Monthly archive

February 2020

January/February 2020 SDR – Voice for the Defense Vol. 49, No. 1

Voice for the Defense Volume 49, No. 1 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Supreme Court of the United States

Editor’s note: There have been no significant decisions handed down yet by the SCOTUS this term.

United States Court of Appeals for the Fifth Circuit

United States v. Beverly, No. 18-20729, 2019 U.S.App.LEXIS 33977 (5th Cir. Nov. 14, 2019) (designated for publication) [Good-faith exception; Stored Communications Act]

        Under Davis v. United States, 564 U.S. 229, 238 (2011), the good-faith exception provides an exception to the exclusionary rule if investigators acted with an objectively reasonable, good-faith belief that their conduct was lawful. Where official action is pursued in complete good faith, the deterrence rationale loses much of its force. The exclusionary rule exists to deter willful or flagrant actions by police, not reasonable, good-faith ones.

        The good-faith exception does not apply if the: (1) issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false; (2) issuing magistrate wholly abandoned his judicial role; (3) warrant affidavit is so lacking in indicia of probable cause as to render official belief in its existence unreasonable; and (4) warrant is so facially deficient in failing to particularize the place to be searched or things to be seized that executing officers cannot reasonably presume it valid.

        Under United States v. Leon, 468 U.S. 897, 906 (1984), the good-faith exception applies to evidence obtained from warrants that were obtained without probable cause.

        Under Illinois v. Krull, 480 U.S. 340, 342 (1987), the good-faith exception applies to evidence obtained from warrantless searches later held to be unconstitutional. It applies where officers acted in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but the statute was after found to violate the Fourth Amendment. Excluding evidence obtained prior to a judicial declaration will not deter future Fourth Amendment violations by an officer who fulfilled his responsibility to enforce the statute as written.

        Under the Stored Communications Act (SCA), 18 U.S.C. §§ 2701–2711, law enforcement may obtain a court order compelling the disclosure of certain telecommunications records when the agency offers specific and articulable facts showing that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. 18 U.S.C. § 2703(d). This is the reasonable suspicion standard under Terry v. Ohio, 392 U.S. 1 (1968), and is less stringent than the probable-cause standard required for a search warrant.

        Under Carpenter v. United States, 138 S.Ct. 2206 (2018), obtaining historical cell-site location information (CSLI) from a wireless carrier is a search under the Fourth Amendment because an individual has a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

United States v. Gentry, No. 17-10165, 2019 U.S.App.LEXIS 32238 (5th Cir. Oct. 28, 2019) (designated for publication) [Conflict of interest for breakdown in communication; enhancement under U.S.S.G. § 3C1.1 for obstruction of justice; sufficient indicia of reliability of information in a PSR]

        An attorney’s conflict of interest may be so flagrant that it violates the Sixth Amendment. Where the alleged conflict is due to a conflict between the attorney’s personal interest and his client’s (rather than multiple client representation), Strickland v. Washington, 466 U.S. 668 (1984), applies: A defendant must show that counsel’s performance was deficient and it prejudiced the defense.

        A district court is constitutionally required to provide substitute counsel if there is a complete breakdown in communication. Reversal is inappropriate if the breakdown is attributed to the defendant’s intransigence and not to the neglect of defense counsel or the trial court.

        Under U.S.S.G. § 3C1.1, a 2-level increase to a defendant’s offense level is added if: (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense. A finding of obstruction of justice under U.S.S.G. § 3C1.1 is a factual finding that is reviewed for clear error.

        Requests to substitute counsel alone do not amount to obstruction of justice under U.S.S.G. § 3C1.1. A defendant’s failure to work in harmony with court-appointed counsel may occur for reasons like anxiety related to the consequences of a criminal conviction, differences in personality, and incompatible communication styles. District courts must be cautious not to punish defendants for their distrust of the criminal justice system or lack of knowledge related to the procedures applied. District courts must avoid applying the obstruction-of-justice sentence enhancement in a way that discourages defendants from actively participating in their defenses and asserting their constitutional right to effective assistance of counsel.

        Sentences based upon erroneous and material information or assumptions violate due process.

        A district court’s calculation of the quantity of drugs involved in an offense is a factual determination. Factual findings regarding sentencing factors are entitled to considerable deference and will be reversed only if they are clearly erroneous. The remedy where a trial court relies upon erroneous information or assumptions is to remand for a new sentencing hearing.

        A district court may extrapolate the quantity of drugs from any information that has sufficient indicia of reliability to support its probable accuracy.

        Information in a PSR generally bears a sufficient indicia of reliability to be considered evidence for making factual determinations. But mere inclusion in the PSR does not convert facts lacking an adequate evidentiary basis with sufficient indicia of reliability into facts that may be relied upon. If the facts lack sufficient indicia of reliability, it is error for the district court to consider it. When facts contained in the PSR are supported by an adequate evidentiary basis with sufficient indicia of reliability, a defendant must offer rebuttal evidence demonstrating that the facts are materially untrue, inaccurate, or unreliable.

Editor’s note: This case presents a good example of ways to deal with very difficult clients while maintaining client confidentiality and protecting the attorney-client privilege.

United States v. Johnson, No. 18-50826, 2019 U.S.App.LEXIS 35005 (5th Cir. Nov. 22, 2019) (designated for publication) [Plain error review; counting a prior sentence as part of criminal history under U.S.S.G. § 4A1.2(e)]

        Under Gall v. United States, 552 U.S. 38, 51 (2007), a district court commits a significant procedural error at sentencing if it improperly calculates the Guidelines range or selects a sentence based on clearly erroneous facts.

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

        Under U.S.S.G. § 4A1.2(e), a prior sentence is not counted unless: (1) it was a prison sentence exceeding 1 year and 1 month that was imposed within 15 years of the defendant’s commencement of the present offense, or (2) it was any other sentence that was imposed within 10 years of the defendant’s commencement of the present offense.

United States v. Kearby, No. 18-10874, 2019 U.S.App.LEXIS 35280 (5th Cir. Nov. 25, 2019) (designated for publication) [Calculation of drug-quantity; 2-level increase for importing meth per U.S.S.G. § 2D1.1(b)(5); 2-level reduction per U.S.S.G. § 3B1.2(b) for being a minor participant]

        Under Gall v. United States, 552 U.S. 38, 46 (2007), sentences are reviewed per bifurcated process: (1) examine whether the district court committed significant procedural error, and if not, (2) consider the substantive reasonableness of the sentence.

        Calculation of drug-quantity is a factual determination that is not reversed unless implausible considering the entire record. A district court may consider estimates of quantity for sentencing purposes. A court may consider statements of coconspirators even they are somewhat imprecise in calculating drug quantity.

        When making factual findings for sentencing purposes, the district court may consider any information that bears a sufficient indicia of reliability to support its probable accuracy. It may adopt facts in a PSR without inquiry if the facts had an adequate evidentiary basis and the defendant does not present rebuttal evidence.

        If uncorroborated hearsay is sufficiently reliable, a district court may rely on it in making sentencing findings.

        Under U.S.S.G. § 2D1.1(b)(5), a 2-level increase is allowed if the offense involved the importation or manufacture of meth of meth from listed chemicals that the defendant knew were imported unlawfully and the defendant is not subject to an adjustment under § 3B1.2 (Mitigating Role). The distribution or possession with intent to distribute of imported meth alone may subject a defendant to the § 2D1.1(b)(5) enhancement. It applies even if the distributor doesn’t know of the foreign origins.

        Under U.S.S.G. § 3B1.2(b), a 2-level reduction is allowed if the defendant was a minor participant in the criminal activity—substantially less culpable than the average participant but whose role was not minimal. Whether the reduction applies is based on the totality of the circumstances. The district court should consider these factors: knowledge, planning, authority, responsibility, and benefit from the scheme. The court need not expressly weigh each factor but may address them if the parties cite them and proffer facts and contentions relating to them.

United States v. Sparks, No. 18-50225, 2019 U.S.App.LEXIS 31900 (5th Cir. Oct. 24, 2019) (designated for publication) [Miller v. Alabama does not add procedural requirements above 18 U.S.C. § 3553(a)]

        Under Miller v. Alabama, 567 U.S. 460 (2012), the SCOTUS held that juveniles may not receive mandatory LWOP sentences. Under Montgomery v. Louisiana, 136 S.Ct. 718 (2016), Miller is retroactive to cases on collateral review. Miller does not foreclose life without parole on a discretionary basis. Miller has no relevance to sentences less than LWOP, so sentences of life with the possibility of parole or early release are allowed. A term-of-years sentence cannot be characterized as a de facto life sentence.

