Monthly archive

April 2019

May 2019 SDR – Voice for the Defense Vol. 48, No. 4

Voice for the Defense Volume 48, No. 4 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

Nielsen v. Preap, No. 16-1363, 2019 U.S. LEXIS 2088 (U.S. March 19, 2019) (slip op.) [8 U.S.C. § 1226(c) does not require immediate arrest to apply]

        Under 8 U.S.C. § 1227(a), aliens may be removed if they fall within one or more classes of deportable aliens. Under 8 U.S.C. § 1226(a), the Secretary of Homeland Security may arrest and hold an alien pending a decision on whether the alien is to be removed, but the Secretary has the discretion either to detain the alien or to release him on bond or parole. If the alien is detained, he may seek review of his detention by DHS officer and then by an immigration judge per 8 CFR §§ 236.1(c)(8) & (d)(1), 1003.19, 1236.1(d)(1). The alien may secure his release if he can convince the officer or immigration judge that he poses no flight risk or danger to the community.

        Under 8 U.S.C. § 1226(c), if there is concern that certain deportable criminal aliens continue to engage in crime and fail to appear for their removal hearings, the Secretary must hold them without a chance to apply for release on bond or parole. Such aliens may be released only if the Secretary decides that release is necessary to provide protection for witnesses or others cooperating with a criminal investigation, or their relatives or associates.

        For 8 U.S.C. § 1226(c) to apply, an “immediate arrest” is not necessary. Criminal aliens who are not arrested immediately upon release are not exempt from mandatory detention under 8 U.S.C. § 1226(c) because both of § 1226(c)’s mandates for arrest and for release apply to any alien linked with a predicate offense identified in 8 U.S.C. § 1226(c)(1)(A)–(D) regardless of exactly when or even whether the alien was released from criminal custody.

United States Court of Appeals for the Fifth Circuit

United States v. Salinas, Nos. 18-40361 & 18-40407, 2019 U.S. App. LEXIS 8327 (5th Cir. March 20, 2019) (designated for publication) [But-for causation, enhancement under U.S.S.G. § 2L1.1]

        In deciding whether an enhancement applies, a district court is permitted to draw reasonable inferences from the facts, and these inferences are fact-findings reviewed for clear error. Under the clearly erroneous standard, the Fifth Circuit will uphold a finding so long as it is “plausible in light of the record as a whole.” The government must prove sentencing enhancements by a preponderance of the evidence. The Fifth Circuit may affirm an enhancement on any ground supported by the record.

        Under U.S.S.G. § 2L1.1, if any person died in the course of smuggling, transporting, or harboring an unlawful alien, a 10-level enhancement may be applied. The defendant’s conduct must simply be the but-for cause of the death, not its proximate cause.

        Under Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346–347 (2013), but-for causation requires the government to show merely that the harm would not have occurred in the absence of (but-for) the defendant’s conduct.

Editor’s note: Be sure to read the opinion for a full understanding of the holding and this note. Martinez could have had the same heart attack merely by sitting down. He inserted himself into the scene by illegally entering the country and hired the appellants to transport him (i.e., he was not kidnapped, nor was he an “innocent bystander” like a person whose vehicle was struck by persons fleeing CBP). Martinez was 28, an age at which a heart attack is not reasonably foreseeable. Nor could the appellants have reasonably foreseen that Martinez was susceptible to the elements or extreme “excitement” that may cause him to die from exposure or a heart attack (as a child or elderly person may be). Thus, the actions of the appellants may have been a concurrent cause of Martinez’s death, not the “but-for” cause. Perhaps correlation indeed implies causation.

In re U.S. Bureau of Prisons, No. 18-50512, 2019 U.S. App. LEXIS 7560 (5th Cir. March 14, 2019) (designated for publication) [Contempt orders; BOP calculates back-time credit]

        Under 28 U.S.C. § 1291, civil contempt orders are not appealable final orders. Under In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423, 1429 (5th Cir. 1991), an exception exists when the order is not part of continuing litigation since no underlying case awaits final resolution. A decision is final when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. A civil contempt order is not final for purposes of appeal unless: (1) a finding of contempt is issued, and (2) an appropriate sanction is imposed.

        A district court’s “inherent power to sanction contempt is not a broad reservoir of power ready at an imperial hand, but a limited implied power squeezed from the need to make the court function.” Inherent powers must be exercised with restraint and discretion.

        Contempt power is not an appropriate means for a district court to express its disagreement with a federal statute. Threatening government officials with contempt sanctions for complying with federal law is a clear abuse of discretion.

        Under 18 U.S.C. § 3585(b) (Sentencing Reform Act of 1984), a defendant shall be given credit for time spent in official detention prior to the date the sentence commences that has not been credited against another sentence and is a result of: (1) the offense for which the sentence was imposed; or (2) any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed.

        Under United States v. Wilson, 503 U.S. 329, 334 (1992), 18 U.S.C. § 3585(b) does not authorize a district court to compute the credit at sentencing. This responsibility belongs to the Attorney General acting through the BOP. The BOP’s procedures for calculating credit under § 3585(b) are set out in its Sentence Computation Manual.

        If a defendant requests that the district court award credit for time served and the court purports to grant or deny this request at sentencing, because the district court lacks the authority to award or deny credit, the BOP is not bound by its decision.

        A district court has residual authority to consider a defendant’s time in custody, so if it determines that BOP will not credit time served, the court can reduce the sentence under U.S.S.G. § 5G1.3(b) or § 5K2.23. The district court must calculate the sentence itself and cannot order BOP to award credit. A district court cannot increase a sentence to deny credit the defendant is otherwise entitled under § 3585(b).

        Under Setser v. United States, 566 U.S. 231, 236 (2012), district courts have discretion to select whether sentences they impose will run concurrently or consecutively with respect to other sentences they impose or that have been imposed in other proceedings, including an anticipated but not yet imposed state sentence. The authority to choose a concurrent or consecutive sentence presupposes the existence of another sentence. If a prisoner completes his federal sentence before another sentence is imposed, under 18 U.S.C. § 3624(a), the BOP lacks the authority to hold him beyond his release date.

        A party commits contempt when he violates a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court’s order. Contempt findings must be supported by clear and convincing evidence that: (1) a court order was in effect, (2) the order required certain conduct by the respondent, and (3) the respondent failed to comply with the order. The district court’s factual findings are reviewed for clear error and underlying conclusions of law de novo.

Texas Court of Criminal Appeals

Jones v. State, No. PD-1289-17, 2019 Tex.Crim.App.LEXIS 289 (Tex.Crim.App. March 27, 2019) (designated for publication) [Tex. Rule Evid. 613(b) (Witness’ Bias or Interest); harmful constitutional error under Tex. Rule App. Proc. 44.2(a)]

        Under Alford v. United States, 282 U.S. 687 (1931), the SCOTUS observed that counsel may not know in advance what pertinent facts may be elicited on cross-examination. Thus, it is necessarily exploratory and the rule that the examiner must indicate the purpose of his inquiry does not in general apply. It is the essence of a fair trial that reasonable latitude be given the cross-examiner even though he is unable to state what facts a reasonable cross-examination might develop. Prejudice occurs from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and credibility to a test, without which the jury cannot fairly appraise them. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.

        Under Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996), citing Alford, the TCCA held that the defendant should be granted a wide latitude even though he is unable to state what facts he expects to prove through his cross-examination. And under Spain v. State, 585 S.W.2d 705, 710 (Tex.Crim.App. 1979), the failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard to the witness’ credibility. An unbelievable denial of the existence of a fact can be more probative as to lack of credibility than an affirmative admission of the fact.

