Monthly archive

March 2019

April 2019 SDR – Voice for the Defense Vol. 48, No. 3

Voice for the Defense Volume 48, No. 3 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

Garza v. Idaho, No. 17-1026, 2019 U.S. LEXIS 1596 (U.S. Feb. 27, 2019) [Plea-waivers and ineffective counsel]

        Under Strickland v. Washington, 466 U.S. 668, 686 (1984), a defendant who claims IATC must prove that: (1) counsel’s representation fell below an objective standard of reasonableness, and (2) prejudice. Prejudice is presumed if trial counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.

        A valid and enforceable appeal waiver precludes only challenges that fall within its scope because plea bargains are essentially contracts.

        When deficient counsel causes the loss of an entire proceeding, it will not bend the presumption-of-prejudice rule simply because a defendant seems to have had poor prospects at success.

        Under Roe v. Flores-Ortega, 528 U.S. 470 (2000), there is a presumption of prejudice when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, and prejudice should be presumed with no further showing from the defendant of the merits of his underlying claims. The rule applies if the defendant signed an appeal waiver.

Madison v. Alabama, No. 17-7505, 2019 U.S. LEXIS 1595 (U.S. Feb. 27, 2019) [Panetti is applied to dementia]

        Under Panetti v. Quarterman, 551 U.S. 930, 959 (2007), the Eighth Amendment prohibits the execution of a prisoner whose mental illness prevents him from rationally understanding why the State seeks to execute him. The Eighth Amendment applies similarly to a prisoner suffering from dementia because either condition may or may not impede the requisite comprehension of his punishment.

        The Eighth Amendment does not forbid execution when a prisoner shows that a mental disorder has left him without any memory of committing his crime because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence.

Editor’s note: the opinion compares having no recollection of committing a crime yet having a “rational understanding” of why the State wants to impose punishment for the crime to not: (1) having an independent recollection of the Civil War but having a rational understanding of it and its consequences; or (2) recalling your first day of school but understanding why you may have been sent home. Thus, the death penalty is analogized with not “recalling” a well-documented war that ended 154 years ago or an irrelevant event from when you were 5 years old. Based on this rationale, the State can charge you with a crime that you have no memory of committing but because you have a “rational understanding” of why the State would want to punish the crime, the State is free to punish you. This could have been reasoned better.

Yovino v. Rizo, No. 18-272, 2019 U.S. LEXIS 1354 (U.S. Feb. 25, 2019) [What constitutes a quorum on a federal appellate panel or en banc court; for a vote to count, the judge must be active]

        Under United States v. American-Foreign S. S. Corp., 363 U.S. 685 (1960), a judge may change his position up to the very moment when a decision is released. Only active judges may sit en banc.

        A court of appeals case may be decided by a panel of three judges, of which two judges constitute a quorum and are able to decide an appeal provided they agree. When a judge on a three-judge panel dies, retires, or resigns after an appeal is argued or submitted without argument, the other two judges may issue a decision if they agree since they still constitute a quorum. The same rule applies to an en banc court: If a judge on an en banc court dies, retires, or resigns after an appeal is argued or submitted without argument, the remaining judges can agree if they still constitute a quorum.

        Federal judges are appointed for life, not for eternity.

Editor’s note: Only active judges may sit en banc, the law since 1960. It’s unclear how the Ninth Circuit got it wrong. Some issues should be more obvious than others.

Moore v. Texas, 586 U. S. ____, No. 18-443, 2019 U.S. LEXIS 821 (U.S. Feb. 19, 2019) [The TCCA must abide by Moore I, and Texas may no longer use the Briseno factors in deciding whether a person is intellectually disabled under Atkins]

Editor’s note: On March 28, 2017, Moore I was handed down. See Moore v. Texas, 137 S.Ct. 1039 (2017). Held:

  • Texas may no longer use the Briseno factors in deciding whether a person is intellectually disabled under Atkins
  • The TCCA’s conclusion that an IQ score of near-but-above 70 establishes that an inmate is not intellectually disabled is irreconcilable with Hall because under Hall, where an IQ score is close to, but above, 70, courts must account for the test’s “standard error of measurement.” The standard error of measurement is “a statistical fact, a reflection of the inherent imprecision of the test itself.” This imprecision in the testing instrument means that an individual’s score is best understood as a range of scores on either side of the recorded score, within which one may say an individual’s true IQ score lies.

The facts recited in Moore I:

  • Moore fatally shot a store clerk during a botched robbery. He was convicted of capital murder and sentenced to death.
  • In a writ filed under Tex. Code Crim. Proc. Art. 11.071m, Moore argued he was intellectually disabled under Atkins and therefore exempt from execution.
  • During the state habeas proceeding, the court received affidavits and heard testimony from Moore’s family members, former counsel, and court-appointed mental-health experts.
  • The evidence showed that Moore had significant mental and social difficulties beginning at an early age. At 13, Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could barely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition. At school, because of his limited ability to read and write, Moore could not keep up with lessons. Often, he was separated from the rest of the class and told to draw pictures. Moore’s father, teachers, and peers called him “stupid” for his slow reading and speech. After failing every subject in the ninth grade, Moore dropped out of high school. Cast out of his home, he survived on the streets, eating from trash cans even after two bouts of food poisoning.
  • In evaluating Moore’s assertion of intellectual disability, the state habeas court consulted current medical diagnostic standards, relying on the 11th edition of the American Association on Intellectual and Developmental Disabilities (AAIDD) clinical manual and on the DSM-5.
  • The trial court followed the generally accepted, uncontroversial intellectual-disability diagnostic definition, which identifies three core elements: (1) intellectual-functioning deficits (indicated by an IQ score “approximately two standard deviations below the mean”—a score of roughly 70—adjusted for “the standard error of measurement,” (2) adaptive deficits (inability to learn basic skills and adjust behavior to changing circumstances), and (3) the onset of these deficits while still a minor.
  • Moore’s IQ- scores, the habeas court determined, established subaverage intellectual functioning. The court credited six of Moore’s IQ scores, the average of which (70.66) indicated mild intellectual disability.
  • Relying on testimony from several mental-health experts, the habeas court found significant adaptive deficits. In determining the significance of adaptive deficits, clinicians look to whether an individual’s adaptive performance falls two or more standard deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical). Moore’s performance fell roughly two standard deviations below the mean in all three skill categories.
  • The trial court made detailed FFCL and determined that under Atkins, Moore qualified as intellectually disabled.
  • The TCCA declined to adopt the FFCL, finding that the trial court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the TCCA in Ex parte Briseno, 135 S. W. 3d 1 (2004).
  • The TCCA also found that the evidentiary factors in Briseno “weighed heavily” against overturning Moore’s death sentence.

Conclusion: The TCCA’s continued reliance on the Briseno factors violates the Eighth Amendment

  • In Hall v. Florida, 134 S.Ct. 1986 (2011), the SCOTUS held that a State cannot refuse to entertain other evidence of intellectual disability when a defendant has an IQ score above 70. Atkins and Hall left to the States the task of developing appropriate ways to enforce the restriction on executing the intellectually disabled, but the determination must be “informed by the medical community’s diagnostic framework.”
  • The TCCA’s conclusion that Moore’s IQ scores established that he is not intellectually disabled is irreconcilable with Hall because under Hall, where an IQ score is close to, but above, 70, courts must account for the test’s “standard error of measurement.” The standard error of measurement is “a statistical fact, a reflection of the inherent imprecision of the test itself.” This imprecision in the testing instrument means that an individual’s score is best understood as a range of scores on either side of the recorded score, within which one may say an individual’s true IQ score lies.
  • A test’s standard error of measurement reflects the reality that an individual’s intellectual functioning cannot be reduced to a single numerical score.
  • Moore’s score of 74, adjusted for the standard error of measurement, yields a range of 69 to 79. Because the lower end of Moore’s score range falls at or below 70, the TCCA had to move on to consider Moore’s adaptive functioning.
  • The TCCA’s consideration of Moore’s adaptive functioning also deviated from prevailing clinical standards and from the older clinical standards the court claimed to apply.
  • In concluding that Moore did not suffer significant adaptive deficits, the TCCA overemphasized Moore’s perceived adaptive strengths, such as living on the streets, mowing lawns, and playing pool for money.
  • The TCCA departed from clinical practice by concluding that Moore’s record of academic failure and the childhood abuse and suffering he endured detracted from a determination that his intellectual and adaptive deficits were related. Such traumatic experiences count in the medical community as “risk factors” for intellectual disability and are relied upon by clinicians to explore the prospect of intellectual disability further, not to counter the case for a disability determination.
  • The TCCA also departed from clinical practice by requiring Moore to show that his adaptive deficits were not related to “a personality disorder.” Many intellectually disabled people also have other mental or physical impairments such as attention-deficit/hyperactivity disorder, depressive, bipolar disorders, and autism. Coexisting conditions frequently encountered in intellectually disabled individuals have been described in clinical literature as “comorbidities.” DSM-5 at 40. The existence of a personality disorder or mental-health issue is not evidence that a person does not also have intellectual disability.
  • The TCCA also departed from clinical practice by relying on the Briseno factors, which create an unacceptable risk that persons with intellectual disability will be executed. After observing that persons with “mild” intellectual disability might be treated differently under clinical standards than under Texas’ capital system, the TCCA defined its objective as identifying the “consensus of Texas citizens” on who “should be exempted from the death penalty.” Mild levels of intellectual disability, although they may fall outside Texas citizens’ consensus, nevertheless remain intellectual disabilities.
  • Skeptical of what it viewed as “exceedingly subjective” medical and clinical standards, the TCCA in Briseno advanced lay perceptions of intellectual disability.

Facts of Moore II:

  • On remand, the TCCA reached the same conclusion before Moore I, reaching the same three criteria: intellectual-functioning deficits, adaptive deficits, and early onset.
  • But this time, the TCCA focused almost exclusively on adaptive deficits.
  • Moore filed a petition for certiorari in which he argued that the trial court record demonstrates his intellectual disability.
  • The State agreed with Moore that he is intellectually disabled and cannot be executed.
  • The TCCA must abide by Moore I, and Texas may no longer use the Briseno factors in deciding whether a person is intellectually disabled under Atkins
  • The TCCA again relied less upon the adaptive deficits to which the trial court had referred than upon Moore’s apparent adaptive strengths.
  • The TCCA’s discussion of Moore’s communication skills does not discuss the evidence relied upon by the trial court, which includes the young Moore’s inability to understand and answer family members and a failure on occasion to respond to his own name.
  • Instead, the TCCA emphasized Moore’s capacity to communicate, read, and write based in part on pro se papers Moore filed in court. This evidence is relevant but lacks convincing strength without a determination about whether Moore wrote the papers on his own, a finding that the TCCA declined to make, finding that even if other inmates “composed” the pleadings, Moore’s “ability to copy such documents by hand” was “within the realm of only a few intellectually disabled people.”
  • The TCCA also erroneously stressed Moore’s “coherent” testimony in various proceedings but acknowledged that Moore had “a lawyer to coach him” in all but one.
  • The TCCA also relied heavily upon adaptive improvements made in prison despite Moore I’s caution against reliance on adaptive strengths developed in prison.
  • The TCCA also concluded that Moore failed to show that the cause of his deficient social behavior was related to deficits in general mental abilities rather than emotional problems. However, in Moore I, the SCOTUS concluded that the TCCA departed from clinical practice when it required Moore to prove that his problems in kindergarten stemmed from his intellectual disability rather than emotional problems.
  • Further, Moore I concluded that a personality disorder or mental-health issue is not evidence that a person does not also have intellectual disability.
  • Despite the TCCA’s statement that it would abandon reliance on the Briseno evidentiary factors, the court used many of those factors in reaching its conclusion: (1) Briseno asked whether the offense required forethought, planning, and complex execution of purpose, and the TCCA concluded that Moore’s crime required a level of planning and forethought; (2) Briseno asked whether the defendant could respond coherently, rationally, and on point to oral and written questions, and the TCCA con­cluded that Moore responded rationally and coherently to questions; (3) Briseno asked whether the defendant’s conduct shows leadership or that he is led around by others, and the TCCA concluded that Moore’s refusal to mop up some spilled oatmeal (and other such behavior) showed that he influences others and stands up to authority.
  • Petition is granted, the TCCA’s opinion is reversed, and the case is remanded.

Timbs v. Indiana, No. 17-1091, 2019 U.S. LEXIS 1350 (U.S. Feb. 20, 2019) (slip op.) [The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause]

        Under the Eighth Amendment, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. This limits the government’s power to extract payments as punishment.

        Under Austin v. United States, 509 U.S. 602 (1993), civil in rem forfeitures fall within the Excessive Fines Clause’s protection when they are at least partially punitive.

        The Fourteenth Amendment incorporates a protection in the Bill of Rights if the protection is fundamental or deeply rooted.

        The Eighth Amendment’s Excessive Fines Clause is fundamental and deeply rooted. It is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.

United States Court of Appeals for the Fifth Circuit

United States v. Araiza-Jacobo, No. 17-40958, 2019 U.S. App. LEXIS 6097 (5th Cir. Feb. 28, 2019) (designated for publication) [Deliberate ignorance instruction; circumstantial evidence of knowledge of criminal activity]

        The standard of review of a defendant’s claim that a jury instruction was inappropriate is whether the entire charge is a correct statement of the law and clearly instructs jurors as to the principles of law applicable to the factual issues confronting them. The court may not instruct the jury on a charge that is not supported by evidence. In assessing whether evidence supports a jury instruction, the Fifth Circuit views the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the Government.

        Review of a deliberate ignorance instruction is a fact-intensive endeavor based on the totality of the evidence. A deliberate ignorance instruction should rarely be given and is appropriate only when the evidence shows: (1) the defendant’s subjective awareness of a high probability of the existence of illegal conduct (overlaps with an inquiry into a defendant’s actual knowledge because the same evidence that raises an inference that the defendant had actual knowledge of the illegal conduct ordinarily will raise the inference that the defendant was subjectively aware of a high probability of the existence of illegal conduct); and (2) purposeful contrivance to avoid learning of the illegal conduct (circumstances were so overwhelmingly suspicious that the failure to conduct further inspection or inquiry suggests a conscious effort to avoid incriminating knowledge—may be established by direct or circumstantial evidence).

