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November 2019

November 2019 SDR – Voice for the Defense Vol. 48, No. 9

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Voice for the Defense Volume 48, No. 9 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

Editor’s note: The SCOTUS’ term began on October 1, 2019.

United States Court of Appeals for the Fifth Circuit

United States v. Aguilar-Alonzo, No. 18-50627, 2019 U.S. App. LEXIS 25856 (5th Cir. Aug. 27, 2019) (designated for publication) [The ordinary and natural meaning of the verb “use” requires active employment of something]

        A district court’s interpretation and application of the U.S.S.G.s are reviewed de novo and factual findings for clear error. A finding is clearly erroneous when although there is evidence to support it, the entire evidence shows a definite and firm conviction that a mistake occurred.

        The proponent of an adjustment to the defendant’s base offense level bears the burden of establishing the factual predicate by a preponderance of the relevant and sufficiently reliable evidence.

        If a district court commits a significant procedural error like miscalculating the U.S.S.G. range, the sentence must be vacated unless the error did not affect the sentence imposed. The proponent of the sentence has the burden of establishing that the error was harmless.

        Under U.S.S.G. § 2D1.1(b)(15)(A), if a defendant receives a 2-level increase in offense level under § 3B1.1 if the: (i) defendant used fear, impulse, friendship, affection, or some combination to involve another individual in the illegal purchase, sale, transport, or storage of controlled substances; (ii) individual received little or no compensation from the enterprise; and (iii) individual had minimal knowledge of the scope and structure of the enterprise. To show that a defendant “used” fear, impulse, friendship, affection, or some combination, a defendant must actively employ or play upon affection to induce another.

        The ordinary and natural meaning of the verb “use” requires active employment of something.

Facts:

  • Aguilar-Alonzo, his girlfriend Chavez-Hernandez, and others were indicted for aiding and abetting the possession with intent to distribute > 100 kg and < 1000 kg of marijuana per 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
  • Aguilar-Alonzo pleaded guilty without a plea agreement.
  • Chavez-Hernandez told investigators that she had been dating Aguilar-Alonzo for a year and knew he was involved in drug trafficking but never participated prior to the offense. Aguilar-Alonzo asked her to accompany him to pick up the marijuana. She agreed “out of fear he would break up with her.”
  • The PSR calculated a base offense level of 24 per §§ 2D1.1(a)(5) and (c)(8). It recommended a 2-level enhancement under § 3B1.1(c) because Aguilar-Alonzo was an organizer, leader, manager, or supervisor and a second 2-level enhancement because: (1) per U.S.S.G. § 2D1.1(b)(15)(A), Aguilar-Alonzo “used friendship or affection” to involve Chavez-Hernandez in the transport of controlled substances, Chavez-Hernandez received little compensation, and Chavez-Hernandez had minimal knowledge of the scope and structure of the enterprise; and (2) per § 2D1.1(b)(15)(B)(iii), knowing that Chavez-Hernandez was pregnant, Aguilar-Alonzo involved her in the offense.
  • With a 3-level reduction for acceptance of responsibility under § 3E1.1(a) and (b), Aguilar-Alonzo’s total offense level was 25.
  • Based on the offense level of 25 and a criminal history category of II, the Guidelines range was 63 to 78 months.
  • Aguilar-Alonzo objected to the 2-level enhancement for use of affection, asserting that Chavez-Hernandez had more than minimal knowledge of the scope of the criminal enterprise and that merely being in a dating relationship does not trigger the enhancement. Aguilar-Alonzo contended that there was no evidence that he suggested he would end the relationship if she refused to participate. Aguilar-Alonzo also objected to the § 2D1.1(b)(15)(B) enhancement because it was unclear whether Aguilar-Alonzo knew at the time of the offense that Chavez-Hernandez was pregnant.
  • The district court found that the facts did not establish whether Aguilar-Alonzo knew that Chavez-Hernandez was pregnant and declined to sustain the enhancement under § 2D1.1(b)(15)(B).
  • The district court determined that the enhancement was warranted under § 2D1.1(b)(15)(A) because it was apparent that Aguilar-Alonzo used fear, impulse, friendship, or affection to involve Chavez-Hernandez.
  • The district court overruled Aguilar-Alonzo’s objection to the enhancement for a leadership role.
  • The district court sentenced Aguilar-Alonzo to 70 months.

The ordinary and natural meaning of the verb “use” requires active employment of something.

  • Under Welch v. United States, 136 S.Ct. 1257 (2016), 18 U.S.C. § 844’s requirement that a building be “used” in an activity affecting commerce means active employment for commercial purposes and not merely a passive, passing, or past connection to commerce.
  • The ordinary and natural meaning of the verb “use” requires active employment of something. No evidence was presented that Aguilar-Alonzo “used” or “actively employed” fear, impulse, friendship, affection, or some combination thereof.
  • The sentence is vacated, and the case is remanded.

United States v. Hegwood, No. 19-40117, 2019 U.S. App. LEXIS 23714 (5th Cir. Aug. 8, 2019) (designated for publication) [First Step Act does not allow plenary resentencing but allows a new sentence for a “covered offense” (an offense covered by the Fair Sentencing Act of 2010]

        The First Step Act of 2018 (enacted December 21, 2018) made the application of the Fair Sentencing Act of 2010 retroactive. It amends statutes like 21 U.S.C. § 841(b)(1)(B)(iii) by increasing the cocaine-base amount for 5 to 40 years from 5 grams to 28 grams.

        The First Step Act’s application allows a court to reduce a sentence for a “covered offense” (those modified by the Fair Sentencing Act of 2010) as if the 2010 act was in effect when the covered offense was committed. The new sentence substitutes for the original sentence.

United States v. Pedroza-Rocha, No. 18-50828, 2019 U.S. App. LEXIS 23688 (5th Cir. August 8, 2019) (designated for publication) [Deportation during the pendency of an appeal does not moot the case; the subsequent serving of a notice of hearing in a deportation case that includes a date and time cured any defect that might have existed in the notice to appear]

        The 5th Circuit has a continuing obligation to assure itself of its jurisdiction, sua sponte if necessary. Under Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 669 (2016), Article III’s grant of federal jurisdiction requires a live controversy at all stages of a case. If the controversy between the parties is extinguished while a case is pending on appeal, this court must dismiss it as moot. A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.

        The initiation of removal proceedings under the Immigration and Nationality Act is governed by 8 U.S.C. § 1229, which provides that in such proceedings, written notice (notice to appear) shall be given in person to the alien and must include the time and place of the hearing. Under 8 C.F.R. § 1003.14 (Jurisdiction and commencement of proceedings), jurisdiction vests and proceedings before an immigration judge commence when a charging document is filed with the Immigration Court by INS. The charging document is the written instrument that initiates the proceeding and a notice to appear, Notice of Referral to Immigration Judge, and Notice of Intention to Rescind and Request for Hearing by Alien, and requires that the notice to appear contain the time and place “where practicable.”

        Under the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), and specifically 8 U.S.C. § 1229b(b)(1), the AG has discretion to cancel the removal of certain nonpermanent residents so long as they meet certain criteria, one of which is that the noncitizen must have been physically present in the U.S. continuously of at least 10 years immediately preceding the date of an application for cancellation of removal. Under this stop-time rule, the period ends when the alien is served a notice to appear. Under Pereira v. Sessions, 138 S.Ct. 2105 (2018), the service of a notice to appear that lacked the information required did not stop the clock on the period of continued presence.

        The subsequent serving of a notice of hearing that includes a date and time cured any defect that might have existed in the notice to appear.

        8 C.F.R. § 1003.14 is not jurisdictional because the failure to serve a valid notice to appear is a ministerial defect and not a jurisdictional one.

United States v. Reece, No. 17-11078, 2019 U.S. App. LEXIS 27134 (5th Cir. Sep. 9, 2019) [Application of the holding in United States v. Davis, 139 S.Ct. 2319 (2019), that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague]

        The residual clause of 18 U.S.C. § 924(c)(3)(B) (defining a crime of violence as an offense that is a felony and that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense) is unconstitutionally vague.