        Under Tex. Rule Evid. 613(b) (Witness’ Bias or Interest), when examining a witness about bias or interest, a party must first tell the witness the circumstances or statements that tend to show the bias or interest. If examining a witness about a statement—whether oral or written—to prove the witness’ bias or interest, a party must tell the witness: (A) the contents of the statement; (B) the time and place of the statement; and (C) the person to whom the statement was made. There is no need, however, to show the written statement if a party uses the statement to prove bias or interest. However, the party must show it (upon request) to opposing counsel. The witness must be given the opportunity to explain or deny the circumstances or statements that tend to show the bias or interest. The witness’ proponent may present evidence to rebut the charge of bias or interest. Extrinsic evidence of bias or interest is not admissible unless the witness is first examined about the bias or interest and fails to unequivocally admit it.

        Under Delaware v. Van Arsdall, 475 U.S. 673 (1986), and Tex. Rule App. Proc. 44.2(a), where there is constitutional error, reviewing courts must reverse unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

Ex parte Lalonde, No. WR-87,660-01, 2019 Tex.Crim.App.LEXIS 287 (Tex.Crim.App. March 27, 2019) (designated for publication) [False evidence must be material to warrant relief]

        Under Ex parte Chabot, 300 S.W.3d 768, 770–71 (Tex.Crim.App. 2009), and Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex.Crim.App. 2011), the Due Process Clause of the 14th Amendment is violated when the State uses materially false testimony to obtain a conviction regardless of whether it does so knowingly. The violation can be caused by false testimony elicited by the State or by the State’s failure to correct testimony it knows to be false. Even if no one contends that the prosecutors were aware that they were offering perjured testimony, perjured testimony is treated as “knowingly used” if the witness was a member of the prosecution team. Ex parte Napper, 322 S.W.3d 202, 243 (Tex.Crim.App. 2010).

        Under Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex.Crim.App. 2014), the false evidence must be material, and the standard of materiality is the harmless error standard of Chapman v. California, 386 U.S. 18 (1967): Evidence is material (and harmful) unless it can be determined beyond a reasonable doubt that the testimony made no contribution to the defendant’s conviction or punishment. False testimony is material only if there is a reasonable likelihood that it affected the judgment of the jury. An applicant who proves by a preponderance of the evidence a due-process violation stemming from a use of material, false testimony necessarily proves harm because a false statement is material only if there is a reasonable likelihood that the false testimony affected the judgment of the jury. The applicant must still prove his habeas-corpus claim by a preponderance of the evidence, but in doing so, he must prove that the false testimony was material and thus it was reasonably likely to influence the judgment of the jury. An applicant relying on a due process false-testimony claim must show both materiality of the testimony and that the error in its use was not harmless if the defendant could have raised the claim in the trial court or on direct appeal. If the applicant could not have raised the matter at trial or on appeal, in a habeas proceeding, he must show materiality but need not show the error was not harmless.

State v. Martinez, No. PD-0878-17, 2019 Tex.Crim.App. LEXIS 237 (Tex.Crim.App. March 20, 2019) (designated for publication) [There is an expectation of privacy in blood that is drawn for medical purposes]

        There is no expectation of privacy in abandoned property. When a defendant voluntarily abandons property, he lacks stand­ing to contest the reasonableness of the search of the abandoned property. But merely discarding property is not the same as abandonment. Abandonment is a question of intent to be inferred from words spoken, acts done, and other objective facts and relevant circumstances, as a defendant must: (1) intend to aban­don property, and (2) freely decide to abandon the property. If a defendant intended to abandon the property, such abandonment is not voluntary if it is the product of police misconduct. When police take possession of property abandoned independent of police misconduct, there is no seizure under the Fourth Amendment.

        Under the third-party doctrine, a person has no legitimate expectation of privacy in information voluntarily turned over to third parties. Carpenter v. United States, 138 S.Ct. 2206, 2216 (2018). This is so even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. The third-party doctrine is a voluntary turnover of information to a third party.

        Under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), warrantless breath testing incident to arrest was permissible, but warrantless blood testing incident to arrest is prohibited.

        The analysis of biological samples such as blood is a search infringing upon privacy interests subject to the Fourth Amendment. There is an expectation of privacy in blood that is drawn for medical purposes. The expectation is not as great as an individual has in the sanctity of his own body against the initial draw of blood. But it is greater than an individual has in the results of tests that have already been performed on the blood.

Texas Courts of Appeals

Clark v. State, No. 09-17-00401-CR, 2019 Tex. App. LEXIS 2371 (Tex.App.—Beaumont March 27, 2019) (designated for publication) [Legally sufficient evidence for deadly weapon finding using a vehicle]

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010), to determine legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evi­dence but defers to the factfinder’s resolution of conflicts in testimony, weighing of evidence, and drawing reasonable inferences from the facts.

        Under Sierra v. State, 280 S.W.3d 250, 255 (Tex.Crim.App. 2009), to determine whether the evidence was legally sufficient to show the use of a vehicle as a deadly weapon, the court views the evidence in the light most favorable to the verdict to determine whether a rational factfinder could find beyond a reasonable doubt that the vehicle was used or exhibited as a deadly weapon while committing the underlying crime. To be legally sufficient to sustain a deadly weapon finding, the evidence must show: (1) the object was something that in the manner of its use or intended use was capable of causing death or serious bodily injury; (2) the weapon was used or exhibited during the transaction from which the felony conviction was obtained; and (3) other peo­ple were actually endangered. While the danger to motorists must be actual and not hypothetical, it does not require pursuing officers or other motorists to be in a zone of danger, take evasive action, or require a collision. If a vehicle is used in a manner making it capable of causing death or serious bodily injury, it may become a deadly weapon. A defendant is not required to have specific intent to use a vehicle as a deadly weapon.

Harris v. State, No. 03-17-00539-CR, 2019 Tex. App.-LEXIS 1874 (Tex.App.—Austin March 13, 2019) (designated for publication) [challenges for cause; evidence of a no-bill]

        Under Buntion v. State, 482 S.W.3d 58, 83 (Tex.Crim.App. 2016), to preserve a complaint about the denial of a challenge for cause, a party must show that he: (1) used all of his peremptory strikes; (2) asked for and was refused additional peremptory strikes; and (3) was then forced to take an identified, objectionable juror whom the party would not have otherwise accepted had the trial court granted his challenge for cause (or had the trial court granted him an additional peremptory challenge to strike the juror). The objection must have been made at a time and in a manner so that it can be corrected.

        Under Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App. 1996), the grand jury determines whether evidence exists to formally charge a person with an offense. A no-bill is merely a finding that the evidence brought before that particular grand jury did not convince them to formally charge the offense alleged.

Mitchell v. State, No. 06-18-00013-CR & 06-18-00014-CR, 2019 Tex. App.-LEXIS 2017 (Tex.App.—Texarkana March 14, 2019) (designated for publication) [egregious-harm standard in the jury charge]

        The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” requires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” See also Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005). Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), and Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. To determine whether unobjected-to jury-charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record. Under Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), direct evidence of harm is not required to establish egregious harm.

        Under Tex. Code Crim. Proc. Art. 36.13, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed by that law. Under Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App. 2007 and Tex. Code Crim. Proc. Art. 36.14), a trial court must submit a charge setting forth the law applicable to the case. The purpose of the jury charge is to inform the jury of the applicable law and guide them in its application. It is not the function of the charge merely to avoid misleading or confusing the jury: It is the function of the charge to lead and prevent confusion.

        Under Lawton v. State, 913 S.W.2d 542, 551 (Tex.Crim.App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App. 1998), and Tex. Penal Code § 1.03(a), conduct does not constitute an offense unless it is defined as so by statute, ordinance, order of a commissioners court, or rule authorized by and lawfully adopted under a statute.