        The procedural component of Miller requires a sentencer to consider a juvenile’s youth and attendant characteristics before determining that life without parole is a proportionate sentence.

        Under 18 U.S.C. § 3553(a), a court shall impose a sentence sufficient to comply with the purposes of sentencing. The court must examine the nature and circumstances of the offense and the history and characteristics of the defendant, and consider the policy statements of the Sentencing Commission, which allow for consideration of age. Miller does not add procedural requirements above 18 U.S.C. § 3553(a).

Texas Court of Criminal Appeals

Allen v. State, No. PD-1042-18, 2019 Tex.Crim.App. LEXIS 1172 (Tex.Crim.App. Nov. 20, 2019) (designated for publication) (Aggravated Robbery, Harris Co.) [Summoning witness/mileage fee in Tex. Code Crim. Proc. Art. 102.011(a)(3), (b) does not violate separation of powers principles]

        The summoning witness/mileage fee in Tex. Code Crim. Proc. Art. 102.011(a)(3), (b) does not violate separation of powers principles.

        Under Tex. Gov. Code § 311.021, there is a presumption that a statute is valid. In a challenge to the constitutionality of a statute, a court must interpret the statute such that its constitutionality is supported and upheld and must make every reasonable presumption in favor of its constitutionality, unless the contrary is clearly shown.

        Under City of Los Angeles v. Patel, 135 S.Ct. 2443, 2449 (2015), a facial challenge is an attack on a statute itself as opposed to a particular application. Such a challenge requires the challenger to establish that no set of circumstances exists under which the statute would be valid.

        Under Tex. Const. Art. II, § 1, and Ex parte Lo, 424 S.W.3d 10, 28 (Tex.Crim.App. 2013) (op. on State’s motion for reh.), the three branches of government—legislative, executive, and judicial—are separate and distinct branches, and no person or collection of persons being of one of these departments shall exercise any power properly attached to either of the others unless expressly permitted in the Constitution. This division ensures that power granted one branch may be exercised by only that branch, to the exclusion of the others. One way the separation of powers provision is violated is when one branch of government assumes or is delegated a power more properly attached to another branch.

        The authority to impose taxes is vested in the legislative branch, and the authority to collect taxes is delegated to the executive branch. The courts are delegated a power more properly attached to the executive branch if a statute turns the courts into tax gatherers. But under certain circumstances, a court’s collection of fees in a criminal case is a proper part of the judicial function and does not constitute an impermissible tax.

        Constitutionally permissible court costs are those that: (1) reimburse criminal justice expenses incurred in connection with the defendant’s criminal prosecution, and (2) are to be expended to offset future criminal justice costs.

        A statute assessing costs for future expenses or an interconnected statute must expressly direct the collected fees to be expended for a legitimate criminal justice purpose. Such costs are legitimate when imposed to recoup expenses incurred during a prosecution.

Garcia v. State, No. PD-0035-18, 2019 Tex.Crim.App.LEXIS 1112 (Tex.Crim.App. Nov. 20, 2019) (designated for publication) (Aggravated Sexual Assault of a child, Harris Co.) [Election rule in sexual assault cases]

        In a sexual assault trial where one act is alleged in the indictment and more than one act is shown by the evidence, the State must elect the act upon which it would rely for conviction. The trial court has discretion to order the State to make an election at any time before the State rests its case-in-chief. Once the State rests, if the defendant makes a timely request the trial court must order the State to decide. Failure to do so constitutes constitutional error subject to a Tex. Rule App. Proc. 44.2(a) harm analysis.

        The purpose of the election rule is to: (1) protect the defendant from the introduction of extraneous offenses; (2) minimize the risk that the jury might convict not because one or more crimes were proved beyond a reasonable doubt but because all of them convinced the jury that the defendant was guilty; (3) ensure a unanimous verdict on one incident that constituted the offense charged; and (4) give the defendant notice of the offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend.

Texas Courts of Appeals

August v. State, No. 14-18-00448-CR, 2019 Tex. App.—LEXIS 9672 (Tex.App.—Houston [14th Dist.] Nov. 5, 2019) (designated for publication) (Burglary of a habitation, Waller Co.) [Show-up identifications]

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

        Under Barley v. State, 906 S.W.2d 27, 32–33 (Tex.Crim.App. 1995), a pretrial identification procedure may be so suggestive and conducive to mistaken identification that use of it at trial is a denial of due process. The question is reviewed de novo. The Appellant must show by clear and convincing evidence that the pretrial identification procedure: (1) was impermissibly suggestive, and (2) gave rise to a substantial likelihood of irreparable misidentification.

        The five nonexclusive factors to determine whether an impermissibly suggestive identification procedure gave rise to a substantial likelihood of irreparable misidentification are the: (1) witness’ opportunity to view the suspect at the time of the crime; (2) witness’ degree of attention; (3) accuracy of the witness’ prior description of the suspect; (4) level of certainty demonstrated by the witness at the confrontation; and (5) time between the crime and the confrontation.

        “Show up” identifications do not necessarily violate a defendant’s right to due process but tend to be suggestive. The totality of the circumstances is considered to determine whether a show-up was impermissibly suggestive. If the totality of the circumstances indicates that a substantial likelihood of irreparable misidentification exists, due process is violated.

Editor’s note: This is the complete law on the standard of review for motions to suppress:

  • Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000), and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on an MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002), and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record.
  • Under Barley v. State, 906 S.W.2d 27, 32–33 (Tex.Crim.App. 1995), a pretrial identification procedure may be so suggestive and conducive to mistaken identification that use of it at trial is a denial of due process. The question is reviewed de novo. The Appellant must show by clear and convincing evidence that the pretrial identification procedure: (1) was impermissibly suggestive, and (2) gave rise to a substantial likelihood of irreparable misidentification.
  • The five nonexclusive factors to determine whether an impermissibly suggestive identification procedure gave rise to a substantial likelihood of irreparable misidentification are the: (1) witness’ opportunity to view the suspect at the time of the crime; (2) witness’ degree of attention; (3) accuracy of the witness’ prior description of the suspect; (4) level of certainty demonstrated by the witness at the confrontation; and (5) time between the crime and the confrontation.
  • “Show up” identifications do not necessarily violate a defendant’s right to due process but tend to be suggestive. The totality of the circumstances is considered to determine whether a show-up was impermissibly suggestive. If the totality of the circumstances indicates that a substantial likelihood of irreparable misidentification exists, due process is violated.

Editor’s note: Suggestive lineups and show-ups do nothing other than either confirm what the police already know or pin a crime on the wrong person. The police wouldn’t like it if the tables were turned on them.

State v. Castanedanieto, Nos. 05-18-00870-CR, 05-18-00871-CR, & 05-18-00872-CR, 2019 Tex.App.—LEXIS 8884 (Tex.App.—Dallas Oct. 3, 2019) (designated for publication) (Aggravated Robbery, Dallas Co.) [Later confession tainted a prior one]

        Under Sterling v. State, 800 S.W.2d 513, 519–520 (Tex.Crim.App. 1990), to determine whether a later confession is tainted by a prior one, courts must consider: (1) whether the condition rendering the first confession inadmissible persisted through later questioning; (2) the length of the break between the two confessions; (3) whether the defendant was given renewed Miranda warnings; (4) whether the defendant initiated the interrogation that resulted in the later confession; and (5) any other relevant circumstances, including whether a magistrate warned the defendant of his rights between confessions, the defendant’s latter confession was motivated by earlier improper influences brought to bear on him, the defendant remained in custody between the confessions, the defendant conferred with counsel between confessions or requested counsel, and the defendant gave the second confession when he otherwise might not have because he had already given the first one.

Cole v. State, Nos. 09-18-00124-CR & 09-18-00125-CR, 2019 Tex.App.—LEXIS 9873 (Tex.App.—Beaumont, Nov. 13, 2019) (designated for publication) (Aggravated Robbery, Jefferson Co.) [Self-representation under Faretta v. California, 422 U.S. 806 (1975)]

        Under Faretta v. California, 422 U.S. 806, 835–836 (1975), a criminal defendant has a constitutional right to conduct his own defense if the defendant has voluntarily, knowingly, and intelligently elected to do so. Forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so. When the defendant elects to represent himself, he waives his right to assistance of counsel. Due to the consequences likely to result from the election, trial courts must conduct an inquiry and determine whether the defendant is voluntarily, knowingly, and intelligently waiving his right to counsel. The trial court must inform the defendant of the disadvantages and dangers of proceeding without counsel. This inquiry is required so the record shows the defendant “knows what he is doing” and making the choice with his “eyes open.”