18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague per Davis

  • Under 18 U.S.C. § 924(c)(1)(A), consecutive penalties are imposed for using or carrying a firearm “during and in relation to” or possessing a firearm “in furtherance of” any “crime of violence or drug trafficking crime”: 5 years minimum; 7 years if brandished; 10 years if discharged; minimum of 10 years if a short-barreled shotgun is used; and minimum of 25 years for repeat violations of § 924(c).
  • A vague law is no law at all. Only . . . Congress (has) the power to write new federal criminal laws. And when Congress exercises that power, it must write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges . . . and . . . leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
  • Under 18 U.S.C. § 924(c)(3), a crime of violence is an offense that is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another (elements clause), or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (residual clause).
  • Vague laws contravene the first essential of due process of law that statutes must give people of common intelligence fair notice of what the law demands of them and undermine the Constitution’s separation of powers and the democratic self-governance it aims to protect. Vague statutes hand responsibility for defining crimes to unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide.
  • The residual clause of 18 U.S.C. § 924(c)(3)(B) (defining a crime of violence as an offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense) is unconstitutionally vague.
  • Reece’s case is remanded for resentencing without consideration of the residual clause of 18 U.S.C. § 924(c)(3)(B).

Texas Court of Criminal Appeals

Beltran de la Torre v. State, No. PD-0561-18, 2019 Tex.Crim.App.LEXIS 939 (Tex.Crim.App. Sep. 18, 2019) (designated for publication) [Generally, a party is not entitled to a special jury instruction relating to a statutory offense or defense if the instruction: (1) is not grounded in the Tex. Penal Code, (2) is covered by the general charge, and (3) focuses the jury’s attention on specific evidence that may support an element of an offense or a defense]

        The purpose of the jury charge is to inform the jury of the applicable law and guide them in its application to the case. A trial judge must maintain neutrality in providing such information and guidance and may not express any opinion on the weight of the evidence or draw the jury’s attention to particular facts.

        Under Tex. Code Crim. Proc. Art. 36.14, a jury charge: (1) must be in writing; (2) must distinctly set forth the law applicable to the case; (3) cannot express any opinion as to the weight of the evidence; (4) may not sum up the testimony; and (5) cannot discuss the facts or use any argument in the charge calculated to arouse the sympathy or excite the passions of the jury. This is designed to prevent a jury from interpreting a judge’s comments as a judicial endorsement or imprimatur for a particular outcome. A trial court should avoid any allusion in the jury charge to a particular fact in evidence, as the jury might construe this as judicial endorsement or imprimatur.

        To ensure compliance with Tex. Code Crim. Proc. Art. 36.14, generally a trial judge should avoid including nonstatutory instructions in the charge because such instructions frequently constitute impermissible comments on the weight of the evidence. Special, nonstatutory instructions, even when they relate to statutory offenses or defenses, generally have no place in the jury charge. Even an innocent attempt to provide clarity for the jury by including a neutral instruction can result in an impermissible comment on the weight of the evidence because the instruction singles out a particular piece of evidence for special attention, which the jury may then focus on as guidance from the judge.

        Generally, a party is not entitled to a special jury instruction relating to a statutory offense or defense if the instruction: (1) is not grounded in the Tex. Penal Code, (2) is covered by the general charge, and (3) focuses the jury’s attention on specific evidence that may support an element of an offense or a defense. In such a case, the nonstatutory instruction is a prohibited comment on the weight of the evidence.

        A jury charge may properly include definitions for nonstatutorily-defined terms that have a known and established legal meaning or have acquired a peculiar and appropriate meaning in the law, as where the words used have a well-known common law meaning. Such terms are considered as having been used in their technical sense, and it is not error for the trial court to include a precise, uniform definition to guide the jury’s deliberations. An instruction is appropriate when there is a risk that the jurors may arbitrarily apply an inaccurate definition to the term or where an express definition of the term is required to assure a fair understanding of the evidence. Thus, in a trial for Escape, a definition of “arrest” should be included in the charge despite the lack of a statutory definition because “arrest” is a technical term with a long, established history in the common law and it would be inappropriate if jurors arbitrarily applied their personal definitions of arrest.

Facts:

  • Officers Axel and Lara of Columbus PD responded to a mid-morning call about people drinking alcohol inside a parked car at the DPS driver’s license office. The officers approached and observed Appellant in the driver’s seat, a female in the front passenger seat, and a second female in the back seat.
  • The officers saw a man standing outside the vehicle on the pas­senger’s side who was asked to sit down nearby, but who then walked away.
  • Officer Lara noticed a small plastic bag containing a powdery substance on the car’s center console. Suspecting that the bag contained a controlled substance, Lara asked Appellant and the passengers to exit the car. Lara detained the female passengers while Axel detained Appellant behind the vehicle.
  • Axel noticed that Appellant smelled of alcohol, had bloodshot eyes, and appeared to have not slept in a day or more. Both officers noticed that Appellant had dilated pupils, which they believed based on their training and experience indicated the use of narcotics.
  • The officers removed the bag and field-tested it, which yielded positive for cocaine.
  • Appellant and the passengers were arrested for possession of a controlled substance.
  • Lab testing revealed showed 0.02 grams of cocaine.
  • Appellant was indicted for possession of less than a gram of cocaine.
  • At trial the State put on evidence of possession by showing that Appellant was the registered owner of the vehicle; was in the driver’s seat and had direct access to the cocaine located on the car’s center console; and showed signs of having ingested narcotics. The State argued that even if Appellant was not in sole possession of the cocaine, he could have jointly possessed it along with the other occupants of the vehicle.
  • Appellant testified that the cocaine was not his and he had no knowledge of it being in his car.
  • The jury was charged on the statutory elements of possession of a controlled substance (“A person commits an offense if the person intentionally or knowingly possesses a controlled substance”) and the statutory definition of “possession” (“Possession means actual care, custody, control, or management”). After the statutory definition of “possession” the charge included the nonstatutory instruction on joint possession (“Two or more people can possess the same controlled substance at the same time”). Because the joint-possession instruction was included in the charge, at the charge conference Appellant requested an instruction on “mere presence,” which was not reduced to writing but the trial court understood this as a request to include: “Mere presence at a place where narcotics are found is not enough to constitute possession.”
  • The trial court denied Appellant’s request and the mere-presence instruction was excluded.
  • The jury convicted Appellant and the trial court sentenced him to two years in state jail, probated for three years.
  • The court of appeals affirmed.

Both the joint-possession and mere-presence instructions were improper.

  • Both the joint-possession and mere-presence instructions were improper comments on the weight of the evidence because each was unnecessary to clarify the applicable law and drew the jury’s attention to evidence supporting a party’s theory of the case.
  • The joint-possession instruction was an improper comment on the weight of the evidence because it: (1) was unnecessary because the statutory definition of “possession” is broad enough to encompass the concept of joint possession; and (2) drew the jury’s attention to evidence that would support the State’s argument that Appellant possessed the drugs along with the other individuals in the vehicle.
  • Although the nonstatutory instruction was substantively correct, it was unnecessary because the general charge left ample room for the parties to argue the concept of joint possession. The jury charge included the statutory definition of possession per Tex. Health & Safety Code § 481.002(38) (Possession means actual care, custody, control, or management”). Although it does not expressly mention the possibility of simultaneous possession of the same narcotics by multiple people, it does not preclude such a theory of joint possession. The State was free to argue the concept of joint possession (that Appellant exercised “actual care, custody, control, or management” over the drugs with the other individuals). The State was not entitled to a special, nonstatutory instruction emphasizing that such a conclusion is permissible. The instruction was unnecessary to clarify the applicable law on possession, which was adequately covered by the statutory definition of possession.
  • The joint-possession instruction drew the jury’s attention to evidence that would support a finding that Appellant jointly possessed the drugs along with the others. By highlighting one path to establishing the element of possession (through a finding of joint possession by multiple individuals), the instruction focused the jury’s attention on that type of evidence and impermissibly guided the jury’s assessment of the evidence of possession. This instruction could have been viewed by the jury as “obliquely or indirectly” conveying the court’s opinion of the evidence by “singling out” the State’s theory of joint possession and “inviting the jury to pay particular attention to it.” The nonstatutory instruction was both unnecessary to clarify the applicable law and impermissibly focused the jury’s attention on a theory of the evidence, violating the prohibition against comments on the weight of the evidence.
  • The joint-possession instruction does not fall within the type of permissible nonstatutory instructions for undefined statutory terms that have acquired a technical meaning in the law.
  • For the same reasons, Appellant’s requested instruction on mere presence would have been improper because it: (1) was unnecessary to clarify the applicable law when the statutory definition of “possession” (actual care, custody, control, or management) adequately informed the jury that mere presence is not enough to establish the element of possession; and (2) focused the jury’s attention on Appellant’s defensive evidence that he did not possess the drugs.
  • The judgment of the court of appeals is reversed and the case is remanded for a harm analysis on the joint-possession instruction.