        Even when an erroneous deliberate ignorance instruction is given, the error is harmless where there is substantial evidence of the defendant’s actual knowledge. Substantial evidence means relevant evidence acceptable to a reasonable mind as adequate to support a conclusion.

        Less-than-credible-stories, including inconsistent stories, can show knowledge of criminal activity. An implausible account provides persuasive circumstantial evidence of a defendant’s consciousness of guilt.

        A high value or quantity of drugs can provide circumstantial evidence of knowledge.

Editor’s note: Araiza’s explanation to CBP was: “I met a vendor selling candy next to the bridge, who introduced me to a man who needed two bags of candy brought into the U.S. for $7. I thought the man ‘looked trustworthy.’ The bags of candies ‘looked okay.’” Araiza does not strike me as a particularly bright guy regardless of whether his story was true or if he thought CBP would believe his story. Some criminal schemes are doomed to fail at inception:

United States v. Ayelotan, et al, No. 17-60397, 2019 U.S. App. LEXIS 6518 (5th Cir. March 4, 2019) (designated for publication) [Confrontation Clause, removing a juror]

        Under Crawford v. Washington, 541 U.S. 36, 51–53 (2004), the Confrontation Clause prohibits admitting out-of-court statements as evidence against defendants in a criminal case unless they can cross-examine the declarant. This prohibition applies only if the statements are testimonial. Under Davis v. Washington, 547 U.S. 813, 822 (2006), statements are testimonial if their primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822 (2006). Under Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009), business records must be for the administration of the business’ affairs and not for the purpose of establishing or proving some fact at trial.

        Under Fed. Rule Crim. Proc. 24(c), a judge may remove jurors who cannot perform their duties. A court may not dismiss a juror without factual support or for a legally irrelevant reason. A juror who cannot remain awake during much of the trial is unable to perform his duty. Other good reasons for removal are lack of candor and an inability or unwillingness to follow instructions. Even “hold-out” jurors may be removed for just cause.

Editor’s note: Although the appellants raised multiple claims, the ones worth discussing pertain to the Confrontation Clause and removing a sleeping juror.

Editor’s note: in addition to the analysis in the opinion, a few more issues to note regarding the Confrontation Clause:

  • Under Wall v. State, 184 S.W.3d 730, 734–735 (Tex.Crim.App. 2006), and Crawford v. Washington, 541 U.S. 36, 59–60, 68 (2006), the admission of a hearsay statement made by a nontestifying declarant violates the Sixth Amendment if: (1) the statement was testimonial, and (2) the defendant lacked a prior opportunity for cross-examination. Both factors were present here.
  • The SCOTUS identified three kinds of statements that are testimonial: (1) “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 51–52.
  • Testimonial statements are inadmissible absent a showing that the declarant is presently unavailable, and the defendant had a prior opportunity for cross-examination even if the statement “falls under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’” Crawford, 541 U.S. at 41–43.
  • Firmly rooted hearsay exceptions are those that rest on such a solid foundation considering longstanding judicial and legislative experience that admission of virtually any evidence within the category comports with the substance of the constitutional protection. Idaho v. Wright, 497 U.S. 805, 817 (1990). Such statements fall within a category of hearsay “whose conditions have proven over time ‘to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath’ and cross-examination at trial.” Id. They may include spontaneous declarations, dying declarations, and statements against penal interest. See, e.g., Dewberry v. State, 4 S.W.3d 735, 753 (Tex.Crim.App. 1999).

Editor’s note: Judge Don Willett’s intros are sometimes quotable: “Three Africa-based cybercriminals—Ayelotan, Mewase, and Raheem—masterminded a sprawling international romance scam that stole hearts, and money. Posing as bachelors (and bachelorettes) online, these Nigerian nationals kindled digital romances with scores of lovelorn Americans. The fraudsters sat at overseas computers, prowling the Internet and spinning false promises of love and romance, ultimately duping their unsuspecting victims into sending money to Nigeria and South Africa. Many fauxmance swindlers escape scot-free, their victims, broke and brokenhearted, too embarrassed to come forward. Not this time. A wary target reported her suspicions, and the scammers didn’t fare as well in court as they had online.”

On a different note, it defies logic how people continue to fall for these scams.

United States v. Eaden, No. 18-50379, 2019 U.S.App.LEXIS 3576 (5th Cir. Feb. 5, 2019) (designated for publication) [4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using or possessing the ammunition in connection with another felony offense]

        Under U.S.S.G. § 2K2.1(b)(6)(B), a 4-level enhancement is applied if the defendant used or possessed any firearm or ammunition in connection with another felony offense. “In connection with” mandates that the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.

        Possession of ammunition alone may be sufficient for the 4-level enhancement where the defendant possesses a loaded or unloaded gun, or ammunition alone. Whether it is sufficient must be decided on a case-by-case basis.

        There is no presumption of facilitation when ammunition alone is present at the time of the drug-trafficking offense.

        Facilitation can be presumed when (1) a firearm was possessed (2) in close proximity to contraband during a drug-trafficking offense. This presumption is available only when both conditions are present: a firearm and a trafficking offense. For the 4-level enhancement to apply, the government must show evidence of both (1) possession of a firearm or ammunition, and (2) that the firearm or ammunition facilitated or had the potential to facilitate the other offense.

United States v. Garcia-Sanchez, No. 18-40088, 2019 U.S. App. LEXIS 5282 (5th Cir. Feb. 22, 2019) (designated for publication) [Sentencing-enhancement under U.S.S.G. § 2L1.2(b)(3) and aggregation under U.S.S.G. § 4A1.2(a)(2)]

        Under U.S.S.G. § 2L1.2(b)(3), if at any time after the defendant was ordered deported or ordered removed from the United States for the first time, the defendant engaged in criminal conduct resulting in (A) a felony conviction for which the sentence imposed was five years or more, increase by 10 levels; (B) a felony conviction for which the sentence imposed was two years or more, increase by 8 levels; (C) a felony conviction for which the sentence imposed exceeded one year and one month, increase by 6 levels; (D) any other felony conviction, increase by 4 levels; or (E) three or more misdemeanors convictions that are crimes of violence or drug-trafficking offenses, increase by 2 levels. The prior criminal conduct cannot include illegal reentry offenses. “Sentence imposed” means sentence of imprisonment (time spent incarcerated) and refers to the maximum sentence imposed.

        Under U.S.S.G. § 4A1.2(a)(2), if a defendant has multiple prior sentences, a court must determine whether those sentences are counted separately or as a single sentence: (1) counted separately if they were imposed for offenses that were separated by an intervening arrest (defendant is arrested for the first offense prior to committing the second offense); (2) counted separately if there is no intervening arrest unless the sentences: (A) resulted from offenses contained in the same charging instrument; or (B) were imposed on the same day. If prior sentences are treated as a single sentence, use the longest sentence of imprisonment if concurrent sentences were imposed. If consecutive sentences were imposed, use the aggregate sentence of imprisonment.

United States v. Kelly, No. 17-60133, 2019 U.S.App.LEXIS 3975 (5th Cir. Feb. 8, 2019) (designated for publication) [Appeal-waivers and IATC on direct appeal]

        The Fifth Circuit reviews de novo whether an appeal waiver bars an appeal. A defendant may waive his statutory right to appeal in a valid plea agreement. When deciding whether an appeal of a sentence is barred by an appeal waiver, the Fifth Circuit considers whether the waiver: (1) was knowing and voluntary, and (2) applies to the circumstances at hand based on the plain language of the agreement.

        For a plea waiver to be knowing and voluntary, a defendant must know that he had a right to appeal his sentence and that he was giving up that right. A waiver is both knowing and voluntary if the defendant indicates that he read and understood the agreement and the agreement contains an explicit, unambiguous waiver of appeal. A defendant may avoid a waiver on the limited grounds that the waiver of appeal itself was tainted by IATC.

        Normal principles of contract interpretation are considered when construing plea agreements. When determining whether an appeal waiver applies to the issues presented, the Fifth Circuit ascertains the ordinary meaning of the waiver provision and construes appeal waivers narrowly against the government. The government has a strong and legitimate interest in the finality of convictions and in the enforcement of plea bargains.

        Although a defendant may avoid a waiver on the limited grounds that the waiver of appeal itself was tainted by IATC, the general rule is that a claim of IATC cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits. Only in rare occasions where the record is sufficiently developed will the Fifth Circuit consider claims of IATC on direct appeal. Otherwise, the Fifth Circuit declines to consider the issue without prejudice to a defendant’s right to raise it in a subsequent proceeding.

United States v. Matthew, No. 17-10863, 2019 U.S. App. LEXIS 4986 (5th Cir. Feb. 21, 2019) (designated for publication) [Mandatory Victim Restitution Act (MVRA) (18 U.S.C. § 3663A); loss resulting from a fraud offense is a specific offense characteristic per U.S.S.G. § 2B1.1(b)(1); offense against loss]

        The Mandatory Victim Restitution Act (MVRA) (18 U.S.C. § 3663A) limits restitution to the actual loss directly and proximately caused by the offense of conviction. Restitution cannot compensate for losses caused by uncharged conduct or unspecified in a guilty plea. When the offense involves a scheme, conspiracy, or pattern of criminal activity (the scheme is an element of the conviction), restitution may be awarded to anyone directly harmed by the criminal conduct. But when the conviction does not require proof of a scheme, conspiracy, or pattern, the defendant is responsible only for restitution for conduct underlying the offense of convicted, and restitution cannot include losses caused by conduct that falls outside the temporal scope of the acts of conviction. Every dollar of restitution must be supported by record evidence.

        Under 18 U.S.C. § 1028(a)(3), (b)(2)(B), it is it a crime knowingly to possess with intent to use unlawfully or transfer unlawfully five or more authentication features issued by or under the authority of the United States. There is no fraudulent scheme as an element.

        When a defendant pleads guilty to fraud, for restitution pur­poses the scope of the scheme is defined by the mutual understanding of the parties rather than the strict letter of the charging document.

        Under U.S.S.G. § 2B1.1(b)(1), the loss resulting from a fraud offense is a specific offense characteristic that increases the base offense level. It is the government’s burden to show by a preponderance of the evidence the amount of loss attributable to fraudulent conduct. The district court need only make a reasonable estimate of the loss based on available information. Given the district court’s unique position to assess the evidence and estimate the loss amount, its loss determination is entitled to appropriate deference. The loss is the greater of actual loss or intended loss. “Actual loss” is the reasonably foreseeable pecuniary harm that resulted from the offense. “Reasonably foreseeable pecuniary harm” is pecuniary harm that the defendant knew or reasonably should have known was a potential result of the offense. “Intended loss” is the pecuniary harm that the defendant sought to inflict. Whether loss is actual or intended, the court must reduce that loss by the fair market value of the property returned and the services rendered to the victim before the offense was detected.

        In the context of healthcare fraud and restitution, to be entitled to an offset against actual loss, a defendant must establish that: (1) the services he provided to Medicare beneficiaries were legitimate, and (2) Medicare would have paid for those services but for his fraud. If he satisfies this burden, the government can rebut with additional evidence.

United States v. Najera, No. 17-50802, 2019 U.S.App.LEXIS 4491 (5th Cir. Feb. 14, 2019) (designated for pub­li­ca­tion) [U.S.S.G. § 2L1.1(b)(6) enhancement for in­ten­tionally or recklessly creating a substantial risk of death or serious bodily injury to another person; acceptance of responsibility under U.S.S.G. § 3E1.1]

        Review of a district court’s interpretation or application of the U.S.S.G. is de novo and factual findings are for clear error. There is no clear error if a factual finding is plausible considering the entire record. The Fifth Circuit does not rule that a district court’s finding of fact was clearly erroneous based only on the Circuit’s belief that had it been sitting as the trier of fact, it would have weighed the evidence differently and made a different finding. The Circuit does not create per se rules (i.e., it will not create a per se rule that traveling through the South Texas brush creates a substantial risk of death or bodily injury.).

        Under U.S.S.G. § 2L1.1(b)(6), the offense level of a defendant convicted of smuggling is enhanced if it involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.

        Under U.S.S.G. § 1B1.3(a)(1)(B), a defendant can be held responsible for all acts and omissions of others that were within the scope of the criminal activity, in furtherance of the criminal activity, and reasonably foreseeable in connection with that criminal activity.

        Under U.S.S.G. § 3E1.1, a defendant’s offense level is reduced by two levels if the defendant clearly demonstrates acceptance of responsibility. The adjustment does not apply to a defendant who puts the government to its burden of proof at trial by denying the factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. However, conviction by trial does not automatically preclude a defendant from consideration for acceptance of responsibility. A defendant may clearly demonstrate an acceptance of responsibility for criminal conduct even though he exercises his constitutional right to a trial where he goes to trial to assert and preserve issues that do not relate to factual guilt (to challenge a statute or the applicability of a statute to conduct).

        A defendant who proceeds to trial on an admission or a stipulation of the facts necessary for conviction while expressly reserving the right to appeal from an adverse suppression ruling is not deemed to have waived the suppression issue. Nor will the admission or stipulation render the suppression issue harmless, and he is eligible for an acceptance of responsibility reduction.

United States v. Richmond, No. 17-40299, 2019 U.S.App.LEXIS 3974 (5th Cir. Feb. 8, 2019) (designated for publication) [Search of tires by “tapping”; safety exception under Tex. Transp. Code § 547.004(a)]

        United States v. Jones, 565 U.S. 400, 409 (2012), reversed in part Katz v. United States, 389 U.S. 347 (1967), by reviving the rule that property interests control the right of the government to search and seize where police placed a GPS tracking device on the undercarriage of a car (the “common-law trespassory test”), a separate basis for finding a search alongside the Katz “reasonable expectation of privacy” test. Under United States v. Karo, 468 U.S. 705, 713 (1984), a trespass does not automatically amount to a search. Actual trespass is neither necessary nor sufficient to establish a constitutional violation. A trespass must be conjoined with an attempt to find something or obtain information. This prevents a mere physical touching, such as when an officer leans on the door of a car while questioning its driver, from being a “search” (“expectation of contact”).

        The “expectation of contact” is high for a tire since it is rou­tinely checked for air pressure.

