February 2019

1. What’s the difference between a consulting expert and a testifying expert?

Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006) is the leading case on the distinction between consulting and testifying experts. The difference is major, and it matters. Everyone should read Pope.

The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A consulting expert is not designated as a defense expert witness under Article 39.14 of the Texas Code of Criminal Procedure. Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). Information regarding a consulting expert is subject to the attorney-client privilege and work product privilege. Id. If you designate a consulting expert as an expert under Article 39.14, the expert’s identify and qualifications are not protected by the work product privilege, and the State may comment on your failure to call this witness to testify at trial. Id.

“If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing to divulge his name, address, telephone number, resume, and the subject matter on which he will testify.” Pope v. State, supra.

2. What if my court-appointed client doesn’t have any money to hire an expert, and we need one?

Ask the court for money. Do not be timid to ask for the money necessary to defend the case. Always make the requests ex parte and sealed and always included in the record. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). The State cannot get a copy of your ex parte sealed request for expert assistance nor can the State be at any hearing for requested assistance. Also, there is no canned request for expert assistance. Each request should be appropriately tailored to the specific facts of the case.

The authority for requesting necessary expert (investigative and/or mental health) assistance comes directly from the Code of Criminal Procedure, case law, the State Bar Guidelines, and the American Bar Association Guidelines for representation.

Article 26.05 and 26.052 of the Code of Criminal Procedure. Article 26.05(d) provides that in non-capital cases counsel

shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. Expenses incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Article 26.052(f) and (g), and expenses incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052(h).”

Article 26.052(f) indicates that

[a]ppointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of expenses to investigate potential defenses. The request for expenses must state:

(1) The type of investigation to be conducted;
(2) Specific facts that suggest the investigation will result in admissible evidence; and
(3) An itemized list of anticipated expenses for each in­ves­tigation.”

Article 26.052(h) states that

“[t]he court shall grant the request for advance payment of expense in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:

(1) State the reasons for the denial in writing;
(2) Attach the denial to the confidential request; and
(3) Submit the request and denial as a sealed exhibit to the record.

Article 26.052(h) provides that

[c]ounsel may incur expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.”

Thus, the Code makes clear that it is permissible to hire experts without first obtaining court approval. It is arguably better to obtain prior court approval, though, for a few reasons. For starters, you will have an order in advance for payment. Also, if a correct, credible showing is made that the expert is necessary and the Court denies the request, there is already potential error built in the case.

Additionally, case law is well-established and clear that the trial court must provide sufficient funding for necessary defense expert assistance. The defense expert must “play a partisan role in the defense, providing defense counsel with the ‘tools’ to challenge the State’s case.” Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996) (citing DeFreece v. State, 848 S.W.2d 150 (1993)). “In this context, due process, at a minimum, requires expert aid in an evaluation of a defendant’s case in an effort to present it in the best possible light to the jury.” Id.

The seminal case for expert assistance, of course, is Ake v. Oklahoma, 470 U.S. 68 (1985), which held that indigent defendants in criminal cases have a due process right to state-provided expert assistance when an ex parte showing is made to the trial judge. Ake involved a psychiatric expert. However, according to the Court of Criminal Appeals, Ake also applies to non-psychiatric experts. Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995). If an indigent defendant establishes a substantial need for an expert, without which the fundamental fairness of the trial will be called into question, Ake requires the appointment of an expert, regardless of the field of expertise. Id.

Furthermore, on January 28, 2011, the Texas State Bar Board of Directors adopted the “Performance Guidelines for Non-Capital Criminal Defense Representation” (hereinafter “Guidelines”). Performance Guidelines for Non-Capital Criminal Defense Representation, available at https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ContentDisplay.cfm&ContentID=14703. “The guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime.” Blackburn, J., and Marsh, A., The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar Journal 7 (July 2011). “They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Id. According to Guideline 4.1, B.9

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

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

Additionally, Guideline 7.1, C.3 provides the following:

Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.).

3. What if I run out of money from the court for my expert?

We have all been in situations like this—where, for example, we ask for $2,500 for expert assistance, and the court authorizes $500 in funds. Ask for more money. Ask even after you’ve been told no or given insufficient funds. Keep asking. Do another ex parte, sealed motion. Do not use your same motion from before. Make this a second request. (Then when you get another $500 and use it, make a third request, and so on.) Outline for the court that the previously allocated funds have been depleted, how they were depleted, that more work needs to be done, that you have no expertise in the field, what that specific work entails, and more money is necessary to perform the additional work.

Hinton v. Alabama, 134 S.Ct. 1081 (2014), is an ineffective assistance of counsel case based on the lawyer’s failure to obtain sufficient funding for a qualified expert who was necessary to rebut the State’s case.

Hinton was a death penalty case. The physical evidence consisted solely of a revolver and six bullets. The State’s case turned on whether its expert witnesses could convince the jury that the six recovered bullets had indeed been fired from the Hinton revolver. Id. at 1084. Recognizing that Hinton’s defense called for an effective rebuttal of the State’s expert witnesses, Hinton’s attorney filed a motion for funding to hire an expert witness of his own. In response, the trial judge granted $1,000 with this statement:

“I don’t know as to what my limitations are as for how much I can grant, but I can grant up to $500.00 in each case [that is, for each of the two murder charges, which were tried together] as far as I know right now and I’m granting up to $500.00 in each of these two cases for this. So if you need additional experts I would go ahead and file on a separate form and I’ll have to see if I can grant additional experts, but I am granting up to $500.00, which is the statutory maximum as far as I know on this, and if it’s necessary that we go beyond that then I may check to see if we can, but this one’s granted.” ___ So.2d ___, ___, 2006 WL 1125605, *59 (Ala.Crim.App., Apr. 28, 2006) (Cobb, J., dissenting) (quoting Tr. 10).