Diruzzo v. State, No. PD-0745-18, 2019 Tex.Crim.App.LEXIS 860 (Tex.Crim.App. Sep. 11, 2019) (designated for publication) [Construction of the statutes concerning practicing medicine without a license, Tex. Occ. Code §§ 155.001, 165.151–165.153]

        Under Tex. Occ. Code § 155.001, a person may not practice medicine unless the person holds a Texas medical license. Under Tex. Occ. Code § 165.151, practicing medicine by a nonphysician without a license is a class A misdemeanor. Under Tex. Occ. Code § 161.152, if a physician practices medicine without a license, he commits an F-3, and each day he does so is a separate offense. Under Tex. Occ. Code § 165.153, it is an F-3 if any defendant causes another person physical or psychological harm and a SJF if the defendant causes another person financial harm.

Editor’s note: This opinion goes into detail regarding statutory construction and the legislative history of the laws against practicing medicine without a license.

Fraser v. State, No. PD-0711-17, 2019 Tex.Crim.App.LEXIS 857 (Tex.Crim.App. Sep. 11, 2019) (designated for publication) [Felony Murder, Cognate-Pleadings Test, Injury to a Child, and Endangering a Child are never lesser-included offenses of Manslaughter]

        Under the cognate-pleadings test, the statutory elements of an offense and nonstatutory allegations in the indictment combine to describe the charged offense. It allows a court to look to nonstatutory elements only for the charged offense while lesser offenses are examined only for their statutory elements. If all the elements of a lesser-offense are contained or deducible from what is contained in the indictment, the lesser-offense is a “lesser-included” offense of the indicted offense. This allows a defendant broader ability to obtain the submission of a lesser-included instruction than if he were limited to the statutory elements of the charged offense.

        Under the cognate-pleadings test, if a manslaughter indictment contains extra averments that cause it to encompass an offense that would not otherwise be a lesser-included offense under manslaughter’s statutory elements, a defendant could obtain a lesser-included instruction on the encompassed offense.

        Injury to a Child and Endangering a Child are never lesser-included offenses of Manslaughter

Hughitt v. State, No. PD-0275-18 & PD-0276-18, 2019 Tex.Crim.App.LEXIS 940 (Tex.Crim.App. Sep. 25, 2019) (designated for publication) [Possession of a controlled substance with the intent to deliver it is not a predicate offense under Tex. Penal Code § 71.02 because it is not enumerated in § 71.02]

        Under Tex. Penal Code § 71.02, a person engages in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more [enumerated offenses]. A conviction requires an offense enumerated in the statute. Possession of a controlled substance with the intent to deliver it is not a predicate offense under Tex. Penal Code § 71.02 because it is not enumerated in § 71.02.

Ruiz v. State, No. PD-0176-18, 2019 Tex.Crim.App.LEXIS 856 (Tex.Crim.App. Sep. 11, 2019) (designated for publication) [Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the Fourth Amendment warrant requirement]

        Under Tex. Transp. Code § 724.011, a person who uses the public roadways is deemed to have consented to having his blood drawn or breath taken if the person is arrested for an offense arising out of acts alleged to have been committed while operating a motor vehicle or watercraft intoxicated. Under Tex. Transp. Code § 724.014, an unconscious DWI suspect may have his specimen taken by an authorized person per §§ 724.016 or 724.017.

        Under Missouri v. McNeely, 569 U.S. 141, 149 (2013), and State v. Villarreal, 475 S.W.3d 784, 795 (Tex.Crim.App. 2014), the Fourth Amendment requires that a search occur per a warrant or a recognized exception to the warrant requirement. The totality of the circumstances dictates whether a warrantless search is reasonable. A warrantless search may be reasonable if the police obtain consent. When the State relies on consent, it must prove that the consent was freely and voluntarily given. Under Schneck­loth v. Bustamonte, 412 U.S. 218, 233 (1973), voluntariness depends on the totality of the circumstances and means more than a knowing choice. The question is whether the person’s will has been overborne and his capacity for self-determination critically impaired such that his consent must have been involuntary. Relevant considerations include the defendant’s sophistication in the law, mental acuity, and ability to exercise a free choice when facing arrest, and whether he was advised of his Miranda rights or advised that the results of the search could be used against him. Under Florida v. Jimeno, 500 U.S. 248, 252 (1991), a defendant may limit the scope of his consent or revoke it. Per Villarreal, 475 S.W.3d at 799, the ability to limit or revoke is a necessary element of valid consent.

        Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the Fourth Amendment warrant requirement.

Facts:

  • Appellee fled a car wreck. He may have been driving while intoxicated.
  • Officers found Appellee unresponsive nearby. ER responders tried to revive him, but he remained unresponsive.
  • Appellee was taken to a hospital.
  • Officer McBride arrested Appellee at the hospital. Although Appellee was unconscious, she read the DWI statutory warnings to him and ordered a warrantless blood draw per Tex. Transp. Code §§ 724.011 and 724.014.

Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the Fourth Amendment warrant requirement.

  • Appellee was unconscious throughout his encounter with law enforcement and had no capacity for self-determination. He could not make a choice or hear McBride read warnings to him. Drawing his blood was an unreasonable application of the consent exception.

Texas Courts of Appeals

Najar v. State, No. 14-17-00785-CR, 2019 Tex. App. LEXIS 7930 (Tex.App.—Houston [14th Dist.] Aug. 29, 2019) (designated for publication) [Tex. Rule App. Proc. 21.3(f) requires a new trial when during deliberations the: (1) jury received other evidence; and (2) evidence was detrimental]

                Under McQuarrie v. State, 380 S.W.3d 145, 150 (Tex.Crim.App. 2012), a ruling on an MNT is reviewed for an abuse of discretion. A motion for new trial is committed to the discretion of the trial court. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex.Crim.App. 2012). But under Tex. Rule App. Proc. 21.3(f), a defendant must be granted a new trial when during deliberations the: (1) jury received other evidence; and (2) evidence was detrimental (appellate courts will not speculate on the probable effects on the jury or the question of injury). The trial judge is the trier of fact and the sole judge of the credibility of the witnesses. Under Rogers v. State, 551 S.W.2d 369, 370 (Tex.Crim.App. 1977), if there is no fact issue that the jury received other evidence and it was adverse to the defendant, then reversal is required.

My Welcome Home From Vietnam: Back in the World in One Piece

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My ears popped, and the tires screeched as the TransTexas Airways DC-3 touched down at the Airport in Tyler. The stewardess had avoided eye contact, and the other passengers looked away from me. The short flight from Dallas was a replay of the plane ride from San Francisco. It was strange that no one would look at me, and the stewardesses were not friendly. 

Seventy-two hours earlier, I climbed into a chopper in Cu Chi with my orders to go home. Seventy-two hours before that, I was pulling my final patrol with my platoon. The old loud rattling DC-3 reversed props and braked to make the first turn in to the terminal. It seemed like another world from where I’d just left. I had left this same terminal 2 years before with my induction notice and kissed my mom goodbye, tears in her eyes. I was a 18-year-old kid from one of the poorest families in the county and was scared because the war was all over the news. 