        Under Heien v. North Carolina, 135 S.Ct. 530, 536 (2014), a Fourth Amendment violation requires a search that is unreasonable.

        Under United States v. Knights, 534 U.S. 112, 118–119 (2001), the reasonableness of a search depends on balancing the governmental interest in the search against the degree of the intrusion on the individual.

        Under Maryland v. Dyson, 527 U.S. 465, 467 (1999), probable cause to believe a vehicle contains contraband allows a warrantless search because of mobility.

        The tapping of a tire that is wobbly and attached with stripped bolts is justified by ensuring that vehicles on the road are operated safely and responsibly and gives a reasonable officer probable cause to believe that the tire posed a safety risk under Tex. Transp. Code § 547.004(a) (misdemeanor to operate a vehicle that is unsafe so as to endanger a person).

Texas Court of Criminal Appeals

Doyal v. State, No. PD-0254-18, 2019 Tex.Crim.App. LEXIS 161 (Tex.Crim.App. Feb. 27, 2019) (designated for publication) [The Texas Open Meetings Act (Tex. Gov. Code § 551.143) is unconstitutionally vague on its face]

        The Texas Open Meetings Act (TOMA) (Tex. Gov. Code § 551.143) is unconstitutionally vague on its face.

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

        “Meeting” means (A) a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or (B) except as otherwise provided by this subdivision, a gathering: (i) that is conducted by the governmental body or for which the governmental body is responsible; (ii) at which a quorum of members of the governmental body is present; (iii) that has been called by the governmental body; and (iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control. It does not include the gathering of a quorum of a governmental body at a social function unrelated to the public business that is conducted by the body, the attendance by a quorum of a governmental body at a regional, state, or national convention or workshop, ceremonial event, or press conference, if formal action is not taken and any discussion of public business is incidental to the social function, convention, workshop, ceremonial event, or press conference.

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

        When a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant’s conduct.

        A law that imposes criminal liability must be sufficiently clear: (1) to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited; and (2) to establish determinate guidelines for law enforcement. When the law also implicates First Amendment freedoms, it must also be sufficiently definite to avoid chilling protected expression. Greater specificity is required when First Amendment freedoms are implicated because uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas are clearly marked. Perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity. A scienter requirement in the statute may sometimes alleviate vagueness concerns but does not always do so.

        What renders a statute vague is the indeterminacy of precisely what the prohibited conduct is.

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

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

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

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

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

Editor’s note: Doyal was indicted under the TOMA by meeting in a number less than a quorum for secret deliberations “by engaging in a verbal exchange concerning an issue within the jurisdiction of the Montgomery County Commissioners Court, namely, the contents of the potential structure of a November 2015 Montgomery County Road Bond,” but the TCCA held that the TOMA is facially unconstitutional. The TCCA got it right, as sometimes it is unclear what really is being discussed at “open meetings” and we should not criminalize these discussions:

Sims v. State, No. PD-0941-17, 2019 Tex.Crim.App.LEXIS 41 (Tex.Crim.App. Jan. 16, 2019) (designated for publication) [Expectation of privacy in the real-time location information and cell-site location information (CSLI)]

        Under Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), and Ramos v. State, 303 S.W.3d 302, 306 (Tex.Crim.App. 2009), statutory construction is a question of law reviewed de novo. The court seeks to effectuate the collective intent of the legislators who enacted the legislation by looking to the statute to determine if its language is plain. The court presumes that the legislature intended for every word to have a purpose and gives effect if reasonably possible to each word, phrase, and clause of the statutory language. Words and phrases are read and construed according to the rules of grammar and usage. If the language is plain, the court follows it unless it leads to absurd results that the legislature could not have possibly intended. If it leads to absurd results or the language is ambiguous, the court considers extratextual factors to discern the legislature’s intent.

        Because Tex. Code Crim. Proc. Art. 38.23(a) is the general suppression provision and the SCA and Tex. Code Crim. Proc. Art. 18.21 are special suppression provisions and 21 were enacted after Art. 38.23(a), the exclusivity provisions in the SCA and Art. 18.21 prevail as exceptions to the general Art. 38.23(a) remedy of suppression when dealing with nonconstitutional violations of the SCA and Art. 18.21.

        Appellant did not have a legitimate expectation of privacy in his physical movements or his location as reflected in the less than three hours of real-time CSLI records accessed by police by pinging his phone less than five times. A 5–4 split on the SCOTUS in Carpenter supported the idea that longer-term surveillance might infringe on a person’s legitimate expectation of privacy if the location records reveal the privacies of his life, but this is not that case.

        Suppression is not an available remedy under the Stored Communications Act unless the violation also violates the United States Constitution.

        Suppression is not an available remedy for a violation of Tex. Code Crim. Proc. Art. 18.21 unless the violation infringes on the United States or Texas constitutions.

Texas Courts of Appeals

Akins v. State, Nos. 09-18-00057-58-59-60-CR, 2019 Tex. App. LEXIS 1704 (Tex.App.—Beaumont March 6, 2019) (designated for publication) [Abandonment of property]

        Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000), and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on an MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002), and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record.

        Under Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996), Miles v. State, 241 S.W.3d 28, 36 (Tex.Crim.App. 2007), and Tex. Code Crim. Proc. Art. 38.23(a), to prevail on an alleged violation of the exclusionary rule, a defendant must demonstrate that he had a legitimate expectation of privacy in the property. Art. 38.23(a) applies to illegal searches or seizures conducted by law enforcement officers or other persons even when those other persons are not acting in conjunction with or at the request of government officials. The defendant must prove facts that establish a legitimate expectation of privacy by showing that by his conduct, he exhibited an actual subjective expectation of privacy, a genuine intention to preserve something as private, and circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable.

        Under Swearingen v. State, 101 S.W.3d 89, 101 (Tex. 2003), abandonment of property occurs if: (1) the defendant intended to abandon the property, and (2) his decision to abandon the property was not due to police misconduct. When property has been abandoned before police take possession of it, there is no seizure under the Fourth Amendment.

        Under Matthews v. State, 431 S.W.3d 596, 609 (Tex.Crim.App. 2014), abandonment is primarily a question of intent, which may be inferred from words spoken, acts done, and other objective facts, and the court should consider all relevant circumstances that existed when the alleged abandonment occurred. The issue is whether the person prejudiced by the search had voluntarily relinquished his interest in the property so that he could no longer retain a reasonable expectation of privacy in the property when the search occurred (as opposed to abandonment in the strict property-right sense). When a defendant voluntarily abandons property, he lacks standing to contest the reasonableness of the search of the property.

        Under State v. Granville, 423 S.W.3d 399, 409 (Tex.Crim.App. 2014), a person loses a reasonable expectation of privacy in a cellphone if he abandons it. The same rule may be applied to other electronic devices.

Editor’s note: Here is the relevant law on the standard of review for an MTS:

  • Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000), and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on an MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002), and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record.

Castillo v. State, No. 01-18-00284-CR, 2019 Tex. App. LEXIS 1661 (Tex.App.—Houston [1st Dist.] March 5, 2019) (designated for publication) [Ex post facto, rule of optional completeness, Art. 38.37]

        Under Ortiz v. State, 93 S.W.3d 79, 91 (Tex.Crim.App. 2002), and Ex parte Heilman, 456 S.W.3d 159, 163–165 (Tex.Crim.App. 2015), the federal and Texas guarantees against ex post facto laws are directed at the legislature, not the courts. To state a cognizable ex post facto claim, a defendant must show that the statute operates retroactively and not that a trial court retroactively applied them to an offense committed before enactment.

        Under Henley v. State, 493 S.W.3d 77, 82–83 (Tex.Crim.App. 2016), a trial court’s decision on admissibility of evidence is reviewed for an abuse of discretion. A reviewing court may reverse the trial court only if its decision lies outside the zone of reasonable disagreement. A reviewing court misapplies the abuse-of-discretion standard if it reverses merely because it disagrees with trial court’s evidentiary decision.

        Under White v. State, 549 S.W.3d 146, 151–152 (Tex.Crim.App. 2018), the proponent of evidence has the burden of establishing its admissibility. If the opposing side makes a proper objection to the admissibility of evidence, the proponent must demonstrate that the evidence overcomes the stated objection.

        Under Cofield v. State, 891 S.W.2d 952, 954 (Tex.Crim.App. 1994), a hearsay objection is sufficiently specific to require the offering party to show that the evidence is not hearsay or is admissible under an exception to the hearsay rule.

        Under Tex. Rule Evid. 801(e)(1)(B) and Hammons v. State, 239 S.W.3d 798, 808–09 (Tex.Crim.App. 2007), the prior statement of a witness that is consistent with her trial testimony is not hearsay if it is offered to rebut an express or implied charge that the witness recently fabricated it or acted from a recent im­proper motive in so testifying. To qualify for admission as a prior consistent statement, the witness must have made the statement before her ostensible motive to fabricate or other improper motive arose.

        Under Tex. Rule Evid. 107 and Pena v. State, 353 S.W.3d 797, 814 (Tex.Crim.App. 2011), the rule of optional completeness is an exception to the hearsay rule. If a party introduces into evidence part of a conversation or recorded statement, the opponent may introduce any other conversation or recorded statement that is necessary to explain or allow the jury to fully understand the part previously introduced. If a party questions a witness about statements made by another during a recorded interview, the opponent may introduce any remaining part of the interview that concerns the same subject and is necessary to permit the jury to place those specific statements in their proper context. Only those parts of a recorded statement necessary to make the previously admitted evidence fully understood are admissible.

        Under Tex. Code Crim. Proc. Art. 38.37 § 2(b) and Jacobs v. State, 560 S.W.3d 205, 207 (Tex.Crim.App. 2018), when a defendant is tried for certain sex offenses against children, including continuous sexual abuse of a child, indecency with a child, and aggravated sexual assault, so long as the trial court first determines after a hearing outside the jury’s presence that the evidence likely to be admitted will be adequate to support a jury finding that the defendant committed the separate offense beyond a reasonable doubt, the State may introduce evidence that the defendant has committed a separate sex offense against another child. The evidence is admissible for any relevant purpose including as proof of the defendant’s character and propensity to act in conformity with his character. It may consist solely of the other child’s testimony about the other sex offense.


  • Castillo was indicted for continuous sexual abuse of a young child, two counts of aggravated sexual assault, and two counts of indecency with a child per Tex. Penal Code §§ 21.02(b), 21.11(a), 22.021(a)(1)(B), & (a)(2)(B) for alleged acts against the same complainant who was younger than 6 and the daughter of a woman whom Castillo dated.
  • At trial (when she was 13), the complainant testified that Castillo touched and penetrated her vagina with his hand on many occasions and threatened to harm her mother if the complainant didn’t keep it a “secret.”
  • The complainant did not tell anyone what had happened until she was 11 because she did not think anyone would believe her. But when she was 11, she asked her mother why the complainant’s father was in prison, and her mother told her that he had been convicted of sexually abusing the complainant’s older stepsister (Castillo’s daughter). The complainant then outcried to her mother.
  • Defense counsel cross-examined the complainant about inconsistencies in her allegations, including during her interview with a CAC interviewer, Dula, that took place after the complainant made the outcry to her mother, including about inconsistencies about her age when the alleged abuse occurred, the first time Castillo abused her, whether he threatened to hurt her mother, and the sex acts involved.
  • Over objection that her testimony was not admissible under Tex. Code Crim. Proc. Art. 38.37, the complainant’s stepsister testified about Castillo molesting her when she was 11. On cross-examination, defense counsel tried to question the stepsister about letters she had written to Castillo after the alleged incident in which she was friendly to Castillo, arguing that the evidence would show her state of mind. The trial court sus­tained the State’s relevancy objection.
  • The complainant’s mother testified that the complainant told her about the alleged abuse.
  • Ornelas (SANE) did not find any physical injuries to complainant. She had been sexually abused was what the complainant had told her.
  • Over defense counsel’s objection, the trial court admitted the CAC interview as a prior consistent statement.
  • The State waived indecency with a child counts, the aggravated sexual assault counts, requested that they be submitted as lesser-included offenses of continuous sexual abuse of a child, and the trial court granted this request.
  • The jury charge instructed the jury to consider only alleged conduct occurring before the presentment of the indictment and after September 1, 2007, when the complainant was more than two-and-a-half years old.
  • The jury found Castillo not guilty of continuous sexual abuse of a child and aggravated sexual assault by putting his mouth on the complainant’s vagina, and guilty of aggravated sexual assault by digital penetration and indecency with a child by touching the complainant’s vagina with his hand.
  • Because the indecency with a child by touching was a lesser-included offense of aggravated sexual assault by digital penetration, the trial court vacated the indecency finding and entered a judgment for aggravated sexual assault.
  • The trial court assessed Castillo’s punishment at 50 years.

There was no Ex Post Facto violation

  • Under Tex. Penal Code § 22.021(f)(1) and Tex. Gov. Code § 508.145(a), punishment for aggravated sexual assault against a child younger than 6 years of age is a minimum of 25 years with no parole.
  • Castillo argues that the application of these statutes violates the ex post facto rule under U.S. Const. Art. I, § 10, cl. 1 and Tex. Const. Art. 1, § 16 because the jury heard evidence of assaults occurring before and after September 1, 2007, the effective date of these statutes, and the trial court may have applied these statutes to conduct that he engaged in before they became law.
  • Under Ortiz v. State, 93 S.W.3d 79, 91 (Tex.Crim.App. 2002), and Ex parte Heilman, 456 S.W.3d 159, 163–165 (Tex.Crim.App. 2015), the federal and Texas guarantees against ex post facto laws are directed at the legislature, not the courts. To state a cognizable ex post facto claim, a defendant must show that the statute operates retroactively and not that a trial court retroactively applied them to an offense committed before enactment.
  • Because Castillo does not argue that these statutes operate retroactively, his ex post facto claim fails.