        Under Zuckerman v. State, 591 S.W.2d 495, 496 (Tex.Crim.App. 1979), a jury charge is fundamentally defective if it authorizes conviction on acts that are not the offense charged. A charge allowing conviction under alternative theories is defective if one of the theories is legally invalid.

Editor’s note: The entire relevant law on jury charge error is:

  • The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” requires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” See also Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005). Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), and Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. To determine whether unobjected-to jury-charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record. Under Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), direct evidence of harm is not required to establish egregious harm.
  • Under Tex. Code Crim. Proc. Art. 36.13, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed by that law. Under Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App. 2007 and Tex. Code Crim. Proc. Art. 36.14), a trial court must submit a charge setting forth the law applicable to the case. The purpose of the jury charge is to inform the jury of the applicable law and guide them in its application. It is not the function of the charge merely to avoid misleading or confusing the jury: It is the function of the charge to lead and prevent confusion.
  • Under Tex. Penal Code § 36.05(a), a person commits tampering with a witness if with intent to influence the witness he coerces a witness or a prospective witness in an official proceeding to: (1) testify falsely; (2) withhold any testimony, information, document, or thing; (3) elude legal process summoning him to testify or supply evidence; (4) absent himself from an official proceeding to which he has been legally summoned; or (5) abstain from, discontinue, or delay the prosecution of another.
  • The indictment charged Mitchell only with tampering under Tex. Penal Code § 36.05(a)(1) (to testify falsely). The abstract portion of the jury charge instructed the jury that “a person commits the offense of tampering with a witness if, with intent to influence the witness, he coerces a witness or prospective witness in an official proceeding to testify falsely.” The application portion, which tracked the indictment, authorized the jury to convict Mitchell of tampering with a witness if it found beyond a reasonable doubt that Mitchell coerced Lauren “by writing letters to her asking her to lie, and/or asking her to go see his counsel, that he will help her, and/or asking her not to go see the DA with intent to influence her to testify falsely.”
  • Asking Lauren to lie amounts to witness tampering, but the jury charge is fundamentally defective because the application portion allowed the jury to convict him of witness tampering for encouraging Lauren to meet with his attorney or encouraging her not to meet with the DA, neither of which is tampering with a witness. Asking her not to see the DA is not tampering with a witness.
  • Under Lawton v. State, 913 S.W.2d 542, 551 (Tex.Crim.App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App. 1998), and Tex. Penal Code § 1.03(a), conduct does not constitute an offense unless it is de­fined as so by statute, ordinance, order of a commissioners court, or rule authorized by and lawfully adopted under a statute.
  • Under Zuckerman v. State, 591 S.W.2d 495, 496 (Tex.Crim.App. 1979), a jury charge is fundamentally defective if it authorizes conviction on acts that are not the offense charged. A charge allowing conviction under alternative theories is defective if one of the theories is legally invalid.
  • Because the charge authorized the jury to convict Mitchell under three alternative grounds, and one (encouraging Lauren not to meet with the DA) is not an offense, the jury charge was defective because it authorized conviction for actions that are not tampering with a witness.
  • One of the three theories permitted the jury to convict Mitchell for conduct that is not an offense, and the court is not free to presume the jury based its conviction on a legally valid ground. The evidence did not support such a conclusion, and the state emphasized the erroneous language of the charge.
  • The judgment is reversed and case is remanded for a new trial.

Morrison v. State, No. 06-17-00159-CR, 2019 Tex. App. LEXIS 2343 (Tex.App.—Texarkana March 27, 2019) (designated for publication) [State may not review indigent defendant’s attorney’s billing records submitted prior to trial as required by Art. 26.05]

        Under Weatherford v. Bursey, 429 U.S. 545, 552 (1977), and Murphy v. State, 112 S.W.3d 592, 602 (Tex.Crim.App. 2003), the State violates a defendant’s Sixth Amendment right to counsel if it purposefully intrudes into that relationship and the intrusion produces, directly or indirectly, evidence offered at trial. An intrusion produces, directly or indirectly, evidence offered at trial when the: (1) State’s evidence originated in the intrusion, (2) intrusion is used in any other way to the substantial detriment of the defendant, or (3) State learns details about the defendant’s trial preparation.

        Under Maine v. Moulton, 474 U.S. 159, 170–171 (1985), the State has an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel. A purposeful intrusion can occur even where the State does not create the circumstances that made the information available if the State exploits an opportunity to obtain information otherwise protected from disclosure.

        Under In re Natl. Lloyds Ins. Co., 532 S.W.3d 794, 803 (Tex. 2017), attorney billing records are attorney work product. Discovery of billing records in their entirety would provide a roadmap of how the party plans to litigate.

        Under Washington v. State, 856 S.W.2d 184, 189–190 (Tex.Crim.App. 1993), the TCCA held that the attorney-work-product privilege has generally been limited to documents which themselves do not contain admissible evidence of the offense but instead are summaries of the evidence or discussions about the offense that have been prepared for the internal use of attorneys and investigators.

        Under Skinner v. State, 956 S.W.2d 532, 538–39 (Tex.Crim.App. 1997), a document that contains comments by the attorney containing his strategy or opinions of the strengths and weaknesses of the case is highly privileged work product and is the type of document intended to be protected by the work-product doctrine.

        Under Tex. Code Crim. Proc. Art. 26.05, only attorneys appointed to represent indigent defendants are required to submit their itemized bills to the trial court for payment. Thus, only indigent defendants are at risk of disclosing non-discoverable information to the State as part of the compensation procedure.

        Under Griffin v. Illinois, 351 U.S. 12, 17 (1956), both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, stand on an equality before the bar of justice in every American court.

Representing the Mentally Ill on the Road to Recovery and Victory

Why must we learn mental illness? Because we represent the citizen (and non-citizen) accused of crime. Consequently, we often represent the mentally ill, the addicted, the intellectually disabled, and the mentally impaired. Statistics show a supermajority of our clients have never finished high school, for whatever reason. Many have an underlying mental illness impairing their ability to conform their behavior to the law or the classroom. Often, this impairment comes paired with a substance abuse disorder.

This practice area is filled with tough mental health and intellectual disability cases and presents the practitioner with extraordinary responsibility. To best serve these special clients, the law and facts demand we be well-versed about the intersection of criminal law and mental health. Our state legislators found these issues important enough to write many statutes—so we need to find it important enough to read them. As Gerry Spence taught, “It all begins with YOU.” Are you ready to practice law on another level, particularly felony criminal defense? If so, thank you for your work and for considering this article. I hope you find it helpful.

The reality of the law enforcement model is that police officers search for low-hanging fruit. As a result, the mentally ill and intellectually deficient walk, or drive, themselves into the law enforcement trap more often than high-functioning men and women. High-functioning people are less likely to commit crimes and are more likely to avoid detection. Most importantly, people with mental illness “self-medicate” with addicting drugs so they can feel “better” or “normal.” They are typically in denial of their mental health and substance abuse problems. Drugs alter behavior and lead to crime. A person’s drug abuse history, whether medical or criminal, is a clue there might be a mental illness problem afoot. Over sixty percent of all drug addicts have an underlying mental illness fueling their addiction.1 My trusted licensed chemical dependency expert firmly believes there is always an underlying personal trauma driving a substance abuse disorder.

