the age of 77. Lawyers will miss Judge Priest for his erudition, and for the way he ran his courtroom. But more than anything we will miss his judicial courage.

C. Pat Priest was first a brave defense lawyer, then a brave judge.

After law school, Priest hung out his shingle as a criminal defense lawyer. Eventually he would office at “quince-quince”2 with a formidable cast of lawyers—including Nick Rothe, John Hrncir, Antonio Cantu, David Chapman, C. E. Cantrell, and Sid Harle. He was a proud charter member and director of the Texas Criminal Defense Lawyers Association. In his 12 years as a solo practitioner, Pat Priest earned recognition as one of the best defenders in South Texas.3

1. It’s not easy doing what we do.

Perhaps his most notorious client was Donald Gene Franklin, charged with capital murder in 1975. The crime alleged against Franklin was particularly brutal, and that alone was enough to attract the attention of almost everyone in San Antonio. What really seemed to incense the public, though, was that Franklin’s first two trials were nullified for legal errors, and for many people, the inability of the courts to speedily convict and execute this man was proof that the legal system was broken, and that lawyers—especially criminal defense lawyers—were the root of all evil.4 Lawyer Priest took a lot of heat for representing Franklin, mostly from non-lawyers unschooled in the Sixth Amendment, but also from a few people who should have known better.

When he ran for the 187th in 1980, those running the campaign of the incumbent judge disgracefully attacked Priest in a large newspaper ad run just days before general election. He was identified as the lawyer who “Defended Donald Gene Franklin, convicted killer of nurse **** . Twice.”5 The same ad criticized him for having no prosecutorial experience, and claimed that “over 65% of [his campaign contributions were] personally generated by four criminal defense lawyers.” Fortunately for those interested in justice in Bexar County, neither this despicable dirty trick, nor the power of incumbency, fooled the voters, and the right man was elected. Pat Priest proved he was a brave man by his long and successful representation of Donald Gene Franklin, in the face of lynch-mob hostility in San Antonio. And although he would spend the rest of his career on the bench, he continued to show extraordinary courage there as well.

2. This judge, unlike some, was not cowed by the sensationalistic media.

In 1989, a San Antonio police officer was killed when he confronted two brothers burglarizing a hamburger joint on San An­tonio’s north side. The brothers were charged with capital mur­der, and soon after their arrest, a particularly aggressive reporter for a local television station wrangled an incriminating interview with one of them—thanks, in large part, to some indispensable assistance from a high-ranking deputy in the sheriff’s office. In a moment of unity seldom seen in a capital case, both the defense and the prosecution agreed that they all needed to see the reporter’s notes relating to this event to determine the level of involvement by the sheriff’s office. The television station brought in a team of civil litigators to argue that the notes were privileged, but they failed to persuade Judge Priest, who ordered disclosure. The reporter refused to comply with the order, defiantly promising that “they can have my notes when they pry them from my cold gnarled dead fingers.” While our law does not empower judges to pry notes from reporters’ fingers—cold, dead, gnarled, or otherwise—it does provide a remedy for the non-compliant that has proven remarkably effective over the years. Judge Priest found the reporter in civil contempt and ordered him to jail for six months.

After the contempt hearing, the reporter’s lead attorney made this statement: “The judge is clearly wrong in this case. . . . Because this is a very controversial case, the judge reacted in a way that goes against the First Amendment.”

One could only wonder what sort of “controversial” cases big-firm civil lawyers manage to squeeze into careers that otherwise focus on protecting the pocketbooks of the rich and famous. However controversial this lawyer’s caseload might have been, it was laughable to hear him suggest that Pat Priest, who had spent the last 21 years of his career making life-and-death decisions in any number of the most serious of criminal cases imaginable, ruled the way he did because this was a “very controversial case.”6

Not surprisingly, the media rallied strong in support of their martyred colleague; not surprisingly, they used the power of their pens to bash the Judge. A press conference was held on the steps of the jail, and in attendance were the main news anchors from all four of San Antonio’s major television stations, joined by executives from both local newspapers and representatives of various professional journalism organizations. As the fair and friendly newspaper reported the next day, “[s]peakers chastised Priest for infringing on First Amendment protections and called for [the reporter’s] release.”7

Newspapers all over the country, including the New York Times and the Washington Post, covered the story, as did ABC’s Nightline program, and the tenor of all this coverage was the same: A San Antonio jurist had illegally imprisoned a heroic reporter for doing his constitutional duty to get the news to the public. And it was surely not lost on many of the consumers of this news that this injustice was being done to help a couple of cop killers.

Despite this intense media-driven pressure, Judge Priest stood by his order. After serving about two weeks in jail, the reporter agreed to testify and provide his notes after obtaining a release from a person he identified as one of his confidential sources, and Judge Priest then released him. Evidence gained from the reporter’s testimony and notes formed the factual basis of a motion to suppress the incriminating statement, and once again, Judge Priest was called upon to make another unpopular decision. He granted the motion to suppress, finding that the private-citizen reporter and the deputy sheriff had combined to deny the defendant his right to counsel in violation of the Sixth Amendment to the United States Constitution. The State immediately appealed, and the Fourth Court of Appeals reversed the order of suppression.8 The brothers took plea bargains that avoided the death penalty, and eventually both were released from prison on parole.