        Under Scarborough v. State, 777 S.W.2d 83, 92 (Tex.Crim.App. 1989), if a defendant’s valid election to represent himself must be honored even if it causes inconvenience that may be somewhat disruptive of the trial. If the disruption is not a calculated effort to obstruct the trial, the fact that some inconvenience results is insufficient to allow a court to reject a defendant’s valid election of his right to represent himself.

State v. Couch, No. 03-16-00727-CR, 2019 Tex.App.—LEXIS 7867 (Tex.App.—Austin Aug. 29, 2019) (designated for publication) (DWI, Comal Co.) (McNeely, Garcia, and the elimination rate in blood of substances other than alcohol]

        Under Missouri v. McNeely, 569 U.S. 141, 148 (2013), and State v. Garcia, 569 S.W.3d 142, 148 (Tex.Crim.App. 2018), the exigent-circumstances exception applies when exigencies make the needs of law enforcement so compelling that a warrantless search is objectively reasonable. An officer may be justified in conducting a warrantless search to prevent the imminent destruction of evidence. The natural dissipation of alcohol in the blood may support a finding of exigency but does not do so categorically. An exigent-circumstances review is informed by the totality of the facts and circumstances available to the officer and analyzed under an objective standard of reasonableness. In investigations where officers can reasonably obtain a warrant before blood can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Relevant factors are: (1) the officer’s knowledge of the body’s natural metabolic process and the attendant evidence destruction over time; (2) procedures in place for obtaining a warrant; (3) the availability of a magistrate; and (4) the practical problems of obtaining a warrant within a timeframe that preserves the opportunity to obtain reliable evidence. When the circumstances include an auto accident, additional considerations are: (1) the time required to complete the investigation;, (2) the lack of available law enforcement to assist in the investigation; (3) the accident’s severity; and (4) the potential medical intervention that the circumstances require.

        Under State v. Garcia, 569 S.W.3d 142, 148 (Tex.Crim.App. 2018), the TCCA clarified how courts are to apply the bifurcated standard of review where the State claims that exigent circumstances existed: (1) if supported by the record, findings are entitled to deference; (2) whether an exigency justifies a warrantless search depends on what facts were available to the officer when he conducts the search; (3) in assessing the reasonableness of an officer’s actions, a court should consider the facts known to the officer and reasonable inferences that he is entitled to draw from the facts considering his experience (the determination of whether the inferences are reasonable is a legal conclusion not entitled to deference); and (4) an officer’s subjective motivation for conducting a warrantless search is irrelevant to the exigency analysis (it is irrelevant if the officer did not infer that he was faced with an exigency—if the known facts objectively support an exigency, the search is upheld—but if the officer subjectively inferred that he was faced with an exigency but facts objectively counter that inference, the search should be suppressed. Once (1)–(4) are settled, the court determines whether considering the known facts and reasonable inferences from those facts an objectively reasonable officer would conclude that in the time it would take to secure a warrant the efficacy of the search would be significantly undermined. This Fourth-Amendment reasonableness inquiry is reviewed de novo.

        Under State v. Garcia, 569 S.W.3d 142, 154 (Tex.Crim.App. 2018), the possible presence of substances other than alcohol in blood can support a finding of exigency even if the substance lacks a known elimination rate because without such a rate, officers face inevitable evidence destruction without the ability to know—unlike alcohol’s widely accepted rate—how much evidence it was losing as time passed. But for the other substance to be considered in the exigency analysis, the record must show how or why the officer might reasonably have suspected that the person was using the other substance.

In re Fletcher, No. 01-18-01109-CR, 2019 Tex.App.—LEXIS 7079 (Tex.App.—Houston [1st Dist.] Aug. 13, 2019) (designated for publication) (Mandamus, Chambers Co.) (Right to keep appointed counsel)

        Under State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007), to be entitled to mandamus relief, a relator must show: (1) no adequate remedy at law to redress the alleged harm; and (2) must have a clear right to the relief sought (must show that what he seeks to compel is a ministerial act not involving a discretionary or judicial decision—can satisfy if he can show he has a clear right to the relief sought—that the facts and circumstances dictate only one rational decision under unequivocal, well-settled (statutory, constitutional, or caselaw), and clearly controlling legal principles.

        Under Stearnes v. Clinton, 780 S.W.2d 216, 219 (Tex.Crim.App. 1989), in a case involving the arbitrary disqualification of appointed counsel rather than retained counsel of choice, the regular appellate process does not provide an adequate remedy even if it results in a reversal and new trial. Although an indigent defendant does not have the right to counsel of his own choosing, once counsel is appointed, the trial judge is obliged to respect the attorney-client relationship created through the appointment. To overcome the presumption against the removal of appointed counsel after an attorney-client relationship has been established, there must be a “principled reason” for the removal.

        It may be proper for a court to remove counsel over the client’s objection where the integrity of the judicial process and orderly administration of justice is impeded. But even the judge’s opinion that counsel is incompetent may not justify removing the attorney. Nor may the appearance of a conflict of interest show good cause for removal.

Rodriguez-Cruz v. State, No. 04-18-00905-CR, 2019 Tex.App.—LEXIS 7810 (Tex.App.—San Antonio Aug. 28, 2019) (designated for publication) (DWI under Tex. Penal Code § 49.04(a), Bexar Co.) [Motion for continuance based on a missing witness and after trial begins under Tex. Code Crim. Proc. Art. 29.13]

        Under Tex. Code Crim. Proc. Art. 29.13, after trial has begun, a continuance may be granted on motion when the trial court is satisfied that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the movant is so taken by surprise that a fair trial cannot be had.

            Under Harrison v. State, 187 S.W.3d 429, 434 (Tex.Crim.App. 2005), when a defendant’s motion for continuance is based on an absent witness, the defendant must show that (1) he has exercised diligence to procure the witness’ attendance; (2) the witness was not absent by the procurement or consent of the defense; (3) the motion was not made for delay; and (4) the facts expected to be proved by the witness are material. Review of a trial court’s denial of a mid-trial continuance is for an abuse of discretion.

Protecting Your Client’s Conduct While Admitting the Accuser’s: Texas Rules of Evidence 403, 404, 412, and 609

In sexual offense cases—particularly those involving an alleged crime against a child—the defense is almost always playing on an uneven field. Special rules of admissibility of evidence favor the prosecution. At trial, the defense often faces a critical challenge of trying to keep out evidence of a client’s extraneous conduct. In some cases, the defense may battle to admit evidence of an accuser’s own sexual acts. The slanted rules of admissibility and procedure make these contests difficult to win, but not always impossible. This article addresses how to resist a prosecutor’s effort to admit into evidence your client’s alleged extraneous conduct, while fighting for admissibility of an accuser’s own relevant sexual acts.

Law of Admissibility in Child Sex Offenses

The primary tool that prosecutors use to offer into evidence a defendant’s extraneous, sexual conduct is Tex. Code Crim. Pro. Art. 38.37 (the “Article”). As discussed below, the Article, entitled “Evidence of Extraneous Offenses or Acts,” is essentially a two-pronged statute. The first prong applies to any prosecution for commission, attempt, or conspiracy to commit the following types of Texas Penal Code cases, if perpetrated against a childunder 17 years of age at the time of the alleged offense or act: Chapter 21 (Sexual Offenses),1 Chapter 22 (Assaultive Offenses), and Section 25.02 (Prohibited Sexual Conduct). Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (a) (1). The first prong also applies to prosecutions for commission, attempt, or conspiracy to commit any of the following types of types of Penal Code offenses, if committed against a person younger than 18 years of age at the time of the alleged offense or act: Section 43.25 (Sexual Performance by a Child), Section 20A.02 (a) (7) or (8) (relating to Child Trafficking), or Section 43.05 (a) (2) (Compelling Prostitution). Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (a) (2).

