Monthly archive

February 2019

March 2019 SDR – Voice for the Defense Vol. 48, No. 2

Voice for the Defense Volume 48, No. 2 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

Shoop v. Hill, 586 U.S. ____, No. 18-56, 2019 U.S.LEXIS 13 (Jan. 7, 2019) [Application of 28 U.S.C. §2254(d)(1)]

      Under 28 U.S.C. § 2254(d), federal habeas relief may be granted only if the state court’s adjudication resulted in a decision that was (1) contrary to or involved an unreasonable application of SCOTUS precedent that was clearly established at the time of the adjudication; or (2) based on an unreasonable determination of the facts (considering) the evidence presented in the State court proceeding.

      Under Harrington v. Richter, 562 U.S. 86, 103 (2011), a state court’s ruling must be so lacking in justification that “there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Stokeling v. United States, No. 17-5554, 2019 U.S. LEXIS 725 (U.S. Jan. 15, 2019) [Robbery and the ACCA]

      Under the Armed Career Criminal Act [18 U.S.C. § 924(e)(2)(B)] (ACCA), “violent felony” means any crime punishable by imprisonment for a term exceeding one year that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

      Under Johnson v. United States, 559 U.S. 133 (2010), actual and intentional touching (the level of force necessary to commit common-law misdemeanor battery) did not require the degree of force necessary to qualify as a violent felony under the ACCA’s elements clause because physical force means violent force (force capable of causing physical pain or injury to another person).

      Robbery that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of “physical force” within the meaning of the ACCA [18 U.S.C. § 924(e)(2)(B)(i)].

      The force necessary to overcome a victim’s physical resistance is inherently “violent” and suggests a degree of power that would not be satisfied by the merest touching. Robbery that must overpower a victim’s will and necessarily involves a physical confrontation and struggle. The altercation need not cause pain or injury or even be prolonged, but it is the physical contest between the criminal and the victim that is itself capable of causing physical pain or injury.

United States Court of Appeals for the Fifth Circuit

United States v. Baker, No. 17-51034, 2019 U.S.App.LEXIS 623 (5th Cir. Jan. 7, 2019) (designated for publication) [Fed. Rule Evid. 1006 (summary testimony), Fed. Rule Evid. 804(b)(1) (former testimony), and 18 U.S.C. § 1343 (wire fraud) does not require an intent to obtain property directly from a victim]

      Summary testimony is allowed in limited circumstances in complex cases. While appropriate for summarizing voluminous records per Fed. Rule Evid. 1006, summary witnesses are not to be used as a substitute for, or a supplement to, closing argument. To minimize the danger of abuse, summary testimony must have an adequate foundation in evidence that is already admitted and should be accompanied by a cautionary jury instruction. Full cross-examination and admonitions to the jury minimize the risk of prejudice.

      Under Fed. Rule Evid. 804(b)(1) (former testimony), former testimony is not excluded as hearsay if the witness is now unavailable and: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had (or in a civil case, whose predecessor in interest had) an opportunity and similar motive to develop it by direct, cross or redirect examination.

      Two federal agencies are considered the “same party” for purposes of Fed. Rule Evid. 804(b)(1) (former testimony) only if one is statutorily required to report to the other or they cooperate to enforce the same statutory scheme.

      The SEC is an independent agency with its own litigating authority apart from the DOJ.

      When testimony in a prior civil proceeding is being offered against the government in a subsequent criminal proceeding, to determine whether the two agencies are predecessors in interest, a court considers: (1) the type of proceeding in which the testimony is given, (2) trial strategy, (3) the potential penalties or financial stakes, and (4) the number of issues and parties.

      A “scheme to defraud” means any plan, pattern, or course of action intended to deprive another of money or property or bring about some financial gain to the person engaged in the scheme.

      18 U.S.C. § 1343 (wire fraud) does not require an intent to obtain property directly from a victim.

United States v. Piper, No. 17-10913, 2019 U.S. App. LEXIS 901 (5th Cir. Jan. 10, 2019) (designated for publication) [Plain error, compulsory due process, motion for continuance based on a missing witness]

      When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that, but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

      Under United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982), the Due Process Clause of the Fifth Amendment guarantees that a defendant will be treated with that fundamental fairness essential to the very concept of justice.

      Under Washington v. Texas, 388 U.S. 14, 19 (1967), due process includes the right to present witnesses to establish a defense.

      Under Taylor v. Illinois, 484 U.S. 400, 408 (1988), the Compulsory Process Clause of the Sixth Amendment ensures that defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.

      Under United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982), to demonstrate a constitutional violation under either due process or compulsory process based on the deprivation of witness testimony, a defendant must make some plausible showing of how the testimony would have been both material and favorable to his defense. In exercising the right to present witnesses, a defendant must comply with established rules of evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.

      Under Fed. Rule Evid. 804(b)(3), statements against penal interests are admissible if: (1) the declarant is unavailable, (2) the statement subjects the declarant to criminal liability such that a reasonable person would not have made the statement unless he believed it to be true, and (3) the statement is corroborated by circumstances clearly indicating trustworthiness.

      Under Fed. Rule Evid. 804(a)(1), a declarant who invokes the Fifth Amendment privilege against self-incrimination is unavailable to testify.

      Under Williamson v. United States, 512 U.S. 594, 600–601 (1994), the rule of statements against interests per Fed. Rule Evid. 804(b)(3) does not allow admission of non-self-inculpatory statements even if made within a broader narrative that is generally self-inculpatory.