Admission of the CAC interview was proper under the rule of optional completeness

  • Under Henley v. State, 493 S.W.3d 77, 82–83 (Tex.Crim.App. 2016), a trial court’s decision on admissibility of evidence is reviewed for an abuse of discretion. A reviewing court may reverse the trial court only if its decision lies outside the zone of reasonable disagreement. A reviewing court misapplies the abuse-of-discretion standard if it reverses merely because it disagrees with trial court’s evidentiary decision.
  • Under White v. State, 549 S.W.3d 146, 151–152 (Tex.Crim.App. 2018), the proponent of evidence has the burden of establishing its admissibility. If the opposing side makes a proper objection to the admissibility of evidence, the proponent must demonstrate that the evidence overcomes the stated objection.
  • Under Cofield v. State, 891 S.W.2d 952, 954 (Tex.Crim.App. 1994), a hearsay objection is sufficiently specific to require the offering party to show that the evidence is not hearsay or is admissible under an exception to the hearsay rule.
  • Under Tex. Rules Evid. 801–802, hearsay is statement made outside of court that is offered for its truth and generally is inadmissible.
  • Under Tex. Rule Evid. 801(e)(1)(B) and Hammons v. State, 239 S.W.3d 798, 808–09 (Tex.Crim.App. 2007), the prior statement of a witness that is consistent with her trial testimony is not hearsay if it is offered to rebut an express or implied charge that the witness recently fabricated it or acted from a recent improper motive in so testifying. To qualify for admission as a prior consistent statement, the witness must have made the statement before her ostensible motive to fabricate or other improper motive arose.
  • Under Tex. Rule Evid. 107 and Pena v. State, 353 S.W.3d 797, 814 (Tex.Crim.App. 2011), the rule of optional completeness is an exception to the hearsay rule. If a party introduces into evidence part of a conversation or recorded statement, the opponent may introduce any other conversation or recorded statement that is necessary to explain or allow the jury to fully understand the part previously introduced. If a party questions a witness about statements made by another during a recorded interview, the opponent may introduce any remaining part of the interview that concerns the same subject and is necessary to permit the jury to place those specific statements in their proper context. Only those parts of a recorded statement necessary to make the previously admitted evidence fully understood are admissible.
  • To qualify as a prior consistent statement, the complainant would had to have sat for her forensic interview before learning that her stepsister accused the complainant’s father of molesting her. The record is clear that the complainant’s interview took place long after her mother told her why her father had been imprisoned. Thus, the prior consistent statements exception to rebut recent fabrication does not make the complainant’s CAC interview admissible.
  • The rule of optional completeness supports the trial court’s ruling because throughout trial, the defense called into question all material aspects of the complainant’s allegations, including what, when, and where it happened, and whether Castillo said or did anything to ensure her silence. The State was entitled to introduce the video into evidence so that the jury could decide the extent, if any, to which her story had changed.

The stepsister’s testimony about a separate alleged sex offense was proper

  • Under Tex. Code Crim. Proc. Art. 38.37 § 2(b) and Jacobs v. State, 560 S.W.3d 205, 207 (Tex.Crim.App. 2018), when a defendant is tried for certain sex offenses against children, including continuous sexual abuse of a child, indecency with a child, and aggravated sexual assault, so long as the trial court first determines after a hearing outside the jury’s presence that the evidence likely to be admitted will be adequate to support a jury finding that the defendant committed the separate offense beyond a reasonable doubt, the State may introduce evidence that the defendant has committed a separate sex offense against another child. The evidence is admissible for any relevant purpose including as proof of the defendant’s character and propensity to act in conformity with his character. It may consist solely of the other child’s testimony about the other sex offense.
  • Castillo previously pleaded guilty to sexually abusing his biological daughter, who is the complainant’s older stepsister. The trial court could properly conclude that there was evidence of a separate sex offense under Art. 38.37.
  • The judgment of the trial court is affirmed.

Welsh v. State, No. 07-18-00227-CR, 2019 Tex. App. LEXIS 1428 (Tex.App.—Amarillo Feb. 27, 2019) (designated for publication) [Fabricating evidence and Tex. Penal Code § 37.09(a)]

        Under Tex. Penal Code § 37.09(a) and Wilson v. State, 311 S.W.3d 452, 465 (Tex.Crim.App. 2010), a person commits a crime if: (1) knowing that an investigation is pending or in progress; (2) he makes, presents, or uses a thing with knowledge of its falsity; and (3) acts with the intent to affect the course or outcome of the investigation. The purpose of § 37.09 is to maintain the honesty, integrity, and reliability of the justice system and to prohibit persons from creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding. Obstruction-of-justice offenses like tampering with evidence or government documents address the harm that comes from the defendant’s disobedience of the law, damage to the authority of the government, lessening the public’s confidence in our institutions; public cynicism, fear, and uncertainty, and a social climate that is likely to lead to even greater disobedience. This requires the making, presenting, or using of physical evidence with knowledge of its falsity, not merely the conveyance of false information about the evidence.

Estrada v. State, No. 07-17-00245-CR, 2019 Tex. App. LEXIS 1192 (Tex.App.—Amarillo Feb. 20, 2019) (designated for publication) [Engaging in organized criminal activity must be based on at least one enumerated predicate offense under Tex. Penal Code § 71.02(a); conviction based on a general verdict encompassing both a constitutional and an unconstitutional theory of conviction]

        Under Tex. Penal Code § 71.02(a), a person commits engaging in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, the person commits or conspires to commit [enumerated predicate offenses, one of which being the unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation or deception per Tex. Penal Code § 71.02(a)(5)]

        Under O’Brien v. State, 544 S.W.3d 376, 391 (Tex.Crim.App. 2018), the gravamen of engaging in organized criminal activity is a circumstance surrounding the conduct—the existence or creation of a combination that collaborates in carrying on criminal activities. “Combination” requires three or more persons who collaborate in carrying on criminal activities. “Profits” means property constituting or derived from any proceeds obtained, directly or indirectly, from an enumerated offense. “Conspires to commit” means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense, and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties. The overt act need not be criminal in itself, and acts that suffice for party liability (those that encourage, solicit, direct, aid, or attempt to aid the commission of the underlying offense) satisfy the overt-act element.

        Possession with intent to deliver cannot be incorporated into “delivery” to legitimize Tex. Penal Code § 71.02.

        Under Posey v. State, 545 S.W.2d 162, 163 (Tex.Crim.App. 1977), it is a fundamental constitutional principle that one cannot be convicted for something that does not constitute an offense.

        Under Bowen v. State, 374 S.W.3d 427 (Tex.Crim.App. 2012), if an appellate court concludes the evidence supporting a conviction is legally insufficient, the court is not limited to ordering an acquittal but may instead reform the judgment to reflect a conviction for a lesser-included offense and remand for a new punishment hearing. Under Arteaga v. State, 521 S.W.3d 329, 340 (Tex.Crim.App. 2017), Bowen was expanded to jury-charge error.

        Under Stromberg v. California, 283 U.S. 359, 367–370 (1931), remand for a new trial is the appropriate remedy when the conviction was based on a general jury verdict encompassing both a constitutional and an unconstitutional theory of conviction. Where a verdict rendered by the jury is a general verdict, and it cannot be determined whether some or all of the jurors believed the defendant was guilty of an offense based upon a theory authorized by law or upon a theory not authorized by law, the record supports both possibilities. The appropriate remedy is not to acquit or to reform the judgment of conviction but to reverse and remand for a new trial.

Sandoval v. State, No. 01-17-00530-CR, 2019 Tex.App.LEXIS 984 (Tex.App.—Houston [1st Dist.] Feb. 12, 2019) (designated for publication) [commitment questions]

        Under Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002), and Jacobs v. State, 560 S.W.3d 205, 212 (Tex.Crim.App. 2018), the trial court has broad discretion over the process of selecting a jury, so appellate courts should not disturb a trial court’s ruling on the propriety of a voir dire question absent an abuse of discretion. An abuse of discretion occurs when a proper question about a proper area of inquiry is prohibited or when an improper question is allowed. The trial court’s voir dire limitation must render the trial fundamentally unfair.

        Under Sanchez v. State, 165 S.W.3d 707, 712 (Tex.Crim.App. 2005), improper commitment questions are prohibited to ensure that the jury will listen to the evidence with an open mind that is impartial and without bias or prejudice, and render a verdict based upon that evidence. Commitment questions require a venireman to promise that he will base his verdict on specific set of facts before he has heard evidence, much less all the evidence in its proper context.

        Under Standefer v. State, 59 S.W.3d 177, 179–184 (Tex.Crim.App. 2001), to determine whether a voir dire question is an improper commitment question: (1) the trial court must determine whether the question is a commitment question (commits a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact, usually eliciting a “yes” or “no” response, but can be open-ended if it asks the juror to set hypothetical parameters for his decision-making); (2) if the question is a commitment question, decide whether it is proper (if it would result in a valid challenge for cause, it is proper, with cause being where the juror possesses a bias against a phase of the law on which the State or defendant is entitled to rely, or would hold the State to a burden of proof higher than beyond a reasonable doubt); and (3) if the question gives rise to a valid challenge for cause, determine whether it contains only those facts necessary to test whether a prospective juror is challengeable for cause.

Enlisting With a Juvenile Record: A Texas Roadmap

A juvenile record can hinder a person’s ability to enlist in the military. To minimize the long-term negative repercussions of youthful indiscretions, the Texas Family Code allows for sealing of records once certain requirements are met. In Texas, once a juvenile record is sealed, the adjudication and proceedings are treated as if they never occurred. While Texas law does not require disclosure of sealed records on a military application, the military requires full disclosure and transparency. What follows is a roadmap that may help our clients preserve the military option.1

Texas Law

The general rule in Texas is that a child’s record is confidential and may not be shared or inspected unless specifically authorized by law. The Texas Family Code (TFC) defines a record as any documentation related to a juvenile matter, including information in that documentation.2

Unsealed Records

The military can access unsealed records as follows:

  • Records of a juvenile court, clerk of court, juvenile probation department, or prosecuting attorney are open to inspection and copying by anyone with a legitimate interest—including the military—with permission of juvenile court.3
  • The juvenile probation department may release information contained in its records, without leave of court—to the military or to anyone else—with a legitimate interest pursuant to guidelines adopted by the juvenile board.4
  • The Texas Department of Public Safety (DPS) can share confidential information stored in its Juvenile Justice Information System (JJIS) with military personnel with permission of the juvenile.5
  • The Texas Family Code does not give law enforcement the authority to release juvenile records to the military; however, law enforcement records relating to a juvenile may be inspected or copied by the juvenile, who can then provide them to the military recruiter or to anyone else.6

If criminal history is disclosed during the enlistment process, the juvenile may sign a release form giving the military access to unsealed confidential records. But there is nothing in the TFC that is designed to allow the military to force the juvenile to provide unsealed records to the recruiter.

Sealed Records

Once a juvenile’s record is sealed, the adjudication is vacated and proceedings are dismissed. The effect of sealing a juvenile record in Texas is that the arrest (taking into custody), adjudication, and proceedings are deemed not to have occurred.7 There is no provision under the TFC that permits the military access to sealed records, nor is there a provision that requires or forces a person to disclose or unseal their records and turn them over to the recruiter. If military personnel request records from DPS that have been sealed, they will receive notice that no records exist.8 If there is an inquiry by the military to any entity who received a sealing order, the entity must respond that records do not exist. While the juvenile court may allow, by order, inspection and release of sealed records to certain entities, the military is not listed as one of the entities.9

Given this, how is the military able to access sealed records? A person who is the subject of the sealed records may petition the court for inspection of his/her own sealed records, and upon a motion to the court, the court may order the release of any or all records to petitioner.10 The petitioner can then share the information with the military or with anyone else. There is nothing under the TFC that enables the military to force the person to unseal their records and turn these records over to the recruiter.

If the applicant discloses past criminal activity that has been sealed or the recruiter has reason to believe that the applicant is concealing criminal activity, the enlistment process comes to a halt, and the applicant will need to produce the records in order for the enlistment process to proceed.11

Sealing Process in a Nutshell

After certain requirements are met, records can be sealed without or with application.12 Records are considered sealed if they are not destroyed but stored in a manner that allows limited access to them. DPS stores the records in a way where the Texas Juvenile Justice Division (TJJD) can access them for statistical and recidivism studies.13 In Texas, information regarding a juvenile’s delinquent conduct is entered into the Juvenile Justice Information System (JJIS), a computerized database maintained by the Department of Public Safety (DPS).14 The information in the JJIS is confidential but may be accessed by certain entities identified by statute.15 The JJIS maintains information relating to delinquent conduct that, if committed by an adult, would constitute a criminal offense other than a fine only offense.16

These records include, but are not limited to, information relating to the juvenile, biographical data, marks, tattoos, fingerprints, referral history including level and degree of the alleged offense, adjudication and disposition of the case (including the name and description of programs that the juvenile was referred to), probation or commitment (to TJJD) of the juvenile, termination of supervision or discharge from commitment, and a description of each appellate proceeding.17 The JJIS is the point of entry into the FBI Interstate Identification Index (III), a database that stores criminal history information.18 The information in the JJIS is subject to sealing.

Within 61 days of receiving a sealing order, DPS will limit access to the records, destroy other records in its possession such as DNA records, and send written verification of the sealing to the issuing court.19 DPS de-identifies the data and moves it to a separate database just for TJJD’s research purposes. DPS will send an electronic message to the FBI to have the juvenile’s information removed from their criminal history database. DPS will follow up by sending the FBI a copy of the sealing order and perform periodic audits to double-check that everything was removed.20 Once the juvenile’s information is removed from the FBI database, any requests for records by the military will produce no results.

Note: Sealing statutes vary among states. Some states may allow inspection of juvenile records (sealed and unsealed) by military personnel or require disclosure of sealed information to the military.21 If the client has a criminal record in another state, it is important to know that state’s law with regards to the military’s access to those records.

Military Law

While there is no Texas law that obligates a juvenile to disclose sealed or unsealed records to the military, he/she is obligated under military law to answer questions truthfully and be fully transparent during the enlistment process. If the person makes false representations or deliberately conceals information on the enlistment application—which if known at the time might have resulted in rejection—and the person is inducted into the military, there can be consequences. The servicemember is subject to military law and can be prosecuted under Article 83 of the Uniform Code of Military Justice (UCMJ) for fraudulent enlistment. The UCMJ is federal law that governs the military justice system.22 It defines the military justice system and lists criminal offenses under military law.

Article 83 of the UCMJ states, inter alia, that

Any person who . . . procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances thereunder . . . shall be punished as a court-martial may direct.