Hinton’s attorney did not take the judge up on his invitation to file a request for more funding. Id.

With the limited funding provided by the court, Hinton’s lawyer found a woefully underqualified expert who testified at trial. The USSC ultimately held that “[t]he trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.” Id. at 1088.

4. What if I am retained and we need an expert but my client doesn’t have any more money?

The Court of Criminal Appeals answered this very question in Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), a child death case. Quite simply, as retained counsel, you may not put off investigating medical issues or put off consulting with necessary experts until your client pays you money for experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005). In Briggs, the Court of Criminal Appeals spelled out three options if your client cannot afford experts:

(1)  Subpoena to testify at trial the experts who treated your client, introduce at trial the records through these experts, and have these experts provide their expert opinions;
(2)  Withdraw from the case after proving to the judge your client’s indigence; or
(3)  Remain on the case and take a reduced fee but request an investigator and experts from the trial judge for a now-indigent client pursuant to Ake. Id. at 468.

Importantly, the Court of Criminal Appeals further recognized this:

If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant’s cause of death, a privately retained attorney should be held to no lower standard. As the Supreme Court has explained, “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. . . . [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” Id. at 468–469 (internal citations omitted).

5. What do I need to give my expert?

Communication with your expert is key. Prior to obtaining funding or paying for expert assistance, you will have already talked preliminarily with your expert. Begin to set expectations at that time.

Once the expert is officially hired or appointed, he or she becomes part of the defense team. Send an engagement letter to your expert so that the expert will know what is expected. Also, in the engagement letter, make sure the expert knows that he or she is part of the defense team, and that all information the expert receives is privileged and confidential. Finally, let the expert know that he or she is being retained (at least initially) as a consulting expert. As a practice point, wait until the expert has done all the necessary work in the case before designating the expert as a testifying expert.

Make certain your expert has as much information as possible to form a credible and reliable opinion. The expert needs to know the worst fact of the case. Providing the expert with a copy of the discovery that is provided to you by the State is a must. The expert must have a working knowledge of the facts of the case. Obviously, the type of expert dictates what information is necessary. For instance, a false confession expert needs to have reviewed in detail every statement the accused has made whether that be in writing or recorded. You do not want to put your expert, your client, or yourself in the position where your expert learns about crucial information for the first time on cross-examination.

6. Do I have to provide notice to the State that I have an expert?

Yes, if notice is requested by the State or ordered by the trial court. If neither of those conditions precedent are met, then we are not obligated to provide such notice—and should not do so. However, we should always request notification of experts in our Article 39.14 requests regardless of whether we think the State may have an expert. Be sure to request copies of the expert’s report, curriculum vitae, underlying facts or data relied upon, bench notes, diagrams, etc. Subpoena a copy of the expert’s entire file. It is often different than what the State may have provided.

Article 39.14(b) of the Texas Code of Criminal Procedure states: “On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of evidence. Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.”

7. Do I need to have my expert make a report?

Not necessarily. There is no requirement for a written report. In some cases, it is better to have a report and others it is not. There is no right or wrong answer for this question. It just depends on the facts of the case.

The key to answering this question in your specific case is communication with your expert. Find out what the expert would include in the report before you request a report. Ask your expert—after he/she has reviewed everything, met with client, etc.—what the worst thing is about the case. We have to know the answer to the “worst” question so that we can address it at trial or plan a way around it, if possible. Also, that will normally dictate whether you want a written report or not.

8. Can I talk to the State’s expert?

Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large” (emphasis added). The medical examiner and State crime lab scientist also fall under the umbrella of having an obligation to the public at large so may be contacted. However, if the State’s expert doesn’t fall within this umbrella, then be sure to get permission to speak to the expert ahead of time.

Talk to the State’s expert every time. There is no reason not to talk to the State’s expert. Remember it’s a time to gather information and share information but only if it is necessary or helpful. Take someone with you when you talk to the State’s expert. Never talk to the State’s expert alone. You will be surprised what you learn and how accessible they are most of the time. Remember, real scientists are advocates for the science not the side.

9. Should I request a hearing on the State’s expert prior to the expert’s testimony?

Yes. Rule 705(b) of the Texas Rules of Evidence provides that “[b]efore an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may—or in a criminal case must—be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.” With exceptionally limited circumstances, we should be requesting hearings on every expert every time. Those limited circumstances are case, witness, and strategy dependent. The hearing is conducted to test the admissibility of the expert’s opinion, obtain discovery, ensure you have copies of everything the expert has used to form the opinion, to get a record of what the expert has to say, and gain knowledge about fruitful grounds for cross-examination.