 

I had been born in Houston because my mother needed to get away: I was going to come a little early to suit the folks in the community. She ran away with my dad, who was barely 20 years old himself. He had dropped out of school, lied about his age, and joined the Navy at age 15. He was just out of the Navy after serving in the last two years of the Pacific war against Japan. He was the last of a long line of men in my family that had served in the military back to the Revolutionary War. Military service was a duty and rite of passage into manhood. Military service was honorable and expected of every male in my family. 

I was drafted in 1969 as the Vietnam War raged. The Tet Offensive of 1968 was fresh in memories, and every week, 200 or 300 GIs were KIA. Already our hometown had lost 5 men. One man was a fighter pilot shot down and missing over North Vietnam. The draft was what was on everyone’s mind. You could avoid the draft if you had money, if you had parents had a friend on the draft board, had a bad knee, defecated in your pants, had poor eyesight, or if you went to college. Married men with kids got deferments. Soon the draft board eliminated that exemption. They were drafting everyone who could not get a deferment. For me, there was never a question of avoiding the draft or going to Canada like so many were doing during that time. The men in my family served the country. We were patriots. 

The pilot announced that the temperature was 90 degrees, the time was 10:15 a.m. It was Friday in October 1970. He told us that we were in Tyler, Texas, but to keep our seat belts on until we reached the terminal. Two weeks before, I had been sitting in the open door of an Army chopper flying at 5,000 feet—with my boots on the skids, full field pack, an M-16—and no one warned me to put on a seat belt. The stewardess opened the door and thanked everyone for choosing TransTexas. Everyone except me. She was older than me, attractive, especially since I had not been around women for months. However, I was married, anxious to get to my wife as soon as possible. There were no baggage carousels back then. The baggage handler just sat your luggage out by the plane, you picked it up, and walked out.

So I shouldered my duffle bag and looked up at the crystal clear blue sky. The air was fresh and smelled of pine needles and freedom. There was a flock of crows cawing and sparrows chased them away. I saw squirrels in trees scampering around, making ready for the winter. I even saw a flock of geese high up in the sky in the V formation heading south for the winter. October is beautiful in East Texas. As I breathed in deeply, I pleasantly realized something was missing. There was no odor of the dank, dirty smell of rice paddies full of buffalo dung that infiltrated into everything in Vietnam. Instead, it was the smell of East Texas. I was glad to be home. I had plans.

Two years earlier, I was just another 145-pound poor kid from East Texas with an order to appear for induction into the armed services of the United States of America. I was barely 5΄8΄΄and skinny as a river-bottom reed. In the Army, I had grown to 6΄1΄΄and weighed 195 pounds. Interestingly, my feet did not grow. My boot size never changed. Back then, I had stepped forward and took the oath to defend America from all enemies, foreign and domestic, with the full knowledge that I was going to Vietnam. Despite a year of “humping” in Vietnam jungles, burning off leeches with borrowed cigarettes, enduring moments of terror, suffocating heat, or shivering in the freezing cold monsoons, I felt strong. On that day, and in that place, I wore a full dress U.S. Army uniform with the 25thInfantry Division patch on my left shoulder and my ribbons earned in Vietnam; my shoes were spit-shined, my gig line was perfect. I was in excellent physical condition. I felt that I had earned the rights of manhood. I was confident and proud. I had made it out alive, and I was exhilarated.

I got in line with the other passengers. They were chatting with each other, and some knew each other. Some had wives or friends meeting them. They were all civilians. Not one tried to speak to me or acknowledge me. It was strange. I did not care since the only thing on my mind was to get home and find my wife. We got married before I Ieft for Vietnam. I had only seen her for a brief R&R in Hawaii. We had been apart more than together. I wondered if it would be the same as before. My duffle bag had everything I owned in the world, so I just slung it over my shoulder and walked out of the airport. I noticed some of the cars that were picking up passengers, loading and driving out of the airport. It was only about a half-mile from the terminal out to Highway 64 and then another 60 miles to my hometown. It would be no sweat since I could hitchhike all the way home. I was sure that all I had to do was stand on the highway and thumb my way back. I did not think much when the cars leaving the airport passed me up. Surely when I got to the highway, I would catch a ride. 

I wondered what my buddies were doing at the time. I recalled the nights that we sat on the ambush patrol. They were probably in the bush again, setting up the claymores, the tripwires, and getting the flares ready. These were the best guys in the world, and we all swore we would meet up back in “the world,” buy Harleys and ride all over the USA. I found out a few days later that they had been ambushed and taken casualties. Donnie, a kid from Kermit, Texas, was KIA, and several of my guys were wounded and had to be medivacked out to the 12thEvac Field Hospital at Cu Chi. But on that day, I did not know that yet, and so I looked forward to getting my wife and going back to reclaim the job I had before I was drafted. 

Highway 64 is a busy highway linking Tyler to Dallas. Tyler, in 1970, was not large but was the largest city in East Texas. On that morning, the traffic in both directions was reasonably heavy. Pickups, big rigs, passenger cars, and farm vehicles headed east in a hurry to get to wherever they were going. I sat my duffle bag down and stuck out my thumb. This hitchhiking was going to be easy. Eighteen months ago, I had hitchhiked 600 miles to make it to my sister’s wedding and only needed three rides. I never waited more than a minute or two before someone would pick me up. A GI had no problem getting rides in early 1969. 

I was wrong. Car after car after car passed me up without even slowing down. Trucks, big rigs, a farm truck with a load of hay just passed me up. The thumb wasn’t working. It is about six miles to the loop that I needed to get to from the airport. I started walking. I would occasionally take a chance and try to thumb a ride, but no one stopped. This was not going to be the easy trip I thought. I walked and walked and walked the six miles to the loop.

I was in good shape, but after about an hour of walking, I was getting angry and confused. What was the problem? I did not understand that the country had changed. Here I was a 20-year-old kid just back from Vietnam and could not get a ride. Here I was in East Texas, and these people are good people who love the country and the troops. Yet I could not get a ride. I finally made it to the loop, and the sun was now high in the sky, the temperature climbing. But I was used to the heat. I did not unbutton my uniform since I did not want to dishonor it by becoming sloppy despite the heat. I had started to continue around the loop. The loop around Tyler in 1970 was all rural and pasture land. There were no stores, no houses, no businesses. 

I finally gave up trying to catch a ride and resolved to hump all the way home if that is what it took. I might be able to find a phone and make a collect call home and see if someone would come and pick me up. I had stopped even turning around and looking at the oncoming traffic. After a few minutes, over my shoulder, I heard the sound of a car coming at a very high speed. It was different than the others as this car was traveling fast, loud, and hard. He sped by me without slowing down. The wind blast and dust nearly blew me off the shoulder. It was a shiny black 1970 Chevelle SS 396 with only the driver inside. The car suddenly hit the brakes hard and skidded to a stop, leaving rubber and smoke all over the pavement. The driver put it in reverse and gunned it back to me with the engine at full throttle. I wondered what this was all about, but at least someone had stopped. 

“Where you going, troop?” the driver asked.

I told him that I had just got in from Vietnam was trying to get home to see my wife. He told me to get in and that he would take me. I told him that it was at least 60 miles. He said: “I don’t give a fuck. I’ll take you as far as this thing will go, or we run out of gas first.” 

He asked me what unit I was in, and I told him that I had just been discharged out of Vietnam with the 25thInfantry Division in Cu Chi and Tay Ninh. He said, “Well, son, you need to salute me since I am a first fuckin’ arty lieutenant with the Big Red One.”

I said, “No problem, sir!” giving him my best dress salute.

He then said, “I order you to get into this fuckin’ vehicle and tell me where we’re a-goin’.”

I got in, and he said, “Son, If you’d saluted me in the Nam, I’d have either shot your ass or busted you back to E-1 or both.”

 I said: “I know, sir. We don’t salute in the Nam.” 