An applicant commits the offense of fraudulent enlistment when he/she knowingly gives false information or deliberately conceals information, and the information would constitute either an absolute bar to enlistment or would constitute a bar to enlistment without a waiver and received pay or allowances or both.23 By having deliberately concealed disqualifying information such as a criminal offense or medical and mental-health issue, the servicemember risks being discharged from the military.24 Consequences depend on the circumstances and seriousness of the offense or issue—and on the individual’s quality of service up to that point. Every situation is different and will be treated accordingly.25 Military officials may choose not to take any disciplinary action for a fraudulent enlistment, or punishment can result in a simple reduction in rank, administrative separation from the military, or more serious consequences, including a dishonorable discharge, forfeiture of pay and allowances, and/or confinement for two years.

There is a five-year statute of limitations for a charge of fraudulent enlistment in violation of Article 83 of the Uniform Code. However, false representations and concealment of information on a military application can have repercussions past the five-year mark. They could raise character concerns that result in denial or revocation of a security clearance.


A juvenile’s criminal record will not necessarily disqualify him/her from enlisting. The military can choose to waive certain offenses. Historically, the bulk of waivers approved involved a broad range of medical issues.26 A criminal history (moral) waiver involves an application process where the person is essentially asking the military to make an exception in his/her particular case and excuse a disqualifying offense.27 It can be a relatively quick process or it can be lengthy and take weeks or months depending on the circumstances. A waiver involves a thorough investigation of the incident, and each waiver is reviewed on its own merit.

If the recruiter believes the applicant is a good candidate, the recruiter can initiate the waiver process. Recruiters, however, do not have waiver approval/disapproval authority. Waivers are reviewed by officials higher up in the chain of command, exactly how high up depending on the offense and circumstances. Decisions regarding waivers are made based upon current law, regulations, and policy.28 Officials generally consider the “whole person” concept when deciding. They consider the “who, what, when, where, and why” of the offense in question, and the applicant has the burden to demonstrate that the waiver will benefit the military.29 There is no guarantee that certain offenses will qualify for a waiver; it depends on the nature of the offense and what positive attributes the candidate brings to the table. If the recruiter believes the applicant is someone worth considering, they may be willing to put forth the time and effort it takes to pursue a waiver on their behalf.

Adverse Adjudication

In determining whether a waiver is required, recruiters focus on the type of offense, the circumstances surrounding the offense, and whether there was any kind of “adverse adjudication” associated with the incident. Any action taken on a case where there is a conviction, finding, decision, sentence, judgement, or disposition other than unconditionally dropped, unconditionally dismissed, or acquitted is considered an adverse adjudication. Court-imposed orders to pay restitution, perform community service, or attend classes are examples of adverse adjudication.

Participation in a pretrial diversion program is processed as an adverse adjudication by the military and is essentially considered a plea of true.30 Military personnel are primarily interested in whether the person actually committed the offense and not on how the case was negotiated or disposed. Even if a charge is dismissed without any court action, it must be reported during the enlistment process. A suitability review team determines whether a waiver will be required. Some offenses can be waived, some are virtually always an automatic disqualifier, and some are very problematic. Examples of offenses that are currently considered automatic disqualifiers include:

  • Intoxication or under the influence of alcohol or drugs at time of application.
  • Adult felony convictions are currently considered automatic disqualifiers, but they can qualify for a waiver depending on the facts and circumstances.
  • Juvenile felonies involving violence. Chapter V, Section 571.3(c)(2)(ii) of the Code of Federal Regulations defines juvenile offense as one committed by the applicant under the age of 18. Currently, the army will consider waivers for one juvenile felony (depends on severity).
  • Offenses involving the sale or transfer of illegal drugs.
  • Drug-related offenses involving controlled substances such as opiates and hallucinogens are very problematic.
  • A sexually related offense, with rare exceptions, will dis­qualify a person from every branch of the military.31
  • Domestic violence cases raise red flags, but officials will now consider the circumstances. A “conviction” for domestic violence that falls under the Lautenberg Amendment is prob­lematic and can be an automatic disqualifier. Lautenberg prohibits a soldier from owning, possessing, or being issued firearms and ammunition.32

Each branch of the military has its own standards when determining whether a criminal offense is disqualifying and re­quires a waiver. The waiver process is very subjective. Applicants with a criminal record are low-priority candidates, so any additional attributes or qualities the applicant can offer the recruiter will increase the chances of the recruiter pursuing a waiver. Whether a recruiter is willing to pursue a waiver can also depend on the recruiting center and what the recruitment objectives are. The applicant will have a better chance at a center that has some flexibility in recruiting persons with a criminal history as opposed to a center that is focused on recruiting more highly qualified candidates.

Each waiver request is evaluated individually. No two cases are alike. The military is looking for the most qualified candidates and will likely be more hesitant to pursue a waiver for a recruit they consider a “borderline” candidate. Pursuing a waiver can be very time-consuming. The applicant does not have a right to have a waiver processed, and if the recruiter doesn’t think there is a good chance of getting a waiver approved, the recruiter is unlikely to submit one. The number of waivers issued in a year varies and can depend on the recruiting center, time of year, and how fast the Army is trying to grow. If a waiver is disapproved, there is no appeals process. But a waiver decision is only valid for the branch that made it. The applicant still has the option of applying to a different branch of the military.33

Military Enlistment Standards

Requirements and policies for enlisting can vary from year to year. As one recruiter put it, “recruitment is like a rollercoaster,” and is tied to the military’s need to either grow or downsize the ranks. In times of war, the military may lower its standards to meet military quotas. Knowledge of current military standards is helpful when considering whether to disclose or not disclose sealed information. On the one hand, having sealed the record reflects well on the applicant because it shows maturity, rehabilitation, and a desire to become a law-abiding citizen. On the other hand, under current military standards, the offense that was sealed, if disclosed, may permanently disqualify the person from enlisting.

Army officials maintain they are raising enlistment standards and focusing on the quality of its recruits instead of the number of recruits. While the Army is willing to waive certain issues such as past marijuana use and some limited mental-health issues, other things that may have been overlooked several years ago (such as a criminal history involving violence) are now considered deal-breakers. The Army is seeking more highly qualified individuals, referred to as Class A, or Alpha—applicants who score above 50 on the Armed Services Vocational Aptitude Battery (ASVAB)—and have a high school diploma and some college. Applicants who are considered Bravos are individuals who score between 31 and 50 on the exam. A score of 31 is considered passing.

The Army’s recruiting objective consists of a “volume mission” and a “quality mission.” The quality benchmarks mandated by the Pentagon require that at least 90% of enlistees have a high school diploma, 60% must score at least 50 on the ASVAB, and Category Four applicants—those who score in the lowest third on the ASVAB—are limited to no more than 4% of enlistees.34 The ASVAB is a timed multi-aptitude test that measures developed abilities and is a predictor of future academic and occupational success in the military. The test is designed to determine if the applicant has the mental ability to serve in the military.35 Pentagon studies have concluded that smarter people make better soldiers. If the Army fails to meet recruitment goals for the current fiscal year, it is likely because the Army is currently prioritizing quality over quantity.36

The Enlistment Process

The applicant should have a good understanding of recruitment policies and procedures when enlisting. The first thing the recruiter will do is pre-qualify the applicant. Some basic military qualifications include:

  • must be a U.S. citizen or Permanent Resident Alien;
  • must meet medical, moral, and physical requirements;
  • must be between 17 and 34 years old;
  • must have a high school diploma or equivalent;
  • must achieve a minimum score on the ASVAB.

The Pentagon estimates that 71% of America’s population of 17- to 24-year-olds would fail to qualify for enlistment. Obesity remains the single biggest reason for failing to meet basic requirements. According to Major Gen. Allen Batschelet, Commander of the U.S. Army Recruiting Command, “Obesity is becoming a national security issue.”37

The recruiter will request certain documents, such as a birth certificate, social security card, and a high school diploma or GED certificate. The applicant may take a sample ASVAB. The sample mini-test is a good indicator of how the applicant will score on the actual test taken later in the process. The applicant will also be asked to sign a release for an FBI background check. Recruiters routinely run fingerprints through the FBI database and check sex offender registries. If the applicant has a juvenile record that has not been sealed, the FBI check will produce a rap sheet listing his/her criminal history. In addition to the requirements and procedures listed above, the applicant will be given a packet that includes a lengthy and detailed enlistment security questionnaire regarding family, associates, schooling, employment, finances, mental health, and medical and criminal history. The applicant will be asked to list all offenses for which he/she was arrested, charged, summoned, cited, or ticketed. If criminal history is disclosed or if the recruiter suspects that the person is being deceptive, the recruiter will request a release of records. Any disqualifying information that is disclosed or revealed must be fully investigated.38

Question: Yes or No. “Have you ever been told by anyone (judge, lawyer, any army personnel, family friends, etc.) that you do not have to list a charge because the charge(s) were dropped, dismissed, not filed, expunged, stricken from the record, or were juvenile related?”

If the applicant discloses a criminal record, or if it is discovered during the FBI background check, the application process will be put on hold. According to one recruiter, “closing the loop”— i.e., a complete investigation on disclosed disqualifying information—is required. Past delinquent conduct renders a person unqualified to serve, and unless it is an automatic disqualifier, the applicant can pursue a waiver.

Currently, the service appears to be taking a more openminded approach with regards to an applicant’s mental-health history. The Army will now evaluate mental health on a case-by-case basis. Army Secretary Mark Esper wants to make sure that experts are taking a more holistic approach when evaluating a waiver for what might otherwise bar a potential soldier from service.39 Mental-health issues and treatment will not be investigated unless disclosed.

There are certain medical conditions that can disqualify a person from enlisting. The military requires the applicant to list medical history and attach a written statement from a medical professional stating current medical/health status and whether or not the person is physically fit to serve. Medical conditions will generally not be investigated unless disclosed due to privacy rules.

Disqualifying information not disclosed during the initial enlistment process may be discovered at a later time if the person pursues a position requiring a security clearance. A security clearance involves a more thorough investigation of one’s background, including credit checks and field interviews with family, friends, associates, employers, co-workers, current spouse, former spouse(s), and in-laws.40


Recruiters are not out on a witch hunt. Their mission is to recruit, and they want people to enlist. Unless criminal history or some other disqualifying information is disclosed either by self-admission or the FBI background check, the enlistment process advances to the next phase with a visit to the Military Entrance Processing Station (MEPS). MEPS is staffed with personnel from all military services who screen and process applicants via a battery of physical and psychological testing. The applicant will be given another opportunity to disclose disqualifying information. The applicant is warned that giving false information can result in prosecution and confinement and/or a fine. If the applicant discloses disqualifying information during the MEPS process, he/she is routed back to the recruiter for a full investigation.41

Once the applicant makes it through the MEPS process, the final two steps are signing an enlistment contract and taking the oath of enlistment. When signing the enlistment contract, the servicemember is put on notice once again that there are legal consequences for providing false information. The enlistment contract includes the following section:

13a. “My acceptance for enlistment is based on the information I have given in my application for enlistment. If any of that information is false or incorrect, this enlistment may be voided or terminated administratively by the Government, or I may be tried by Federal, civilian, or military court, and, if found guilty, may be punished.”

Preserving the Military Option

If the client is serious about pursuing a military career, here are some actions he/she should take to increase his/her chances of getting in:

  • Seal records
  • Get a high school diploma and preferably some college credit.
  • Prepare for the ASVAB. A good score can significantly in­crease chances of getting a waiver. There are many online study guides and practice tests to help improve scores.
  • Get fit. Military readiness can increase chances of pursuing a waiver.
  • Avoid tattoos. Tattoos are allowed but there are rules.
  • Test the waters. Each recruitment center has an objective with regards to the numbers of Alphas and less-qualified candidates with a criminal history it is willing to allow into its ranks.
  • Weigh the pros and cons of disclosing sealed information while being mindful of the consequences.


A military career can make a positive difference in the lives of many of our clients. Whether patriotism is one’s motivation or simply seeking a steady paycheck, adventure, education, or self-esteem, we want to support their efforts. It is inevitable that the military option will come up when working with juveniles, and having a general understanding of recruitment policies and procedures will help provide meaningful guidance. Since becoming an all-volunteer force in 1973, recruitment standards have fluctuated, and although there are times when the military is more lenient with regards to its requirements, a criminal record remains a significant barrier to enlisting.

Advising our clients to seal their records is important, and having a general understanding of the sealing process can be helpful. The client should be aware of the military’s ability to access juvenile records—and the client’s obligation under both Texas law and military law to disclose that information. Our clients must carefully weigh the pros and cons of disclosing and not disclosing sealed information, and be very mindful of potential consequences under military law for not being fully transparent. The best advice we can provide our clients who are interested in joining the military is to prepare for the enlistment process, and take the extra steps needed to qualify for military service.


1. Thank you to Kaci Singer for assistance in navigating TFC Chapter 58 provisions.

2. Texas Family Code § 58.007.

3. Texas Family Code § 58.007(b).

4. Texas Family Code §§ 58.007 and 58.007(i).

5. Texas Family Code § 58.106(a).

6. Texas Family Code § 58.008(d).

7. Texas Family Code § 58.258(c).

8. Texas Family Code § 58.259(c).

9. Texas Family Code § 58.260.

10. Texas Family Code § 58.260.

11. Army recruiter, personal communication, December 12, 2017.

12. Texas Family Code §§ 58.255 and 58.256.

13. Texas Family Code § 58.259.

14. Texas Family Code §§ 58.105 and 58.108.

15. Texas Family Code § 58.106(a).

16. Texas Family Code § 58.104(a).

17. Texas Family Code §§ 58.104(a) and 58.104(b).

18. Texas Family Code § 58.102(a).

19. Texas Family Code TFC § 58.259(a)(1).

20. Kendall, A., at TDPS, personal communication, March 17, 2015.

21. Strus, Jennifer. “Comparison of Record Confidentiality and Sealing Provisions From 50 States” (September 28, 2011). See also “Restoration of Rights Project, Comparison Judicial Expungement, Sealing, and Set-Aside” (updated 2017).

22. Powers, Rod. “I Cannot Tell a Lie” (October 27, 2016).

23. 10 U.S.Code § 883—Art. 83. “Fraudulent Enlistment, Appointment, or Separation”; see U.S. v. Watson, 71 M.J 54 (2012); see also U.S. v. Holbrook, 66 M.J 31 (2008); U.S. v. Candice N. Cimball Sharpton (2013); 10 U.S. Code § 843—Art. 43. Statute of Limitations.