Texas Rules of Evidence 104, 401, 402, and 702 provide the basic conditions precedent for expert testimony. See Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006). Rule 104 requires that “[t]he court must decide any preliminary question about whether a witness is qualified . . .” and that “[t]he court must conduct any hearing on a preliminary question so that the jury cannot hear it if . . . just so requires.” Rules 401 and 402 render testimony admissible only if it “tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 702 permits expert testimony only “if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Accordingly, expert testimony that would only serve to confuse the issue or evidence for the trier of fact should not be admitted. The expert should be able to clearly explain the scientific, technical, or other specialized knowledge in a manner that lay, non-experts, i.e. the jury or the judge, can understand, and it must in some way be relevant to the case.

According to the Court of Criminal Appeals, “[t]hese rules require a trial judge to make three separate inquiries all of which must be satisfied before admitting expert testimony: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.” Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006); see also Malone v. State, 163 S.W.3d 785 (Tex. App.—Texarkana 2005, pet. ref’d), and TRE 702. “These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.” Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Escamilla v. State, 334 S.W.3d 263 (Tex. App.—San Antonio 2010, pet. ref’d).

It is worthwhile to remind the trial court consistently of its gatekeeping function—and that it shouldn’t operate as a rubber stamp. It is common knowledge that junk science is a leading cause of wrongful convictions. After all, “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under [FRE] 403 of the present rules exercises more control over experts than over lay witnesses.” Daubert, 509 U.S. 579, 592–93.; see also Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994).

10. Do I need to have my expert testify at trial?

Not necessarily. Just because you have an expert and have even designated an expert doesn’t mean you have to call the expert. Sometimes you know going in that your expert will need to testify. Other times, it’s not so clear, and you must gauge whether it’s worth it—a judgment call. As with every witness, there are points to be gained and points to lose. It’s always a question of whether the net will be positive. However, be sure to prepare your expert for the possibility that he/she may not actually testify depending on the ebb and flow of trial.

As a practice point, though, don’t promise or mention your expert in jury selection or in opening. On the other hand, if you promise expert testimony in opening be sure to deliver in order to maintain credibility with the jury. Also, always be on guard for any argument or question(s) that may (attempt to) shift the burden or proof or undermine the presumption of innocence, as such seems to be the default argument from the State when defense has an expert. Prepare the jury for any such attempt by the State in jury selection. Be sure to educate the jury on the presumption of innocence, get everyone on “team innocent,” and indoctrinate them to the “take a knee” philosophy. Then, to bring it full circle, when it is time to rest confidently say, “Your honor, based on the law and the state of evidence we rest.”

11. Can an expert comment on truthfulness?

The short answer is no. This is a hard issue to determine or recognize in the middle of trial at times. If you think you should object, object. You can usually assume in a child abuse case that the State may have the expert do exactly that, though. Therefore, it is advisable to litigate this issue pretrial through a motion in limine. Remember, though, to object during trial because motions in limine do not preserve anything for appeal.

In Salinas v. State, 166 S.W.3d 368 (Tex. App.—Fort Worth 2005, pet. ref’d), a pediatrician testified she diagnosed sexual abuse based solely upon the history provided by the child complainant. The appellant claimed that such evidence was improperly admitted expert testimony that directly commented on the credibility of the complainant. The appellate court held that because there was no physical evidence of digital penetration, the doctor’s “testimony could only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s truthfulness.” “The trial court abused its discretion in admitting the pediatrician’s testimony that she had diagnosed sexual abuse based on the child’s medical history.”

Pediatricians have been recognized as expert witnesses in sexual abuse cases provided they do not testify that such children are truthful. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).

Rape crisis counselors have been recognized as expert witnesses in sexual abuse cases provided they do not testify that the child is telling the truth. Black v. State, 634 S.W.2d 356 (Tex. App.—Dallas 1982, no pet.); Miller v. State, 757 S.W.2d 880 (Tex. App.—Dallas 1988, pet. ref’d).

12. How do I know what to ask my expert?

Communication with your expert is key. You must talk to your expert long before he or she testifies. Know what information you need to get out of your expert. Make sure your expert can adequately and clearly explain the scientific—whether hard or soft science—issues to you. Ask your expert questions. If you do not understand what the expert is telling you, there is no way the jury will understand what the expert is saying.

In Ex parte Ard, No. AP-75,704 (Tex. Crim. App. 2009) (per curiam) (not designated for publication), an aggravated sexual assault of a child case, the Court of Criminal Appeals held that trial counsel’s performance was deficient in that counsel failed to adequately prepare and present expert testimony concerning memory implantation.

The applicant’s defensive theory at trial was that the complainant’s accusations were a result of suggestion and coaching, which tainted the complainant’s memory. Trial counsel even had an expert witness—psychologist—testify. However, the Court of Criminal Appeals noted:

Though Dr. Michael Gottlieb, an expert on the subject, was ready and able to explain how false memory may be implanted by repetitious suggestion, trial counsel failed to adequately elicit testimony from the doctor that the theory is the subject of many treatises and is widely accepted by the scientific community, to explain how and why it can occur, and to enumerate those facts which, in his opinion, made the testimony of the alleged victim in the case suspect and unreliable. This failure on the attorney’s part fell below any objective standard of reasonableness, and there is a reasonable probability that, but for it, the result of the trial would have been different. This court finds that the inadequate presentation of such evidence, crucial to Applicant’s defense, was, under the standard of Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel. Considering the deficiencies in the presentation of Dr. Gottlieb’s testimony, based on a comparison of his trial testimony and his writ hearing testimony, it is the opinion of this court that there can be no confidence in the outcome of the trial. Id.