      Under Lilly v. Virginia, 527 U.S. 116, 124–125 (1999), statements against interests per Fed. Rule Evid. 804(b)(3) require an “indicia of reliability” such that adversarial testing would be expected to add little, if anything, to the reliability.

      A district court has broad discretion in deciding whether to grant a request for a continuance, and review is for an abuse of that discretion resulting in serious prejudice.

      When a defendant requests a continuance based on an unavailable witness, he must demonstrate that: (1) due diligence was exercised to obtain the attendance of the witness; (2) the witness would tender substantial favorable evidence; (3) the witness will be available and willing to testify; and (4) denial of the continuance would materially prejudice the defendant.

Editor’s note: The court should have allowed Ely’s testimony. Under Williamson v. United States, 512 U.S. 594, 600–601 (1994), the court could have prohibited the admission of the non-self-inculpatory parts of the statement and allowed the self-inculpatory parts. Not all statements made by a declarant that are within the broad range of what the declarant yaps about are 100% self-inculpatory.

United States v. Arellano-Banuelos, No. 17-11490, 2019 U.S. App. LEXIS 1233 (5th Cir. Jan. 14, 2019) (designated for publication) [Miranda in prisons and jails; Miranda applies in civil investigations]

      Under Miranda v. Arizona, 384 U.S. 436 (1966), Edwards v. Arizona, 451 U.S. 477, 481–482 (1981), and Rhode Island v. Innis, 446 U.S. 291, 300 (1980), the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires that custodial interrogation be preceded by advice to the defendant that he has the right to remain silent and to the presence of an attorney. Miranda warnings are required only if an individual is “in custody” and “subjected to interrogation.” Interrogation refers not only to express questioning but also to words or actions by the police (other than those normally attendant to arrest and custody) that police should know are reasonably likely to elicit an incriminating response. This inquiry is focused primarily upon the perceptions of the suspect and not the intent of the police. An officer’s subjective intent may be relevant to what an officer should know, but proof of subjective intent is not required to establish that an interrogation occurred.

      Under Mathis v. United States, 391 U.S. 1 (1968), that the initial purpose of an investigation is civil rather than criminal does not render Miranda inapplicable.

      Under Maryland v. Shatzer, 559 U.S. 98, 114 (2010), Howes v. Fields, 565 U.S. 499, 514–515 (2012), and Thompson v. Keohane, 516 U.S. 99, 102 (1995), inmates are not automatically “in custody” within Miranda. When a prisoner is questioned, the determination of custody should focus on all the features of the interrogation to determine whether the circumstances of the interview are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave. A prisoner is free to leave if he is free to return to his “normal life” within the prison. Custody determinations under Miranda are a mixed question of law and fact, with relevant factors including: the location of the questioning, duration, statements made, presence or absence of physical restraints, and the release of the suspect at the end of questioning.

      Under Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (plurality opinion), and United States v. Virgen-Moreno, 265 F.3d 276, 293 (5th Cir. 2001), Miranda warnings are not required when an officer asks only routine booking questions to secure biographical data necessary to complete booking or pretrial services. Permissible booking questions include a suspect’s name, address, height, weight, eye color, date of birth, and current age. Questions designed to elicit incriminatory admissions are not covered under the routine booking question exception.

United States v. Freeman, No. 17-40739, 2019 U.S. App. LEXIS 2622 (5th Cir. Jan. 25, 2019) (designated for publication) [Roving border-patrol stops]

      Under United States v. Arvizu, 534 U.S. 266, 273 (2002), the Fourth Amendment extends to roving patrol stops.

      To temporarily detain a vehicle for investigatory purposes, an agent on roving patrol must be aware of specific articulable facts together with rational inferences from those facts that warrant a reasonable suspicion that the vehicle is involved in illegal activities such as transporting undocumented immigrants.

      Under United States v. Brignoni-Ponce, 422 U.S. 873, 884–885 (1975), the factors to be considered when determining if reasonable suspicion exists for a roving border-patrol stop are: (1) the area’s proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) the agents’ experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior. No single factor is determinative, and the totality of the circumstances known to the agents are examined when evaluating the reasonableness of a roving border patrol stop. The elements of a determination of reasonable suspicion or probable cause are the events that occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.

      Under United States v. Jacquinot, 258 F.3d 423, 428 (5th Cir. 2001) (per curiam), a car traveling more than 50 miles from the border is too far from the border to support an inference that it originated its journey there. If there is no reason to believe that the vehicle came from the border, the remaining factors must be examined carefully. The proximity element is satisfied if the car was first observed within 50 miles of the border but was stopped more than 50 miles from the border, but this fact alone cannot support reasonable suspicion because otherwise agents would be free to stop any vehicle on any road near the border.

      Under United States v. Jones, 149 F.3d 364, 370 (5th Cir. 1998), when the officer’s actions are such that any driver, whether innocent or guilty, would be preoccupied with his presence, then any inference that might be drawn from the driver’s behavior is destroyed.

Editor’s note: One of the members of the panel dissented with this leadoff:

“There is no Fourth Amendment violation. Nevertheless, the majority—guided by the erroneous decision of the district court—misapplies Supreme Court and Fifth Circuit precedent in determining that the exclusionary rule applies. The majority’s well-intended blunder means that a clear violation of the immigration laws—transportation of an illegal alien—may go unpunished.”