24. Smith, Stew. “Military Justice 101—Discharges” (November 9, 2016).

25. Army recruiter, personal communication, March 13, 2015.

26. Baldor, Lolita C. “Army Using Drug Waivers, Bonuses to Fill Ranks” (August 14, 2018).

27. Powers, Rod. “Military Criminal History Moral Waivers” (August 22, 2016).

28. Powers, Rod. “Army Criminal History Waivers” (February 15, 2017).

29. Powers, Rod. “Military Criminal History (Moral) Waivers” (August 22, 2016).

30. Powers, Rod. “Military Enlistment Standards” (February 15, 2017).

31. Powers, Rod. “Army Criminal History Waivers” (February 15, 2017).

32. 18 U.S.C. § 922(g)(9). See also Yu, Cpt Jake. “The Lautenberg Amendment and How It Affects the Servicemembers.”

33. Powers, Rod. “Military Criminal History (Moral) Waivers” (August 22, 2016).

34. Linehan, Adam. “The Recruiters: Searching for the Next Generation of Warfighters in a Divided America” (November 28, 2017).

35., “Ace the ASVAB” (2018).

36. Adam Linehan, Senior Staff Writer, Task & Purpose, personal conversation, December 30, 2017.

37. Smith, Stew. “United States Military Enlistment Standards” (September 8, 2016). See also Blake Stilwell. “Here’s Why Most Americans Can’t Join the Military” (September 28, 2015). See also “Obesity Is Becoming a National Security Issue,” Lieutenant General Mark Hertling at TedxMidAtlantic (2012). Retrieved from

38. Army recruiter, personal conversation, March 13, 2015.

39. Myers, Meghann. “The Army is tightening waiver authority for recruits with issues like self-mutilation, misconduct, and substance abuse” (July 30, 2018).

40. Powers, Rod. “Security Clearance Military Secrets” (2016, October 18); Security Clearance Questionnaire (August 29,2017).

41., “MEPS at a Glance” (©2018).

Get Involved in TCDLA’s Declaration Readings

July 3 marks the date this year TCDLA members will appear at courthouses across the Lone Star State to recite the Declaration of Independence. The traditional presentations have become TCDLA’s biggest public relations effort. More importantly, the readings galvanize the criminal defense bar for a unified, worthwhile, statewide show of support for the most basic of our American values. We feel patriotic on the most American day of the year, transcending our roles as advocates for the little guys, reinforcing the reasons we choose to live here and do what we do for a living.

The TCDLA tradition evolved from an idea Robb Fickman had in 2010. He and others in the Harris County Criminal Lawyers Association (HCCLA) were frustrated by years of adversarial relationships with the local judiciary. Robb suggested a symbolic, peaceful sort of protest against the modern-day tyrants who ruled the courthouse like Britain’s George III once ruled the colonies: HCCLA members would recite the Declaration of Independence on the courthouse steps just before July 4th. With backs to the courthouse, without permission from anyone, about 15 lawyers read the great document. Some media showed up, everyone got a big kick out of it, and the seeds of a movement were sown.

Annual Declaration readings by individuals and groups of criminal defense lawyers slowly spread across the state. By 2015, TCDLA and many local criminal defense organizations had embraced the tradition. In 2016, TCDLA helped sponsor a statewide campaign that resulted in readings in each of Texas’ 254 counties.

Last year, perhaps the most poignant and meaningful reading took place at Tornillo by members of El Paso’s criminal defense bar and others. At the time, Tornillo was the site of 20 large tents on a parched field owned by the Department of Homeland Security, home to teenage children separated from their parents by the U.S. government (

If you would like to get involved as an organizer or participant in a local event, here’s a primer, written by Robb Fickman:

1.   DATE/TIME: Statewide readings will take place on the morning of July 3, 2019, at a time that best fits with your local event. If your event must be staged on another date on or around July 4, that’s also okay.

2.   NOTE: Many American institutions exemplified by our Bill of Rights are under attack. Therefore, this year, we encourage organizers to include a reading of the Bill of Rights along with your Declaration reading.

3.   GOAL: Our sole goal is to encourage the public reading of the Declaration (and the Bill of Rights) by the criminal defense bar. This TCDLA event is not connected to any political organization or movement. We just think it’s important to remind people about the meaning of July 4th. That’s why we are involved. To watch videos from last year’s readings, please go to

4.   VOLUNTEER ORGANIZER: One or two people should be responsible for organizing this event in each jurisdiction. If you have never been involved in organizing a reading and you have questions, don’t hesitate to contact Robb Fickman (713-655-7400, ) or Chuck Lanehart (806-765-7370, ).

5.   LOCATION: Readings should take place directly in front of the county courthouse, if possible. This draws attention and sends a message to those inside the courthouse.

6.   RECRUITING READERS: Get fellow criminal defense lawyers committed well ahead of the scheduled date to come and read. All criminal defense lawyers are known for their egos, so promise reading parts and make people commit to come. Promise them they will find the experience fun and rewarding. Since the reading is sponsored by TCDLA, try to give preference to members of TCDLA, or at least to those who regularly defend the citizen accused. We prefer prosecutors and judges as spectators only, but if your local jurisdiction must make an exception because of a scarcity of lawyers or because of tradition, that’s okay.

7.   THIS IS A CRIMINAL DEFENSE BAR EVENT: This is a TCDLA, statewide criminal defense bar event. It belongs to the criminal defense bar. We ask that you jealously guard the identity of the event. We do not want it to lose its identity. So please be careful to ALWAYS make certain folks know this is the criminal defense bar’s event and belongs to no one else.

8. DEFENSE BAR ATTENDANCE: Email or otherwise send invitations to your entire criminal defense bar. Encourage lawyers to bring staff and family. There is not a more meaningful family event, especially for impressionable young children, than a local reading of the Declaration.

9. OTHER INVITATIONS: Invite the local bar, judiciary, prosecutors, court personnel, the press, and the public to attend.

10.   NEWS RELEASE: If you think it appropriate, issue a news release prior to the reading. Even if they don’t show up, the media will know the defense bar is doing something positive. You may give your own reasons for being involved. Please remember this is a TCDLA event, and only the TCDLA President and his designees speak for TCDLA.

11.   FOCUS FOR 2019 READINGS: As you may know, in 2016, TCDLA sponsored readings in every Texas county in commemoration of the 240th anniversary of the signing of the Declaration. This year, we hope to focus on quality over quantity. We want each reading to inspire everyone who participates and everyone who attends, and we want to make sure everyone wants to come back next year. Those of you who enjoyed ventures into the hinterlands in 2016 to read in small counties with no lawyers or few lawyers are certainly encouraged to do it again, but this year you won’t be badgered by anyone to travel beyond your hometowns.


  • THE READING CEREMONY: The Declaration can be divided into 38 distinct parts, allowing for as many as 38 different readers to participate. Make enough copies for all readers. Then on the morning of the reading, distribute the numbered copies of the Declaration to each reader. Tell each reader what section they are reading. Before you start the reading, call out numbers, having each person with the corresponding number answer present. If there is a large crowd, have the readers come forward and stand at the center of the crowd. Tell them to read loud. You may want them to face all in the same direction or form a circle. You may choose instead to print only one copy of the Declaration, put it in a 3-ring binder, and direct each reader to the podium to read his or her part. The movement looks good, and the readers will all keep their heads up.
  • OPENING REMARKS: The organizer or his/her designee is encouraged to make brief remarks just before the reading. No long speeches. It should be mentioned that your local ceremony is part of a larger tradition sponsored by TCDLA to encourage Declaration readings across Texas every year. We think it is very important to recognize in these remarks the historic significance of the Declaration. It is quite understandable that not everyone admires Jefferson, given the fact he owned slaves. We owe it to the African-American community to acknowledge in a sensitive manner that the Declaration did not set one slave free. The Declaration was a historic first step in what remains an ongoing fight for liberty—a fight we as defense lawyers continue.
  • TALK LOUD! Sound does not travel well outdoors. If you are expecting a large crowd, consider arranging for a sound system/microphone. Remember, your jurisdiction may require a permit for a sound system/microphone. Otherwise, individuals should be encouraged to read LOUDLY and with firm resolve, in the way it was intended to be read, making for a more dramatic ceremony. To watch an excellent example of a good reading, go to and see a video of the Harris County Criminal Lawyers Association’s reading from last year, which was powerful and inspirational.
  • THE BEST SECTIONS: The best parts are the first and last. Give those to the people who are most deserving.
  • BAD LINE ALERT: There is a line in the Declaration that refers to Native Americans as “savages.” However, we cannot re-write the Declaration to make it politically cor­rect. You may choose to just read it without comment.
  • BRING EXTRA COPIES: You might consider making extra copies of the Declaration for the audience. Caution: If you hand out copies before the ceremony, the audience will likely keep their eyes on the paper and not watch the actual readers, which reduces the drama of the event. It might be better to distribute the copies following the ceremony.
  • OTHER SUGGESTIONS: Each city or town knows what works best for that jurisdiction. Many jurisdictions add bells and whistles to their Declaration reading ceremonies. Some wear colonial costumes. Some like to open with the Pledge of Allegiance and/or the Texas Pledge. Some sing the National Anthem (“Star-Spangled Banner”) and other patriotic songs. Some have partnered with local dignitaries to make Declaration readings a part of larger Independence Day celebrations. Whatever works best for your local organization is okay.
  • This year, we are suggesting an additional reading of the Bill of Rights, since the latter document is so interconnected with the Declaration, and because criminal defense lawyers use the Bill of Rights daily. You may go to to view a video of last year’s Lubbock Criminal Defense Lawyers Association reading, which included a reading of the Bill of Rights, and was very well received. Info sheet:

13.   VIDEO & PHOTOS: Please make sure someone who knows how to use a camera takes quality photos and videos during the reading. Proper documentation of the event is a valuable tool for local and TCDLA public relations, and a way to keep the tradition going. Post the photos on social media and make sure to identify the participants and the location. High-resolution photos and videos should also be sent to TCDLA for use in future promotions. Also, landscape—rather than portrait—is the preferred format of photos for TCDLA promotions. Send multiple shots to ensure at least one makes the cut. Remember, if the quality of your photos is poor, your reading will not show up well in TCDLA’s promotions. You will be emailed detailed information later regarding where to send your high-resolution photos and videos.

14. CREATING A TRADITION: It’s a good idea for the organizer to thank everyone for coming and wish them a Happy Independence Day. It is also a good idea to tell them to come back next year and do it again. This helps to establish a tradition. Be prepared to make a few appropriate remarks to the media in case they show up.

Thanks to all of you for volunteering your time to this wonderful statewide tradition. Without Texas criminal defense lawyers like you, this event would not succeed. It will be a success because of you.

What Do You Mean the Courthouse is in the Wrong Place? A War Story

One of the most ingenious, albeit unsuccessful, collateral attacks upon a capital murder indictment occurred in Denton County in 1980. Defense attorney Hal Jackson and his team set out to prove the Denton County District Court had no jurisdiction over their client, Brian Thomas Knowles, because the indictment returned by the grand jury had occurred outside the boundaries of the Denton County seat, and was therefore void. Had it not been for a fire in 1875 in the Denton County Courthouse, Mr. Knowles may have prevailed in his challenge. This ingenious fight was memorialized in an original action for writs of prohibition and mandamus in Knowles v. Scofield, 598 S.W.2d 854 (Tex. Crim. App. 1980). The back story went something like this.

In 1979, a young man was charged with raping and murdering a woman he’d met in a Denton County pool hall. The couple had left the pool hall around midnight, both reportedly intoxicated, and had made their way to a secluded place. The young man claimed the couple had sex in the pickup truck’s bed, but further asserted the woman jumped out into the dark and began yelling for help. He claimed to have climbed back into the truck, turned on the lights, and began moving around to locate her. However, when he got out of the truck her lifeless body was found in the rear wheel well.

Mr. Knowles was quickly arrested, indicted for capital murder, and was set for a hearing in about six weeks. Knowles hired Hal Jackson, a co-founder of TCDLA, war hero, and legendary attorney. Jackson accepted a $5,000 retainer with more to be paid later. Jackson and an associate, George Preston, began their investigation and appeared at the announcement setting as required. However, the team was stunned when the district court set the case for trial a month hence. They had not been paid enough, obviously, and the following Sunday morning the defense team discussed how they could slow the rush to judgment.

Denton County had moved into what was known as the Joseph A. Carroll Courts Building in 1978. This was a building intended for commercial use that went bust—even before the walls and painting were completed. Denton got a really good deal. The new building was about five blocks from the old courthouse, which had been located on the town square. Remarkably, some old-timers at Ruby’s, a town square café, talked about how an old iron fence had surrounded the old courthouse on the town square, marking off the Denton County seat. At the time, the office of the sheriff and the courthouse had to be within the physical boundaries of the county seat. Indictments had to be returned in the county seat, as well.

It looked like a long shot, but maybe this was something to work with. The first stop was the county museum, where a history of Denton County was quickly purchased and scrutinized. The first revelation was the county seat had been platted in the shape of the state of Utah. Interestingly, Joseph A. Carroll himself platted the county seat, sometime between 1856 and 1858. Stop number two was the Jagoe Abstract Company. Owner Joe Jagoe, whose grandfather had bought out Joseph A. Carroll’s survey company, provided an original map of the county seat. Clearly, and as luck would have it, the Joseph A. Carroll Courts Building was not within the physical boundaries of the platted Denton County seat. After additional research and investigation, a motion to dismiss the indictment was filed alleging the indictment had not been received in open court and was therefore null and void.

A hearing on the motion was heard by a visiting judge. All the historical documents gathered were entered into evidence, and a surveyor testified the Carroll Building was over 600 feet outside the platted county seat. Despite these extraordinary efforts to represent Mr. Knowles, the motion to dismiss was denied. Astonishingly, as the defense team left the courtroom, the sitting Denton County District Judge dashed down the hallway, with long curly white hair bouncing, screaming that if they freed all the convicts, he would release them from a bus at the team’s front door.