… 

Dr. Gottlieb’s trial testimony before the jury differed markedly from his writ-hearing testimony, not only in scope but in substance as well. In general, Dr. Gottlieb’s writ testimony was far more comprehensive than his trial testimony. The differences between the two cannot be attributed to counsel’s trial strategy. Id.

The moral of the case then is communication with your expert such that allows you to elicit necessary defensive expert testimony. Clearly, the opinion indicates that Dr. Gottlieb provided testimony at trial and at the habeas hearing on the same subject. Remember, the witness can only answer the questions that are asked. It is not enough to just have an expert witness. Be prepared to fully use the expert witness to the greatest extent possible.

13. Can an expert testify about diminished capacity due to mental illness or disease?

No. There is no diminished capacity defense in Texas. “The Texas Legislature has not enacted any affirmative defenses, other than insanity, based on mental disease, defect, or abnormality. Thus, they do not exist in Texas.” Ruffin v. State, 270 S.W.3d 586, 594 (Tex. Crim. App. 2008).

However, “such expert evidence might be relevant, reliable, and admissible to rebut proof of the defendant’s mens rea.” Id. at 595. The leading case on this topic is Ruffin v. State, 270 S.W.3d 586. Be sure to read, study, and have this case on hand for any trial in which your client has a mental illness, disease, or defect that is just shy of insanity. In Ruffin, the Court of Criminal Appeals “repeat[ed] and reaffirm[ed] our holding in Jackson that ‘relevant evidence may be presented which the jury may consider to negate the mens rea element. And this evidence may sometimes include evidence of a defendant’s history of mental illness.’” Id. at 596.

As a cautionary tale, the State will typically try to keep expert testimony about mental illness out if it falls short of insanity. This is obviously because the nature of this evidence tends to mitigate and be beneficial to the defense. Again, this is where it is key to have an open line of communication with your expert. Knowing there is no diminished capacity defense in Texas and that the State will inevitably try to limit the expert’s testimony, just means that you and your expert have to game-plan and prepare proper questions in advance.

In today’s criminal justice system, there are people in jail who maybe shouldn’t be and people on the outside who maybe should be locked up. There are two sides to every sexual assault case. Both the victim and the defendant need to rely on the scientific evidence to obtain justice. The evidence will speak for itself if the evidence is collected properly.

The solution to that is comprehensive forensic medical care and evidence collection. When discussing the phenomena of sexual assault, many people reference the need for a “rape kit.” This is the common terminology for a medical exam that collects forensic evidence that can assist with identifying an assailant through DNA findings. For victims, getting a rape kit is not an easy process. A victim can’t just go to any urgent care or hospital and request this service. Aside from the confusion and dilemma surrounding the insurance and payment expectation, there is a severe lack of emergency personnel trained to accurately perform this specialized exam.

In Houston, for example, the proper help for victims of sexual assault is limited. The current system is made up of only a few hospital-based programs. Even those that do offer the ser­vice do not always have 24/7 forensic nursing coverage. A forensic nurse is a registered nurse who is specially trained in how to care for the physical and emotional needs of victims of all types of violence—and who provides unbiased patient care, which aids in promoting justice for both victims and defendants. The role of the forensic nurse is not to win a case but to perform unbiased comprehensive medical forensic exams.

A SANE is a Sexual Assault Nurse Examiner, which is a nurse who has specialized training in the management of victims of sexual assault. Again, by way of example, in Houston there have been several accounts of victims seeking help at various healthcare facilities and being sent elsewhere, only to find that the next facility also lacks this service. The solution to this dilemma is going to be discussed later in the article, but first we will discuss the significance of the issue.

To say it is difficult for victims to report sexual assault and seek help is a huge understatement. According to the Rape, Abuse & Incest National Network (RAINN), 1 in 6 women and 1 in 33 men in the U.S. have been victims of rape or attempted rape, and only 310 out of 1,000 sexual assaults are reported to the police. There are countless reasons victims don’t report sexual assault or seek medical care and evidence collection. The reasons are, of course, unique to each victim. However, common dynamics include doubts about being believed or being blamed for someone else’s behavior, as well as fear of retaliation—or just the stigma itself of sexual assault.

There is a cultural skepticism surrounding sexual assault reports. We can all agree that investigations in the criminal justice system should be grounded in facts and evidence. However, sexual assault reports, unlike other crimes, often tend to start with an assumption that it is a false report. This is true in healthcare with billing codes and charting systems. The patient’s medical record will usually read as “alleged sexual assault,” whereas the record of someone who arrives with a headache or chest pain will read simply “chest pain.” There is no “alleged headache” or “alleged chest pain.” The term “alleged” fosters skepticism and disbelief and initiates a barrier between sexual assault victims and medical professionals.

A federal law passed in 1986 known as EMTALA (the Emergency Medical Treatment and Labor Act) requires that anyone who walks into an emergency room be treated regardless of the ability to pay. While freestanding ERs in Texas are not mandated to follow EMTALA, a section of the Texas Administrative Code uses similar language. If an ER doesn’t have anyone who can perform a sexual assault exam, they’re supposed to help the victim get to a hospital that does. Texas Senate Bill 1191 mandates that all Texas ERs have staff trained in basic forensic evidence collection.