The first prong of the Article mandates: “Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs or acts committed by the defendant against the child who is the victim of the alleged offense [for which the defendant is on trial] . . . shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.” Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (b) (emphasis added). Because of the broad and nearly unrestricted language relating to admissibility of a defendant’s extraneous conduct committed against the same child who is the alleged victim of the charged offense(s), for which the defendant is on trial, coupled with the lack of a statutorily required gatekeeping hearing, it is extremely difficult to keep out evidence of your client’s extraneous sexual conduct. Although the defense can and should object on federal and Texas constitutional grounds,2 as well as Tex. R. Evid. 403, the best chance for excluding a defendant’s extraneous sexual conduct in this instance may be to argue improper notice. Article 38.37, Sec. 3 provides: “The state shall give the defendant notice of the state’s intent to introduce in the case in chief evidence described by Section 1 or 2 [i.e., the first two sections of the Article] not later than the 30th day before the date of the defendant’s trial [in the same manner as the state is required to give notice under Rule 404 (b), Texas Rules of Evidence].” Tex. Code Crim. Pro. Art. 38.37, Sec. 3.

In order to argue improper notice, the defense must first request notice under the statute. The easiest way to do this is to send the prosecutor or district attorney’s office handling the case something in writing (such as a letter) requesting “notice” (or “notice of evidence of extraneous offenses or acts”) under Article 38.37 of the Texas Code of Criminal Procedure. If you send your request by fax, make sure you keep a copy of the fax transmission receipt. If you send by email, ask for a reply acknowledging receipt of your email. For good measure, you may wish to file the request and the receipt or acknowledgment with the District Clerk, so that your judge will have convenient access to the proof that you need to show you made a proper request and the state received it.

Next, you may need to cite relevant case authority. In Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995), the Court of Criminal Appeals ruled that a state’s open file policy (i.e., that the defendant knew or should have known of the existence of the alleged extraneous conduct) did not satisfy the requirement that the state provide notice in advance of its intent to use in its case in chief evidence of other crimes, wrongs, or acts under Tex. R. Evid. 404 (b). Specifically, the Court held that “[t]he mere presence of an offense report indicating the State’s awareness of the existence of such evidence does not indicate an ‘intent to introduce’ such evidence in its case in chief.” Buchanan, 911 S.W.2d at 15; cf. Lara v. State, 513 S.W.3d 135, 140–43 (Tex. App.—Houston [14th Dist] 2016, no pet.) (Erroneous admission of Article 38.37 extraneous conduct evidence, due to state’s lack of proper notice to the defense, was non-constitutional error. Additionally, the error (if any) was harmless, because Defendant only complained of surprise that the state planned to introduce evidence of extraneous conduct in guilt-innocence (not surprise of the existence of extraneous conduct evidence); did not ask for a continuance; and did not establish harm—i.e., explain to the trial court how defendant’s trial strategy would have differed had he known of state’s intent to introduce extraneous conduct.).

To give yourself the best chance of succeeding on an improper or insufficient notice argument, and to ensure that your objection is preserved for appeal, you should object to admission of Article 38.37 extraneous conduct evidence and do the following, in sequence: (1) request that the evidence be suppressed; (2) if suppression request is overruled, consider requesting a mistrial; (3) if you don’t request a mistrial or your request is overruled, ask for a continuance in order to allow you to investigate the extraneous conduct allegations and incorporate your findings into your defense strategy (be prepared to state how long you will need and, if the judge overrules your request for a continuance, try to get the judge to state on the record that he or she will not grant a continuance of any length of time); and (4) clearly state on the record how your client will be harmed if the Article 38.37 evidence is admitted. Explain how your defense might have changed and how, for example, you would have conducted voir dire differently had you known the Article 38.37 extraneous conduct evidence would have been admitted. To be doubly safe, ask for continuing or “running” objections on all the grounds you have asserted.

The second prong of Article 38.37 may offer a slightly better chance of excluding your client’s alleged extraneous conduct in a child sex crime case, if only because the second prong requires the trial court judge to examine the strength of the evidence, in a hearing outside the presence of the jury, before the evidence may be admitted. See Tex. Code Crim. Pro. Art. 38.37, Sec. 2-a (1) & (2).

Article 38.37, Section 2, applies only to the trial of a defendant for: “(1) an offense under any of the following provisions of the Penal Code: (A) Section 20A.02, if punishable as a felony of the first degree under Section 10A.02(b)(1) (Sex Trafficking of a Child), (B) Section 21.02 (Continuous Sexual Abuse of Young Child or Children), (C) Section 21.11 (Indecency With a Child), (D) Section 22.011(a)(2) (Sexual Assault of a Child), (E) Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a Child), (F) Section 33.021 (Online Solicitation of a Minor), (G) Section 43.25 (Sexual Performance by a Child), or (H) Section 43.26 (Possession or Promotion of Child Pornography), Penal Code; or (2) an attempt or conspiracy to commit an offense described by Subdivision (1).” Tex. Code Crim. Pro. Art. 38.37, Sec. 2.

Strength of Evidence Test and Rule 403

One apparent difference between Sections 1 and 2 of Article 38.37 (the two prongs) is that they appear to cover different offenses. However, a close look at the statute reveals some overlap between the two sections. It would be more accurate to say that Section 1 is broader than Section 2, covering virtually all of the serious sexual conduct listed in Section 2, as well as some less serious and even some non-sexual conduct. Another difference, as previously mentioned, is that Section 2’s extraneous conduct may only be admitted into evidence after the trial judge “(1) determine[s] that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt, and (2) conduct[s] a hearing out of the presence of the jury for that purpose.” Tex. Code Crim. Pro. Art. 38.37, Sec. 2-a (1) & (2). Finally, an important distinction between Sections 1 and 2 is that Section 1 applies to extraneous conduct with the same child, the complainant in the charged case(s). Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (b) (“committed by the defendant against the child who is the victim of the alleged offense”) (emphasis added). Section 2 applies to extraneous conduct with a different child. Tex. Code Crim. Pro. Art. 38.37, Sec. 2 (b) (“evidence that the defendant has committed a separate offense”) (double emphasis added).

So, putting aside any potential issues relating to a constitutional challenge (which will likely fail)3 and improper notice (which can be argued during trial, at the time the evidence is offered), the defense may have a chance to keep out Section 2 extraneous conduct (involving a different child) by requesting the trial court to conduct a “strength of evidence” analysis outside the presence of the jury.4 Additionally, assuming the trial court determines during this gatekeeping hearing that the evidence “will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt,”5 the defense should use the hearing as an opportunity to advance a Rule 403 argument. The relevant factors for a trial court in determining whether the prejudice of alleged extraneous conduct in a child sex abuse case substantially outweighs its probative value include: “(1) how compellingly the extraneous-offense evidence serves to make a fact of consequence more or less probable—a factor that is related to the strength of the evidence presented by the [state] to show the defendant in fact committed the extraneous offense; (2) the potential the other offense has to impress the jury ‘in some irrational but nevertheless indelible way’; (3) the time the [state] will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., whether the proponent has other probative evidence available to him to help establish this fact, and whether this fact is related to an issue in dispute.” Burke v. State, 371 S.W.3d 252, 258 (Tex. App.—Houston [1st. Dist.] 2011, pet. ref’d, untimely filed) (citing Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999)).

Adult Sex Crime Cases

Article 38.37 of the Texas Code of Criminal Procedure does not apply to adult sex crime cases. Therefore, the defense is free to argue anything and everything: Constitutional challenges to the evidence, improper notice, plus violations of Texas Rules of Evidence, including 402 (relevance); 403 (unfair prejudice); and 404 (other crimes, wrongs, acts). If the alleged extraneous conduct is in the form of a prior conviction, look to Texas Rule of Evidence 609 to determine whether the prosecution can establish admissibility, in the event your client elects to testify. See Theus v. State, 845 S.W.2d 874 (Evidence of prior felony arson conviction was not admissible to impeach defendant charged with possessing drugs.).

Texas Rape Shield Law

In Texas, as in other states, evidence of a complainant’s previous sexual conduct is generally inadmissible in a criminal prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual or aggravated sexual assault. Tex. R. Evid. 412. Specifically, the trial court may not admit “reputation or opinion evidence of a [complainant’s] past sexual behavior; or specific instances of a [complainant’s] past sexual behavior.” Id. at (a). There are, however, exceptions to this rule. “Evidence of specific instances of a [complainant’s] past sexual behavior is admissible if: (1) the court admits the evidence in accordance [with procedures relating to proffering the evidence outside the presence of the jury and sealing the record] and . . . (2) the evidence: (A) is necessary to rebut or explain scientific or medical evidence offered by the prosecutor,6 (B) concerns past sexual behavior with the defendant and is offered by the defendant to prove consent, (C) relates to the [complainant’s] motive or bias, (D) is admissible under [Texas Evidence] Rule 609, or (E) is constitutionally required to be admitted; and (3) the probative value of the evidence outweighs the danger of unfair prejudice.7 Id. at (b) (emphasis added).