He revved up the engine, popped the clutch, and burned out, fish-tailing all over the road, and the first thing we were over 100 mph. This guy was crazy, but I loved it. He told me that he had got shot up bad at a FireBase that had nearly been overrun by the VC during Tet. He explained that he was on a convalescent leave out of Fort Sill. He had just bought the SS 396 and paid cash from the money he had saved. He was on his way to New Orleans to party, get high, and get laid. He asked if I wanted to go with him. He said he had plenty of money and would pay for everything. I told him that I had a wife, but that I appreciated the offer. He laughed, shifted gears again, and floored it. I think he got smoke and rubber in 3rdgear. This lieutenant was probably only 23 or 24 years old. I never asked. To me, he was an old guy who outranked me, so I just went along with whatever he wanted to do so long as he got me closer to home and my wife. 

We swapped some war stories, and before I knew it, we’d gone the 60 miles. We stopped at the courthouse square in the middle of the afternoon. Before I got out, he turned to me and said: “Son, this country has changed. Some people are not going to like you. That uniform you’re wearing there is going to get you in trouble. I advise shuckin’ that military garb as soon as you can. Get you some civvies, and don’t tell anyone that you’ve been to the ‘Nam.’ I’m just sayin’ it to give you some free advice. You are not going to be treated the same as before. You are damaged goods, and people are going to be afraid of you.”

I asked him, “Why do you say that?”

“Trust me!” he replied.

I got out and gave him a salute, which he returned. He burnt out, leaving smoke and rubber all over the downtown street. The townspeople on the square looked up in surprise as this mystery SS 396 roared out of town and this strange GI suddenly appeared in their midst. I never got his name, but I will always remember this first lieutenant as the only person who stopped to pick up a GI who needed a ride. 

Postscript

This mysterious lieutenant was correct warning me about how I would be treated as a Vietnam veteran. These stories about being spat upon or being called “baby killer” never happened to me. It seemed that we were to be ignored, unseen, damaged, crazy, unstable, and unreliable. I had been drafted from a job with a major oil company. When I presented myself to reclaim my job, I was told that they no longer had a job for me.

One of my buddies in my platoon was 25 years old and had a law degree from Ohio State University. He had been drafted but refused to accept a direct commission as an officer. I was always impressed with how he was always able to use his wit and education to quote Army regulations to any offending NCO. I did not intend to be ignored any longer and insisted that I be given my job back. I said something about the Soldiers’ and Sailors’ Civil Relief Act. I was grudgingly hired in the lowest pay  grade the company had. I then went back to visit with my old boss, who was a WWII vet, and told him that I was ready for work. He told me that he was glad that I was back in “one piece.” 

As we talked, one of the engineers came into his office and interrupted our conversation. He looked at me and said, “Hey Bobby, I haven’t seen you in a while. where have you been?”

I replied, “Well, Jim, I’ve been to Vietnam.”

Without so much as an acknowledgment, he turned as if I wasn’t there and ignored me—and never spoke to me again. That one encounter was indicative of how I felt the people back home treated us. It was like a lightning strike and a lesson. 

From then on, I never told another person that I was a Vietnam veteran or even that I had served. In those days, it was a stigma. You were never going to be promoted nor even given a chance in corporate America. While we were serving our country in the jungles of Vietnam, there were those who dodged the draft and stayed home, earning good salaries, getting promoted, marrying, having children, buying homes, and living the American Dream. Then they self-protected each other as they rose in the corporate ranks. If you couldn’t find a way to dodge the draft then you were considered a “sucker.” I have often wondered if there was any small element of shame or embarrassment with these people. 

Because of my lawyer buddy, I had a dream of going to law school and becoming a lawyer. I applied to every law school in Texas, but each, except one, rejected me despite having a good LSAT score and good undergraduate grades. I cannot say they did so because of my military background, but it sure felt that way. I got a call from South Texas College of Law, and they said that Dean Garland Walker was holding 20 spots open for veterans, and that I was being considered for admission. I met personally with Dean Walker, also a WWII veteran, and he advised that he was going to take a chance with a class of Vietnam vets, and that he hoped that I would not disappoint him. That class of veterans was outstanding, and today some of these lawyers are leaders in the bar and in their communities all over the nation. 

It is only very recently I have felt comfortable discussing my Vietnam service. The country has changed, and though the gratitude is late coming, it is appreciated. My son bought me a Vietnam veteran hat recently and has encouraged me to wear it. I have not so far but might soon. 

Now, 50 years later, with most of my career behind me, I am so thankful that I served my country, that I became a criminal defense attorney, that I practiced in the courts of the greatest nation on earth. I am blessed that I have made such close friends and colleagues in the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association. If I have accomplished anything in this life, I am most proud to be a criminal defense attorney with brothers and sisters who fight every day for freedom and justice. 

Finally, not one thing that I did in Vietnam compares to what criminal defense lawyers do every day to defend the Constitution of the United States of America. So, be proud of what you do because your country, your state, and your community need you. 

No other institution stands against the overwhelming power of the Government on behalf of freedom except the criminal defense lawyer.

2019’s Need-to-Know Changes to DWI Law

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Together, House Bills 20482 and 35823 refashioned Texas DWI law and punishment—and finally abolished surcharges. Kind of.

Now, a person “finally convicted” of DWI “shall” pay a fine of $3,000 for a first conviction, $4,500 for a second, and $6,000 for all DWI convictions over 0.15. Presumably, a person is not finally convicted if they receive a newly created “deferred ad­judication” on their DWI. The legislature also slightly altered and expanded nondisclosure eligibility. This paper overviews the changes to the new DWI laws.

New Interlock Bond Requirements

For the following DWI accusations, the judge or magistrate shall order both 1) that defendant’s vehicle be equipped with an interlock device, and 2) that defendant not operate any motor vehicle unless equipped with an interlock device:4

Subsequent offenses under

  • 49.04 [Driving While Intoxicated];
  • 49.05 [Flying While Intoxicated]; or
  • 49.06 [Boating While Intoxicated].

Any offense under

  • 49.045 [DWI w/ Child Passenger],
  • 49.07 [Intoxication Assault], or
  • 49.08 [Intoxication Manslaughter].

If ordered, the defendant must have the interlock installed within 30 days.5

If the magistrate finds, however, that an interlock device is not in the best interest of justice, the magistrate “may not” order one installed.6

“Deferred Adjudication”

Dubbed “DINO” (deferred in name only), HB 3582 creates deferred adjudication for qualifying DWIs. Specifically, it amends Article 42A.102(b) of the Code of Criminal Procedure to allow judges to grant deferred adjudication.7

A person is eligible for deferred unless the person:

(1) is charged with an offense under 49.04 or 49.06 [DWI or BWI], and at the time of the offense either:

  • Held a commercial driver’s license or learner’s permit; or
  • The defendant’s alcohol concentration was 0.15 or more;

(2) is charged with an offense under

  • 49.045 [DWI w/ Child Passenger];
  • 49.05 [Flying While Intoxicated];
  • 49.065 [Assembling/Operating Amusement Ride While Intoxicated];
  • 49.07 [Intoxication Assault]; or
  • 49.08 [Intoxication Manslaughter];

(3) is charged with an offense for which punishment may be in­creased under Section 49.09 [Enhancements for Prior Intoxication Convictions]; or

(4) is charged with an offense for which punishment may be increased under Section 481.134(c), (d), (e), or (f) [School Zone Enhancements], Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections[.]

But, like in family violence cases, this is not a true deferred. Now, under Penal Code section 49.09(g), “a person is considered to have been convicted of [DWI or BWI] if the person was placed on deferred adjudication community supervision for the offense[.]” In other words, the deferred may still be used for enhancement purposes.

Under disqualification three above, a person is not eligible for deferred on a DWI second. But—as some on the listserve have noted—if a prosecutor would be willing, a person could potentially obtain a deferred by pleading a second DWI as another DWI-First—i.e., by striking the enhancement language under Tex. Penal Code § 49.09 at the time of the plea.

Deferred Adjudication Interlock Requirements

HB 3582 also amended Article 42A.408, which requires ignition interlock devices as a condition of supervision.8 The new law makes three additions.

First, new subsection (e-1) makes ignition interlock devices a mandatory condition (subject to a financial exception, discussed below) when the judge grants a defendant deferred adjudication community supervision for an offense under 49.04 or 49.06 [DWI or BWI].