Even that mandate enforces only basic knowledge, though. This often leaves victims walking away without proper care, any evidence at risk of being mishandled. The nurse who provides care to sexual assault victims at these facilities may only have received the minimum requirement of 2 hours of basic training, yet they are expected to perform the same quality of forensic exam that a certified SANE would perform.

A study by the Office for Victims of Crime Bulletin found that when a properly trained forensic nurse completes a rape kit, the quality and consistency of the evidence collected improves significantly. The study also found that evidence collected by trained examiners is more likely to include proper collection and labeling of evidence, a complete crime-lab form, and the correct number of swabs and other evidence (accessed here: http://www.vawnet.org/sites/default/files/assets/files/2016-09/OVC_SANE0401-186366.pdf). The increased quality of evidence translates into a proper outcome at the criminal justice level.

The solution to providing comprehensive forensic-evidence collection and forensic nursing experts is a community-based collaborative solution. Harris County Forensic Nurse Examiners (HCFNE), set to launch in February 2019, will be a community-based mobile forensic program that has certified forensic nurses available 24/7. HCFNE’s mission is to provide comprehensive medical forensic exams with superior evidence collection throughout Houston and surrounding counties by coordinating a victim-centered response that assists in closing the gap in the medical and legal management of patients who have been affected by physical and/or sexual violence. HCFNE will provide care for both victims and suspects of crime to ensure that forensic evidence is properly collected and appropriate medical care is provided.

Colorado is now generally considered the center of cannabis tourism. When the state legalized the recreational use of marijuana in 2014, tourists began flocking there to get a legal high and to enjoy the sights. In 2015, the legal sale of marijuana topped a billion dollars, making the industry a close second to the sale of craft beer. $135 million in taxes and fees were generated for the State.¹ Texans who drive home with their purchases of Colorado cannabis may not realize the risk they take when it comes to Texas law. Most of these vacationers drive back through Dalhart and Amarillo, and the number of drug busts in those areas has ballooned since cannabis tourism took off. And the arrests don’t always involve large quantities intended for resale, but most often a quantity intended only for personal use. Consequently, it’s important to understand the varying penalty levels for the types of cannabis possessed before folks decide to place themselves at risk for arrest and prosecution.

I. The Types of Cannabis and the Penalty Levels

Cannabis possession in Texas ranges anywhere from a Class B misdemeanor to a first-degree felony. There is no Class C cannabis possession, though an officer could issue a Class C citation for possession of drug paraphernalia.² Class B accusations and higher are all arrest-able offenses where the accused is placed into full custodial arrest, booked into jail, and must bond out (if possible) pending resolution of their court case.

This article will not deal with marijuana delivery. Delivery falls within a different punishment range than possession and also involves different weight classes.³ Moreover, it’s rare to be accused of delivering marijuana. Rather, the majority of cannabis charges I’ve seen involve simple possession. Nevertheless, delivery (or possession with the intent to deliver) could be shown when the cannabis was pre-packaged to sell, or the defendant was caught in the act of delivering to another individual.

Neither will the article emphasize drug-free-zone prosecutions. Possessing marijuana in a drug-free zone creates its own set of special problems. Drug-free zones are areas of protection drawn around public and private colleges and universities, schools, youth centers, playgrounds (1,000 feet), public swimming pools, and video arcades (300 feet).⁴ Generally speaking, the drug-free-zone offense is bumped up to the next-level crime. For instance, a Class B possession would be charged as a Class A when the marijuana was possessed in a drug-free zone. I commonly see drug-free-zone enhancements charged within 1,000 feet of playgrounds and schools, but almost never on a freeway traffic stop (though it’s possible to be driving within 1,000 feet of a school while on the freeway). Beyond this, drug-free zones can bump up the minimum range of punishment when considering felony accusations, and drug-free zones may adversely affect parole eligibility for the offender.

A. Leafy Marijuana

Possession of leafy marijuana subjects a person to arrest for possession.⁵ The penalty level depends on the weight of the marijuana. It does not matter whether the marijuana was hydroponically grown (higher THC⁶ content) or was a garden variety south-of-the-border skank weed. All leafy marijuana is weighed the same. Possession of marijuana falls within the following ranges of punishment depending on the weight:

1. Class B: 2 ounces or less;
2. Class A: 4 ounces or less but more than 2 ounces;
3. SJF: 5 pounds or less but more than 4 ounces;
4. 3rd Degree: 50 pounds or less but more than 5 pounds;
5. 2nd Degree: 2,000 pounds or less but more than 50 pounds; and
6. 1st Degree: more than 2,000 pounds.

TEX. HEALTH & SAFETY CODE Sec. 481.121.

One proviso to Class B possession requires the marijuana be a “usable” amount. In other words, enough marijuana to smoke for the purpose of getting high. Remarkably, this can be enough for just one puff. For example, in Parson v. State, 432 S.W.2d 89 (Tex. Crim. App. 1968), the Court of Criminal Appeals affirmed a conviction and 50-year punishment for Mr. Parson after he was arrested for possessing only 1.41 grams of marijuana.