Contrary to this judge’s introspective analysis, there was an egre­gious Fourth Amendment violation and it was not close. CBP had no idea that Freeman was transporting an illegal alien until the stop was completed. The Brignoni-Ponce factors notwithstanding (which still did not support the stop), if this stop occurred anywhere other than “near the border” (and 50 miles is not “near” the border), it would have been a patently illegal stop. Further, this nonsense that CBP stops every vehicle that turns on FM 2050 is a reason why the Fourth Amendment exists. This is not the former East Germany. CBP is not the Staatssicher­heitsdienst (Stasi, East Germany’s secret police). Law enforcement here does not decide who can drive on which public road. Agent Perez claimed that there are “legitimate reasons” to be on FM 2050 since there are “homes, ranches, and businesses” on the road. How about this for a “legitimate reason”: A person drives on FM 2050 (or any other public road in America) because HE CAN. It is not up to government agents to decide “legitimate reasons” for a person to drive on ANY public road in America. That a federal appellate judge would find nothing wrong with this attitude is troubling.

      The problems near the border are profound. CBP must be given the tools to patrol the area efficiently and legally. But “stopping every vehicle” on a public road 50 miles from the border be­cause CBP agents subjectively decide “legitimate reasons” for driving on that road is absurd. The agent even admitted that of the 30 stops he’s made, only 2–3 resulted in seizures (a success rate of 6–10%).

United States v. Hughes, No. 18-20015, 2019 U.S. App. LEXIS 3327 (5th Cir. Feb. 1, 2019) (designated for publication) [Payment of restitution or fines per 18 U.S.C. §§ 3572(d)(1), § 3664(f)(2), and 3664(n)]

      Under 18 U.S.C. §3664(f)(2), the district court shall specify in the restitution order the manner and schedule in which restitution is paid. It is the district court and not the government that determines how a defendant is to pay restitution, and the government can enforce only what the district court has ordered the defendant to pay.

      Under 18 U.S.C. §3572(d)(1), when a restitution order specifies an installment plan, unless there is language directing that the funds are also immediately due, the government cannot attempt to enforce the judgment beyond its plain terms absent a modification of the restitution order or default on the payment plan.

      Under 18 U.S.C. §3664(n), if a person obligated to provide restitution or pay a fine receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed. However, the gradual accumulation of prison wages are not “substantial resources,” which refers to windfalls or sudden financial injections (i.e., unanticipated resources that become “suddenly available.”).

United States v. Sarli, No. 17-50294, 2019 U.S. App. LEXIS 1455 (5th Cir. Jan. 16, 2019) (designated for publication) [Scope of consent to search; confrontation clause]

      Under Florida v. Jimeno, 500 U.S. 248, 251 (1991), the standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness: what a reasonable person would have understood by the exchange between the officer and the suspect. Under United States v. Garcia, 604 F.3d 186, 190 (5th Cir. 2010), an affirmative response to a general request is evidence of general consent to search. Where there is ambiguity regarding the scope of a consent, the defendant has the responsibility to affirmatively limit its scope.

Under Chapman v. California, 386 U.S. 18, 24 (1967), for a verdict to survive a Confrontation Clause violation, there must be no reasonable possibility that the evidence complained of might have contributed to the conviction.

Texas Court of Criminal Appeals

French v. State, No. PD-0038-18, 2018 Tex.Crim.App.LEXIS 1241 (Tex.Crim.App. Dec. 19, 2018) (designated for publication) [Some-harm factors under Almanza]

      Under Tex. Const. Art. V § 13 and Jourdan v. State, 428 S.W.3d 86, 94 (Tex.Crim.App. 2014), a defendant in a criminal trial has the right to a unanimous jury verdict on each element of the charged offense.

      Under Tex. Code Crim. Proc. Art. 36.29(a) and Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App. 2005), at least 12 jurors must render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman.

      The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” requires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005). Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), to determine whether unobjected-to jury-charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record.


  • The indictment presented the jury with four options to convict: (1) contacted J.F.’s anus with his sexual organ; (2) penetrated J.F.’s anus with his sexual organ; (3) contacted J.F.’s sexual organ with his sexual organ; and (4) penetrated J.F.’s sexual organ with his sexual organ, any of which is an F-1 under Tex. Penal Code § 22.021(e).
  • The jury charge authorized the jury to convict Appellant based on any one of the four theories alleged in the amended indictment.
  • The application paragraph characterized the two elements as: The defendant intentionally or knowingly caused the contact with or penetration of the anus of J.F. with his male sexual organ, or the defendant caused contact with or penetration of the female sexual organ of J.F. with his male sexual organ; and J.F. was at the time a child younger than 14 years of age.
  • On the issue of jury unanimity, the jury charge instructed the jury: “You must all agree on elements 1 and 2 listed above. With regard to element 1, you need not all agree on the manner in which the sexual assault was committed.” Thus, the jury was authorized to convict Appellant without agreeing as to which orifice he contacted or penetrated.
  • Appellant’s trial counsel objected, arguing that it should read, “With regard to element 1, you must all agree on the manner in which the sexual assault was committed.” The trial court overruled Appellant’s objection.
  • The court of appeals reversed, holding that the jury charge violated the juror unanimity requirement because it did not require the jury to agree as to which orifice Appellant contacted or penetrated (or both). The court also found Appellant’s objection to the erroneous jury charge sufficient to invoke the “some harm” standard of review under Almanza.