No one wants to be known as someone with serious mental illness or a drug addiction. These are not only disabilities but social and personal stigmas. And denial is not just a river in Egypt, as they say, but a primary state-of-mind for the untreated mentally ill and the addicts. The burden is on the defense attorney to discern what mental illness or impairment the client may have now, how it may help their defense, and how defending their case may get them on the path to recovery—both in the mental health and accompanying addiction sphere. This attention to detail will also reduce the elevated risk of an ineffective assistance of counsel finding in these types of cases. By being the client’s knight in shining armor, and by getting them on a path to recovery and victory, the defense lawyer checks off most of the boxes in a true investigation of the case.

Courts of Appeals Are Finding Lawyers Ineffective for Failing to Investigate Mental Health and Mental Impairment

Representing the mentally ill is a large part of a full-time criminal defense practice and has become the primary focus of many felony punishment cases. I gravitated toward this practice area after a lifetime of familial interaction with bipolar disorder, major depressive disorder, and some substance use issues. And capital murder cases, where the law of effective assistance of counsel progresses most quickly, have transformed “future dangerousness” defenses into “mitigation” as the primary punishment issue. Why do we spare their life? Why do we let them remain in society?

Some attorneys avoid putting on mental health evidence, fearing it may backfire with some juries. That’s a decision to make, but only after a full investigation, as mental health mitigation and investigation is a primary focus of motions for appeals and post-conviction writs alleging ineffective assistance for failure to investigate punishment evidence. See Porter v. McCollum, 558 U.S. 30 (2009) (finding defense counsel’s failure to uncover and present punishment evidence regarding defendant’s mental health, family background, or military service ineffective). These claims come as quickly as a motion for new trial filed by a savvy appellate lawyer and may drag on for years through the writ process. Therefore, the defense practitioner must make a competent mental health investigation to either: 1) rule it out as an issue, or 2) make a reasonable judgment about whether to include it as part of the defense case.

One cannot strategically fail to investigate the client’s mental health history. But one can strategically not utilize the evidence after a proper investigation. “Under Strickland, an attorney has the duty ‘to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’” Conrad v. State, 77 S.W. 3d 424, 426 (Tex.App.—Fort Worth 2002, pet. ref’d) (quoting Strickland, 466 U.S. 668, 691 (1984)). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 690) (failure to uncover and present Defendant’s history of sexual abuse at punishment was ineffective assistance). “Failure to uncover and present mitigating evidence ‘cannot be justified as a tactical decision when defense counsel has not conducted a thorough investigation of the defendant’s background.’” Lampkin v. State, 470 S.W.3d 876, 913 (Tex.App.—Texarkana 2015, pet. ref’d) (quoting Shanklin v. State, 190 S.W.3d 154, 164 (Tex.App.—Houston [1st Dist.] 2005, pet. dism’d)). Consequently, by completing a full mental health investigation, the punishment case becomes both much more effective to present and very less subject to later challenge. As David Botsford warned, “The client of today is the enemy of tomorrow.”

If you rely on court appointments for a living or extra income, an ineffective finding can cut off your ability to accept court appointments for a year under your county’s Indigent Defense Plan (and longer if the judge presiding blocks you indefinitely). You can be prevented from appointment as lead counsel on capital trials, appeals, or writs. Tex. Code Crim. Pro 11.071, 26.052. You can also lose your board certification. So don’t risk your livelihood, key sources of income, and especially your client’s well-being by being pressured into a quick plea when there are evidence-based concerns about their mental health or intellectual disability.

How to Efficiently Investigate a Client’s Mental Health History

Step 1—Ask the Client

The first task in the investigation is not rocket science. Ask the client whether they have a history of mental illness and what medication, if any, they take. This is important to ask in the first interview, along with whether they have an addiction or any military veteran status. Mental health court, drug court, or veteran’s court are options that may be the easiest road to recovery in your county.

Persons accused of crimes are often under-educated and under-medicated, so to speak. They may also be traumatized by their arrest and incarceration. They may not remember all their mental health diagnoses from childhood, or they may simply not disclose it despite being in their best interest. Nonetheless, at the first client interview you may often notice mental illness if you converse long enough. Prolong the interview if you observe racing or very slow speech or other abnormalities suggesting mental impairment. The longer you talk with the client, the more likely you will see or hear something needing further investigation.

A lengthy interview is also important since many people suffering from a mental illness (everything from minor depression to schizophrenia) have learned to adapt their behavior to hide and minimize their disorder. A person with mental illness is still looked down upon in our society. If you represent an adult defendant, they’ve spent much of their developmental life working around, over, and through their disorder. Often, they will do whatever it takes to mask it from you and the general public. They just want to be “normal,” too.

It’s great when a client volunteers they have a diagnosable mental illness. But more often it’s your detective work that picks up on it, or at least on the clues. How does the client look? Bad hygiene or disheveled appearance? Even blank/distant/empty stares or affect can be clues. How do they speak? Rapid or slow speech can be clues, as well. How is their thought pattern? A disjointed thought cycle is a clue. How does interacting with them feel to you? Personality put-offs, weird vibes, and sad feelings can be clues. What behavioral history can you observe from their criminal history? A long line of addiction-related or violent crimes may be red flags for mental illness or substance abuse disorders.

First interview clues are convenient, but you must regularly visit at length with the client to understand them well. Ask them if they have a history of mental illness and ask what doctors they’ve seen, since getting their records under HIPPA or subpoena is the next important step. By the way, criminal subpoenas, including those from the defense, are not protected by HIPPA and do not need a special court order. Some offices request a HIPPA release out of an abundance of caution. I provide it if the client is competent to sign one.

Sometimes you learn about the client the easy way, but other times you must really dig. Surprising is how many head trauma cases are out there. Look for them. Ask your clients if they have a history of head trauma. What car accidents have they experienced? Have they fallen on their head or suffered a concussion? Football is still king in Texas, along with Bob Wills.

The client is your most accessible punishment witness. I usually call the client at punishment, especially if they did not testify at guilt-innocence. The judge or jury may want to hear what they have to say and may want to make a connection at some point during the trial. As John Hunter Smith once noted, punishment is an “all cards on the table” setting. And even though there’s usually a bad card or two with mental illness and substance abuse, consider playing the entire hand. Get the client accustomed to your potential questions and cross-examination. Lastly, aggravated cases may be the most appropriate times for your client to apologize, and that’s hard to do without testifying. The value of their apology should never be under-estimated!

Step 2—Ask the Client’s Family and Friends

Equally important, it’s essential to speak with the client’s family to get a better understanding of their entire family. Defense lawyers may dread receiving repeated phone calls from family members and friends of inmates, usually asking the same questions over and over. However, avoid isolating oneself from the client’s family. They may well be a goldmine of information critical to your pre-trial mental health investigation.

If the client’s family acts “crazy” towards you, that’s a BIG CLUE to dig deeper into your client’s mental health, family history, and addiction patterns. It’s also a big tell of the pressure cooker within which your client may live and helps you find the “enabler” in their life, if one exists. In an addiction situation, the enabler may need intervention and counseling, too. And the sign of a good in-patient drug counseling center is the availability of family counselors. Enablers must be taught to draw boundaries. Moreover, the client’s primary influencer can be best at getting them to accept a “no brainer” plea deal, if offered.

Personally, I still answer my primary office calls using my iPhone. I want to speak with everyone who can be somewhat civil, and it helps me learn quickly the most about my clients. In my experience, the client’s mother or father is the one who remembers best the client’s medical or mental history, medicine and doctors’ names. These medical records are key to corroborating their mental illness and life story since the State’s primary rebuttal argument is malingering, he hasn’t sought help timely, or “everyone is bipolar these days.” Obtaining these records proves your client’s story, and jurors love to read these records in a punishment case.