3. Judge Priest understood the proper purpose of bail; many others did not.

In the early 1990s, drive-by shootings and other violent crimes plagued San Antonio, and politicians were hungry for scapegoats. In 1992, the media ran a series of stories reporting a developing conflict between some of the district judges and a then little-known city magistrate. The magistrate, who would become known as “The Hammer,” began setting exorbitant bonds on people arrested for violent crimes. In one publicized case he set a $10 million bond for a 28-year-old man charged in two sexual assaults. And the newspapers reported that the magistrate “routinely” set multimillion-dollar bail bonds.9 Although this surely impressed the public, case law at the time left no room for doubt that bonds like this were almost always unconstitutionally excessive.10 When the magistrate’s cases were later indicted and assigned to a district court, lawyers would file writs to lower the bonds, and the district judges would have to choose between pandering to the public or following the law. For judges like Pat Priest and Terry McDonald (who presided over the 186th District Court), the choice was simple. Simple, maybe, but it came with a heavy political price. When Judges Priest and McDonald followed the Constitution and not the mob, the door was opened for the magistrate to self-righteously announce how high he would set bonds if he had the chance. Bound by the canons of judicial conduct, Judge Priest could only say this: “I do what I think is right and make no apologies to anybody for doing my job.”

San Antonio Mayor Nelson Wolff could not resist joining the fray. Describing himself as “disturbed and angry,” he created something he called a “Citizens’ Crime Commission” to conduct a top-to-bottom examination of a criminal justice system that, he said, favored criminals instead of victims. In addition to boldly creating the commission, the mayor—himself a licensed attor­ney—continued to work the media, calling some citizens-accused “‘violent animals’ who must be taken off the street and given death sentences when it is justified.” And he insisted that “local judges must act ‘responsibly’ when setting bonds for violent offenders and should be held accountable by voters. . . . These actions send a message out to the criminal element that we are not committed or sincere in our fight against crime.” As noted, Judge Priest almost always believed that the canons prevented him from replying to criticism, however unfounded it was. This time he permitted himself this one response about the abilities of our mayor: “Nelson never was a very good lawyer.”11

Wolff also lashed out at what he termed jurors who “start crying” over the plight of killers on trial instead of the victims. Demonstrating a complete misunderstanding of the role of judges and juries, Wolff went on to say this at a news conference at City Hall: “Our judges, juries, and probation officers must walk in the shoes of the victims and their families.”12

This level of ignorance would have been surprising in anyone who had passed an eighth-grade civics class, but it was positively shocking when one remembers that Mayor Wolff was a licensed attorney. These were the kind of attacks Judge Priest faced on a regular basis, just for doing his job.

On December 29, 1992, the San Antonio Express-News ran an editorial styled, “Murder City, Texas.” Among other things it stated: “Until there is enough prison space for all weapons offenders, and unless judges keep those involved in weapons violations behind bars (are you listening Judges Terry McDonald and Pat Priest?), the murder record will continue to rise annually.”

4. Given his detractors in the media, it is unsurprising that Judge Priest was not elected again.

In 1993, Judge Priest announced he would retire from the trial bench at the end of the year. Several lawyers lined up in both primaries to replace him, and the rallying cry for them all was “victims’ rights.” Little time, if any, was devoted to defendants’ rights, or to the Constitution, or to judicial courage. “The Hammer” announced his candidacy, proclaiming the need to “return our district courts back to the people,” stating: “Our district courts as a whole have been dominated by the criminal defense lawyers of this city.” Although he won the Democratic primary in March 1994, he lost the general election to his Republican opponent.

In December 1993, Justice Shirley Butts announced that she would not seek re-election to Place 1 on the San Antonio Court of Appeals. Judge Priest then declared his candidacy for this position in the upcoming Democratic primary. A lawyer with little criminal experience who had served as a municipal judge in a small bedroom community on the outskirts of San Antonio ran against Judge Priest and won the primary by more than 4,000 votes, despite the fact that Priest had been the overwhelming choice of lawyers polled in a State Bar of Texas survey. Though victorious in the primary, the former municipal judge lost to his Republican opponent in the general election.

D. Senior Judge Pat Priest, for the next 23 years.

I have never been a fan of the visiting- or senior-judge system, which allows former judges to return to the bench to serve with no electoral mandate and little or no accountability to the public—or to the lawyers and defendants who appear before them. Occasionally, though, this flawed system produces good results, and that was the case with Judge Priest. In 1995 he was back in courthouses throughout the State, but most often in and around San Antonio. He carried on as before: working every day and all day; respecting and listening to all who appeared before him; and ruling in every case, as he felt the law and the facts required him to do, without worrying one damn bit about what the media thought or published.

In the years to come, people who knew Pat Priest will tell stories about what a great legal scholar he was, and they will be right. They will praise him for his fairness and judicial temperament, and again, they will be right. I hope, though, that lawyers and judges who think about Judge Priest will be inspired by his singular and extraordinary judicial courage, and that, when they find themselves in a situation that requires courage on their part, they will ask: What would Pat Priest do? Ruling correctly, according to the law and the evidence, with no regard for how it might look on the front page, would be the best way to honor the memory of Judge Pat Priest.

E. And he was a good and humble man.

I have spent all my time so far talking about those qualities of Judge Priest that we would wish on all our judges: intelligence, integrity, diligence, fearlessness. In the end, though, it might be most important of all that Pat Priest was a decent, humble man who loved his family, served his community, and treated all those around him with dignity and respect.