There was not “some harm” under Almanza

  • Under Tex. Const. Art. V § 13 and Jourdan v. State, 428 S.W.3d 86, 94 (Tex.Crim.App. 2014), a defendant in a criminal trial has the right to a unanimous jury verdict on each element of the charged offense.
  • Under Tex. Code Crim. Proc. Art. 36.29(a) and Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App. 2005), at least 12 jurors just render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman.
  • Under Tex. Penal Code § 22.021(a)(1)(B)(i), (iii), & (iv), a person commits aggravated sexual assault of a child if he intentionally or knowingly (i) causes the penetration of the anus or sexual organ of a child by any means; (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor.
  • In the context of double jeopardy claims, each of the ways alleged in the indictment of committing aggravated sexual assault is a separate offense.
  • The Legislature intended that penetration of a child’s anus should be regarded as a distinct offense from penetration of her sexual organ even if they occur during the course of the same incident or transaction.
  • The court of appeals was correct to hold that the trial court erred by failing to require the jury to attain unanimity with respect to which of the two orifices alleged in the amended indictment that the Appellant contacted or penetrated before finding him guilty.
  • The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” requires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” See also Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005), and Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (To determine whether unobjected-to jury charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record).
  • Factor (1)—the entire jury charge: Nothing other than the erroneous instruction itself either exacerbates or ameliorates the error.
  • Factor (2)—state of the evidence: Although the State primarily presented evidence of a sexual assault of J.F.’s anus by Appellant with his penis, Beard [CAC forensic-interviewer] said that J.F. reported that after Appellant had finished assaulting her, he would clean her “pee-pee” with “wipeys,” and there were one or two instances where “[J.F.] said that it was his private in her pee-pee, but she self-corrected” to “butt.” The jury could have inferred from J.F. that Appellant wiped her “pee-pee” and “butt” after he had assaulted her sexual organ and anus. It is possible that the jury could have inferred that Appellant may have been cleaning up after himself after he had contacted or penetrated not just her anus, but also her sexual organ, with his own sexual organ. This evidence might have taken on particular significance to jurors considering J.F.’s statements to the CAC that Appellant penetrated her “pee-pee,” but it also demonstrated that after each such claim by J.F., she consistently and expressly recanted it, denying that Appellant penetrated her “pee-pee” with his sexual organ. The jury was also presented with testimony from the CAC and from J.F. that Appellant caused J.F. to sit on his lap while the two were both naked.
  • Factor (3)—jury arguments: Nothing in the arguments of the parties explicitly encouraged the jurors to be non-unanimous with regard to which orifice Appellant contacted or penetrated.
  • Factor (4)—any other relevant information: Nothing else “particularly militates in favor of a finding of harm.”
  • “But even in light of all of this evidence, we still cannot say that Appellant suffered some harm, as a result, after our consideration of all four of the Almanza factors.”
  • The risk that a rational juror would have convicted Appellant on the basis that he contacted or penetrated J.F.’s sexual organ with his own and not also on the basis that he contacted or penetrated her anus is not “remotely significant,” and is so “highly unlikely” as to be “almost infinitesimal.” There was overwhelming evidence presented at trial that Appellant contacted and penetrated J.F.’s anus with his sexual organ on multiple occasions in several different locations.
  • The judgment of the court of appeals is reversed.

State v. Martinez, No. PD-0324-17, 2019 Tex.Crim.App.LEXIS 1 (Tex.Crim.App. Jan. 9, 2019) (designated for publication) [Collective-knowledge doctrine and probable cause to arrest under Tex. Code Crim. Proc. Art. 14.01(b)]


  • After Appellee was arrested for public intoxication without a warrant, he filed an MTS. To satisfy its burden, the State tried to show that Appellee was committing public intoxication, relying upon the exception for offenses committed in the presence of the police per Tex. Code Crim. Proc. Art. 14.01(b) (officer may arrest without a warrant for any offense committed in his presence or within his view). The State presented the testimony of officers Guerrero and Ramirez that they saw Appellee in a public place, intoxicated, and Appellee posed a danger to himself or others. However, Officer Quinn physically arrested Appellee, and he was not available to testify.
  • Because the trial court believed there was no evidence showing whether Quinn had knowledge of sufficient facts to constitute probable cause, the trial court granted Appellee’s MTS.
  • On appeal, the Court of Appeals affirmed the trial court’s ruling due to a lack of evidence about Quinn’s observations of Appellee’s intoxication or what, if anything, the testifying officers, Guerrero and Ramirez, told Quinn about their observations of Appellee’s intoxication.
  • When a defendant seeks to suppress evidence under the Fourth Amendment violation, the burden of proof is initially upon the defendant, who must produce evidence that defeats the presumption of proper police conduct (warrantless search or seizure occurred). The burden of proof then shifts to the State. If the State produces a warrant, the burden of proof shifts back to the defendant to show the invalidity of the warrant. If the State fails to produce a warrant, it must prove the reasonableness of the search or seizure.
  • Under the collective-knowledge doctrine, when several officers are cooperating, their cumulative information may be considered in assessing reasonable suspicion or probable cause. When there has been some cooperation between law enforcement agen­cies or between members of the same agency, the sum of the information known to the agencies or officers at the time of an arrest or search by any of the officers is to be considered in determining whether there was sufficient probable cause. It is not necessary for the arresting officer to know all the facts amounting to probable cause provided there is some degree of communication between the arresting officer and an officer who has knowledge of all the necessary facts. But evidence of communication between officers is not always a necessary re­quire­ment to apply the collective-knowledge doctrine.
  • Here, arresting officer Quinn is clearly cooperating with Gue­rrero and Ramirez.
  • Under the facts of this case, the sum of the information known to the cooperating officers—their cumulative information—should be considered in assessing probable cause.
  • A police officer may arrest an individual without a warrant only if probable cause exists with respect to the individual in question, and the arrest falls within one of the exceptions set out in the Code of Criminal Procedure. Probable cause for a warrantless arrest under Tex. Code Crim. Proc. Art. 14.01(b) may be based on an officer’s prior knowledge and personal observations, and an officer may rely on reasonably trustworthy information provided by another person in making the overall probable-cause determination. All the information to support probable cause does not have to be within an officer’s personal knowledge. The question is whether at that moment the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.
  • Here, there was evidence that Appellee was in a public place, and that he was intoxicated to the extent that he was a danger to himself or to others.