Family members and friends are the best sources of material regarding the client’s background. How did they do in school? Ask momma. How did they behave growing up? Ask momma. Did they have special needs in school? Ask momma. Did you ever take them to a psychiatrist or counselor? Ask momma. Of course, daddy may also know, and I’m not trying to be biased. But often our clients are in orange jumpsuits because daddy or momma or both daddy and momma just weren’t around. Lack of parenting leads to a high risk of behavioral problems and a higher risk of landing in county jail. Your client’s mitigation case may be begging for this discovery, so talk to the family and it will reveal itself ninety percent of the time.

This is not the end of your mental health mitigation case, but it’s the end of the beginning—and it must be done.


The Right to a Speedy Trial

Recently, some fellow defense counsels and I discussed how the case law regarding the right to a speedy trial applied to our cases. In our speedy trial motions, we have cited cases regarding post-accusation delay of 8 months or longer having been found to be “presumptively prejudicial.” Clarke v. State, 928 S.W.2d 709, 713 (Tex. Crim. App. 1996). We have also cited cases which affirm that at a speedy trial hearing, the State has the burden of proof regarding rebutting the presumption of prejudice. Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014). We have noticed that some trial judges do not address this “presumptively prejudicial” delay period and the requirement that the State carry the burden of proof at speedy trial hearings. As a result, we looked into the following speedy trial case law for guidance.

The Speedy Trial Law in General

The Sixth Amendment to the United States Constitution states, in relevant part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” Pursuant to the Fourteenth Amendment, this Sixth Amendment speedy trial right is binding on the states. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

Regarding this Sixth Amendment speedy trial right, the Supreme Court of the United States has stated as follows:

[The Sixth Amendment] guarantee [of a speedy trial] is an important safeguard to prevent undue and oppressive incar­ceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.

United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).

With respect to the difference between the Sixth Amendment speedy trial right and other constitutional protections, the Supreme Court has stated:

The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at time in opposition to, the interests of the accused.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The remedy for a violation of the speedy trial right is dismissal of the charging instrument with prejudice. Id. Such a dismissal is the sole means that provides a remedy for the harm done to a defendant by a delay in the right to a speedy trial. Id. Such a dismissal is mandated once a defendant’s Sixth Amendment speedy trial right has been violated. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

The Sixth Amendment speedy trial right applies once a person becomes an “accused.” United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). A person becomes an “accused” once there is an arrest. Id. Regarding an arrest, the Court stated:

Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family, and his friends.


The Court, in 1967, stated as follows regarding the anxiety and other factors on a citizen arrested for an offense:

The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him to go “whithersoever he will.” The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the “anxiety and concern accompanying public accusation,” the criminal procedure condoned in this case . . . clearly denies the petitioner the right to a speedy trial . . .

Klopfer v. North Carolina, supra.

A demand for a speedy trial is not a necessary condition to the consideration of the speedy trial right. Barker v. Wingo, supra. “Such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court’s pronouncements on waiver of constitutional rights.” Id. “Courts should ‘indulge every reasonable presumption against waiver’ . . . and they should ‘not presume acquiescence in the loss of fundamental rights.’” Id. A presumption against waiver with respect to the speedy trial right is appropriate given that a delay in a speedy trial after a person is arrested and released on bail results in such a person being “unable to lead a normal life because of community suspicion and his own anxiety.” Id.

The Court in Barker v. Wingo concluded that in speedy trial cases a balancing test is appropriate “in which the conduct of both the prosecution and the defendant are weighed.” Id. The Court stated:

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

* * *

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other cir­cumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.


The above balancing analysis is conducted only if there exists delay that is “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The standard of “presumptively prejudicial” is not a statistical probability of prejudice but is merely a conclusion that the delay is “unreasonable enough” to warrant further analysis under Barker. Id. “Depending on the nature of the charges, the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Id. “We note that, as the term is used in this threshold context, ‘presumptive prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.” Id.

With respect to the reasons for the delay, the Court in Barker stated as follows:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Barker v. Wingo, supra.

The prosecution bears the burden justifying the delay. The Court of Criminal Appeals addressed this issue as follows:

[T]he burden of excusing the delay rests with the State and that in light of a silent record or one containing reasons insufficient to excuse the delay, it must be presumed that no valid reason for delay existed.

Turner v. State, 545 S.W.2d 133 (Tex. Crim. App. 1976).

With respect to the standard of review on appeal of a trial judge’s denial of a speedy trial motion, the Court of Criminal Appeals has stated:

When reviewing an application of the Barker test, a reviewing court uses the same burden of proof allocation as in the context of a motion to suppress. [] That is, we give almost total deference to historical findings of fact of the trial court that the record supports and draw reasonable inferences from those facts necessary to support the trial court’s findings, but we review de novo whether there was sufficient presumptive prejudice to proceed to a Barker analysis and the weighing of the Barker factors, which are legal questions. [] In addition, a reviewing court should not consider in its deliberations record evidence that was not before the trial court when it made its ruling.

Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014) (citations omitted).

In Texas, a 17-month delay (between the date of indictment and date of trial) was unreasonable enough to trigger the Barker enquiry. Phillips v. State, 650 S.W.2d 396 (Tex. Crim. App. 1983). In Phillips, the defendant was convicted of rape and sentenced to imprisonment for ten years. Id. The offense occurred on May 25, 1976; an indictment for rape was returned and a capias was issued on October 7, 1976; the defendant became aware of the indictment on November 29, 1977; the capias was returned on December 1, 1977; the defendant filed a speedy trial motion on March 2, 1978; and trial began on March 9, 1978. Id. Law enforcement claimed it did not know how to find the defendant to serve him with the capias. Id. The State’s reason for the delay was negligence, which was not a justification. Id. With respect to a showing of prejudice, the court stated, “In considering the factor of prejudice, moreover, this court does not require proof of ‘actual prejudice,’ but only ‘some showing’ that the delay has been prejudicial.” Id. The court granted speedy trial relief. Id.

The Phillips court recognized the timing of the speedy trial motion (client took no action between 11/29/77 and 3/2/78 and then requested dismissal rather than speedy trial). Id. With respect to this timing, the Court of Criminal Appeals stated as follows:

This is not to say, however, that asking only for dismissal will result in a “waiver,” while seeking a speedy trial and, in the alternative, a dismissal, would preserve the claim. In some cases, defense counsel may legitimately feel that a long delay has caused a client so much prejudice that dismissal is warranted, even if the State is belatedly ready to move promptly. Each case must turn on its own facts, and the particular relief a defendant seeks is but one fact to consider.


Presumptive Prejudice and Length of Delay

Factors to consider in a client’s case regarding presumptive prej­udice and length of delay include: (1) when the client was arrested; (2) when the client was indicted; (3) the period of delay; (4) whether or not this period of delay is sufficient to trigger the Barker enquiry and clearly weigh heavily in favor of finding a speedy trial violation; and (5) did the lengthy delay after arrest seriously interfere with the client’s liberty (was the client free on bail or not; did the delay disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, or create anxiety in him, his family, and his friends). See United States v. Marion, supra.

Prejudice to the Client Because of Length of Delay

Counsel should determine whether or not the facts of the case constitute “some showing” that the delay has been prejudicial. See Phillips, supra; Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (affirmative demonstration of prejudice not required). Was the delay between the client’s arrest and indictment and later trial solely attributable to the State? A client would be entitled to relief if the presumption of prejudice was neither extenuated by acquiescence nor persuasively rebutted by the State at a speedy trial hearing. See Doggett, supra, 505 U.S. 647, 651. Remember that affirmative proof of particularized prejudice is not essential to a client’s speedy trial claim, and the State’s negligence is not automatically tolerable simply because the client cannot demonstrate exactly how it has prejudiced him. See Doggett.