I close with a story that Daryl Harris shared at the memorial service for Judge Priest on October 17, 2018. It shows the man’s humanity as clearly as anything I can think of. Daryl is not from San Antonio, but likes to say that he and his wife got here as soon as they could. He has been a prosecutor for the last 18 years and tried many cases before Judge Priest, when both were tasked with handling mostly cases involving sexual assaults against children. These, of course, were the kinds of cases the elected judges most wanted to avoid. Daryl remembered a situation all trial lawyers find themselves in from time to time. The jury had retired to deliberate its verdict, and the judge, the defense, and the prosecution were sitting in the courtroom, unable to focus on new work and awaiting that awful buzzer. Daryl had brought some sausage to the gathering, the lawyers were enjoying the feast, and they invited the Judge to join them. He did, but he noticed another person all the others had overlooked. It was the defendant sitting alone in the jury box, and the one person in the room who had more to gain or lose by the jury’s verdict than all the others combined:

Judge Priest came down off the bench, got himself a piece of sausage, and then cut another piece and gave it to the defendant. Much like San Antonio had accepted me, Judge Priest was accepting this person into the group and the moment. I don’t remember who I tried that case against, I don’t remember the verdict, but when my group of friends got the word of Judge Priest’s passing . . . and we started to trade stories . . . that’s what I remembered. He demonstrated his faith, and I hope that I can come close to his standard in living mine.

Notes

1. Official records list his name as “Wayne Patrick Priest,” but I never heard him called either Wayne or Patrick.

2. These great lawyers shared offices for years in suite 1515 of the Tower Life Building, hence the name.

3. Between October 2015, and December 2017, Judge Priest contributed a number of articles to the Voice for the Defense that briefly and humorously chronicled some of his more interesting cases as a defense lawyer. These are archived on TCDLA’s Voice Online website.

4. Franklin v. State, 606 S.W.2d 818, 850 (Tex. Crim. App. 1978)(prosecutors improperly used Franklin’s pretrial silence and the exercise of his Fifth Amendment privilege). Franklin was re-tried, and again he was convicted and sentenced to death, but the trial court granted a motion for new trial because of jury charge error. He was convicted and sentenced to death a third time in 1982, after Priest had been elected judge, and this conviction was affirmed on appeal. Franklin v. State, 693 S.W.2d 420, 422 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031 (1986).

5. I have omitted the nurse’s name from this article. The newspaper ad for the incumbent judge did not.

6. For what it is worth, I am certain that the courtroom work the reporter’s lawyers did was done well and honorably, and that if they billed at the rate that lawyers of their stature do, they made a lot of money and earned every penny. I still insist, though, that their out-of-court suggestion that Judge Priest buckled under pressure is patently absurd. And their further claim that Judge Priest was “clearly wrong” was in fact, itself, clearly wrong. The reporter filed a petition for writ of habeas corpus challenging the contempt order, and Federal District Judge H. F. Garcia denied relief, citing the seminal case of Branzburg v. Hayes, 408 U.S. 665 (1972), for the well-established proposition that the First Amendment did not shield the reporter from providing notes of his interview of the defendant. Karem v. Priest, 744 F. Supp. 136, 137 (W.D. Tex. 1990).

7. San Antonio Light, July 6, 1990.

8. State v. Hernandez, 842 S.W.2d 306, 319 (Tex. App.—San Antonio 1992, pet. ref’d), cert. denied, 509 U.S. 927 (1993).

9. San Antonio Express-News, January 10, 1993.

10. Although the case law has become less friendly to presumptively innocent citizens in recent years, in the early 1990s, the Court of Appeals sitting in San Antonio could hardly have been more clear: Reducing to $75,000 the $1,000,000 bond set for a capital murder defendant, that Court observed that while bonds of $300,000 to $1,000,000 would not necessarily be unconstitutional, “it would be an unusual case which would justify such a high bail amount.” Ex parte McDonald, 852 S.W.2d 730, 735 n.4 (Tex. App.—San Antonio 1993, no pet.); see also Ex parte Wood, 952 S.W.2d 41, 43 (Tex. App.—San Antonio 1997, no pet.)(reducing the total bond in this death penalty case from $450,000 to $70,000, finding that “only in rare circumstances would such amounts be justified”).

11. San Antonio Express-News, August 8, 1992.

12. Id.

Mental Illness and Criminal Defense

Twice during my years practicing law, situations arose in other parts of the country, and were reported nationwide, in which it became public knowledge that a lawyer representing someone accused of abduction and murder knew quite literally where the body could be found and did not disclose it.

The public reaction in each case was to decry the insensitivity and lack of common decency of a lawyer who could do such a thing. Even lawyers—some academicians and those whose own practices do not involve dirtying their hands with representing the criminally accused—were heard to express a sense of outrage. Nearly everybody wanted the bar association to “do something,” and the entire affair was taken as just one more example of lawyers acting contrary to the public good.

In fact, in each case, the lawyer involved was upholding one of the highest traditions of the bar—the attorney-client privilege. Unfortunately, the importance of that privilege is not easily grasped by one untrained in the law or inexperienced in our adversarial system of justice. Please understand: These were dead bodies that these attorneys were not disclosing the location of. A lawyer who knows, from his client or any other source, the whereabouts of a person who has been abducted and is still alive has an ethical duty to save that life, if he can, by revealing the whereabouts or whatever lawful means may be necessary. That is because the attorney-client privilege is intended as a shield, and not a sword, and does not extend to future illegal conduct of the client or avoidable future adverse consequences of his past acts.

The attorney-client privilege in no way authorizes the lawyer to become a criminal along with his client. It simply demands that the lawyer zealously guard a client’s confidences about past bad acts.

I believe that the attorney-client privilege is logically inherent in our adversarial system of justice. Let me explain what I mean by that.

Our system presumes that each side of the docket will be represented by a skilled courtroom lawyer making every effort to advance that lawyer’s side of the case (by so marshaling the evidence and his argument as to place the client’s case in the best possible light), while similarly employing his best skill to depreciate the value of the other side’s case—and that the jury (or judge, if a jury is waived) is thereby better enabled to ferret out what the truth may be and where justice lies.

The successful operation of such a system requires that the client repose absolute trust in the advocate, who must know all that the client can tell him of the case in order to effectively represent him. On the other hand, few clients—whether civil or criminal—could be expected to “level” with their attorney if they could not be assured of the confidentiality of the communication—that, in fact, the attorney not only could not be made to betray their confidence but could in fact be forced not to do so. It is from these considerations that the attorney-client privilege springs.