Editor’s note: Another example of the “collective-knowledge doctrine”:

Ritcherson v. State, No. PD-0021-17, 2018 Tex.Crim.App.LEXIS 1208 (Tex.Crim.App. Dec. 12, 2018) (designated for publication) [Jury charge on lesser-included offense]

      Under Tex. Code Crim. Proc. Art. 37.09, an offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the re­spect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Under Rousseau v. State, 855 S.W.2d 666, 672–673 (Tex.Crim.App. 1993), and Bullock v. State, 509 S.W.3d 921, 924 (Tex.Crim.App. 2016), a defendant is entitled to a lesser-included instruction if: (1) the requested instruction is a lesser-included offense per Art. 37.09 (determined by comparing the elements of the lesser offense and descriptive averments in the indictment); and (2) there was evidence from which a rational jury could find the defendant guilty of only the lesser offense.

      Evidence that directly refutes or negates other evidence establishing the greater offense and raises the lesser-included offense or that is susceptible to different interpretations, one of which refutes or negates an element of the greater offense and raises the lesser offense. Evidence raising the lesser offense must be affirmatively in the entire record, and it does not matter whether the evidence is controverted or even credible).

Hall v. State, No. AP-77,072, 2019 Tex.Crim.App. LEXIS 43 (Tex.Crim.App. Jan. 30, 2019) (designated for publication) [Requirements for DNA-testing]

      To be entitled to postconviction DNA testing, a convicted person must show by a preponderance of the evidence (greater than 50% chance) that he would not have been convicted if exculpatory results had been obtained through DNA testing. “Exculpatory results” means only results excluding the convicted person as the donor of the DNA. In considering the likelihood of conviction, the reviewing court limits its review to whether exculpatory results would alter the landscape of evidence at trial and does not consider post-trial factual developments. Whether the DNA of a third party establishes a greater than 50% chance that the defendant would not have been convicted depends on the circumstances. In a case, the presence of a third party’s DNA may not exonerate the defendant from the crime. And even when its presence may tend to be exonerating, the convicted person’s burden will not be satisfied if the record contains other substantial evidence of guilt independent of that for which the movant seeks DNA testing. But under some circumstances, the presence of DNA from a third party is so strongly exonerating that the convicted person’s burden will be met despite the existence of other substantial inculpatory evidence. The presence of a third party’s DNA is so strongly exonerating when it is clear that the biological material in question was left by a lone assailant.

      The “lone assailant” theory provides that there was a lone assailant regardless of who it was—i.e., victim testifies that a single individual sexually assaulted her, semen was deposited inside her, victim claims she had not recently had sex with anyone else, and she identifies the defendant as her attacker. The fact that the victim was sexually assaulted by one individual does not depend on the accuracy of her identification. If the semen does not match the defendant’s DNA, the victim’s identification must have been wrong, however credible it might otherwise seem.

      DNA analysis is not as probative when the items tested are not at a place where only a reasonably limited number of DNA contributors would be found. Touch-DNA poses problems because: (1) epithelial cells are ubiquitous on handled materials, (2) there is an uncertain connection between the DNA profile identified from the epithelial cells and the person who deposited them, and (3) it cannot determine when an epithelial cell was deposited.

      Whether the burden has been met to show that the request for DNA testing has not been made to unreasonably delay the execution of sentence is a fact-specific and subjective inquiry. Circumstances include the promptness of the request, the temporal proximity between the request and the sentence’s execution, or the ability to request testing earlier.

Rhomer v. State, No. PD-0448-17, 2019 Tex.Crim.App. LEXIS 42 (Tex.Crim.App. Jan. 30, 2019) (designated for publication) [Expert testimony under Rule 702 and the difference between hard-science testimony under Kelly and soft-science testimony under Nenno]

      Under Tex. Rule Evid. 702 and Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002), an expert may offer an opinion if he is qualified to do so by his knowledge, skill, experience, training, or education and if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. Witnesses who are not experts may testify about opinions or inferences when those opinions or inferences are rationally based on their perception and helpful to a clear understanding of their testimony or the determination of a fact in issue. There is no distinct line between lay opinion and expert opinion.

      Three requirements must be met before expert testimony can be admitted: (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 assist the fact-finder in deciding the case (qualification, reliability, and relevance).

      The specialized knowledge that qualifies a witness to offer an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a combination of these things. An expert must have a sufficient background in a field, but a trial judge must also determine whether that background goes to the very matter on which the witness is to give an opinion. The expert’s background must be tailored to the specific area of expertise in which he desires to testify. The party offering expert testimony has the burden to show the witness is qualified on the matter in question.