Unexplained delay by the State tilts a case against the State especially if the client, not the State, has been prejudiced more severely. Determine whether or not the indictment subjected the client to anxiety and concern accompanying public accusation and public scorn thereby almost certainly forcing curtailment of the client’s speech and associations. See Klopfer v. North Carolina, supra.

The State at the speedy trial hearing must persuasively rebut the presumption of prejudice in such a case. If the State during the hearing offered no tenable reason for the delay, negligence is not a tenable justification. See Phillips, supra. The client must bring his speedy trial claim to the attention of the trial judge and the State. The client must not take advantage of the delay. A delay in a case as described above and the negligence by the State in the case results in prejudice to the client resulting in the deprivation of the client’s Sixth Amendment right to a speedy trial.

Hopefully, the cases cited in this article and the factors considered will help defense counsel to successfully assess a client’s speedy trial rights claim and help defense counsel during the speedy trial hearing. I have attached a sample speedy trial motion for your use. Good luck to you.

Where in Hell Did J. Ray Go? A War Story

Now, in talking with the older lawyers around the courthouse, you hear a lot of tales from the old days at the Carroll Courts Building. But those are really not the old days at all. The “old days” are those in the storied old courthouse on the square, what my contemporaries call “the Court House” as opposed to the Carroll Court House or New Courthouse.

Today, everyone thinks of it as a musty old museum and office complex for that august debating body, the Denton County Commissioners. But there was a time when it was filled with workers, judges, and lawyers.

On the third floor, in what were best described as tacky quarters, Judge Robert Scofield held forth. Known behind his back as “Fightin Bob,” he hosted events in his court that could, from time to time, get exciting. One of the best friends the judge had was Jack Gray, a longtime lawyer, politician, and former District Judge. Gray was known to all us kid lawyers as a man of influence.

One day the man of influence succeeded in convincing the then County Attorney John Lawhon to dismiss a case involving a young man who was accused of a fatal accident while driving intoxicated. Admittedly, there was a paucity of evidence, but this did not sit well with the Assistant County Attorney in charge of the case.

That Assistant County Attorney was the legendary J. Ray Martin, later Judge Martin of the County Court at Law. He was one of the more eccentric figures to grace the courts of this county. Educated at Princeton and known as an investor in commodities, he sported a cherubic grin that was his trademark. He floated in after the oil boom collapsed in Snyder and became an Assistant County Attorney.

Gray dutifully appeared in Scofield’s courtroom to have the matter dismissed, but J. Ray announced he was not going to do it. Scofield replied that Lawhon had already made the motion to dismiss, and J. Ray Martin needed to get him an order. J. Ray Martin replied he would not. Before Scofield could order him to draft an order, Martin ran from the courtroom and disappeared.

Scofield ordered the bailiffs to search the building and bring J. Ray Martin back to court. They searched high and low to no avail. Finally, the day ended with the bailiffs looking and J. Ray Martin nowhere to be found. The next day the order was entered.

For years thereafter, J. Ray Martin and the newspaper reporters would regale one and all with the story of how J. Ray Martin hid out for hours in the basement men’s room in a stall with his feet pulled up to hide from the bailiffs. He never signed the motion or orders and slipped out after dark. Even today you get a laugh from Judge Scofield over J. Ray Martin setting up office in the basement men’s room stall.

But that is the way it was in the old days.

May 2019 Complete Issue – PDF Download



20 | Pictures From the 43rd Annual Tim Evans Texas Criminal Trial College – By Keri Steen
24 | Representing the Mentally Ill on the Road to Recovery and Victory – By Micah Belden
28 | The Right to a Speedy Trial – By Michael Gross
34 | Courage to Take a Step in the Right Direction – A Letter From Dallas County DA John Creuzot
39 | Where in Hell Did J. Ray Go? A War Story – By Bill Trantham

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

5 | CLE Seminars and Events
41 | Significant Decisions Report

President’s Message: On the Art of Ending – By Mark Snodgrass


It is hard to believe that the time has come to write my last TCDLA President’s message. I would say it is also a little bit sad to be writing this last message, but I am guessing that would only apply to me and not to the good folks who have had to read these columns for the last year. Those of you who know me and have read these columns know that I try not to take myself too seriously. I try to live by the philosophy I stole from Willie Nelson—if the sun don’t come up tomorrow, roll over and turn on the light.

I assume that I am supposed to recount to you all the great things that I personally have done over the last year, but no one wants to hear that, and I would have to make most of them up. The thing I take the greatest pride in doing is simply getting out of the way and letting the great men and women of this organization lead us forward.

Mark Twain once said: “There are basically two types of people. People who accomplish things, and people who claim to have accomplished things. The first group is less crowded.” There are far too many people to thank for all they have done for me personally and for TCDLA as an organization. I hesitate to name names because I will surely leave someone out, so please forgive me in advance if I missed you personally, but I would be remiss if I did not mention a few of the people who accomplish things for TCDLA.

The engine that makes this organization run on time is Melissa Schank. Melissa has been with TCDLA for nearly 15 years, and the executive director of TCDLA for a little over a year. I have been the beneficiary of her tireless work over the past year keeping me and the organization heading in the right direction. In addition to Melissa, the whole TCDLA staff is a well-oiled machine of women and men who work tirelessly to provide for our members.

My executive committee—consisting of Kerri Anderson Donica, Grant Scheiner, Michael Gross, Heather Barbieri, John Hunter Smith, Sarah Roland, Clay Steadman, Thuy Le, Dan Hurley, and Sam Bassett—have been invaluable with their time, advice, and dedication over the past year.

Sarah Roland as always has done a tremendous job as editor of the Voice. Reagan Wynn and Nicole DeBorde continue to offer tremendous guidance as co-chairs of the Strike Force Committee. The hardest-working man in the organization may be Clay Steadman, who serves as chair of both CDLP and TCDLEI. Clay and CDLP Vice Chair Laurie Key have done a tremendous job taking the “Come and Take It” seminar to cities and towns across the state. Allison Clayton and the Amicus Committee have been extremely active and done great work for TCDLA this year. Bill Harris and Bobby Mims, who have headed our Legislative Committee, have us in tremendous shape this current legislative session—with the help and guidance of Allen Place, who heads our lobbying efforts. Michael Mowla has been invaluable with his knowledge and insight as our Significant Decisions editor as well as serving with Jeep Darnell as a moderator on our listserve. Robb Fickman and Chuck Lanehart have done an incredible job organizing and leading the annual reading of the Declaration of Independence throughout the state.

There are of course many course directors and committee chairs, too numerous to thank individually, who are a tremendous benefit to this great organization. I do want to point out Jani Maselli Wood, Bobby Mims, and Doug Murphy, the course directors for this year’s 32nd annual Rusty Duncan Advanced Criminal Law Course. They have put together a tremendous lineup of speakers and have made this year’s Rusty as good a program as any that have ever come before.

Most importantly, I cannot thank my wife Christi and our two wonderful children, Claire and Luke, nearly enough for their love, support, and sacrifices over the years. They truly are the reason I keep going a lot of days. I also have to thank my work family, Mary Lou, Megan, Taly, Rebecca, and others.

As I head out the door as president, I cannot help but look around at what is happening in the world. We are living in a time when it seems that bigotry and hatred cloaked in the name of patriotism and nationalism are on the rise. We are living in a time when the line between what is right and what is just is blurred at best and is often moved in the name of advancing one’s beliefs. We are living in a time when the poor and downtrodden are treated as less than others. We are living in a time when children are being separated from their parents and caged like animals. We are living in a time when good men and women must stand up and fight in the name of the common good and defend those whose rights are being trampled.