Criminal defendants, in particular, would obtain little benefit from having counsel if their communications with counsel could be coercively obtained by agents of the State. A lawyer holds his clients’ confidences much like a trustee holds his money. Just as the money in the hands of the trustee belongs to the client, so the right to allow or disallow disclosure of matters told the lawyer in confidence belongs to the client. The system won’t work any other way. The lawyer has no right—absolutely none—to waive the attorney-client privilege, even when the lawyer’s professional judgment says that the client would be better served by disclosure or the private judgment of the lawyer suggests that prudence (or decency or propriety) demands disclosure. If it were otherwise, then the privilege would belong to the lawyer and not the client.

I got a call one day from an older couple whom I had known for years. Their son was in jail, charged with the murder of his wife. They had been unable to see him, and really knew nothing about the situation, other than what was in the newspapers.

I never read crime stories in the newspapers (unless my name is in them, of course), primarily because I spend most of my waking hours involved in one criminal case or another and see no reason to add to that based on what the city editor thinks should be on page one today.

I turned to the newspaper and found that the story was the headline story, and the matters set forth in the newspaper alone raised immediate questions regarding the sanity of whoever had committed the act. To relate the matters set forth in the newspaper would be tantamount to identifying the client; suffice it to say that the circumstances surrounding the killing and the finding of the body were bizarre in the extreme.

I went to jail to see the man, whom I knew slightly. I was met in the attorney visiting room by the most clearly mentally ill person I had ever interviewed. He did not appear to know me, and was unable to maintain a conversation on the subjects of his being in jail and what involvement he had had, if any, in the death of his wife.

He communicated a number of things to me on that trip to the jail, while in that state, that made his lack of any grasp what­soever of reality perfectly obvious. What he said to me, however, I cannot say, for reasons which will appear shortly.

I called his parents and sat down with them for a talk. I explained that the man I had seen at the jail was pretty clearly incompetent to stand trial, and might very well have been legally insane at the time the crime was committed. In order to be competent to stand trial on an allegation of criminal conduct, a defendant must have a rational, as well as factual, understanding of the charges against him and of the proceeding. In addition, he must be able to communicate with his attorney with a reasonable degree of rational understanding so that they may prepare his defense. This young man was clearly incompetent, on all counts. Whether he had been insane at the time of commission of the offense was, however, a much more problematic question. For legal insanity, the test at that time in Texas, was whether, at the time of commission of the offense, as a result of mental disease or defect, the defendant was incapable of distinguishing right from wrong—or, if he could distinguish, was unable to conform his conduct to the requirements of the law he allegedly violated.

I knew he was at least a bubble and a half off plumb when I interviewed him, but that was several days after the woman had been killed, and I had no way of knowing whether his mental state caused the killing or the realization of the enormity of the act had brought about the break with reality (if in fact he had committed the act).

They were, I knew, people of modest means, and completely unable to fund the extensive legal and psychiatric problems facing their son. I explained that even if I gave them a substantial break on my fee, or even waived it altogether, they were still going to be unable to bear the other costs that would be attendant to defending their son on a psychiatric basis.

I explained that they had no legal obligation to do so, and that if their son was unable to afford to retain counsel he would be entitled to court-appointed counsel—who could in turn petition the court to have their son evaluated and treated by the county psychiatrist, a retired military doctor I knew to be quite competent.

After that, I had no involvement in the case (other than conveying deposits to his inmate account for toothpaste and the like for his parents) for well over a year. He obtained counsel, and a hearing was had on the issue of his competency to stand trial. He was found incompetent and committed to the State Hospital at Rusk, Texas.

When he returned from Rusk, declared competent to stand trial, his lawyer called me to determine my availability as a witness on the question of his alleged insanity at the time of the offense. I had no direct knowledge, of course, but the lawyer hoped my evidence about his condition when I saw him might help the psychiatrists determine his mental state at the earlier time.

I said that I would help, of course. I just asked him to verify that the defendant was willing to waive the attorney-client privilege so I could tell the jury what he had said to me, and not just my general impressions of his mental state. The lawyer promised to talk with him about that. The next time I heard from the lawyer, he informed me that the defendant would not waive the attorney-client privilege and did not want me to reveal what he had said. The lawyer assured me that he had explained repeatedly how much it would detract from my testimony if I had to answer that I could not reveal what he had said due to the attorney-client privilege. The defendant had remained adamant.

I wondered, frankly, whether the defendant was really competent to stand trial and if he had made such a decision. I asked the lawyer if I could talk to his client directly to see if I could make the man understand the problem. He readily agreed.

The man I saw was a far cry from the one I had seen in jail months earlier. He was clearly “oriented times four,” as the psy­chia­trists say, clearly in command of all his faculties. He listened patiently to what I had to say, told me he understood that the decision might hurt him, but insisted that I maintain his confidences.

I testified and did the best I could to convey how deranged I found the man to be, but I could virtually see the jurors dismiss my testimony out of hand when, on cross-examination, to the prosecutor’s question as to what he had said that made me feel as I did, I could only answer that I was unable to say due to attorney-client privilege.

The jury found against him on the insanity defense, convicted the defendant, and gave him a long sentence. “Stone walls do not a prison make,” said Richard Lovelace, “nor iron bars a cage.” I don’t know to this day why he insisted upon maintaining the privilege, but the call was his. I still don’t see how we could have it any other way.

Why You Must Find Something to Love About Your Client

A jury of 6 or 12 will decide the fate of this human life you have in your hands. “Yeah, but the charge is Continuous Sexual Abuse of a Child, and I have children. I can’t get past the charges.” If that is the inner voice you hear, get to know your client—not just a little bit, but a lot.