  • The device must be “installed on the motor vehicle owned by . . . or . . . most regularly driven by the defendant”; and
  • “the defendant [must] not operate any motor vehicle that is not equipped with that device.”

Second, (e-1) discounts interlock costs to indigent defendants. Upon a proper showing, the judge may find indigence and reduce interlock costs by:

  • waiving the installation fee; and
  • reducing monthly monitoring fees by half.

These discounts do not apply if your client blows hot. Any additional fees incurred if the device detects alcohol on the breath of the person attempting to operate the vehicle will not be reduced.9

Third, (e-2) provides an exception to the mandatory interlock condition. This exception applies if the judge:

  • based on a controlled substance and alcohol evaluation of the defendant,
  • finds and enters in the record,
  • that restricting the defendant to the use of an interlock is not necessary for the safety of the community.

Deferred Adjudication Nondisclosure Eligibility

HB 3582 amended the nondisclosure statutes to make a separate section governing deferred adjudications for certain intoxication offenses.10 The new statute, Government Code § 411.0726, applies exclusively to DWI and BWI deferred adjudications—without an affirmative finding described in Article 42A.105(f).11

Now, to receive a DWI or BWI nondisclosure, a person must

  • receive a discharge and dismissal under Article 42A.111, Code of Criminal Procedure;
  • satisfy the requirements of Section 411.074 [basic qualifications for all nondisclosures];
  • have zero prior convictions or deferred adjudications (except for traffic offenses punishable by fine only);12
  • wait two years from the date of completion of the deferred adjudication community supervision and the discharge and dismissal of the case;13 and
  • not have evidence presented “sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the order.”14

Mandatory Fines for Those “Finally Convicted”

Described as a “superfine,” HB 2048 adds new § 709.001 to the Transportation Code (Traffic Fine for Conviction of Certain Intoxicated Driver Offenses), which financially disincentivizes people “finally convicted” of an “offense relating to the operating of a motor vehicle while intoxicated”:15

  • $3,000 for the first conviction within a 36-month period;
  • $4,500 for a second or subsequent conviction within a 36-month period; and
  • $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

What “finally convicted” means is less clear. According to the TCDLA Legislative Committee, both TDCLA and TDCAA agree the superfine only applies to final convictions—adjudicated jail sentences only.

But the actual language of the new statute suggests otherwise. Unlike other sentencing enhancements, simply probated—but not deferred—sentences still mean final convictions.16 Your client will still be assessed the fine on a straight probation. In short, if you plead your client guilty or a jury finds your client guilty of DWI, they could be facing a minimum mandatory fine of $3,000—at least until the “finally convicted” issue is settled.

Interestingly, the counties now responsible for enforcing these impressive fines keep only 4% of the money.17

Upon Showing of Indigence, Court Shall Waive Fines and Costs

Upon a finding of indigence, under § 709.001, the court shall waive all these new fines and costs.18 The statute specifically provides that the following documents can support a finding of indigence:19

  • Most recent federal income tax return showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines;
  • Most recent pay stub showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines; or
  • Proof of state, federal, or school assistance, including:
    • Food stamp program;
    • Special supplemental nutrition program for women, infants, and children;
    • Medical assistance program under Tex. Hum. Res. Code ch. 32;
    • Child health plan program under Tex. Health. Saf. Code ch. 62; and
    • National free or reduced lunch program.

Sayonara Surcharges (and Related Suspensions)

HB 2048 deletes the driver responsibility program from the Transportation Code.20 It both forgives all unpaid surcharges and reinstates licenses suspended due to unpaid sur­charges.

  • The repeal by this Act of Chapter 708, Transportation Code, applies to any surcharge pending on the effective date of this Act, regardless of whether the surcharge was imposed before that date.21
  • The Department of Public Safety shall reinstate any driver’s license that is suspended under Section 708.152, Transportation Code, as of the effective date of this Act if the only reason the driver’s license was suspended is a failure to pay a surcharge under Chapter 708, Transportation Code.22

Effective Dates

Both HB 3582 and 2048 took effect on September 1, 2019.23 The punishment amendments apply only to offenses committed on or after that date.24 Because the nondisclosure amendments are silent about their operation, unfortunately they are “presumed to be prospective in operation.”25

Important Takeaways

  • Interlock now required on all felony DWI-related offenses, and subsequent DWIs, but magistrates may not require if not in the interest of justice;
  • Deferred adjudication available only on DWI-first and under 0.15 offenses (plus numerous other disqualifying factors);
  • Changes to nondisclosure eligibility;
  • Mandatory massive fines upon “final convictions” for DWI; and
  • Surcharges and related suspensions are eliminated.

The Perils of Blowing the Whistle

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We have met with many potential new clients who know about a crime or fraud and are interested in blowing the whistle. Sometimes the client is motivated by a genuine desire to right a perceived wrong, sometimes the client is motivated by the desire to collect an award, and sometimes the client is motivated by the desire to “get ahead of the problem.”

A common misconception these clients have is that if they blow the whistle they will be protected from criminal prosecution. The purpose of this article is to briefly explain how some common whistleblower statutes work, what protections they afford, and a suggested framework for protecting those clients who decide to blow the whistle from criminal prosecution.

Please note that this article is written from the perspective of a criminal defense attorney, not a plaintiff’s attorney. Our interest is in making sure our clients don’t receive their monetary award while sitting in a prison cell.

Overview of Whistleblower Laws

At the federal level, Congress has enacted various whistleblower laws. The main programs for whistleblowers are the False Claims Act (FCA), the SEC Whistleblower Program, IRS Whistleblower Program, and the Whistleblower Protection Act. The FCA, SEC Whistleblower Program, and IRS Whistleblower Program reward individuals who expose fraud and abuse and protect them from retaliation by their employers. The Whistleblower Protection Act protects federal employees who report crimes, fraud, or abuse in their agencies.

In Texas, the main whistleblower laws are the Texas Whistleblower Act and the Texas Medicaid Fraud Prevention Act. The Texas Whistleblower Act protects public employees from retaliation if they blow the whistle on the government agency that employs them. The Texas Medicaid Fraud Prevention Act targets Medicaid fraud and has provisions that allow whistleblowers to expose Medicaid fraud by filing qui tam lawsuits. That law protects whistleblowers and rewards them if Medicaid funds are recovered as a result of their information and assistance.

Whistleblowers often face employer retaliation for reporting their concerns. This retaliation can take many forms—demotion, being fired or sidelined, being blackballed, etc. Most whistleblower laws, both state and federal, contain some sort of anti-retaliation provision. Both Congress and our state legislature recognized that whistleblowers need job protection from the subject of their whistleblower complaint as some may lose their jobs, be demoted, or be blackballed from working in their industry.

Sadly, whistleblowers receive no similar protection from prosecution. Our jails are filled with individuals waiting to be released so they can collect their whistleblower awards. Often these same individuals believed that they would be protected, and that if they “got ahead of the problem” they could avoid prosecution.

Obtaining Immunity for Your Client

The only way to protect your clients from getting themselves indicted is to carefully negotiate an immunity agreement with the Government. Immunity agreements both formal and informal can be of two varieties.

First, a prosecutor can promise “use immunity.” “Use and derivative use immunity” protects the witness from the government’s use of the witness’ testimony and any leads or fruits that may be derived from it.

Second, a prosecutor can promise “transactional immunity.” Transactional immunity is broader than use immunity. It gives full immunity from prosecution for the offense to which the testimony relates.

Statutory immunity, also known as formal immunity, should be distinguished from informal immunity. The latter term, often referred to as “pocket immunity” or “letter immunity,” is immunity conferred by agreement with the witness. For example, the government and a cooperating witness might enter into a non-prosecution agreement if the defendant or witness agrees to cooperate. Testimony given under informal immunity is not compelled testimony, but is testimony pursuant to an agreement and thus voluntary. The principles of contract law apply in determining the scope of informal immunity. United States v. Plummer, 941 F.2d 799, 802 (9th Cir. 1991); United States v. Britt, 917 F.2d 353 (8th Cir. 1990), cert. denied, 498 U.S. 1090; United States v. Camp, 72 F.3d 759 (9th Cir. 1996) [replacing 58 F.3d 491 (9th Cir. 1996)].