In Hammer v. State, the Texas Court of Criminal Appeals (CCA) held that evidence related to a child complainant’s anger toward the defendant (her father), after he took her to a hospital for a sexual-assault examination after she ran away from home was admissible to show the complainant’s motive to falsely accuse the defendant of sexual molestation. See Hammer v. State, 296 S.W.3d 555, 567–69 (Tex. Crim. App. 2009). Evidence of the complainant’s previous sexual behavior was contained in medical records of a sexual-assault examination. Id. The CCA ruled that the probative value of the medical records, as well as the complainant’s statements to a witness that her sexual activities when she ran away from home were consensual and not assaultive (as she had falsely reported to a nurse), was not substantially outweighed by the danger of unfair prejudice. Id. at 568–569. Additionally, the CCA held that the trial court abused its discretion by preventing defendant’s attorney from cross-examining the complainant about her allegations that “all of her mother’s boyfriends had sexually molested her,” an incident about being held at knife point by five men, and the complainant’s statements concerning a purported sexual assault by a third party. Id. at 570. The CCA specifically noted that evidence of the child complainant’s statements to others that she had been sexually molested by her mother’s boyfriends, and that she lied to her grandmother about being held at knife point by five men who threatened to rape her, was admissible under the “Doctrine of Chances.” Id. at 565–570.8 Citing “Wigmore’s doctrine of chances,” the CCA observed that it was “highly unlikely that [the complainant] was molested by all of her mother’s boyfriends.” Id. at 569. “A rational factfinder might . . . reasonably conclude that at least some of these accusations, if not all, were false.” Id.

In addition to any applicable exceptions set forth in Tex. R. Evid. 412, which exceptions allow for admission into evidence of the complainant’s previous sexual behavior, the defense should argue “Doctrine of Chances” whenever a complainant’s specific instances of conduct (such as an unfounded or false allegation of sexual abuse against a third party) is similar to the complainant’s allegations in the case for which your client is on trial.

Offering Rule 412 Evidence

There are several things to keep in mind when offering Rape Shield Law (Tex. R. Evid. 412) evidence. First, the statute only applies to cases involving prosecutions for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault. Tex. R. Evid. 412 (a). This does not mean that evidence of a complainant’s sexual reputation, or opinion evidence regarding a complainant’s sexual reputation or past sexual behavior, or specific instances of the complainant’s past sexual conduct, is automatically admissible. It only means you do not have to follow the Rule 412 admissibility and procedure guidelines for offering evidence of a complainant’s past sexual conduct. Be prepared to argue why the proffered evidence is relevant and admissible under other Rules of Evidence.

Second, be aware that “before offering any evidence of [a complainant’s] past sexual behavior, [the defense attorney] must inform the court outside the jury’s presence.” Tex. R. Evid. 49 (c). “The court must then conduct an in camera hearing, recorded by a court reporter, and determine whether the proposed evidence is admissible.” Id. “The defendant may not refer to any evidence ruled inadmissible without first requesting and gaining the court’s approval outside the jury’s presence.” Id. Finally, know that the “court must preserve the record of the in camera hearing, under seal, as part of the record.”10Id. at (d).


One of the biggest mistakes a defense lawyer can make when arguing to keep out evidence of a client’s alleged extraneous conduct, or when fighting to admit into evidence a complainant’s past sexual conduct, is to assume that the slanted rules of evidence and procedure have rendered the situation hopeless. It is true that you will not always win your arguments and you may not always prevail at trial. However, a working knowledge of the rules, combined with a persistent and tenacious approach in applying them, will give you the best chance for success at trial or (if necessary) beyond.

A Practical Guide for Reviewing Evidence in DWI/DUI Cases

When evaluating drug testing evidence in any case, there are two important questions for the judge and jury to address. The first question is, “Was the drug test does correctly? Is it valid?” The second question is, “Is the drug test relevant?” In the State of Texas, DUID laws require that a per se opinion of intoxication must be supported by a scientific opinion.

It is important to understand that not all laboratories across the state have the same procedures or qualified staff. Many laboratories have technicians who are trained in chemistry but may not have any knowledge of pharmacology or toxicology. Thus, just because the state has evidence of a “positive” test does not necessarily mean there is proof that someone was intoxicated.

It is thus important to request a detailed list of documents from the laboratory in the discovery request; the request should contain the following:

  • Chain of custody documentation
  • Any video of the arrest or biological sample draw or collection
  • All data printouts from the laboratory test
  • All standard operating procedures
  • All calibration records

In my experience reviewing cases over the last 15 years, chain of custody is the most common area where I have found gaps. Often, there is poor documentation from the officer or health care professional who draws and collects a sample to the transportation of that sample to the laboratory. Samples are often in storage for weeks, or even months, before they are tested. Proper chain of custody documents support that a sample has been properly handled and managed during the time it was in custody. Any gap in documentation creates a foundational question of whether, beyond a reasonable doubt, the evidence is valid. There should be clear documentation that connects the laboratory’s report from the technician that ran the initial test to the supervisor or lab director that signs off on the final report or decision. In labs handling large volumes, these are often different people.

Focus on Marijuana and THC Evidence – Checklist for a Case Involving THC

With several counties and the State of Texas effectively decriminalizing small amounts of marijuana, the prevalence of THC use in cannabis or electronic vaporizing devices continues to grow. It is challenging to set policy for a specific level of intoxication for marijuana intoxication for several reasons. One reason is that we have natural cannabidiol signaling in our bodies, with cannabidiol receptors, that are linked to the muscular, skeletal, and nervous systems. This is one of the reasons why CBD products are popular; people use them for relief of chronic ailments. Another reason is that the body can adjust to responses from THC use. An occasional user of THC may likely respond differently to THC than a habitual user. Several states have attempted to create levels of per se intoxication for THC, ranging from 1 ng, 2 ng, or 5 ng. Texas currently has no specific number.

If you have a case involving THC evidence, make use of the checklist below for your file in order to help you better understand the issues in the case. Organizing this evidence will assist you in evaluating the strengths and weaknesses of the case being made by the State.

Back to Basics: Attack SFSTs, Not the Officer

In the heat of trial, all trial attorneys fight vigorously for their DWI clients. In that fight, it’s understandable that you want to destroy the officer, destroy the Standard Field Sobriety Tests (SFSTs), and vindicate your client. Oftentimes, however, juries end up feeling sorry for the bumbling police officer and will hold it against the client if the attorney berates or embarrasses the officer. This article will explore a trial-tested, proven method that educates a jury on the complexities and meticulous grading system of the SFSTs rather than attacking the officer. Attack the system, not the officer. In the end, if done properly, the jury will empathize with the client. This empathy will assist the jury in finding the client not guilty—without leaving jurors feeling guilty for voting against law enforcement.

The Officer Is a Human Being

We can all agree there are good and bad officers. Just like attorneys. And contrary to popular belief, even “bad” officers are people too. Just because officers may be “bad” or incompetent at their jobs doesn’t mean they are evil. Somewhere, to someone, they are human with all the emotions, positive attributes, negative attributes, good days, bad days, highs and lows that we all enjoy and suffer. Someone out there loves them. They are someone’s family member. Once upon a time, they took an oath to protect and serve the community we live in. Most of the time, they may still be trying to do their best, but their best is sub-par. Remember this—seriously.

You must think like an average juror. How many clients are shocked that the officer “is bold-faced lying” on the stand? We can’t let our daily experiences jade and warp us. Put yourself in the shoes of your family or friends who have minimal police contact. Most respect police and admire their sacrifice. Growing up we were all probably taught to respect and trust the police. And honestly, most of us still do, for the most part. Hell, even criminal defense lawyers introduce their kids to their police friends and teach their kids to respect and honor the police. Most of our jurors were raised the same and probably raise their own kids this way.

Only in roughly the last seven years did police misconduct and abuse of power really start making the news. In the past couple years, the pendulum has swung—giving jurors cause to be wary or even scared of the police in certain situations. The world is slowly recognizing the magnitude of the problem and the catastrophic consequences when police lie, hide or destroy evidence, collude, or make “honest” mistakes.