All my life I wanted to be a lawyer. Once I became a lawyer, all I wanted to be was a criminal defense lawyer. I do know whatever level of success and knowledge I have achieved has been in large part due to being a member of TCDLA.

I look forward to seeing all of you at Rusty Duncan, where it will be my honor and privilege to swear in Kerri Anderson Donica as the next president of TCDLA. After that I will proudly head back to being a member of the largest and best statewide organization of criminal defense lawyers in the country—who stand up to every day to defend the constitution of this country.

Executive Director’s Perspective: A Trying Time – By Melissa J. Schank


Success is no accident. It is hard work, perseverance, learning, studying, sacrifice, and, most of all, love of what you are doing or learning to do.


The Tim Evans Texas Criminal Trial College (TCTC), made possible by funding from the Texas Court of Criminal Appeals, is one of the most impactful seminars TCDLA puts on. Each year I enjoy watching the 80 students commit to a week to learning, transforming their trial skills. The event is a struggle for students, whether solo practioner or in firms, taking off an entire week—as it is as well for deans and faculty.

I will share a couple mistakes I have made and learned from at TCTC. First was the naming of the “Hostility Suite.” We started hosting a hospitality room in one of the hotel suites, sponsored by the Texas Criminal Defense Lawyers Educational Institute (TCDLEI). Some of the best times were had there (and a few that should not be documented). My first mistake was sending the word “Hostility” instead of “Hospitality” to our communication director, who was new at the time and put exactly what I sent. It was spelled correctly, so spell checker did not pick up my error. The faculty and students got the biggest kick out of “hostility” and enjoyed lots of laughs at my expense! The following year I corrected the text and had the signs redone. The faculty changed the “hospitality” signs back to “hostility” with a black sharpie, and it has been that way for over 10 years.

This seemingly meaningless “mistake” taught me the importance of relationships established, beyond just the skills developed. From TCTC, you learn solid fundamentals and trial practices—but also develop lifetime friendships. The bonds that have been created over the years in the hostility suite (and during the course) have endured. So many who have attended TCTC have moved on to speak, serve on our board or as committee chairs, or become mentors and faculty at TCTC.

One other mistake I learned from is the time I asked Philip Wischkaemper to take me to the airport in Huntsville. I needed to fly to Houston at the last minute to fill in at a seminar. Philip asked me if I had a private plane, and I told him “no.” Then, he informed me, I didn’t have a flight. I assured him I had booked one from Huntsville. But then I looked at my flight details—and saw it was from Huntsville, Alabama!

With that being said, I asked our deans and some of our faculty and students to share with us their thoughts about TCTC.

Tim Evans, Dean Emeritus (“a week of learning, a lifetime of friendships”):

As we celebrate 43 years, Tim thinks about how he has been the dean for over 20 years. Tim was a founding member of the Trial College along with Past President Scrappy Holmes. The first group was small since no one had heard about the program yet or didn’t feel the need. The numbers began to swell to the point that the number of students had to be limited to 80. The TCDLA Board voted unanimously in December 2016 to name the Trial College after Tim Evans.

Lydia Clay-Jackson, Dean Emeritus:

This is one of the best things that have happened to the criminal defense bar. The program registration was initially $475 and allowed for 40 students. TCTC has since became very popular and found a home at the Sam Houston State University. The TCTC is the longest-standing group to use the school facilities. Lydia has served as a dean since 1992.

Kerri Anderson Donica, Dean:

I have loved Trial College since the first year that Tim and Lydia asked me to demonstrate a closing argument and serve as faculty. I developed amazing friendships with other faculty and with our “students”—the lawyers who were hungry to be better at representing citizens accused. As a solo practitioner, it’s hard to take a week off, but I proudly and joyfully do it every single year. Serving as Dean is truly one of the greatest privileges I’ve ever had. Lifelong friendships and colleagues to whom I can turn for ANY question are the primary reasons Trial College is quite simply a “Difference Maker” in both your practice and your life.

Lance Evans, Dean:

Lance Evans, who was lucky enough to participate as faculty early in his career, has enjoyed every minute of it. When asked to be a dean? “I felt like it was an enormous responsibility, and I felt like I had to work extra hard to live up to the example that Lydia and Tim have set.”

Attorneys feel a week is a lot of time to take off, but attorneys just starting out in criminal can have a difficult time finding a mentor, that’s why taking a week off is so important—you instantly have dozens of mentors. When you leave Trial College, you have a built-in network you can always ask for advice.

Clay Steadman, Faculty:

How is it different from when you were a student to now when you are on faculty? Why is it important to serve as a faculty for Trial College? Why is it important for attorneys to attend?

Trial College can be a very humbling experience. When I was a student, I had been licensed about 10 years and had a fair amount of criminal defense trial experience. I thought I was a good defense attorney, but what I learned during that week was that good criminal defense attorneys are always learning, adapting, and perfecting their trial skills. When I got back from Trial College as a student, I worked to get better using the information and feedback I received during that week. To me, one of the most important things to take away from Trial College is that you are always learning and developing your trial skills, whether you are a student or a faculty member. Attending Trial College as a student was one of the best experiences I have had during my career as a criminal defense attorney, and the same can be said for being a faculty member over the last several years.

I believe it is a privilege to be asked to serve as faculty at Trial College, and I am very grateful that I have been asked to serve on the faculty the last several years. It is a great feeling to help and advise the future generation of criminal defense attorneys. I had great instructors when I was at Trial College, and I know the impact that they had on me over 15 years ago, so I believe when we have the opportunity to “pay it forward,” so to speak, we should seize that opportunity and make the most of it. As a profession, we are only as good as the next generation that follows us, so from my perspective I want to do what I can to make sure that the next generation of criminal defense attorneys are skilled trial lawyers.

Trial College will help any lawyer, of any skill and experience level, become a more complete and accomplished criminal defense attorney. The friends you make at Trial College will become lasting relationships and people you can rely on in the future. Like I said before, even serving on the faculty now, I am still learning each time I attend Trial College. This program and its success speaks for itself, and it’s been producing some of the best criminal defense attorneys in Texas for the last 43 years. If you have the opportunity to attend Trial College, take it and embrace the experience. It is the best decision you will ever make for your career as a criminal defense attorney.

Sarah Roland, Faculty:

I asked Sarah to share with me her fondest memories of TCTC as a student and now a faculty member. I also asked why she attended as a student.

These aren’t really “lawyer” experiences, but they are the most memorable. In 2007, I was a student at Trial College. The Sunday morning before I started driving down to Huntsville, my now husband proposed to me! I learned a lot and made some great friends but was understandably distracted. Then, several years later I was on faculty at Trial College and found out I was pregnant with our daughter.

I was told by some well-respected veteran lawyers that attending Trial College was the thing to do. I could tell at the time it was valuable for building professional relationships and trial skills.

The exercises and the practice of doing the exercises with feedback are most valuable. I would say the trial college is for anyone who wants to get better. As a faculty member, I still get better every time I come. There is always something to learn or refine no matter how long you have been practicing. There is always room to improve.

Randy Wilson, Faculty:

What changes have you seen over the past twenty years?

I have seen a difference in the change of students—years ago, students did not put forth as much effort as the present students do. The student now who is not prepared is the exception. Honestly, most of the faculty members are putting forth additional effort to be prepared. The faculty can no longer come in and shoot from the hip, as the students are well prepared for each class. There has also been a major increase in the number of women who have become criminal defense attorneys and Trial College students.

We used to use VHS tapes and now we use high-tech digital DVDs. The hotel has changed from a dorm style to a hospitality hotel. My only regret is that 49 years ago the College was not in existence. It would have been a great help to me.