B. Hash Oils, Edibles, and Waxes

THC is the psychoactive chemical in marijuana. Hash oil, which is made by exposing marijuana to a solvent and concentrating the THC, is a potent form of cannabis. Due to its concentration and lack of plant matter, hash oil finds itself in the same Penalty Group as ecstasy and PCP.

Hash oil can be smoked in a vaporizer. Vaporizers are the modern-day equivalent of the cigarette. Vaporizers can be as small as a pen and work to extract the water molecules from the marijuana leaf and turn those water molecules into a vapor. Vaporizers also turn the liquid hash oil into a vapor to be inhaled.

Marijuana users are transitioning from burning the marijuana leaf itself to vaporizing the leaf or vaporizing hash oil concentrate. Vaporizing the marijuana leaf extracts more THC than burning, and it’s safer than burning since the user avoids inhaling carcinogens. Further, vaporizing hash oil delivers a comparatively higher amount of THC to the user.

Edibles made with hash oil are also popular. Edibles eliminate the need to burn marijuana and inhale harsh or unpleasant smoke. They also eliminate the need for a vaporizer. Common edibles include brownies, cookies, and candies made with hash oil concentrate.

Finally, THC wax is the most powerful, and most expensive, form of cannabis on the market. People who consume wax use only a small amount, called a “dab.” Another name for THC wax is BHO (short for butane honey oil). Wax is 80% pure THC and can be smoked in a bong or vaporizer.

People charged with possessing hash oil, edibles, or waxes may be charged with possession of a controlled substance in Penalty Group 2 (PCS PG 2).⁷ PCS PG2 falls within the following ranges of punishment, depending on the weight possessed:

1. SJF: less than 1 gram;
2. 3rd Degree: 1 gram or more but less than 4 grams;
3. 2nd Degree: 4 grams or more but less than 400 grams; and
4. 1st Degree: more than 400 grams.

Id.

By way of comparison, 1 pound is approximately 454 grams. The average weight of just one marijuana cookie is about 30 grams. Significantly, one pound of cookies is not that heavy and does not amount to much. However, I’ve had clients charged with PCS PG2 facing a 2nd-degree felony because of a single cookie or small edible. As ridiculous as it sounds, one 30-gram cookie is equivalent, punishment range-wise, to possessing 50 to 2,000 pounds of leafy marijuana. Some might say the Legislature went too far when establishing the punishment ranges for marijuana edibles, oils, and waxes. The law almost encourages users to possess the leafy weed, rather than the edibles, oils, or waxes.

II. The Bail-Bondsman & Attorney

With more serious accusations come higher bail-bond amounts and higher attorney fees.

In most instances, a person arrested for possession would employ the services of a bail bondsman. Bondsman typically charge around 10% of the total bond as their fee. For example, if the person arrested was charged with possessing a 30-gram marijuana cookie (2nd-degree felony) and the bond was set at $20,000, the accused would pay the bondsman about $2,000 to bond out of jail. The bondsman would then act as a surety and would assure his client’s appearance in court.

Following the higher bond amounts come the higher attorney fees. It’s industry standard for attorneys to set their fees depending upon the punishment range of the crime. Additionally, complexity and the estimated workload for the attorney also factor into pricing. Representation on a state jail felony may begin at the bottom range of $3,500 for a pretrial disposition and an extra $3,500 for a trial fee. The fees only go up from there as the offenses become more serious. Considering how defense lawyers place their law license on the line each time they accept a case, when the stakes are higher the fee is higher, as well.

III. The Lesson

Accordingly, if vacation plans take you into the great state of Colorado to get a legal high and enjoy the sights, make sure the risks are well understood. Regardless of your feelings on legalizing marijuana in Texas, avoid being the next arrest statistic out of Dalhart or Amarillo. Texas still imposes extreme penalties for some of the more concentrated cannabis products on the market. And the corresponding bail-bondsman and attorney fees will take an extreme chunk from your pocketbook, too.

Notes

1. Sullum, J. (2016, February 16). Legal Marijuana Sales Totaled $1 Billion in Colorado Last Year. Retrieved December 5, 2018, from http://reason.com/blog/2016/02/16/legal-marijuana-sales-totaled-1-billion.

2. TEX. HEALTH & SAFETY CODE Sec. 481.125.

3. TEX. HEALTH & SAFETY CODE Sec. 481.120 & 481.113.

4. TEX. HEALTH & SAFETY CODE Sec. 481.134.

5. TEX. HEALTH & SAFETY CODE Sec. 481.121.

6. Tetrahydrocannabinol.

7. TEX. HEALTH & SAFETY CODE Sec. 481.116.

This may be the shortest and least academic article I’ve ever written, but the insights, for what they may be worth, came out of necessity. Like most of us, a healthy percentage of my clients were failing on deferred adjudication or community supervision, and while there was a healthy trickle of revenue from revocation and adjudication hearings, my goal was to help my clients succeed. So more than a decade ago, I began giving my clients a brief lecture before they began a probationary sentence. Since then, the percentage failing on probation has fallen to only one or two a year—if that. So, it seems this little lecture serves some purpose in aiding clients to get through, what is to them, an unfamiliar process without problems. And because for more than a decade it’s been working for me, it seemed that some of the other criminal defense lawyers in Texas might want to start giving their version of the same speech to their clients. And that speech goes something like this:

Every probation officer starts out with three piles in front of them. The first one, the middle pile, is mainly new pro­bationers, or people that they haven’t learned much about yet. These are people that could go either way: They may succeed, they may fail. Probation officers are going to spend a lot of their time watching these people, to see if they are screwing up. Once they get to know the probationer better, they’ll know which way these people are going, but some probationers will stay in this pile all the way through: not doing poorly enough to fail, but not doing well enough to trust.