To conclude this paean to the humanity of police officers, just try your best to remember the jury starts out thinking they are good cops. Being one of the biggest offenders of the scorched-earth cross-examination, we understand the eye rolls. But it’s not about what we know, it’s how we convey it to the jury. In the famous words of Dalton from “Road House”: “Be nice. I want you to be nice, until it’s time not to be nice.”

Standard Field Sobriety Test Hard Truths

The Standard Field Sobriety tests were developed around 1975 when National Highway Traffic and Safety Administration (NHTSA) performed research with South California Research Institute (SCRI) to determine which roadside field sobriety tests were the most accurate.1 SCRI published three reports:

  1. California 1977 (Lab);
  2. California 1981 (Lab and Field); and
  3. Maryland, D.C., V.A., N.C. 1983 (Field).

SCRI originally travelled around the United States with six tests, but narrowed it to the three tests we know today: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS).

Twenty years later, three validation tests were undertaken between 1995 and 1998:

  1. Colorado 1995;
  2. Florida 1997;
  3. San Diego 1998.2

Many other articles examine the pitfalls and biases of these validation studies. Concocted in the ’70s and validated in the ’90s, these tests are now 40+ years old and haven’t been revalidated in the last 20 years. SFSTs are not a law of physics or science—meaning they are not indisputable. These are simply coordination exercises created by police and “scientists” in the ’70s.3

How the Officer Is Trained to Administer the SFSTs

Before we dive into the actual SFSTs, it’s important to educate the jury on just how this officer was trained and who trained them. Set the stage to illustrate the difference between how they were graded on their SFST proficiency test and how they now grade people on the SFSTs. “Before we get into the tests, can we just explore how you learned to give these tests?” Officers are usually happy to boast about their training. Start by establishing when the officer was first certified to administer the tests. It’s usually in the academy.4

  • And how long was your course (usually 24–40 hours, around a week)?
  • Who trained you (other officers)?
  • When you were trained, did your teacher tell you how to administer the tests and then just grade you on administering them?
  • No, you were provided a textbook— the SFST manual? You still have it? Did you bring it today?

At this point, if not done prior, establish that the NHTSA student SFST manual is a learned treatise under Texas Rules of Evidence 803(18). Rule 803(18) clearly states that a learned treatise may be read into evidence, but not received as an exhibit.

Be ready for the State’s objections when you begin reading from the manual. Many untrained prosecutors will try to prohibit you from reading a document not in evidence or try to admit the manual. “Your honor, I would love to admit this manual, but unfortunately under TRE 803(18) it’s specifically prohibited.” The prosecutor may also object to defense counsel reading it into evidence and not the officer. Nowhere in 803(18) does it say who is allowed to read the learned treatise. And who do you think puts more inflection and importance in reading the necessary language? The defense attorney should read it and is absolutely allowed to—once it’s established as a learned treatise.

  • Officer, you were trained according to the NHTSA student manual? And you agree it’s authoritative on how to administer these tests? BAM! 803(18)

If the officer gets shifty with what year manual, all of the manuals can be found online and you can find most on the TCDLA app. Prior to trial, it helps to establish either with the State or the officer on which edition of the manual they were trained and on whether they accept that it is authoritative. If the officer is really difficult and wants to use his manual, ask for a continuance so the officer can go get his manual—or send the officer a subpoena duces tecum to bring their SFST manual prior to trial. Most judges are very familiar with the NHTSA SFST manual and will not tolerate the officer’s games.

Back to examining their training:

  • When you were trained, you got to practice administering these tests?
  • You were allowed to study the entire week? You were allowed to practice the entire week?
  • You knew at the end of the week you would be tested?
  • You knew that you would be tested on the clues, the definitions, and administration?
  • And you had to get a 70, 75, 80% grade to pass? (Most don’t know the actual passing percentage.)
  • Now when graded, you got credit for the answers you got right?
  • Just like in school and every test you’ve ever taken?
  • On a 100-question multiple-choice test, you miss 6, what’s your grade (94)?
  • That’s because you get credit for every answer you got right?
  • If your kid came home from school, missed six, and had an F written next to that 94, what would you do? (Most say march down to that school. Agree. And welcome the sidebar objection.)

“Officer, I’m Not Here to Bust Your Chops”

Say it 10 times during your cross. Do not attack the officer—attack the tests. “Officer, I know these aren’t your tests. You didn’t design them. You are just following what you were trained to do. So, I’m not busting your chops.” Repeat this over and over. Let the jury know we are not attacking this officer. We are not complaining about the officer. We don’t hate the player; we hate the game.

“But, Officer, if someone admits to drinking or you think they might be intoxicated, you are going to give them these tests in this same standard way.” Start putting the jurors’ minds in the shoes of the client. Many times, I’ve even gestured around the entire courtroom and stated: “So everyone in this entire courtroom, as long as they are not intoxicated, should be able to pass these tests? Judge, reporter, bailiffs, people in the gallery, everyone in this whole courtroom?”

Purposefully leave out the jurors to avoid any potential objection. Some officers may pause because they know there are certain limitations on the SFSTs. “Well, I mean there are certain people that may have difficulty with these tests naturally, right? Those over 65 years old, 50 pounds or more overweight, leg, back, or neck injuries, head injuries or trauma, and lots of other ailments?”

Remind the jury the officer has no medical training and wasn’t trained by any doctors or nurses. Most officers were told to just take the client’s age, weight, or injuries “into consideration” when determining intoxication. Yeah, right! “But again, officer, I’m not here to bust your chops. Let’s examine these tests so that if anyone wanted to try them out, they could know what to look for and how to grade them.” What’s the officer going to say?

Before examining the SFSTs, it’s helpful for the jury to visually understand the tests and clues. Whether you bring an easel and butcher paper, your tablet on the screen, or even a dry-erase board, make sure it’s a large and colorful demonstration. Imagine a CLE with no PowerPoint versus one with colorful displays. Like us, jurors appreciate, learn better from, and remember colorful presentations.

Horizontal Gaze Nystagmus (HGN)

Most jurors have seen some sort of advertisement or illustration of an officer waiving a pen in front of the eyes. Before getting into the HGN, dive a little deeper into their training. Explore their range of knowledge. “Officer, you know there are many different types of nystagmus—88 actually?” It’s unimportant how many types of nystagmus the officer knows, but he will always agree there are many. Only a few are listed in the NHTSA student manual. Most officers have only read about these other types, or maybe seen them on video. Very few have actually seen them in person or done testing and seen these. It’s important to educate the jury that there are so many different ways the eyes can jerk and for a variety of medical, environmental, or natural conditions. Additionally, the jury needs to know who trained the police officer to distinguish the minute jerks of the eye.

  • Now, officer, I’m not busting your chops, but were you trained by an ophthalmologist?
  • Optometrist?
  • Nurse?
  • Person who worked for Lens Crafters?
  • Anyone wearing a white lab coat?
  • The police officer that trained you, he didn’t show you the other types?
  • Have you ever heard of Bruns, latent, pendular, vestibulo ocular, spasmus, or rebound nystagmus?
  • Has anyone showed you the difference between those and horizontal gaze nystagmus?
  • In your manual, you have optokinetic, rotational, post rotational, caloric, and positional alcohol?
  • Have you ever even seen those?
  • And those look just like horizontal gaze, but for non-intoxicated reasons?

Now start demonstrating the HGN main points for the jury to see. Write HGN in black on the top of the pad on your easel. “How far do the eyes have to jerk in order to be counted as a jerk?” Most officers get confused and hesitate. “If we wanted to put a ruler underneath the human eye, the jerk of the eye is millimeters, right? Maybe a centimeter? Maybe 1/32 of an inch? So how far does the NHTSA manual say the eye must jerk in order to be counted as a jerk? How many millimeters?” If the officer continues to hesitate, rescue him: “Sorry, Officer, I’m not busting your chops. There is no definition, right?” Write: No Def. of How Far Jerk (mm).

“How many times does the NHTSA manual say the eye must jerk in order to be counted as a clue of intoxication?” Write: No Def # of Jerks. Some officers may get cheeky and say it just has to be distinct and sustained. Break it down for the officer, gently. “Distinct means you clearly see it. And sustained means it must be continual. And that’s just for the second pass when you are holding it out for at least four seconds. What about in the first clue—lack of smooth pursuit? How many times does it have to jerk when you are just going side to side? And then in the third clue—onset prior to 45 degrees—how many times does it have to jerk before 45 degrees for you to stop your pen before you get to their shoulder?” Most officers will state just once. If they are still being evasive, refer back to the learned treatise NHTSA manual. “Show me in this manual where it says once, twice, three times a lady that it had to jerk?” Even writing this type of evasive answering makes me want to destroy this officer. Repeat to yourself: This officer is human, he is loved by someone, somewhere. Get back to your center. “Officer, I’m not trying to bust your chops, this is not your test, you did not design these tests. Nowhere in this manual did anyone ever state how far or how many times the eyes had to jerk?”