      To determine whether a trial court has abused its discretion in ruling on an expert’s qualifications, an appellate court considers: (1) Is the field of expertise complex? (2) How conclusive is the expert’s opinion? (3) How central is the area of expertise to the resolution of the lawsuit? Greater qualifications are required for more complex fields of expertise and for more conclusive and dispositive opinions.

      An expert does not need to use scientific methods to be quali­fied. Because an expert is qualified by specialized knowledge, training, or experience, there is no requirement that the specialized knowledge, training, or experience be based on scientific principles.

      When an expert’s testimony is based on a hard science involving precise calculations and the scientific method, the expert must satisfy the test set forth in Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992): (1) the underlying scientific theory must be valid, (2) the technique applying the theory must be valid, and (3) the technique must have been properly applied on the occasion in question.

      When an expert’s testimony is based on fields of study outside the hard sciences, the test is under Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App. 1998): whether (1) the field of expertise is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of that field, and (3) the expert’s testimony properly relies upon or utilizes principles involved in the field.

      The hard sciences are areas in which precise measurement, calculation, and prediction are possible, which include mathematics, physical science, earth science, and life science. The soft sciences generally include psychology, economics, political science, anthropology, and sociology. Distinctions between hard and soft sciences may be blurred, and the reliability inquiry is flexible.

Texas Courts of Appeals

Duntsch v. State, No. 05-17-00235-CR, 2018 Tex.App.-LEXIS 10131 (Tex.App.—Dallas Dec. 10, 2018) (designated for publication) (Extraneous-offense evidence under Tex. Rule Evid. 404(b)(2), doctrine of chances, Tex. Rule Evid. 403]

      Under Tex. Rule Evid. 404(b)(1), evidence of an extraneous act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with this character. Under Tex. Rule Evid. 404(b)(2), such evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Under Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App. 2011), whether extraneous offense evidence has relevance apart from character conformity is a question for the trial court, the ruling from which is generally within the zone of reasonable disagreement if the extraneous offense evidence is relevant to a material, nonpropensity is­sue and the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.

      Under Dabney v. State, 492 S.W.3d 309, 317 (Tex.Crim.App. 2016), the “doctrine of chances” provides that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance. For the doctrine to apply, there must be a similarity between the charged and extraneous offenses since it is the improbability of a like result being repeated by mere chance that gives the extraneous offense probative weight. No rigid rules dictate what constitutes sufficient similarities. An extremely high degree of similarity is not required where intent, as opposed to identity, is the material issue.

      An extraneous offense may be used to illustrate intent where it cannot be inferred from the act.

      Under Gigliobianco v. State, 210 S.W.3d 637, 641–642 (Tex.Crim.App. 2006), when conducting an analysis under Tex. Rule Evid. 403, courts must balance: (1) the inherent probative force of the proffered item of evidence, along with (2) the proponent’s need for that evidence, against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

State v. Opare, No. 02-18-00247-CR, 2018 Tex.App.-LEXIS 10851 (Tex.App.—Fort Worth, Dec. 27, 2018) (designated for publication) (op. on reh.) [Unpublished opinions have no precedential value and evidence not admitted but considered or viewed during trial]

      Under Tex. Rule App. Proc. 47.7(a), opinions that are “not designated for publication” or unpublished have no precedential value.

      Under Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007), when parties treat an exhibit, document, or other material as if those items had been admitted into evidence even though they were never formally offered or admitted in the trial court, they can be considered as part of the evidence on the theory that in the absence of a timely objection, displaying the evidence before the jury and eliciting testimony about it is tantamount to introducing it into evidence.

      Evidence that was not admitted may be treated as if it had been admitted for purposes of appellate review if: (1) the record clearly reflects that a jury saw, heard, or felt the unobjected-to item; or (2) the record clearly reflects that the trial court and the parties treated the evidence as admitted, and there is nothing about the evidence itself that requires discretion, interpretation, or authentication—i.e., the evidence “speaks for itself.”

Sheldon v. State, Nos. 05-17-00900-CV – 05-17-00903-CV, 2019 Tex. App. LEXIS 346 (Tex.App.—Dallas Jan. 17, 2019) (designated for publication) [Indigent defendants are not exempt from paying court costs; costs in multiple causes]

      Under Johnson v. State, 423 S.W.3d 385, 390 (Tex.Crim.App. 2014), the imposition of court costs is a nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case.”

      Under Tex. Code Crim. Proc. Art. 42.16, court costs are assessed against a defendant where punishment consists of anything other than a fine. Per Tex. Gov. Code § 102.021, court costs are mandated.

      Unlike the statute providing for the recovery of fees for court-appointed attorneys, indigent defendants are not exempt from paying court costs.

      Under Armstrong v. State, 340 S.W.3d 759, 767 (Tex.Crim.App. 2011), fines are different than court costs because fines are punitive and are imposed as part of the sentence.

      Under Tex. Code Crim. Proc. Art. 102.073, in a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant. Each court cost or fee the amount of which is determined according to the category of offense must be assessed using the highest category of offense that is possible based on the defendant’s convictions.

      Under Tex. Code Crim. Proc. Art. 42.03 § 1(a) and State v. Crook, 248 S.W.3d 172, 174 (Tex.Crim.App. 2008), the trial court’s sentence must be orally pronounced in the defendant’s presence. A fine is part of a sentence. A judgment, including the sentence assessed, is merely the written declaration and embodiment of that oral pronouncement.