Grants of informal immunity that do not expressly prohibit the government’s derivative use of the witness’ testimony will be construed to prohibit such derivative use. Plummer, supra. But a grant of informal immunity that expressly provides for derivative use of the testimony by the government will be upheld. United States v. Lyons, 670 F.2d 77, 80 (7th Cir. 1982), cert. denied, 457 U.S. 1136.

An important difference between statutory/formal immunity and informal immunity is that the latter is not binding upon non-signatories. This follows from the fact that the local prosecutor representing the state is normally not a party to the agreement between the witness and the Federal prosecutor, and thus cannot be contractually bound by the Federal prosecutor’s agreements—and vice versa.

The Attorney Proffer

One method we have found to be effective in representing individuals who have knowledge of criminal activity is the attorney proffer. An attorney proffer is nothing more than an off-the-record discussion between the lawyer and the government in which the attorney tells the government what he believes his client would be able to testify to. The point of the discussion is for the government to get some sense of the information being offered and the role played by the client so that it may make an informed choice to grant or withhold immunity. The advantage of the attorney proffer is that the information given to the government by the attorney cannot be used directly against the client as it is the defense attorney’s opinion as to what his client may know. Obviously some level of trust must exist between the criminal defense attorney and the prosecutor for this to work, and this is where the attorney’s previous relationship with the prosecutor becomes very important. But notwithstanding this trust, the defense attorney should consider not identifying his client or speaking in more than hypothetical terms until an agreement is reached.

Stats Show Racial Inequities for Organized Retail Theft Arrests Statewide

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Let’s say I wanted to steal an Xbox from Fry’s (or any other retail store). Maybe it’s for a thrill, a dare, voices in my head, or maybe I just want to eat Cheetos all day and play video games on my sofa. Whatever the reason, it is unimportant.

I have committed theft—this is obvious. But, were you aware I also committed Organized Retail Theft (“ORT”)? TEX. PEN. C. 31.16(b) provides:

A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells or disposal of . . . (1) stolen retail merchandise.

Arrests for ORT under these circumstances aren’t theoretical, either. Dr. Michael Braun is a statistics professor from SMU’s Cox School of Business. He recently completed a comprehensive study published in the Journal of Empirical Legal Studies (JELS) which found not only were there thousands and thousands of arrests made for organized retail theft where the amount stolen was consistent with ordinary shoplifting—but also racial minorities are bearing a disproportional share of the arrests.

Dr. Braun studied over 110,000 organized retail theft arrests and ordinary thefts through open records from police agencies around the state. He found an African American is twice as likely as a white person to be arrested for ORT. His research found that African-American females are 160% as likely as a white person to be arrested for ORT. At least 30 police agencies showed racial disparities in their arrests based on Dr. Braun’s statistics and research.

There were unsuccessful attempts made this past session in the Texas House and Senate to make the Penal Code consistent with other states’ treatment of Organized Retail Theft. State Representative Jessica Gonzalez (D–Dallas) and State Senator Royce West (D–Dallas) filed bills in the House and Senate to amend the definition of ORT. However, Lieutenant Governor Patrick did not allow Senator West’s bill to reach the Senate Floor, thereby effectively killing it for this session. The proposed fix would install a $2,500 threshold to ORT amounts and would also require the stolen property to be possessed with the intent for the property to be re-distributed.

The Court of Criminal Appeals has weighed in on the issue, too, holding ordinary shoplifting, in and of itself, cannot be organized retail theft even with the bizarre language under 31.16(b). See Lang v. State, 561 S.W.3d 174 (Tex. Crim. App. 11/22/2018). This opinion expounds the need for the statute to be fixed.

Dr. Braun’s full article can be read at the following link: shorturl.at/iuET5.

Voting Rights of Felons

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A felony conviction may result in the loss of voting rights in Texas… But not forever.

A person who is convicted of a felony in the State of Texas is not eligible to register to vote—or to vote in an election if already registered—until he or she has successfully completed his or her felony sentence.

This includes any term of incarceration, parole, supervision, period of probation, or pardon.1 He or she must also register to vote at least 30 days prior to an election date to be eligible.2 Voting illegally in Texas is a second-degree felony punishable by up to 20 years in prison.3

Can some persons adjudicated of or charged with a felony vote?

Yes. A qualified registered voter without a “final felony conviction” or adjudication of guilt may vote under certain circumstances:

A conviction on appeal is not considered a final felony conviction. A person confined in jail “pending trial or an appeal of a conviction after denial of bail or without bail, or where release on bail before election day is unlikely” may apply for a ballot by mail.4

“Deferred adjudication” is not considered a final felony conviction.5

“Mere prosecution, indictment, or other criminal procedures leading up to, but not yet resulting in the final conviction, are not final felony convictions.”6

In 1997, George W. Bush, as Governor of Texas, also restored voting rights to ex-offenders upon completing their felony sentences when he signed legislation that eliminated the two-year waiting period for felons, after conclusion of their parole, to vote.

Current Issue: November 2019

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DOWNLOAD PDF VERSION

Features

24 | My Welcome Home From Vietnam: Back in the World in One Piece – By Bobby Mims
30 | 2019’s Need-to-Know Changes to DWI Law – By Frank Sellers & Mark Thiessen
34 | The Perils of Blowing the Whistle – By F. Andino Reynal & Joseph Magliolo Jr.
36 | Stats Show Racial Inequities for Organized Retail Theft Arrests Statewide – By Jeremy Rosenthal & Kyle Therrian
38 | Voting Rights of Felons – By Sharon Bass

Columns

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

Departments

5 | CLE Seminars and Meetings
41 | Significant Decisions Report

President’s Message: All You Can Be

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Listening to Larry Pozner speak about cross-examination is a rare, rare treat. TCDLA (through CDLP) and HCCLA brought him to Houston to share a day of incredible training regarding cross.

His book, Cross-Examination: Science and Techniques, written with Roger Dodd, has had an incredible impact on how I conduct cross. It will change how you try cases. The “chapter method” alone is worth the price of the book. The book is now in its third edition. I’m a lucky girl because I had the pleasure of having Larry sign my first edition. Carmen Roe referred to either me or my book as a “dinosaur.” I’m sure she meant the book, as it is a 1993 edition and even has a “pocket part” supplement (remember those in our Black’s Statutes?).

The bottom line is TCDLA provides us with so many opportunities to be better at what we do. It’s incredibly important to our clients that we ARE the best we can be. Lives of our clients and their families are forever changed by being thrust into the criminal justice system. We can be a part of making that a little less daunting, a little less painful, a little less flat out terrifying. And we do that by being the best prepared, most confidant attorney in the courtroom. A huge part of what we do in trial is cross-examination. I strongly recommend the above book to all of you—I even had and listened to CDs of Larry Pozner in my car (I’m not sure I have a CD player in my car anymore). Tip Hargrove lent me his Pozner CDs, so I know this method of cross is alive and well in West Texas!

Next month, I hope to share some info about the survey in which we asked you to participate regarding TCDLA. Some interesting info has been gleaned and will help us be all we can be for you, our membership.

This month, we will celebrate Thanksgiving. Be sure you let people know you are thankful for them. Maybe a staff member, a court coordinator, a fair prosecutor (oxymoron?), a citizen accused who trusts you. I know I am thankful for ALL of you and hope to see you at the Sexual Assault seminar and board activities in Dallas the first weekend in December!

Executive Director’s Perspective: Thankfulness

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Here’s to those who inspire you and don’t even know it.

—unknown

November is the month of thanks. This month I would like to dedicate my article and give thanks to Craig Hattersley, TCDLA’s Communication Director. He has been with TCDLA for 12 years and has been a valuable and intricate part of TCDLA. He has supported me and made us all look good—and helped us on our quest for success!