The second pile is the screw-ups. These are the people who, though they aren’t doing anything major, are late to probation meetings, don’t have their documentation in order, reschedule more than most, have a bad attitude, don’t get their community service done on time, are late with their fees and fines, or think they are going to game the system. They often view the PO as their enemy, or at least adversary—and if they are right, it’s because they’ve treated the PO as their enemy. The probation officers know these people are getting filed on (either to revoke or adjudicate) sooner or later. They are waiting to see if they get re-arrested before their probation is over, making the probation officer’s job easy. If the probationer doesn’t pick up a new case, the PO is likely to file on him or her a few months before their probation is over—letting them serve almost their entire probation, then get revoked or adjudicated based on all the little violations they’ve piled up. At the very least, they’ll probably get extended. They basically get punished twice. These people are doomed; they just don’t know it yet.

The third pile is what I like to call the Golden Boys. These people are always early for their appointments, have their documentation in order, their paperwork is legible, they complete their community service ahead of schedule, have a good attitude, are doing well at work, and are a pleasure to see every month. These are the success stories the probation officer will use to get a promotion. The probation officer trusts these people to take care of business.

I’ve seen probation officers help these people if they get in trouble on probation, making sure they finish on time or early. They’ll give them a second shot at a failed drug test. I’ve seen them file motions for early termination, on their own, and allow them to come in once every three months and appear by mail the other two. Probation officers bend over backwards to help their Golden Boys, because they’ve shown the probation officers that they have what it takes to succeed, that they respect the system, the probation officers, and the law enough to do what they are required to without complaint.

Your job, on probation, is to get into that Golden Boy pile as quickly as possible. Always be early. Make sure you’ve got your paystubs, or proof of looking for a job, in order before you go. Smile. Look the probation officer in the eyes and be polite and respectful. Get your community service done early. Pay off your fines and fees early. Say “thank you” and “you’re welcome,” and mean it.

Treat the probation officer as the most important person in your life. He or she sees dozens of people, each day, trying to manipulate and BS him/her. Be the one per­son who doesn’t do that. The easier and more pleasant you make his/her job, the easier and more pleasant your time on probation will be.

Moreover, your chance of getting early termination is almost nonexistent unless the probation officer is on your side. The easier you’ve made his/her life, the more likely he/she is to be on your side. Do what you need to do before the probation officer has a chance to remind you, and every day of your time on probation will go easier on you.

This concept is easily modified to meet your client’s understanding and needs. Giving your client an insight into what the probation officer’s perspective is, and how to work with instead of against the probation officer, helps avoid friction right at the beginning, where it’s likely to become ingrained. If clients start off by understanding that the probation officer is just another human being—with all the vanity, laziness, and foibles that entails—and commit themselves to making the probation officer’s life just a little easier, they’ll sail through probation far more painlessly than if they view the PO as someone committed to tripping them up.

I hope that this works for your clients as well as it has for mine. Just recently, I represented a young man who was represented by a different lawyer at his plea, and who was facing a Motion to Adjudicate due to more than a dozen technical failures—late appointments, late payments, not taking courses on time, not completing community service on time, etc. As I was giving him this little lecture, he kept saying, “Nobody ever explained it to me before.” Now, he’s doing great on probation, and is no longer at odds with his PO. Setting your client up to succeed on probation takes only a few minutes, and just may keep them out of prison. Why wouldn’t you want to do that? Good luck!

Introduction

Probably one of the most misunderstood jobs in the American culture is that of the criminal defense lawyer. To be blunt, the job is not about making lots of money, ego, getting a defendant off, or about having a professional stature in the community. Rather, it is about being a part of a higher moral calling. A calling where a righteous and courageous person stands against all the forces of government and negative public opinion for the sake of American history and in the names of justice and fairness.

The American Bar Association’s Criminal Justice Standards for the Defense Function, at Standard 4-1.2 (a), “Functions and Duties of Defense Counsel,” provides:

Defense counsel is essential to the administration of criminal justice . . .

Well, to the ABA, “duh!” Indeed, without defense counsel there can be no justice. That’s because there cannot be justice if its administration is left solely to the government. Like our Founding Fathers relied on “minute men” for protection during the Revolutionary War, so too do our citizens rely upon defense lawyers for their protection from our own government! The defense lawyer is here to police our government!

The Defense Lawyer Job Misunderstood

Most people (including judges, prosecutors, and even most defense counsels) misunderstand the true role the defense lawyer plays in our criminal justice system. Mistakenly, most believe it’s the defense lawyer’s job to “get the defendant off” of the charge. While that might be a collateral consequence of good representation, that is not the primary role of the defense lawyer. Rather, it is the defense lawyer’s primary goal to assure that every single statutory, state and federal constitutional right is protected. Incidentally, that duty is not only the role of the defense lawyer, but also that of the prosecutor and the judge.

The Prosecutor’s Primary Statutory Duty

The Texas Code of Criminal Procedure, Article 2.01, actually spells out the primary duty for the prosecutor as “[i]t shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done”! (emphasis added).