      Under Tex. Penal Code § 3.03(a) and State v. Crook, 248 S.W.3d 172, 177 (Tex.Crim.App. 2008), with few exceptions, sentences shall run concurrently when the defendant accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action. The judgment should not reflect a cumulated fine when sentences are ordered to run concurrently.

Totten v. State, No. 01-14-00189-CR, 2019 Tex. App. LEXIS 532 (Tex.App.—Houston [1st Dist.] Jan. 29, 2019) (designated for publication) [Art. 38.23(a) instruction]

      Under Tex. Code Crim. Proc. Art. 38.23(a), no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of Texas or of the Constitution or laws of the United States shall be admitted in evidence against the accused on the trial of any criminal case. Under Art. 38.23(b), the jury shall be instructed that if it believes or has a reasonable doubt that the evidence was obtained in violation of the provisions of Art. 38.23, then the jury shall disregard any such evidence so obtained.

            Under Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App. 2008), to be entitled to an instruction under Tex. Code Crim. Proc. Art. 38.23(a): (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) the contested factual issue must be material to the lawfulness of the challenged conduct. The evidence raising a fact issue may be strong, weak, contradicted, unimpeached, or unbelievable. To raise a disputed fact issue warranting the instruction, there must be some affirmative evidence that puts the existence of that fact into question. A cross-examiner’s questions do not create a conflict in the evidence although the witness’s answers to those questions might.

Expert Questions

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 “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.

The Sexual Assault Nurse Examiner

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: 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.

The Risks of a Colorado Cannabis Vacation

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.


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.


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.


1. Sullum, J. (2016, February 16). Legal Marijuana Sales Totaled $1 Billion in Colorado Last Year. Retrieved December 5, 2018, from

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.

Teaching Your Clients to Succeed on Probation

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!

The Defense Lawyer: Understanding the True Role of Defense Counsel


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.


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.”

March 2019 Complete Issue – PDF Download



21 | Expert Questions – By Sarah Roland
27 | The Sexual Assault Nurse Examiner – By Rachel D. Fischer
29 | The Risks of a Colorado Cannabis Vacation – By D. Chris Hesse
32 | Teaching Your Clients to Succeed on Probation – By Clay S. Conrad
34 | The Defense Lawyer: Understanding the True Role of Defense Counsel – By J. Gary Trichter

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

5 | CLE Seminars and Events
37 | Significant Decisions Report

President’s Message: A Journey Measured in Friends – By Mark Snodgrass


We don’t take a trip; a trip takes us.
                                            —John Steinbeck

They say a picture is worth a thousand words, so this month I intend to share a few thousand words with you about our recent TCDLA President’s Trip to Nashville.

Around twenty or so lawyers from all over the State, along with spouses and significant others, descended upon Nashville for some great CLE, music, food, and entertainment. To me, TCDLA is more than an organization; it is family. Some of my best and dearest friends are people I met through this organization. I would encourage all of you to join next year’s president, Kerri Anderson Donica, on a Caribbean cruise that she has planned for her President’s Trip. It should be a great time with even better people.

Executive Director’s Perspective: Two Minds Coming Together – By Melissa J. Schank


No two minds ever come together without, thereby, creating a third, invisible, intangible force which may be likened to a third mind.

—Napoleon Hill, Think and Grow Rich

It always amazes me all the attorneys who take the time to accept court appointments just because it is the right thing to do. These attorneys give the same attention and service to those clients as they do to those who are able to afford legal fees. More importantly, some of these same attorneys also give of themselves to mentor other attorneys.

This week I had the opportunity to meet with the Chief Public Defenders and Managed Counsels from all over the state of Texas. The event was co-hosted with Lynn Richardson’s Dallas Public Defenders Office and TIDC. We had the opportunity to explore the Dallas office and specialty courts and examine the services TIDC provides. Public defenders do yeoman’s work! And they’ve been doing it for a long time: The Austin Juvenile Public Defender, the first office of its kind in Texas, opened in 1976.

Many of those lawyers cut their teeth at the Texas Criminal Trial College, and the 43rd Annual Tim Evans TCTC—held March 24–29, 2019, in Huntsville—is fast approaching. This remains one of my favorites because I see so many attorneys transformed, leaving with skills and a new-found confidence following the intense week-long sessions. And students as well as faculty members, who dedicate their time and talents, build lifelong relationships as a result. The students can and do reach out to our invited faculty and establish mentoring relationships. Several will themselves end up teaching and sharing their knowledge as faculty members. We still have a few spots left; if you’re interested, contact me at 512.646.2724 or .

It’s this spirit, attorneys working together in TCDLA, that unites us and allows us a strong voice in the legislative process. Legislative Senior Lobbyist Allen Place and Lobbyist Shea Place recently came by the office to discuss the legislative process with staff. As the session cranks up, bills will continue to be filed until March 8th. We hope everyone reads Shea’s legislative updates. Our Legislative Committee and lobbyists communicate as best they can on issues requiring our attention, but similar to trial strategy, there are confidential strategies that should not be shared with the opposition. We’ve had a big turnover in the state—in committees as well as in the House and Senate—and we are looking for members who might have a personal relationship with some of the new political seats. If you think you might, or if you have specific questions or thoughts on legislation, you can get in touch at . You can find out more about the 86th legislature and your representative or senator at

As winter gives way to spring, plan on attending some of the big events on the schedule. Come support our president in his hometown of Lubbock at the 38th Annual Prairie Dog Lawyers Advanced Criminal Law Seminar March 7–8. Take a look on the website,, at the incredible lineup of speakers for some top-notch CLE. And the local bar always hosts a great party with live music and delicious food—not to mention socializing with some TCDLA and LCDBA members. This is what makes our CLE events the best—some outstanding networking.