Judge Sam Houston Clinton wrote the opinion in Knowles v. Scofield denying mandamus relief. The core question in Knowles concerned the discernment of geographical limits of location of the county seat of Denton County after it was removed from the town of Alton, pursuant to a November 1856 election where 136 votes were cast by county residents. Knowles, 598 S.W.2d at 859. There Clinton wrote:

Of course our concern here is not the legality of the 1856 election in Denton County but with ascertaining the intention of the citizens who voted in the election [citation omitted]. Since we cannot know from our record [because of the 1875 courthouse fire] what language appeared on the ballot submitting the question, in search of the answer we turn to the factual setting of the election, its consequences, and subsequent events that may provide it.

Id. at 858.

Judge Clinton went on to say:

For all that we can learn from the record before us, in November 1856 as unincorporated territory Denton may have embraced within its outer limits the panhandle area of the 100-acre tract, the whole of the tract and lands outside either or both [footnote omitted]. The later prepared and filed plat of the original town site of Denton is not, ipso facto, the county seat removed to Denton.

Id. at 862.

And in denying mandamus relief, he wrote:

[T]his Court is not in a position to “determine the issue of fact as to what constitutes the boundaries” of Denton, as county seat.


Hal Jackson and his team accomplished their goal of slowing the rush to judgment. But the ingenious legal battle in Knowles was the last of its kind. In the end, Mr. Knowles plead for 6 years’ confinement in state prison. Probably a win, after all. Moreover, a Texas constitutional amendment was later approved to permit Texas counties to hold court and return indictments wherever their Commissioners Court designated. So never a Knowles issue would there be, ever again.

April 2019 Complete Issue – PDF Download



19 | Notice on Membership Renewal – By Carmen Roe, Nathan Miller & Monique Sparks
20 | The 32nd Annual Rusty Duncan Advanced Criminal Law Course
22 | Enlisting With a Juvenile Record: A Texas Roadmap – By Betty E. Rodriguez
28 | Get Involved in TCDLA’s Declaration Readings – By Chuck Lanehart
32 | What Do You Mean the Courthouse Is in the Wrong Place? A War Story – By Bill Trantham

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

5 | CLE Seminars and Events
34 | Significant Decisions Report

President’s Message: In Search of Spring – By Mark Snodgrass


An impromptu Spring Break trip gave me a great opportunity to think about what to write in this column. The bomb cyclone that hit the central part of the country, coupled with the grounding of the Boeing 737 Max 8 airplanes, made flying my kids home in time to go back to school from a trip to Rockport to see my sister impossible. So off I went from Lubbock to Rockport with a quick overnight stop in Laredo to tend to a few things on the deer lease.

Jennings and Jeff Steen, two old boyhood friends, make an annual pilgrimage through South Texas in search of Primavera, the Spanish word for Spring. Jeff then writes about their travels and shares it with friends. They stole the idea from Leon Hale, the retired Houston Post and Chronicle columnist, and his friend Gene Morgan. Mother Nature can teach us many good things if you will simply pay attention. One of these being that when an old mature mesquite tree begins to bloom in honest and starts putting on leaves, Spring has arrived. The premise of the trip is simple enough. The search for Primavera starts by heading into South Texas in search of the line where the bull mesquites are in full bloom. That point is the northern edge of spring arriving in South Texas. The line will generally move north a few miles at a time until it covers the whole state.

For the Steen brothers, and Leon Hale and Gene Morgan before them, the trip is not just a straight drive south to find the encroaching bloom of spring, but a time to reflect on the rebirth and regrowth of the countryside—as well as reflect on the passing of winter and old friendships, some active and some lost. Nature, much like life itself, goes on.

This year’s retelling of the trip had arrived only two days before I set out from Lubbock heading for my unexpected Spring Break. As I was leaving Lubbock, I knew there would be no need to keep too close of an eye on the mesquite trees for many miles, as the temperature was in the high twenties when I left town. For those who care, my trip was pretty much a straight shot. From Lubbock down to Sweetwater on US 84, then a few farm-to-market roads to Eden, before picking up US 83 to Junction, on down to Uvalde, through Carrizo Springs and into Laredo.

To my eye, one of the prettiest parts of Texas is the area around Leakey and the Frio River near Garner State Park. Spring had not quite made it that far north, so I didn’t get to witness the area with a fresh coat of paint. I did finally encounter the green line of Spring just south of the Nueces River and a little north of La Pryor. Just to complete the details of that day’s travel, when I pulled up to the Ranch gate outside of Laredo, my truck thermometer read 90 degrees. Only in Texas can you have a 60-plus-degree temperature swing in one day without leaving the state.

Once I was south of the green line, the South Texas brush country had put on her Sunday best. The yucca plants had raised their flowers, and some of the prickly pear and black brush were in full bloom. Bluebonnets and Indian paintbrushes lined the roadsides. A countryside where every plant, bush, and tree seem to have a thorn to stick you can actually be pretty after shaking off the gray coat of winter.

This 1300-mile trip gave me many hours to think. Not only about nature, but life in general, and even a little time was spent thinking about the legal profession. Every time I go through a border check point and have to declare my citizenry—and be subjected to a free air dog sniff even though I am simply driving down the highway in my home state—I wonder if this is what the forefathers envisioned when they drafted the Fourth Amendment.

I also had time to think about our clients. Just recently, I had one of those feel-good moments that makes what we do seem even more worthwhile. An old client stopped me in public and told me how much he wanted to thank me for helping him get into a drug court program, and how that had probably saved his life. This gentleman had gone from a life that was heading to either death or prison to a rewarding life with a good job and a family.

The justice system in Texas has come a long way since I have been practicing law. Most counties now have drug courts, and many have other specialty courts dealing with alcohol, veterans’ problems, and other issues. I think there has become more focus on rehabilitation and less on outright punishment, which is a good thing. When you see people after they successfully complete one of these programs, it truly is like the are in the Spring of their life. They are reborn from whatever issues that were causing them trouble. The data indicates that these programs work.

While we have made tremendous strides in some areas, the State of Texas has a long row to hoe when it comes to treatment of mental health issues in the justice system. Somewhere along the line it appears that a decision was made to warehouse the mentally ill in county jails and TDC. The problem is compounded even further when there is a question of competency, or a defendant is currently incompetent but found by a psychiatrist to be restorable. I had observed my own clients wait a year or more to be admitted to the state hospital in Vernon to attempt to restore them to competency. The most recent data I could find shows the average wait time for a Maximum Security State Hospital bed is 416 days, while a non-max is 268 days.

Some quick research will also show you that there are only 2,432 state-hospital beds available across the state for both adults and juveniles. This means, roughly, there are not even enough State Hospital Beds to house and treat 1% of the inmate population—and I believe every practicing criminal defense attorney understands far more than 1% of those incarcerated suffer from mental illnesses and competency issues.

Last year, a joint order of the Texas Supreme Court and Court of Criminal Appeals created a Judicial Commission on Mental Health. Its purpose is to develop, implement, and coordinate policy initiatives to improve the courts’ interaction with children, adults, and families with mental health needs. While I am pleased to see attention being given to the mental health spectrum of criminal justice, the problem needs more than attention. There need to be more hospital beds and facilities for treatment. Mentally ill individuals do not deserve to be incarcerated for nothing more than being mentally ill in many cases. Our prisons and jails should not be the go-to holding facilities for those with those suffering from mental illnesses.

The State of Texas has a $12.5 billion rainy-day fund. I think the time has come to use some of that rainy-day money on treatment of the mentally ill. The common good would be well served to use a little rain and give a chance at a new start to so many in need.

Executive Director’s Perspective: A Fine Madness – By Melissa J. Schank


No great mind has ever existed without a touch of madness.


This past week I had the opportunity to spend time in Lubbock hosted by the Lubbock Criminal Defense Lawyers Association. The hospitality was overwhelming—and very much appreciated.

During my time there, I participated in the 38th Annual Prairie Dog Lawyers Advanced Criminal Law Seminar. Sara Johnson and Rusty Gunter did an amazing job and had a stellar lineup of speakers from all over Texas.

Jack Nowlin (dean of the Texas Tech University School of Law), Pat Metze, Dwight McDonald, and Sandy James at the law school assisted with everything from procuring tablecloths to moving around some 15 tables and chairs, and we could always count on the very important Beixin Ni, AV whiz. Our staff made sure attendees’ travel, papers, meals, and materials were all taken care of as intended. Everyone’s hard work truly made this an enjoyable and memorable event!

Thursday we enjoyed a country-and-western evening, courtesy of Justin and Yanina Keichler, who went above and beyond for the party. I am looking forward to the Rusty Duncan membership party, when Taly Thiessen will work with Justin on a revised C&W theme—with a live band and casino tables.

Friday evening in Lubbock the board dinner was held at the Texas Tech Club. The view was spectacular (as an Austinite, I must say, it comes pretty close to some of ours). Several committees met during the evening, then in the late hours everyone shared war stories—and much laughter—as old bonds were renewed and new ones created. The two constants of all TCDLA seminars are the quality of speakers and the relationships that are formed. These you can only understand by attending live CLE events. I get to witness the remarkable relationships that evolve over time, the irreplaceable shared experiences, good or bad.

We had more than 60 board and CDLP committee members travel to Lubbock. We appreciate all of the dedication and time our board, CDLP, and executive members contribute. Without our quarterly meetings, we would not be able to brainstorm, improvise, and generally conduct the business of TCDLA to maintain our quest for success. All of the committee chairs and board members work really hard to improve all aspects of the association to support our mission and continue to grow.

The executive, CDLP, and membership committees as well as the TCDLA Board met this weekend. Some of the business conducted in the meetings:

  • Implemented auto-renewal membership for all TCDLA mem­bers;
  • Updated the Amicus Policy to require prior approval of the executive committee for anyone testifying or appearing on behalf of a TCDLA amicus filing;
  • Approved two new TCDLA affiliates: Brazos County Crim­inal Defense Lawyers Association and Navarro County Crim­i­nal Defense Lawyers Association (welcome!);
  • Updated listserve rules and procedures—available online;
  • Added mutual links to the State Bar College and TCDLA on their respective websites.

The TCDLEI committee also met earlier this month. They are working hard to continue providing more than $40,000 a year in scholarships for criminal defense lawyers. This year we will be hosting a “wine pull.” What is that, you say? Stop by their booth at Rusty and find out! They will have some fun ribbons for your name badge as well.

Make sure you are signed up for that premier criminal de­fense seminar: the 32nd Annual Rusty Duncan Advanced Criminal Law Course, held June 13–15, 2019, in San Antonio. There are a number of different scholarships available, including the following:

March is the month of madness, not only with continuous travel, spring break, and budgets being prepared. It also allows me time to reenergize and escape the craziness when I get to take a week off with the kids for spring break. I look forward to a bit of kid chaos—and some relaxation—this month. I wouldn’t want it any other way!

Ethics and the Law: Trying to Love Two Women


Trying to love two women is like a ball and chain.
Trying to love two women is like a ball and chain.
Sometimes the pleasure ain’t worth the strain.
It’s a long old grind and it tires your mind.

—“Trying to Love Two Women,” Sonny Throckmorton

Here are some examples of calls to the Hotline. Be cautious when you are contemplating cases with a potential conflict of interest. Like the song says, “It’s a long old grind and it tires your mind.”

Conflict Issue 1

Lawyer X has several criminal cases pending in which law enforcement officer Y is one of the witnesses against his clients. Law enforcement officer Y has been arrested on an unrelated case and has retained Lawyer X to represent him. What ethical obligations, if any, does Lawyer X have to his other clients in which law enforcement officer Y is a witness against them?

In lawyer X’s opinion, there is no conflict of interest, as the case against law enforcement officer Y does not involve moral turpitude, and he has not learned anything about any of his clients from law enforcement officer Y.

What, if anything, must Lawyer X disclose to his clients?

Other than conflict of interest, what other ethical considerations should Lawyer X consider?

Answer 1

I have been in this very boat more than once. I believe it creates a conflict because the info about the officer’s pending charge is relevant to the other cases. I always notify all clients of the potential conflict.

If one of the cases where the officer is a witness is set for trial, I withdraw.

Yet I always send the DA a letter advising that my client will plead the 5th in any case where they are called to testify. Never had a judge not back me up.

Larry P. McDougal

Answer 2

Lawyer X has too narrow a view of conflict-of-interest law. It is about the right to conflict-free counsel. Will he go a bit easy on the cop when he cross-examines his current client? Won’t a vigorous cross hurt his cop client? What if the cop did something dirty in one of his other cases? Ethically, under the rules (plural) regarding conflict of interest, he must seek consent from his clients. He should put himself in the client’s position and see the world from that point of view. Maybe, depending on the facts of his cases, he would evade disciplinary action, as the attached opinion might suggest. But there is a future writ with Lawyer X’s name on it. Here is the constitutional law from a recent memorandum I wrote for a judge:

The Sixth Amendment guarantees an accused person the right to the effective assistance of counsel, a right that must be “untrammeled and unimpaired” by any conflict of interest. Glasser v. United States, 315 U.S. 60, 70 (1942). Conflict of interest jurisprudence is meant “to assure vindication of the defendant’s Sixth Amendment right to [conflict free] counsel.” Acosta v. State, 233 S.W.3d 349, 356 (Tex.Crim.App. 2007). Accordingly, it reaches any conflict of interest, including those involving former clients and third parties. Id. See, e.g., United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988)(Sixth Amendment right “extends to any situation in which a defendant’s counsel owes conflicting duties to that defendant and some other third person”); People v. Peters, 951 P.2d 926, 928 (Colo. 1998)(disqualifying two defense attorneys because one of them had previously represented a person the defense identified as an alternate suspect). Courts do not hesitate to find an attorney’s trial performance for his client was compromised due to a previous attorney-client relationship. See, e.g., Moss v. United States, 323 F.3d 445 (6th Cir. 2003); Brink v. State, 78 S.W.3d 478 (Tex.App. Houston [1st] 2001, pet. ref’d).