Psychodrama is a great exercise to get to really know your client, and there have been articles published in this publication describing the art and benefit of psychodrama. If psychodrama isn’t your thing, though, there are other ways to love your client. Listen—really listen—to their story. Their life story, all of it. You may find a broken and depressed client who simply needs love or someone to fight for them. You may find a completely innocent person who needs to be believed and loved.

A jury believes that you, the defense attorney, knows everything about your client and the case. So, be that lawyer. Know everything about your client and the case and find something to love about your client. A jury can tell if the defense attorney cares about their clients. It’s much easier to convince others to care about your client if you do, too. It’s nearly impossible if you don’t. If you don’t love the client, why should complete strangers on a jury?

Talk to people who care for your client and listen—really listen—to the reasons they do care for your client. Let those reasons sink in and find a place in your heart. Passion and love are something the jury should always see from the Defense Attorney. Prosecutors may show passion, but most of the time they are simply spewing venom about your client. Be the person who changes that narrative by your love. The jury will see it and will believe it if you have found that love for your client.

Is it always easy? Absolutely not. Is it always possible? Absolutely. We have all been broken in one way or another. We are all human. Some of us come back together better than others but there is beauty in the scars and the cracks. Find the beauty.

When I win a case, the jury usually tells me they could tell I cared/loved my client and that impacted them greatly. Don’t fake it; the jury will know. Why should they love or care for my client with their verdict if they don’t see me doing the same?

After all, we truly do have the forgotten and broken in our hands most of the time, and these lost souls need love and passion more than anyone.

Love is the answer.

November 2018 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
21 | When Does a Driver Have to Submit to a Law Enforcement Officer’s Request to Take a Breath or Blood Test? What Every Driver Should Know – By J. Gary Trichter
25 | Pat Priest: A Profile in Judicial Courage – By Mark Stevens
30 | Mental Illness & Criminal Defense – By Judge Patrick Priest
33 | Why You Must Find Something to Love About Your Client – By Mark D. Griffith

Columns
6 | President’s Message
8 | Executive Director’s Perspective
10 | Editor’s Comment
13 | Ethics and the Law
15 | Federal Corner
19 | Shout Outs

Departments
5 | CLE Seminars and Events
35 | Significant Decisions Report

President’s Message: My Shadow on the Floor – By Mark Snodgrass

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As I write this column, it is a cold and rainy day outside my window. Apparently, Mother Nature decided that the good people of Texas did not need a fall and jumped straight into winter. The first freeze in Lubbock was three weeks earlier than normal, and it is too wet for the cotton farmers to get into the fields to harvest their crops. Our friends in the Hill Country are seeing record-level rains and floods. The weatherman tells me that Travis County has had rain the last seven weekends. Parts of the “Wild Horse Desert” of South Texas has had more than 20 inches of rain in the last 30 days, which is more than the annual average in much of that area.

Earlier today before I sat down to start this month’s message, I pleaded a young client on a case that included a victim impact statement. After having sat through more victim impact statements than I care to admit, I have come to categorize them into three categories. First are the ones where the complaining witness just wants to vent and call names; second are the ones where it seems the victim is just there because the prosecutor asked them to be there; and third are the statements where the victim has given great thought to their statement and wants to heal, learn, grow, and move on for themselves, or the defendant, or often times both themselves and the defendant.

The statement this morning fell into the third category. The victim in the case was clearly distraught over what had happened to her and was ready to heal and move on—both for herself and the defendant. She did not yell, she did not cuss, she did not call my client names or demean him. When the statement was over, the judge recessed the case and the defendant was led from the courtroom. I was left in a courtroom full of people, many in tears after the impact statement. I looked around and realized that I was pretty much by myself. All the audience was there on behalf of the victim. My client’s family had left the courtroom when the bailiffs escorted him out. I was all alone.

Today’s weather, combined with that isolated feeling, drew me back to a fall evening ten or fifteen years ago—before I had a vehicle new enough to have satellite radio. I was on US Highway 83 near Uvalde, where the Texas Hill Country slowly gives way to the South Texas Plains. I am always fascinated by this area because the cedar trees that dominate the landscape in the Hill Country stop almost instantly and give way to the mesquite trees and black brush of the South Texas Plains. That particular evening, I was listening to some far-off AM radio station, and the old song “To Beat the Devil” by Kris Kristofferson come over the airwaves. (Those of you who know me, know that most of my deep thinking comes from listening to guys like Willie, Waylon, Kris Kristofferson, Robert Earl Keen, and the like.)

I had heard the song before, but I guess I had never really listened to the words. After hearing the song that night, I made a point to seek it out and buy a copy. Two different parts of the song stuck out to me as a criminal defense lawyer. The first that really made me stop and think was a verse that could very well constitute a heck of a lecture on voir dire.

If you waste your time a talking
To the people who don’t listen
To the things that you are saying
Who do you think’s gonna hear?

The next thing that really got me to thinking about what we do as defense lawyers follows:

Well the old man was a stranger
But I’d heard his song before
Back when failure had me locked out
On the wrong side of the door
When no one stood behind me
But my shadow on the floor.

“No one behind me but my shadow on the floor” pretty well summed up how I felt in the courtroom this morning. It was one of those days where all that is left to do is pull up your britches, hold your chin up, and move on to the next one. Lucky for me there is a Lubbock Criminal Defense Lawyers Association meeting tonight, where we will get some continuing education and even more importantly see a bunch of my brothers and sisters who understand what we do and why we do it every day.