Selfishly, I knew this day was coming, but as the executive director, I wanted him to remain in his position until I retired. Craig has always been a rock in the organization, making sure everyone remembers deadlines and assisting with tasks. Tiffany speaks for all of us when she says: “I wish I had more time with Craig to get to know him better because the few times I have gotten to have a ‘sit down’ with him were always enlightening and meaningful. I will definitely miss when his time comes to speak in the staff meetings, knowing I’m going to get a good laugh. I too selfishly wish he would be here longer for me to learn as much as possible and pick his brain for all the insight and wisdom that he possesses.”

In the past 12 years, TCDLA has relocated our office twice. Cris remembers: “We always laugh about how we say we are old cellmates because in the old Nueces house we used to share that little office area, which we considered a cell. He will be missed.”

Some of my fondest memories with Craig are sitting in my office or his and just brainstorming ideas, him giving me advice. I look back and laugh at the staff meetings where he was eagerly waiting for his turn to give his update—and make comments that would have the staff laughing. Many of the board members probably looked forward as I did to reading his detailed weekly humorous loop reports.

How we will long for meals from scratch Craig would bring, his wife Jan’s desserts, and food for our potlucks. He was appreciated by all staff who shared meals prepared by Jan.

Then there were those endearing terms he had for staff at the office. How many times everyone has mentioned they will miss him dearly, the lone male leaving us.

For Rusty Duncan, our signature event, when Craig creates all the marketing and artwork, I feel like he truly understands everyone’s vision (and especially my own concepts he turned into reality). Rusty is the one event all staff work ten-plus hours a day, and his efforts will be sorely missed. Miriam says: “I will miss him always taking care of us at Rusty every year and making sure we had our vitamin C. He would pass out vitamin C drops to make sure we stayed on our A game! He always joked with me about being a wimp for always being cold and didn’t mind when I would steal his heater from his office to use—which I’ve now had for years. But most of all I will miss the long talks about life and road trips to seminars. Working with Craig 12 years, I definitely will miss him.”

Susan remembers that “since I started, I could always ask Craig to take a caller who had interesting topics or too much info to share but I knew the person needed to be handled ‘delicately.’ He always had funny sayings to ‘thank me’ for sharing those calls with him. He will be missed.”

Rick remembers: “When I got to TCDLA, Craig was the only one who understood my taste in music. Heck, he was the only one who had ever heard of the artists I loved. I have treasured his friendship and his being the ‘Old Guy’ around the office. We have always been the ones who went to bed early at Rusty. Many don’t know how much responsibility Craig takes with the publications, but I can tell you that he compares the editions and has saved me many, many errors that a less dedicated man would have missed because he wouldn’t have been looking as diligently. I will miss him even more than I worry about assuming the mantle of Old Guy!”

And then were the little things. Oh, how we love coffee in this office! The afternoon is always a treat when Craig makes his handmade pour-over coffee. I will miss this dearly—and don’t know how I will function without it!

Chelsea remembers: “When the coffee grinder broke and he couldn’t have his coffee, he grumbled about it and bought coffee at Whataburger for a quick fix. He solved this immediately by replacing the grinder with a personal one from home. I will miss him.”

Nymph says she “will miss her early-morning chats with Craig about coffee, school, and life”—and her daily challenge of trying to be taller than Craig with her heels.

I will even miss having him text me with the day’s problems in the wee hours—starting as early as 4:30 am. How sad I will be to arrive at the office with no one to greet me.

Or having someone to help make welcome our incoming part-time staff, who are mentored by Craig and his words of wisdom—and teased unmercifully as well. As a new staff member, Avea remembers all the car advice he gave on her BMW (which had over 200k miles on it), his emails on our staff listserve.

Elisa remembers him one Halloween giving a real “boo”: candy dumped unceremoniously on the victim! What fun times we have had at our office, memories with Craig that will forever be retold.

Craig is our early bird, usually getting to the office before 5:30 am. Driving in from Pflugerville is quite the commute, and over the years traffic has only gotten worse, along with an increase in the time required. Fellow commuter Mari had this to say: “Craig has a sense of humor I have always found entertaining. I will definitely miss him making me laugh with his sarcastic remarks and our almost daily exchange of traffic stories between the office and our homes in Pflugerville.”

Keri says: “The thing I am going to miss the most about Craig not being in the office is going to be Jan’s cooking. He was always giving me a taste of whatever creation she cooked that night before, and it usually reminded me of home cooking I grew up with in Wisconsin. On a serious note, I will miss the early-morning conversations and all the other tasks I am always coming into his office for help with. I will miss him greatly, and his shoes are going to be hard to fill.”

TCDLA is indeed losing a part of the family, the key person with institutional knowledge, and my friend. Craig, you will be missed!

I hope everyone enjoys this fall and shares their thanks with friends and family!

Editor’s Comment: Individual Parts Make the Whole

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We are a working organization. That’s what makes this organization so great. We all contribute our time and talents in some way for the betterment of TCDLA. Contributions from individuals meld together to make a cohesive, functional, educational, inspiring whole. That’s how this organization started nearly 50 years ago, and that’s what has kept it going all these years. We are all dedicated to the cause. As past president #43, Bobby Mims wrote in 2014:

More than 43 years ago a group of lawyers decided that a separate organization devoted to the training, education, and support of criminal defense attorneys was needed. These lawyers literally drove all over Texas collecting money to start the Texas Criminal Defense Lawyers Association. For years this small band of brothers and sisters worked and fought to prevent the erosion of the rule of law. From that small group the TCDLA has emerged as the largest and most effective state association of criminal defense lawyers in the United States.

        Among the members of this association are some of the finest lawyers in the nation. Some are nationally known superstars, but all are courageous fighters for justice. Every day in every court in Texas TCDLA lawyers confront power and advocate for the defendant. Every TCDLA member stands shoulder to shoulder with criminal defense lawyers as they walk into the courtrooms of Texas. There are few more cohesive groups than the members of this association.”

43 Voice for the Defense 4 (May 2014).

Let’s all continue to engage and be active in TCDLA. Part of being active is knowing your board members, knowing what they do for this organization, and actively communicating with them. In addition to attending quarterly board meetings, one major commitment that all board members have made to this organization is to contribute to the Voice. To become a board member, we all agree to submit two articles to the Voice each year OR if writing is just not feasible for whatever reason, substantially help with strike force OR substantially help with legislative work. And now there’s even an option to buy your way out of writing an article by contributing $750 to the Lawyers Educational Institute (LEI) each year (note: there is no grandfather clause on this monetary exception). LEI is that part of TCDLA that helps provide monies to educate criminal defense lawyers who may otherwise be unable to attend seminars. All board members make this commitment because ours is a working organization and a working board.

We are all busy and there is always a reason to put off that which can be done today; that’s why there are so many options for board members. The requirement to contribute in one of the above ways applies to everyone on the board. But, being involved in strike force, legislative efforts, and LEI is not just limited to board members. Anyone and everyone can be involved, and many of you already are. Thank you.

The points of contact for strike force are Nicole Hochglaube and Reagan Wynn.
The point of contact for legislative efforts is Bobby Mims.
To donate to LEI, contact the home office or Clay Steadman.

If you want to write an article, please do! Any criminal law topic, no matter how basic or complex, is fair game. If you’ve written a paper for a talk, feel free to turn that into an article. If you’ve successfully litigated a motion to suppress, feel free to turn that into an article. A couple of years ago I gave a presentation on writing the perfect paper (there is no such thing, by the way), and the biggest hurdle I’ve found for myself and others is getting started. So, get started!

Since last September Tyler Flood, Michael Gross (first vice president), David Guinn (secretary), Phil Baker, Kyle Therrian, Jeremy Rosenthal, Frank Sellers, and Mark Thiessen are our board/executive members who have contributed articles to the Voice. Every other fantastic article that has been written has come from our membership at large. THANK YOU. You are the ones who have done the yeomen’s work to make the Voice great.

Your board of directors and officers are always listed in the front of this publication and are easily found online. Reach out to us anytime so we can continue to make TCDLA better for all of us. Let’s all continue to contribute our time and talents to keep TCDLA great!

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