The Defense Lawyer’s Ethical Duty

The ABA Standard 4-1.2 (b), “Functions and Duties of Defense Counsel,” provides:

Defense counsel have the difficult task of serving both as officers of the court and as loyal and zealous advocates for their clients. The primary duties that defense counsel owe to their clients, to the administration of justice, and as officers of the court, are to serve as their clients’ counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, high-quality legal representation with integrity [emphasis added].

The Defense Lawyer’s Constitutional Duty

Probably the best, and most accurate, description of the defense lawyer’s constitutional duty can be found in the concurring opinion of Justice White from the case U.S. v. Wade, 388 U.S. 218, 256–258 (1967). In Wade, he wrote:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the con­viction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but, more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for truth¹ [emphasis added].

Collateral Consequences Are as Important to Consider as Statutory Punishments

Ideally, all the aforementioned players should not be holding out for one side or the other to win, but for the system of justice to win. For the prosecutor this would mean dismissing cases in the interest of justice, even where a defendant was guilty. It also means a guilty party is not to be over punished. This would include consideration by the prosecutor of any collateral consequences that would result from any prosecution. Here, it is the defense lawyer’s job to make sure the prosecutor knows of those collateral consequences.

Policy Cannot Replace Common Sense or Reality

From the prosecutor’s perspective, treating everyone the same, in many instances, results in many being treated unfairly. For example, assessing a fine of $10,000 to a billionaire, compared to a blue-collar worker, would not be the same punishment. To the former it may mean nothing, whereas to the latter it could make the difference between a parent providing a college education for their child or not. Another example would be a DWI suspension of a driver’s license for a non-commercial driver who was employed as a computer programmer, compared to a commercial airline pilot who would also suffer a suspension of his pilot’s license, even though the DWI was not related to flying.

Sadly, this concept of treating everyone the same is almost universally misunderstood by prosecutors, who may believe that obtaining a conviction is more important than true justice. Here, it’s the role of the defense lawyer to point out the injustice of a “treating everyone the same” policy and to remind the prosecutor of the words of Thomas Jefferson: “[E]xperience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”

Understanding the True Role of the Defense Lawyer

Belonging to many lawyer listserves, I am dismayed by the numerous lawyers who celebrate when a guilty person is acquitted. While it would be proper to celebrate an acquittal due to insufficient evidence to establish proof beyond a reasonable doubt, or because a motion to suppress evidence was granted because the government violated the person’s rights, it would not generally be proper to celebrate a “not guilty” verdict of a truly guilty person for that sake and sake alone. We all win, including the innocent and the guilty, when our system of justice works as intended. We all lose, including the innocent and the guilty, when a judge makes a wrong decision. This is especially true where the judge’s error is based on their cowardice to withstand adverse publicity that might follow when a guilty person is set free. Further, we all lose—both the innocent and the guilty—when a prosecutor cheats to win so good publicity can be garnered to support a campaign. With that said, it would be proper to celebrate a guilty person’s wrongful acquittal where they had already been sufficiently punished and any further punishment would be overkill, unjust, or would serve no purpose to society or the concept of rehabilitation.

Courage Not to Back Up and Keep Standing Tall

Likewise, we all lose where a defense lawyer does not give clients a 100% effort at protecting their rights at every step of the process. ABA Standard 4-1.2 (b) spoke to the defense lawyer’s need for “courage.” In truth, any defense lawyer who shows up to represent a client without 100% courage to do the right thing is cheating both the client and the system. This is especially true where the client is factually guilty.

Anything less than 100% is not “effective assistance of counsel”! That said, the 100% should be aimed at the effort of protecting rights and not necessarily the result. Here, that 100% would also include protection from punishment that has already been meted out and would serve no purpose other than to obtain a conviction label. Further, it would include protection from any overly harsh punishment.

Patriotism as a Constitutional Defender

In conclusion, when defense lawyers understand their true role, they are nothing less than a patriot defending their country. Edmund Burke, a political philosopher who inspired many of our Founding Fathers, said “[a]ll tyranny needs to gain a foothold is for people of good conscience to remain silent.” As for this thought, because of what is riding on the shoulders of defense counsel, the good lawyer must never remain silent when they are on duty.

It is also wise to remember the sage words of warning of President James Madison, often called the Father of the Bill of Rights, when he said “[i]f our nation is ever taken over, it will be taken over from within.” To that end, the defense lawyer becomes part of “from within” at any time they remain silent when the government violated, or is violating, the rights of a client. You cannot be a patriot lawyer if you are part of the “from within”! You cannot be a patriot lawyer if your effort is only 99%. Indeed, to be “effective” as the founders envisioned, patriot lawyers must always give it their all.

As a defense lawyer, consider this self-test to determine whether or not you are a Patriot Constitutional Defender. Take note there were 56 signers to the Declaration of Independence. If those patriots returned today in search of number 57 to join them, would they ask you? If yes, then thank you for being a patriot! If no, then perhaps you should rethink why you want to be a criminal defense lawyer.

Notes

1. ABA Standard 4-7.7(b) “Defense counsel’s belief or knowledge that a witness is telling the truth does not preclude vigorous cross-examination, even though defense counsel’s cross-examination may cast doubt on the testimony.”