Most prosecutors have already bored the judge and jury to death with the timing of the HGN. Usually the officer has been properly woodshedded by the state and knows the HGN timing. If he doesn’t, or did it grossly wrong on the video, you may want to show the jury the difference between NHTSA standards and how the officer administered it.

But this article suggests a different tactic in attacking the HGN, one that is not based on breaking down the timing. The HGN is not a divided-attention test like the Walk and Turn (WAT) or the One Leg Stand (OLS). The officer will agree. If not, the NHTSA manual defines the WAT and OLS as divided-attention tests. The manual defines HGN as an involuntary jerking of the eyes as they gaze toward the side. Nothing about HGN or Nystagmus says divided attention. Remember to be careful with your words here: “Nystagmus does not measure mental or physical faculties?” No, it doesn’t. Inexperienced officers will try to argue that it does. To combat this, simply illustrate that nystagmus is an “involuntary” jerking and cannot be controlled by our eye muscles, as much as we may want to. And we cannot make our brains, through the neurons, control this involuntary jerking, as much as we want to. Some persistent officers will continue to argue, at which point you may need to distinguish where the loss of mental or physical faculties comes into the WAT and OLS, and how that’s not possible in the HGN. Nowhere in the NHTSA manual does it say loss of mental or physical faculties for HGN. Depending on the remarks in the video, if the officer just will not agree nystagmus doesn’t measure mental or physical, ask them about the client’s performance, like this:

  • He had no problem following your stimulus?
  • You never had to tell him not to move his head?
  • So, he displayed good mental faculties in following your instructions?
  • He displayed good physical faculties in watching your stimulus and not moving his head?

The jury will be turned off and the officer will damage credibility by continuing to argue.

Under your HGN heading, write: Does Not Measure Mental or Physical Faculties. After this amount of cross, the officer has already established a reputation with the jury. Discuss the findings on the HGN. “You found six out of six clues on my client? That’s all of them, maxed out?” Write: 6/6 on the board in the top left in red. We will come back to this at the end of all the SFSTs.5

“There is no way that I can prove you didn’t see those little jerks? Stimulus is 12–15 inches from their face, your face is about another 12–15 inches from your hand. That’s 24–30 inches from his eye, at night, looking for millimeters of jerks.” The jury gets it.

“You never stated out loud when you saw these clues on camera? You never said lack of smooth pursuit, maximum, onset into your mic while you were doing them? In fact, you wrote down how many clues you saw when writing you report? You wrote your report after you had determined he was intoxicated? After you had arrested him? After you towed his car?”

Some officers may say they are prohibited from stating the clues on the video by law, which is correct under Fischer. “Well you could have said them and then we just would have muted it. But it could serve to remind you which clues you actually saw? But you remembered later, you saw all of them? We just have to trust you?” Write: Trust Me in big red letters on the top right of the board.

“You didn’t arrest him after the HGN test, did you? Even though you got all six out of six clues? The next test you administered was the Walk and Turn?”6

The Walk and Turn (WAT)

The WAT is a divided-attention test meaning that it is supposed to measure your mental and physical faculties. In plain English, they want to see how well you can listen to instructions (mental) and then perform what you just heard (physical). The WAT is a test where the video will actually show us the client’s performance. There is no “trust me” in the WAT. The overall intent in dissecting this test is honestly for the jury to go home, try it, and realize how absolutely ridiculous this test is and how strictly it’s graded. Slowly break down this test to the jury using the officer and the NHTSA manual.

Turn to a new page on your easel and write WAT in big black letters at the top of your display. Then lay out the eight clues of intoxication NHTSA established. Know them by heart; it’s your profession. Start writing them down on the board as you recite them. “The first two clues come in the Instruction Phase, meaning they have to stand like this while you give the instructions and demonstrate. 1. Can’t Maintain Balance; 2. Starts Too Soon. The next six come during the Walking Phase. 3. Steps Off Line. 4. Misses Heel to Toe. 5. Raises Arms. 6. Stops While Walking. 7. Incorrect Number of Steps. 8. Improper Turn.” Now the jury can clearly see what the test is graded on.7

Next, show the jury how the test is really administered. Ask the judge to stand up and demonstrate portions.

  • “Officer, this test has 18 unique instructions? Don’t worry, I’m not quizzing you. Let’s go through them together (count these out on your fingers as you go so that the jury can follow along):
      1. Place your feet on a line
      2. In a heel-to-toe manner
      3. Left foot behind right foot
      4. With arms at sides and give a demonstration, tell subject
      5. Not to begin until instructed to so do and ask if subject understands. Tell subject to take
      6. Nine
      7. Heel-to-toe steps
      8. On the line and demonstrates. Explain and demonstrate the turning procedure:
      9. Lead foot planted
      10. Take a series of small steps
      11. To the left direction. Tell the subject to
      12. Return on the line
      13. Taking nine
      14. Heel-to-toe steps
      15. Count out loud
      16. Look at feet while walking
      17. Don’t raise arms from sides. And
      18. Do not stop once they have started. Do they understand?8

Write: 18 Instructions on the board top left in red. “How many times did you demonstrate the test?” Write: 1x Demo or whatever they say. “How many times did you allow him to practice this test before grading him?” Write: 0 Practice. “Did you tell him the clues you would be grading him on?” Write: 0 Clues Given. “Did you give him credit for all the good stuff he did right?” Some may argue or be confused. Circle back to their training and their testing and how they were given credit for all the answers they got right. Hell, every test anyone has ever taken they got credit for the stuff done right! “You agree age, weight, leg, back, or neck injuries may affect an individual’s performance on this test?” Write: [whatever issue your client has]. “Now tell the jury how many clues equals failure or the decision point?” Write: 2 = Intox.

Next show the jury how meticulous the test is scored. Go through each of the clues and define them. When you get to heel-to-toe, ask the officer to show the jury with his fingers just how far someone has to miss heel-to-toe in order to be counted as a clue of intoxication. And make sure to ask if that half inch is between his fingernails or finger beds, on just one step. Write: the measurements of ½ inch and >6 inches next to heel-to-toe and raises arms. Be sure to put green check marks next to all the clues your client didn’t exhibit. When you get to improper turn, you should slow down and explain to the jury that there are three ways you can get that clue: series of small steps, leave the lead foot planted, and turn to the left. Let the jury see all of the ways there are to get a clue of intoxication.9

Bring it home for the jury. Ask the officer how many clues your client exhibited. Write 4/8 or whatever it was. “So, you’re telling me that every single sober person in here has to get a zero or one on this test? Because two equals intoxication?” Look at the jury after the officer admits this. Share that common ground with them. “So you’re telling me, if someone were to go home and try this test, not that anyone would, but now knowing all of the clues and how it’s graded [optional sidebar: which is something my client didn’t know], they should be able to get a zero or a one on it?” You have to love the zealous officer who will not only agree but add that the tests are easy, or that he sees plenty of people pass them.

Finish off the cross with a final blow. “Officer, is this a normal or abnormal way to walk?” Most officers will never admit it’s “abnormal.” Ask them: “Who else walks like that?” Most either can’t think of it or don’t want to say it—gymnasts on a balance beam (but they get to balance with their arms to the side) and tight rope walkers (but they get that long bar). Write: Abnormal in the top left in red. “Now, I’m not busting your chops, these aren’t your tests, but you’re supposed to judge whether someone has lost the normal use of their mental and physical faculties on an abnormal test? And you still didn’t arrest my client after this test?”

The One Leg Stand (OLS)

Very similar to the WAT, lay out the OLS. Start with the clues: 1. Sways; 2. Hops; 3. Drops; and 4. Raises Arms. Count out the instructions: 1. Stand straight; 2. Place feet together; 3. Hold arms at sides; 4. Tell subject not to begin until instructed to do so and ask if they understand; 5. Raise one leg, either leg; 6. Approximately 6 inches off the ground; 7. Keeping the raised foot parallel to the ground (and give a demonstration), tell subject: 8. Keep both legs straight; and 9. Look at the elevated foot; 10. Count out loud, in the following manner: 11. One thousand and one, one thousand and two, one thousand and three 12. Until told to stop. And give demonstration.