TCDLA is a great organization made up of tremendous lawyers who understand what we do and why we do it as well. I would be willing to bet not a week goes by that nearly every one of us is asked “How do you defend those people?” or “How do you defend someone you know is guilty?” or some variation of those questions. I doubt there is any one answer that would fit all our members, but a good many of us would not do anything else. I always leave Rusty Duncan or any other seminar re-energized because I have been around people who understand what we do and why we do it.

TCDLA currently has over 3,200 members. We are the voice of and for criminal defense lawyers in Texas. According to the state bar, there are more than 15,000 lawyers in Texas who practice criminal law. We need more of them to be members of this organization. There is strength in numbers. We need more folks to make our voice stronger.

To that end, Carmen Roe from Houston, Monique Sparks of Houston, and Nathan Miller from Denton are heading up our membership committee. Carmen has set a goal of 1,000 new members by Rusty Duncan next June. The committee will have members at every TCDLA seminar. The committee needs your help. Please reach out to our fellow criminal defense lawyers and help them help themselves by joining TCDLA. Criminal defense can be a lonely job at times, when you do feel like no one is behind you but your shadow on the floor, but TCDLA and its members are always there to help you hold your chin up and move on to the next one.

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

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Technology is a useful servant but a dangerous master.

—Christian Lous Lange

How many times have you sat at your desk and the internet is down, and you wonder how you can get what you need without an internet connection? About eight years ago we switched over to VOIP (Voice Over Internet Protocol). VOIP is where our phone lines use the internet. We switched at the time for the cost savings, as we then did not incur any long-distance fees. Over the past five years, however, landlines have become less expensive and include 1,000–5,000 minutes of long distance to compete with cell-phone carriers that don’t charge for long distance. The only problem is when the internet is down—or the weather is bad—our service can be choppy or completely disrupted. We have been researching going back to landlines for the office. The cost for the hardware has a higher initial cost of approximately $5,500. We are also meeting with other VOIP companies to compare current phone and email services to ensure we are receiving a competitive rate and the best service possible. We are still determining which is better for us—VOIP or landlines.

At the same time, our traffic for the website has increased over the last five years, which is excellent news, but we host our website onsite and that has caused problems. We moved from a T1 line, which used to be the fastest and greatest, to an internet line. But the speed for uploads and downloads is too slow. And in today’s world, we all want everything now! We are excited that we finally have the option to purchase fiber optic. The upload and download speed is 250/250—which is 100 times faster than what we currently have.

It has taken a while to get Google scheduled to come out. We have called every day for four weeks, and the response has been that they are shorthanded. We finally had someone come last week to survey the area. They will be able to run the cable lines, but they will need to cut a tree and do some other minor landscape work. But we now at least have a tentative completion date. 

In the past with a landline, the long-distance fees for faxes proved to be cost prohibitive. Then we switched to VOIP faxes using internet lines that converted to analog when routed to the office. This allowed us to receive the standard printed faxes. But when we experienced a high peak volume, our lines would be busy and our members would call complaining that they couldn’t get their faxes to go through. And during bad weather, members had similar problems.

We recently switched our fax machines to AT&T e-fax, so when you fax us, it automatically goes into an email box—which we then can manually print off. (We check the email throughout the day.) The great thing about this is that we receive faxes despite bad weather or even if the line is down. Like email, this system stores all faxes sent. And the overall cost is lower based on the number of faxes we receive. We continue to monitor the number of faxes sent and received.

We are also currently working with the Technology Committee on revamping our website. If you have any suggestions, send them to me or the chairs: Grant Scheiner, , or Jeremy Rosenthal, . In other technology developments, we are working on updating the new seminar app and contemplating moving to eBooks. If you do not yet have the TCDLA app, you should download it. There’s help if you need some guidance, including a short explanatory video on our website you can watch—or you can just call the office, at (512)478-2514, and anyone who answers can walk you through the process.

We will continue improving our apps, website, listserves, and communication tools to provide the best member services we can. We also encourage feedback, whether suggested improvements or something new you would like to see. If anyone is looking at switching their internet, phone system, or website and would like guidance or information on what has worked or not for TCDLA, feel free to contact me. We are here to help you in any way we can.

Editor’s Comment: The Illusion of Making Something of Nothing – By Sarah Roland

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Reconstruction is the act of reconstructing. To reconstruct is to establish or assemble again.

We’ve all heard of crime scene reconstruction and accident reconstruction. Most of us have probably even called upon experts in those respective fields to assist in the defense of a case. Reconstruction necessarily presupposes that there is something to reconstruct—that something existed or happened previously that no longer exists. Reconstruction takes the known variables and recreates what occurred or existed before. So (aside from false memories and memory reconstruction, which is a whole discussion unto itself reserved for the experts), can something that never occurred be reconstructed? Common sense and basic logic tell us the answer is no.

So, it was to my amazement recently to experience firsthand (along with my brother and trial partner, George Roland) and learn of other similar attempts throughout the state to reconstruct something that never existed in the first place—a drug recognition evaluation where none had ever been done and the component parts to a DRE that were likewise nonexistent.

Q: So, you’re reconstructing something that did not exist in the first place? It’s because there was no DRE done that night that you’re coming in and doing the DRE reconstruction?
A: Yes, that’s correct.

This is apparently happening in cases where an alcohol analysis yields a result sig­nificantly less than the legal limit and there is some evidence of drug use. Perhaps this is because drugged driving has become more commonplace and the reality. Whatever the reason, we must be able to combat this troubling trend.