Further, the staff of TCDLA has improved in putting on the College. The College is much more organized, and delivers a much improved product for the students.

I also asked some of the attendees the following questions: Why did you choose to come to Trial College? Was it hard to take off a week? Why did you commit to taking off a week? How did you like trial college after a week, and did you feel it was beneficial?

Simone Bray, Attendee:

I came to Trial College to learn from the best. I was a little scared that everyone would know a lot more than I did, but I knew the program would be beneficial and I knew I would receive a lot of great help to become a better trial lawyer. Taking the week off was hectic with managing my intake calls and court docket, but I knew that I owed it to my clients to attend and become a better trial lawyer. Trial College was immensely beneficial. I learned how to sharpen and perfect my craft, I saw amazing demonstrations from the most talented attorneys, and I was able to fellowship with people who have the same passion as I do.

Loura Proske, Attendee:

I applied to Trial College at the suggestion of our district judge. I have only been licensed since last May, so I am quite a bit less experienced than the other lawyers who practice out in our area. I had two goals for Trial College. One was to learn more about the trial process. The second was to observe and try out different lawyering styles to see what techniques I could adapt and make my own.

It is always hard to be away from work, but being gone for a full week is particularly tough. Thankfully, I am part of a three-person public defender team, and our office has great support staff. Everyone was understanding about stepping in to tend to my clients and to cover the dockets I missed. Even though it was difficult, I think it was worth it. I learned something new each day, and knowing that the program was a full week made it easier for me to set aside my day-to-day work and truly focus on what I was trying to accomplish at Trial College.

Trial College was an excellent learning experience. First, the instructors and my peers offered criticism that was both supportive and effective. Second, we got to see other lawyers employ a variety of style and strategy choices, and we were given a chance to try them out in a relatively low-risk environment. Lastly, there were many opportunities to make meaningful connections with both lawyers who are established in the profession and lawyers who are on the same experience level. Building professional relationships is important, and it was nice to be reminded that there is a whole community of people out there who share my passion for this work.

Tony Sun, Attendee:

The first thing I learned around the courthouse was that prosecutors give better deals to people represented by good trial lawyers. And when a prosecutor gives a bad plea offer to our client, our client’s only right is to say no and request a jury trial. And that’s why I went to Trial College—to learn how to do things the right way from the best criminal defense lawyers in our state. More importantly, feedback is so important when learning how to do something. But when you’re at your local courthouse, there’s no one to give you constructive feedback on what you’re doing wrong. So I knew coming to Trial College was the only place I would be able to learn trial skills, without practicing on actual clients.

In one week, I gained five years of trial experience—because we learned how to do things the right way, from the right people. So I came the first year I could. And it impacted me so strongly that I came again the next year. Now, when I step into my local courtroom, I am confident that my client is getting the best defense they can get with me as their lawyer.

I was hesitant to take a week off because of the cost of being gone from the office and possibly losing out on new clients. But I realized that in order to get a good reputation as a lawyer, you have to win trials. So I couldn’t afford not to take a week off to learn from the best lawyers how to win trials.

Scott Thompson, Attendee:

I came to trial college to practice trying cases against other lawyers and watch some very experienced lawyers do the same. It was very difficult for me to take off a week, and I’ve been working seven days a week since then to catch up. (I also have a new baby, which added a layer of difficulty for my family.) That said, it was worth it. The Trial College was the best CLE I’ve ever attended.

The Tim Evans Texas Criminal Trial College is a hands-on learning environment for lawyers at all levels. It would not be possible without our faculty, who serve as leaders for the next generation of criminal defense lawyers. Students attending this stellar event can reap the benefits through their initiative and hard work!

We are already taking applications for next year’s TCTC—March 29 through April 3, 2020. The application is available online under CLE/Events. If you have any questions or would like additional information, feel free to contact me. We also have sample vacation letters and can assist with scholarships or travel assistance.

Editor’s Comment: The Presumption of Innocence – By Sarah Roland


As criminal defense lawyers, we all talk about the presumption of innocence. We hear judges talk about the presumption of innocence. We explain it to juries. It appears in every jury charge. We all agree with it, and in large part, our jury panels do, too. They nod along in silent agreement when we talk about the presumption of innocence and answer affirmatively when asked whether they can apply it to the case at hand. But, are they really understanding and applying it or are they just going along to get along, so to speak? And, what does the presumption of innocence really mean?

Did you know the phrase “presumption of innocence” doesn’t appear anywhere in our Constitution? It is, of course, embodied in the due process clause of the Fifth and Fourteenth amendments. As artfully articulated by Chief Justice Burger, in Estelle v. Williams, 425 U.S. 501, 503 (1976):

The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. Drope v. Missouri, 420 U. S. 162, 172 (1975). The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated:

        “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U. S. 432, 453 (1895).

        To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship,397 U. S. 358, 364 (1970).

Our Code of Criminal Procedure addresses the presumption directly in Article 38.03:

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

This is the familiar language we see in all jury charges. The presumption is also addressed in Article 2.03(b) which provides, in relevant part,

[i]t is the duty of the trial court, the attorney representing the accused, the attorney representing the state, and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence . . .

U.S. District Judge Mark W. Bennett, Northern District of Iowa, has been reported to demonstrate the presumption of innocence by stepping down from the bench and shaking hands with the accused. Point made. In a single, simple demonstration, Judge Bennett shows the jurors how to apply the presumption of innocence. He puts meaning to the words. Personally, I’ve never seen a judge do anything like this, though, so it’s up to us to make sure that our jurors fully understand the presumption of innocence, understand its importance in our system, and know how to actually apply it in their service. As trial lawyers, we have all developed our own ways of explaining the presumption of innocence to jurors. Some are original but most are borrowed and put into our own words. So too, is what follows.

Along with proof beyond all reasonable doubt, and the Fifth Amendment, the presumption of innocence is one of the pillars of our criminal justice system. These are concepts central to our justice system. They are easy to say but hard to apply. We all may agree with them on a superficial level, but actually applying these concepts is much more difficult. It’s in actually presuming someone innocent—the doing of it—where the rubber meets the road. It’s counterintuitive and generally against our human nature.

My longtime paralegal is a diehard Patriots fan. She loves them. Last season she sent me a picture of her and her dog in their matching Tom Brady Patriots jerseys watching the game. It was an over-the-top cute picture. It made me think, though. We all have a team or a player, a shirt, or a jersey. We are all a fan of something. But when we come into a courtroom for a criminal trial, we are all on the same team and rooting for the same thing—the presumption of innocence. With her permission, I often show that picture she sent me during jury selection in my explanation about the presumption of innocence. Jurors get it.

The analogy of wearing the presumption-of-innocence glasses works, too. We have all heard this analogy. As with the jersey, in a criminal trial you wear the presumption-of-innocence glasses unless there is cause to remove them. When a piece of evidence is subject to two different interpretations, the presumption of innocence says it falls on the side of the defense. You see the version favorable to the defense.

And think about how different our world would be if we all presumed everyone innocent in day-to-day life. If we all presumed the best in the strangers we encountered. If we smiled at them and didn’t automatically assume the worst-case scenario. We might all be happier. We might all help each other a little more. We might really see the humanity in each other. Wouldn’t that be a better world? That’s a world I want for my family and my kids. That’s the presumption of innocence applied in the real world. The presumption of innocence is how we should all live daily. That seems to really resonate with people.

However we choose to explain the presumption of innocence, let’s be sure to really explain it. Let’s all be sure to make certain the jurors really think about what the presumption of innocence means and how it apply it in their service. Our clients, and our system, will be better off because of it.