And if you haven’t already, you should register for the 32nd Annual Rusty Duncan Advanced Criminal Law Course. If you only choose one CLE event a year, this is it. Course directors Jani Maselli Wood, Bobby Mims, and Doug Murphy have put together a stellar lineup, with four tracks to choose from: Drug and DWI, Science and Forensics, Issues in Juvenile, and Issues in Representing Indigent Clients. Saturday’s lineup includes Gerry Goldstein, Sister Helen Prejean, Martin Underwood, Michael Tigar, and Dr. Katie McQueen. New lawyers take note: We have a networking event tailored to your needs, a lunch that pairs you up with a board member.

We know CLE can be pricey at times, so do be aware that we have several different scholarships—some including travel. Visit the link on our website,, or call us at 512.478.2514 (anyone can help). The Texas Criminal Defense Lawyers Educational Institute and the Criminal Justice section of the SBOT are among those offering help. We have a category to fit your needs. And if you don’t need a scholarship, we welcome your donation to TCDLEI!

I hope you will attend some or all of our upcoming events. New members, this is where you can get to know your fellow warriors, exchange information, maybe seek out an opportunity to sit second chair—you never know till you ask. If you’d like help making some connections, find me at the event and I will get you connected!

Editor’s Comment: What’s Happening – By Sarah Roland


Among the many significant decisions issued since our last publication, Michael Mowla highlights Rhomer in this SDR. No. PD-0448-17 (Tex. Crim. App. 2019). In Rhomer, a felony murder case—causing the death of another in an accident while committing felony DWI—the Court of Criminal Appeals decided that an accident reconstruction expert can testify about a specific type of accident reconstruction in which he has no formal training, and that the testimony of the accident reconstruction expert here should be governed by the Nenno test. 970 S.W.2d 549, 560 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). The opinion includes a good discussion of the three requirements that must be met before expert testimony can be admitted: (1) qualification, (2) reliability, and (3) relevance. See Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). Understanding these conditions and the differences between them are important when dealing with experts.

Important to its ultimate analysis about whether the officer could testify as an expert here, the CCA noted that

[a]ccident reconstruction may sometimes be complex, but the reconstruction opinion offered by Doyle was not. He did not calculate pre-impact vehicle speeds; he examined physical evidence in the context of the accident scene to form an opinion about the area of impact and how the collision occurred. His testimony was more akin to latent print comparison than to DNA profiling because it was relatively simple. p.9 (internal citation omitted).

The CCA also reminds us that

the trial court is supposed to act as a gatekeeper against expert testimony that would not help the trier of fact. This is not the same thing as requiring every expert to be the best possible witness. p.10 [emphasis added].

While the print version of the SDR is great, I would encourage everyone to read the online version as it necessarily contains a great deal more information about each case. Rhomer is one such case. It is worth reading and understanding since we all deal with experts. Also, be sure to thank Michael Mowla for the tremendous work he does with SDR.

Also, of great import, the Court of Criminal Appeals heard oral argument on Watkins v. State, No. PD-1015-18, at the end of February. Watkins is a 39.14 case. The case centers on the meaning of “material” in subsection (a). TCDLA filed an amicus brief in support of the Petitioner, Ralph Watkins, who is represented on appeal by TCDLA member Jason Neihaus. If you have some time, check out those briefs; they provide an excellent history of 39.14. Also, be sure to add this one to your case mail so you will be updated when the opinion is issued, and be sure to thank the members of our Amicus Curiae Committee: Allison Clayton, Lane Haygood, Rick Wardroup, Kerri Anderson Donica, Butch Bradt, Clint Broden, Kristin Brown, Leigh Davis, Douglas Evans, Niles Illich, Angela Moore, Stanley Schneider, David Schulman, Hilary Sheard, Gary Taylor, and Kyle Therrian.

This case provides a few good practice reminders for us. Remember to file a 39.14 request in each case tracking the statutory language and one that is tailored to the specific facts of your case. If you don’t get the request filed, then make certain you have proof that your request was properly sent and received. Make the request as soon as possible. Specifically ask for notice of extraneous offenses/acts and notice of the State’s expert. Specifically ask for copies of prior judgments and penitentiary packets, if applicable. If you think you should ask for it, you should ask for it.

It happens with great frequency that we inevitability learn through the “initial” discovery provided that there is other information out there in the State’s possession that hasn’t been provided; perhaps it’s a witness statement, an additional video, or a supplemental lab report. Whatever it may be, when we learn there may be something else, we have a choice: Do we make another specific request for it or do we lie behind the log and wait? Every case is different, of course, but the best course of action generally is to make a more specific request. Remember, nothing prevents us from filing supplemental requests under Article 39.14 as the case progresses. Then, when the information is still not provided later, the remedy that we suggest to the court—wholesale exclusion and/or a continuance—is more palatable (presently there is no enforcement mechanism contained in Article 39.14).

Also, it is worth remembering that Article 39.14 creates a statutory right to discovery upon timely request. Subsection (h) merely codifies the State’s constitutional obligation under the Due Process Clause to provide certain discovery. As such, it is worthwhile to also file—and get a ruling on—a motion for Brady material in every case. There is no good reason not to do so.

On a separate note and as always, please be sure to let me know if you have any constructive criticism so that we can continue to strive to improve the Voice. Enjoy this issue!