Some basic knowledge about the DRE and expert is important. First, do not assume that the officer is a drug recognition expert. Make sure to test the officer’s experience and qualifications. Advanced Roadside Impaired Driving Enforcement (ARIDE) certification is not equivalent to DRE certification. ARIDE is billed as a training option bridging the gap between SFST and DRE. DRE Basic Certification is a total of 152 hours comprised of three phases: (1) expert preschool; (2) expert DRE school; and (3) DRE field certification. That an officer is qualified as a DRE or that a trial court may accept a DRE as a legitimate field of expertise does not mean the specific DRE technique was properly applied on the occasion in question. The drug evaluation process is comprised of the following 12 different steps that must be administered correctly:

1.   The Breath Alcohol Test
        The DRE will need to know the result of the suspect’s breath alcohol test, if taken. This is important to the DRE because he must determine whether or not alcohol accounts for the observed impairment. Normally, if the suspect’s blood alcohol level is above the state’s limit for DUI (.08% in most states), a DRE drug evaluation is not conducted.

2.   The Interview of the Arresting Officer
        If the DRE did not make the arrest, he will need to interview the arresting officer prior to the evaluation. This allows the DRE to gain an insight on the suspect’s driving, conduct at roadside, and their performance of the Standardized Field Sobriety Tests (SFSTs).

3.   The Preliminary Examination
        During this step, the DRE will perform a preliminary examination checking for any evidence of a medical complication that would warrant terminating the evaluation and requesting medical assistance. The suspect is asked a series of questions, and the DRE conducts a series of eye examinations that assist in making the decision whether the suspect is under the influence of drugs and/or alcohol or if the impairment may be medically related. If drug impairment is suspected, the DRE proceeds with the evaluation.

4.   Examination of the Eyes
        In this step, the DRE administers three tests of the suspect’s eyes: (1) Horizontal Gaze Nystagmus (HGN), (2) Vertical Gaze Nystagmus (VGN), and (3) Lack of Convergence (LOC).

5.   Divided Attention Psychophysical Tests
        The DRE conducts a series of psychophysical tests that assists in determining the suspect’s condition and if he/she is able to operate a vehicle safely. The DRE administers four divided attention psychophysical tests: (1) the Rhomberg Balance, (2) Walk and Turn, (3) One Leg Stand, and (4) Finger to Nose.

6.   Examination of Vital Signs
        The sixth step requires the DRE to make precise measurements of the suspect’s pulse rate, blood pressure, and body temperature. The suspect’s pulse rate is measured three different times during the evaluation. During this step of the evaluation, the DRE will use medical instruments, including a stethoscope, a sphygmomanometer (blood pressure cuff), and a digital thermometer.

7.   Dark Room Examinations
        During this step in the evaluation process, the DRE will take the suspect into a separate room where the DRE can obtain an estimate of the suspect’s pupil size in three different lighting conditions. The DRE uses a device called a pupilometer and a penlight to conduct the measurements in room light, near total darkness, and direct light.

8.   Examination for Muscle Tone
        During this step, the DRE inspects the suspect’s arm muscles, checking for muscle tone.

9.   Examination for Injection Sites
        Many drug abusers inject drugs. So immediately after checking muscle tone, the DRE then carefully inspects the suspect’s arms, hands, fingers, and neck for evidence of recent or past hypodermic needle injections.

10.  Suspect’s Statements and Other Observations
        In this step of the evaluation, the DRE questions the suspect about specific evidence and observations made during the evaluation.

11.  Opinions of the Evaluator
        In this step, the DRE documents his/her conclusions rendering an expert opinion about the condition of the suspect and the category(s) of drugs causing the impairment.

12.  The Toxicological Examination
        The final step in the evaluation process is to obtain a blood or urine specimen, which is sent to the laboratory for chemical analysis. The lab analyzes the specimen and reports the findings to the DRE and/or the arresting officer.

Available at http://www.cjcenter.org/idi/DRE/basic.html.

In order to reconstruct a DRE, the component parts must have existed. If the DRE was not on scene or part of the initial investigation or if a DRE was never done, testimony from or about a DRE at trial should not be admissible. Again, this only makes logical and common sense. If the DRE expert at trial has only watched the recording, then there are a number of steps in the DRE process that the expert has not done, meaning that the technique was not properly applied on the occasion in question. Further, this discussion presupposes that the State is somehow able to make it over the initial hurdle of convincing the trial court that a DRE, which was never performed or existed initially, can somehow be reconstructed—that something can be made of nothing.

Bottom line: Request notice of experts in every case and have preliminary hearings under Article VII of the Rules of Evi­dence every time. The law entitles us to such hearings upon request.

We must be constantly on alert. We must be vigilant on the front lines in courtrooms keeping bad (or even nonexistent) science out of the courtroom.

Ethics and the Law: Competency Quagmire

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Many lawyers are faced with dealing with incompetent clients. Rules 1.02(a3) and 1.05(c4) deal with some of those issues. As we know from the Supreme Court’s McCoy v. Louisiana, 138 S.Ct. 1500 (2018), the client is the final decision-maker on most issues. Many times, there is not a perfect answer that guides the lawyer on what to do when you have a client who is not playing with a full deck. This article deals with some of the answers from our Ethics Committee that may guide you in the ethical route that is in the best interest of your client.

LAWYER QUESTION

Client had competency eval (POM < 2oz. case)—Doctor says incompetent but could regain. State agrees not competent. I also believe she is not competent (I raised the issue in the first place). State wants her to go to a State Hospital if found incompetent. Client says she wants a jury trial over whether she is incompetent. Am I required to request a jury trial?

Thank you for everyone’s responses. I told the Judge that my client has requested a jury trial, so we are set for a jury trial. So now I feel like I’ve got other issues:

1.   My client wants to be found competent and believes she is competent—must I advocate that she is competent?
2.   On the same note, if she wants to testify, but I think it’s going to cause her to be found incompetent, am I required to let her testify?