An actual conflict of interest exists where “counsel is required to make a choice between advancing his client’s interests in a fair trial or advancing other interests . . . to the detriment of his client’s interest.” Acosta, 233 S.W.3d at 355 (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997). Once a conflict of interest is shown, prejudice is presumed. Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994). Courts presume prejudice because “the evil [of representing conflicting interests] is in what the advocate finds himself compelled to refrain from doing” at any stage of representation. Holloway v. Arkansas, 435 U.S. 475, 490 (1978)(“It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain . . . tasks”); Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980). As the Fifth Circuit recognized:

When there is a conflict of interest . . . the prejudice may be subtle, even unconscious. It may elude detection on review. A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty. Accordingly, where the conflict is real . . . a denial of the right to effective representation exists, without a showing of specific prejudice.

Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir. 1974).

Keith S. Hampton

Conflict Issue 2

The defendant that is charged with killing former client (Capital Murder—non-death) wants to retain me. Can I do it? Since former client is now deceased, is there no longer attorney-client privilege?

Answer 1

Privilege survives death. See, e.g., Swidler & Berlin v. United States, 524 U.S. 399 (1998) (this is the infamous Vince Foster case).

Keith S. Hampton

Answer 2

Depending on what the defense is, there is likely a conflict. If the lawyer has to attack the actions or character of the deceased former client, then he cannot represent the new potential client. If the defense is alibi, and the potential client was in another state at the time, it could be a closer question. I agree with everything Professor Hampton said.

Jack Zimmermann

If you do decide to represent co-defendants, make it clear to clients and advise the Prosecutor and Judge. The love you get from representing co-defendants may turn in to a major dilemma when you end up sued—whether it be a grievance, malpractice suit, fee dispute, or writ—and you will feel like you are wearing a ball and chain.

Thanks for the help from Keith Hampton, Larry McDougal, Jack Zimmermann, Joseph Connors, Chuck Lanehart, and members of the Ethics Committee.

Remember, the Ethics Hotline is like Las Vegas: We never close. Call if you have an issue, and you will get a response within 24 hours or sooner—(512)646-2734.

Federal Corner: Another Ineffective Assistance of Counsel Case and a Dissent by Justice Thomas – By F. R. Buck Files Jr.


As we used to say in the Marine Corps: “Listen up. This is the word.” Ignore it at your own peril!

In every case, state or federal, a lawyer representing a defendant in a criminal case is required to give notice of appeal if the client requests it—even if the court has followed a plea recommendation and the defendant has signed a waiver of appeal.


On February 27, 2019, the Supreme Court of the United States held that a defendant’s lawyer rendered deficient performance by not filing a notice of appeal in light of the defendant’s clear request that he do so—and, that his lawyer’s constitutionally deficient failure to file a notice of appeal was presumptively prejudicial, despite appeal waivers signed by the defendant. Garza v. Idaho, 2019 WL 938523 (U.S. February 27, 2019) [Opinion by Sotomayor, in which Roberts, Ginsburg, Breyer, Kagan, and Kavanaugh joined. Thomas filed a dissenting opinion, in which Gorsuch joined, and in which Alito joined as to Parts I and II.]

Usually, we would look to the opinion of the Court for the facts in the case; however, Justice Thomas does a better job of setting them out than Justice Sotomayor. His dissent begins as follows:

[The Facts in Garza]

Petitioner Gilberto Garza avoided a potential life sentence by negotiating with the State of Idaho for reduced charges and a 10-year sentence. In exchange, Garza waived several constitutional and statutory rights, including “his right to appeal.” App. to Pet. for Cert. 44a, 49a. Despite this express waiver, Garza asked his attorney to challenge on appeal the very sentence for which he had bargained. Garza’s counsel quite reasonably declined to file an appeal for that purpose, recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain.

* * *

In 2015, in accordance with two plea agreements, Garza entered an Alford plea to aggravated assault and pleaded guilty to possession with intent to deliver methamphetamine. Under the terms of the plea agreements, Idaho agreed not to (1) file additional burglary and grand theft charges; (2) refer Garza for federal prosecution on a charge of unlawful possession of ammunition by a felon, see 18 U. S. C. § 922(g)(1); or (3) seek a “Persistent violator” sentencing enhancement that would expose Garza to a potential life sentence, see Idaho Code Ann. § 19-2514 (2017). In exchange, Garza agreed to “‘waiv[e] his right to appeal’” and his right to file a motion for correction or reduction of his sentence. Ante, at ___. And both parties agreed to specific sentences totaling 10 years of imprisonment, which would be binding on the District Court if it accepted the plea agreements. See Idaho Crim. Rules 11(f)(1)(C) and (f)(3) (2017) (allowing parties to agree to a binding sentence). Thus, the judge could impose no sentence other than the 10 years for which Garza had bargained.

        The trial court accepted the plea agreements and, as required, sentenced Garza to 10 years’ imprisonment. How­ever, the court noted that if the cases had been “considered individually,” a “harsher sentence” might have been warranted due to Garza’s “history of violent crime” and the “gratuitous aggression” displayed by Garza in the aggravated-assault case. Record 336.

        Four months later, Garza filed the petitions for postconviction relief at issue here. Among other things, he claimed that his pleas were not voluntary and that his counsel had been constitutionally ineffective for failing to file an appeal despite repeated requests that he do so. For relief, Garza requested that his sentences “run concurrent.” The trial court appointed counsel to pursue Garza’s collateral challenges. It subsequently dismissed Garza’s claim that his plea was involuntary for “lack of supporting evidence,” but it allowed the ineffective-assistance claim to proceed. App. to Pet for Cert. 3a, 29a.

* * *

This is a case that you should read in its entirety. Because of space constraints, I have set out only a small portion of Justice Sotomayor’s opinion which reads, in part, as follows:

[The Presumption of Prejudice]

        In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), this Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” . . . This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.

* * *

[A Conflict Among the Circuits]

. . . 8 of the 10 Federal Courts of Appeals to have considered the question have applied Flores-Ortega’s presumption of prejudice even when a defendant has signed an appeal waiver.

* * *

We granted certiorari to resolve the split of authority. 585 U. S. ___, 138 S.Ct. 2649, 201 L.Ed.2d 1048 (2018). We now reverse.

* * *

[The Sixth Amendment and Strickland]

The Sixth Amendment guarantees criminal defendants “the right . . . to have the Assistance of Counsel for [their] defence.” The right to counsel includes “‘the right to the effective assistance of counsel.’” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). Under Strickland, a defendant who claims ineffective assistance of counsel must prove (1) “that counsel’s representation fell below an objective standard of reasonableness,” 466 U.S. at 687–688, 104 S.Ct. 2052, and (2) that any such deficiency was “prejudicial to the defense,” id., at 692, 104 S.Ct. 2052.

        “In certain Sixth Amendment contexts,” however, “prejudice is presumed.” Ibid. For example, no showing of prejudice is necessary “if the accused is denied counsel at a critical stage of his trial,” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), or left “entirely without the assistance of counsel on appeal,” Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Similarly, prejudice is presumed “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659, 104 S.Ct. 2039. And, most relevant here, prejudice is presumed “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” Flores-Ortega, 528 U.S. at 484, 120 S.Ct. 1029. We hold today that this final presumption applies even when the defendant has signed an appeal waiver.

* * *

[Garza’s Attorney Rendered Deficient Performance]

[W]e turn to the precise legal issues here. As an initial matter, we note that Garza’s attorney rendered deficient performance by not filing the notice of appeal in light of Garza’s clear requests. As this Court explained in Flores-Ortega:

 “We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon coun­sel to file the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant’s wishes.” 528 U.S. at 477, 120 S.Ct. 1029 (citations omitted); see also id., at 478, 120 S.Ct. 1029.

* * *

[The Issue Before the Court]

We now address the crux of this case: whether Flores-Ortega’s presumption of prejudice applies despite an appeal waiver. The holding, principles, and facts of Flores-Ortega show why that presumption applies equally here.

[Back to Flores-Ortega]

With regard to prejudice, Flores-Ortega held that, to succeed in an ineffective-assistance claim in this context, a defendant need make only one showing: “that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” 528 U.S. at 484, 120 S.Ct. 1029. So long as a defendant can show that “counsel’s constitutionally deficient performance deprive[d him] of an appeal that he otherwise would have taken,” courts are to “presum[e] prejudice with no further showing from the defendant of the merits of his underlying claims.” Ibid. Because there is no dispute here that Garza wished to appeal, see supra, at ___, a direct application of Flores-Ortega’s language resolves this case. See 528 U.S. at 484, 120 S.Ct. 1029.

* * *

[Invoking an Ineffective Assistance of Counsel Claim]

[W]e reaffirm that, “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal,” with no need for a “further showing” of his claims’ merit, ibid., regardless of whether the defendant has signed an appeal waiver.

* * *

[The Holding of the Court]

We hold today that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver. This ruling follows squarely from Flores-Ortega and from the fact that even the broadest appeal waiver does not deprive a defendant of all appellate claims. Accordingly where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant’s express instructions, prejudice is presumed “with no further showing from the defendant of the merits of his underlying claims.” See Flores-Ortega, 528 U.S. at 484, 120 S.Ct. 1029.

[The Conclusion]

The judgment of the Supreme Court of Idaho is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.


Part III of Justice Thomas’ opinion reads, in part, as follows:

[Moving Away From the Original Meaning of the Sixth Amendment]

In addition to breaking from this Court’s precedent, today’s decision moves the Court another step further from the original meaning of the Sixth Amendment. The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” That provision “as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Padilla v. Kentucky, 559 U.S. 356, 389, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (Scalia, J., dissenting). Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel. The result is that convicted criminals can relitigate their trial and appellate claims through collateral challenges couched as ineffective-assistance-of-counsel claims. Because little available evidence suggests that this reading is correct as an original matter, the Court should tread carefully before extending our precedents in this area [emphasis added].

[The Historical Background of the Sixth Amendment]

[T]he Sixth Amendment appears to have been understood at the time of ratification as a rejection of the English common-law rule that prohibited counsel, not as a guarantee of government-funded counsel [emphasis added].

        This understanding—that the Sixth Amendment did not require appointed counsel for defendants—persisted in the Court’s jurisprudence for nearly 150 years.

* * *

[Changes to the Court’s Perception of the Sixth Amendment]

The Court began shifting direction in 1932, when it suggested that a right to appointed counsel might exist in at least some capital cases, albeit as a right guaranteed by the Due Process Clause. . . . Soon thereafter, the Court held that the Sixth Amendment secures a right to court-appointed counsel in all federal criminal cases. Johnson v. Zerbst, 304 U.S. 458, 462–463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). And in 1963, the Court applied this categorical rule to the States through the Fourteenth Amendment, stating “that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Gideon, supra, at 344, 83 S.Ct. 792. Neither of these opinions attempted to square the expansive rights they recognized with the original meaning of the “right . . . to have the Assistance of Counsel.” Amdt. 6 [emphasis added].

[The Court Should Hesitate Before Extending Our Precedents]

The Court should hesitate before further extending our precedents and imposing additional costs on the taxpayers and the Judiciary. History proves that the States and the Federal Government are capable of making the policy determinations necessary to assign public resources for appointed counsel. The Court has acknowledged as much. Betts, 316 U.S. at 471, 62 S.Ct. 1252 (declining to extend the right to counsel to the States because “the matter has generally been deemed one of legislative policy”). Before the Court decided Gideon, the Court noted that “most of the States have by legislation authorized or even required the courts to assign counsel for the defense of indigent and unrepresented prisoners. As to capital cases, all the States so provide. Thirty-four States so provide for felonies and 28 for misdemeanors.” Bute, 333 U.S. at 663, 68 S.Ct. 763 (internal quotation marks omitted). It is beyond our constitutionally prescribed role to make these policy choices ourselves. Even if we adhere to this line of precedents, our dubious authority in this area should give us pause before we extend these precedents further [emphasis added].

[Justice Thomas’ Reliance on Betts]

It has often been noted that Justice Thomas is an originalist – and that explains the reasoning in his dissent. What caught my eye, though, is his citing of Betts v. Brady, 316 U.S. 455 (1942). Betts was overruled by Gideon 55 years ago!

[The Facts in Betts]

Betts was indicted for robbery in the state of Maryland. He did not have the funds to employ counsel. At the time of his arraignment, in the Circuit Court of Carroll County, Maryland, he requested that counsel be appointed for him. Betts was advised that it was not the practice in Carroll County to appoint counsel for indigent defendants except in prosecutions for murder and rape.

[In the Circuit Court]

Betts did not waive his right to counsel, but pleaded not guilty and had a trial before the court. At his trial, he cross-examined the State’s witnesses and called witnesses of his own. Although given the opportunity, he did not take the witness stand. The judge found him guilty and imposed a sentence of eight years.

[Through the Maryland Courts to the Supreme Court]

After a proceeding through the Maryland state courts, Betts applied to the Supreme Court for a writ of certiorari. The writ was granted and Betts’ case was considered by the Supreme Court. Justice Roberts delivered the opinion of the Court, denying relief to Betts. His opinion reads, in part, as follows:

[Petitioner’s Argument That Counsel Should Be Appointed]

The petitioner, in this instance, asks us, in effect, to apply a rule in the enforcement of the due process clause. He says the rule to be deduced from our former decisions is that, in every case, whatever the circumstances, one charged with crime, who is unable to obtain counsel, must be furnished counsel by the state. Expressions in the opinions of this court lend color to the argument, but, as the petitioner admits, none of our decisions squarely adjudicates the question now presented.

* * *

[The Issue Before the Court]

The question we are now to decide is whether due process of law demands that in every criminal case, whatever the circumstances, a state must furnish counsel to an indigent defendant.

* * *

[The Appointment of Counsel Is Not a Fundamental Right]

[I]n the great majority of the states, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial. On the contrary, the matter has generally been deemed one of legislative policy. In the light of this evidence we are unable to say that the concept of due process incorporated in the Fourteenth Amendment obligates the states, whatever may be their own views, to furnish counsel in every such case. Every court has power, if it deems proper, to appoint counsel where that course seems to be required in the interest of fairness [emphasis added].

* * *

[The Fourteenth Amendment Does Not Require the Appointment of Counsel in Every Case]

As we have said, the Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel [emphasis added].


My Thoughts

  • Fortunately, except for Justice Gorsuch, the rest of the Court does not share Justice Thomas’ view of the Sixth Amendment or we might return to a pre-Gideon era.
  • How conservative is Justice Gorsuch? His joining with Justice Thomas in the dissent answers that question.