You need to try Westlaw or Lexis for more info to answer your own questions. But remember you are your client’s only advocate so you speak for her, as to that client’s very wishes. But you or the State will have evidence to present regarding the current incompetency of client. You need to get the court to appoint another defense attorney to aid you by interviewing your client in your presence. And then at jury trial, you or the State can call that second attorney to testify about client’s mental and competency conditions.

Maybe applying to “Your Duty to Advocate as Client Wants You” is McCoy v. Louisiana, 138 S.Ct. 1500 (2018)(allowing defense counsel to concede guilt, at the guilt and sentencing phases of a capital trial, violated the Sixth Amendment and warranted a new trial because it constituted structural error since counsel’s admission blocked the defendant’s Sixth Amendment right to make fundamental choices about his own defense).

Q. Client says she wants a jury trial over whether she is incompetent. Am I required to request a jury trial?
A. Yes. Read Texas Rules of Disciplinary Conduct Rules 1.02(a)(2) and 1.15 and its comment 6.

—Joseph A. Connors III

No clear answer.

From my Ethics paper a year ago:

The Special Case of the Incompetent Client

In terms of the criminal defense attorney abiding by a client’s decisions, a particularly special case is presented when—as is often encountered by criminal defense attorneys—the client suffers from a mental condition or disease that affects their ability to remain competent to stand trial. The Disciplinary Rules do little to assist or provide guidance in these situations; Rule 1.02 (g) prescribes that the attorney should take action to “secure the appointment of a guardian or other legal representative” for the client. Of course, no such procedure exists or, to my knowledge, has ever been used in Texas in a criminal case. The American Bar Association Standards for Criminal Justice only suggest that attorneys seek “an expert evaluation from a mental health professional, within the protection of confidentiality and privilege rules if applicable” where the attorney has a good faith doubt regarding the client’s competence.

I recommend that any criminal defense attorney faced with a situation like this read the law review article by Rodney J. Uphoff, “The Role of the Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous Advocate or ­Officer of the Court?” 1988 Wis. L. Rev. 65 (1988), which can be found at http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1387&con…. The article recognizes the lack of clear guidance and absence of rules dictating what is to be done under these circumstance, but does provide some insight into how to handle these situations.

—Brent Mayr

I agree with Brent’s sentiments. However, do not think your client is taking away anybody’s hospital bed. There are plenty of beds. It is a pure management issue, not some shortage of beds.

I think a case can be made that the attorney can ignore a client who is asserting a right reserved for competent clients. This is different than a mentally ill, but presumably competent, client. The client is so mentally ill that he lacks a rational or factual understanding of the proceedings. Nevertheless, you can go ahead and afford him his jury trial in short order. I would tell the State and the judge your dilemma, grab friends and lawyers prosecutors to comprise a jury, present the opinions of the experts, then get him to the hospital.

The ethical rules presume a rational client. When you have a cli­ent who is so mentally ill they lack even a rational understanding of the proceedings and cannot assist in their own defense, you are in that ethical no-man’s land. The decision to testify is one of those zones of autonomy belonging solely to the client. But no client, rational or incompetent, has any say over how the lawyer wants to conduct his defense (other than the recent Supreme Court exception). Without ethical guidance, you go with your own sense of what is the right thing to do. I would feel like a fool if I were following the direction of an incompetent client. If I think she needs to be in the hospital, then she testifies (thereby displaying her need for help) and I urge that she be transported immediately to the hospital after the finding. She may be mad at me for making that argument, but I have had clients afterward express gratitude after they’ve been restored (and apologetic for thinking I was work­ing with the CIA against them).

—Keith S. Hampton

This is for a class B POM. Your client is incompetent? She might be a genius.

It is abhorrent that a DA wants to prosecute this woman for something that even the Texas GOP wants to legalize. To send her off to a state hospital to take a spot from someone charged with a much more serious crime is absurd and a total waste of resources.

So, yes. Advocate for her. Argue to a jury that the trial is a total waste of resources, and unless they want to waste more state resources, they should find her competent. Then, when they find her competent, set the case for trial and make the same argument. Once a jury finds her not guilty, then there’s no harm and no foul. You can even argue that if they do find her guilty, there’s going to be an appeal, the case is going to get overturned (because of the evidence of incompetence), and they’ll have to send it back to be tried all over again, creating a vicious cycle.

Best part: No one will accuse you of doing anything unethical, including your “incompetent” client.

1. The lawyer’s opinion is not supposed to be argued to the jury in any case. You can tell the jury she wants to be found competent because she feels she is competent without expressing your opinion.
2. Whether to testify is the option for the accused to make, after advice from counsel. I would suggest you have a private meeting with her—with a witness who is working for you and therefore covered by the attorney-client privilege taking copious notes that your advice is that she not testify—and explain all the reasons why. If she elects to testify, you will have a memo to the record about what your advice was, and a place where she signs that she has been advised not to testify but exercises her right to testify anyway. If the experts say she is not competent and there is no compelling contrary evidence, she will probably be found incompetent. That is what you think is in her best interest, isn’t it?

—Jack Zimmermann

One of us had a recent case where client had been deemed insane at time of offense. The client had been in jail two years. We presented all options to client and family and advised if we proceeded with the insanity request, we would win the case, but young man would then be put in a mental institution for indefinite time. Rather than that, prosecutor agreed to let client plead guilty to robbery and get a two-year sentence,with the understanding the family would provide for the young man’s mental treatment.

This young man has done well so in the end by ignoring the insanity defense, justice was served. Each case is different, and yes, your job is to represent client, but it is the belief of most that the lawyer must follow client’s wishes. In this case, let the client go to trial and advocate for your client’s wishes.

Special thanks to Joe Connors, Keith Hampton, Brent Mayr, and Jack Zimmermann.