Follow the pattern in the WAT and write: 12 instructions, 1x demo, 0 practice, 0 clues given, 0 credit given, age, weight, back, leg, or neck injuries may affect, 2 = intoxicated.

When examining each clue, be sure to establish there is no distance for sway as defined by NHTSA.10 No definition of how many inches or how long someone must sway. Write: ? You don’t need to save the abnormal surprise; the jury gets it. “Is this a normal or abnormal way to stand? Even the Karate Kid got to raise his arms for balance.” And then bring it home: “So everyone in this room better be able to get a zero or one on this test? And all humans have a natural sway when standing on one leg? So that’s one clue already with no definition of how far or how long one must sway? That means everyone should be able to stand on one leg for 30 seconds without dropping it, and not raise their arms or hop the entire time? Not that anyone would ever try that at home.”

Before you wrap up your cross, come back around to the HGN. “My client got 4/8 on the WAT and 2/4 on the OLS, right? Never maxed out any of these tests as we can clearly see on video. But after you arrested him, towed his car, and got to write your report, you wrote 6/6 on the HGN?” The jury sees where you are going. The officer sees where you are going. It’s a rhetorical question. Let the jury ask and answer it in their heads. “So, we just have to trust you that he failed that miserably, but on the video, he looked good (we probably are not in trial if he doesn’t look good)?”

Lastly, bring the fear home. “Not to bust your chops officer, because these aren’t your tests, but if someone is pulled over on the way home from dinner and smells like alcohol or admits to drinking at dinner, they could have to do these tests? And then if they do these tests, you will have to administer it in the standardized manner only and grade it just like we saw? Zero or one to go home?”

This will resonate with everyone. As you can tell from breaking down these tests, they are next-to impossible. We as defense lawyers know these tests, and on any given day with the weather, nerves, and our conditioning, we couldn’t pass these. To assume regular, everyday people who don’t know these tests are capable of passing . . . Let’s be honest: It’s whether the officer wants to arrest you or not. They are purely subjective.


This article is not suggesting that no tests should be given to suspected drunk drivers. Rather, it breaks down the simple reality of how stringently and subjectively these tests are graded. Unfortunately, many people who “fail” these tests will not have the ability to fight these tests—be it for financial reasons, time constraints, or by hiring an attorney who doesn’t want or care to fight it.

We as trial lawyers must know these tests better than the officers. Only once you truly understand these tests can you simplify their basic elements and effectively communicate their unfairness to a jury. Many times, at the end of a trial, jurors will remark how they are never drinking and driving again because there is no way they can pass these tests. These are normal people, just like our clients. And it’s not about the officer; don’t bust his chops. It’s an unfair testing system. Jurors can feel confident in a not-guilty verdict for standing up for natural human error in coordination exercises. Break the SFSTs down to the basics—make it about the tests, not the officer. Jurors can still respect law enforcement while finding the client not guilty, even after “failing” these unfair “tests.”

Current Issue: January/February 2020




22 | Protecting Your Client’s Conduct While Admitting the Accuser’s: Texas Rules of Evidence 403, 404, 412, and 609 – By Grant Scheiner & Will R. Vaughn
28 | A Practical Guide for Reviewing Evidence in DWI/DUI Cases – By Sol Bobst
30 | Back to Basics: Attack SFSTs, Not the Officer – By Mark Ryan Thiessen & Frank Sellers


6 | President’s Message
7 | Executive Director’s Perspective
9 | Editor’s Comment
11 | Ethics and the Law
16 | Federal Corner
20 | Shout Outs


5 | CLE Seminars and Meetings
39 | Significant Decisions Report

President’s Message: On the Agenda


As I put pen to paper, it is a cold January day. The saving grace is that I know in just a few days we will be sailing the ocean blue with so many of my favorite people in the universe on my TCDLA President’s Cruise! We will have great CLE, beautiful beaches, and incredible fun!

To make today even better, I attended a 7:00 a.m. Navarro College Martin Luther King Jr. Breakfast. The keynote speaker was none other than our former board member Audrey Moorehead! Audrey now serves as a Dallas County Criminal Court Judge, and she was as amazing as ever. She reminded everyone about the complete relevance of MLK even today and implored them to be a part of civic responsibility—vote, give back, be your best! An incredible (and of course hilarious) presentation from an even more incredible woman!

Speaking of Navarro College—everyone is already obsessed with our junior college of late, thanks to Netflix’s “Cheer” series about the Navarro College cheer program. If you have haven’t watched it—DO! You all know how much I love to share my hometown with everyone, and this is a great example of good things happening in smallish towns across our country!

TCDLA has some extremely good CLE in the near future! DON’T MISS IT! Our Criminal Defense Lawyers Project Chair Laurie Key has forced us to suffer through CLE at the Lajitas Golf Resort on February 28 so we can spend time with our incredible West Texas lawyers. Should be so much fun and educational as well. Then Anatomy of a Trial will be in Austin March 5th & 6th. This is going to be so very good: Our course directors are Betty Blackwell and Clay Steadman, and NOTHING they do is less than stellar! Check out the agenda on our website and make plans to be there.

I’m thankful for each of you, and I can promise I am ready for spring. Keep fighting the good fight! You are a blessing to me, to your clients, and to each other.

Executive Director’s Perspective: A New Year at TCDLA


There is always strength in numbers. The more individuals or organizations that you can rally to your cause, the better.

—Mark Shields

I hope everyone started off the new year with a bang! It seems like each year, time passes faster and faster. We become burdened by more responsibilities and others’ expectations. With all these expectations as well as impending deadlines, we can be overwhelmed. We must take care of ourselves and attend to our health. While taking care of personal well-being, attorneys are also tasked with another critical responsibility—their clients. This means taking care of your clients, making sure their mental health is considered so you can provide the best defense.

With that in mind, TCDLA would like to recognize the tireless leadership and dedicated support in this regard of Judge Barbara Hervey of the Texas Court of Criminal Appeals, chair of the Grants Committee and co-chair of the Judicial Commission on Mental Health. TCDLA would also like to acknowledge the generous financial support of the Texas Court of Criminal Appeals and the Judicial Court Personnel Training Fund. Recently Judge Hervey and the CCA awarded TCDLA a mental health grant that allows TCDLA to provide additional mental health training as well as funding for travel stipends for attendees.

We have four CCA-funded seminars February 20-21, 2020, in Austin: a mix-and-match combination of Appellate, Veterans, Capital, and Mental Health sessions. We also have mental health seminars on our online CLE, though if you would like to view this material without CLE credit, we now host a video library.

In addition, TCDLA has a Mental Health Committee chaired by Alyse Ferguson and Melissa Shearer. The committee has held several meetings and is working hard to provide additional resources. Through the CCA, the committee has provided a Mental Health Resource Guide and a Mental Health pamphlet.

The Mental Health Resource Guide was created by Judge Hervey and is a publication of the Texas Court of Criminal Appeals. The Mental Health pamphlet—compiled by Chris Lopez, attorney for the Health and Human Services Commission—contains flow charts covering Chapter 46B (Incompetency to Stand Trial) and Chapter 46C (NGRI/Insanity Defense). Both, provided free courtesy of the grant, can be ordered through TCDLA by calling 512.478.2514 or on the TCDLA website,, under publications.

In addition, all the grant-funded and TCDLA seminars are listed on the website. Please visit the site and sign up for one of the upcoming seminars. If you have particular interest in mental health seminars, email me at .

Editor’s Comment: A Fresh Start


A new year. Another fresh start. It is hard to believe it’s already 2020—nearly incomprehensible really. Everything happens so fast and yet also uncomfortably slow at times. We operate daily in a profession of “hurry up and wait.” But it’s the New Year that often helps us refocus on what is important in our lives, both professionally and personally. We all have new resolutions and goals for our lives. So, too, do our clients. So, we may be getting the phone calls about sealing and expunging records—so our clients can have a real fresh start.

Expunction is obviously the preferred course of action if a person is so entitled. See Tex. Code Crim. Proc. art. 55.01, et. seq. But if the person isn’t entitled to have their record expunged, it may be that they can have it sealed. Because the Legislature radically expanded the sealing laws in 2017, it is worth a review of some of those laws. See Tex. Gov’t Code sec. 411.071, et. seq. These laws—with the exception of automatic sealing — apply to an offense committed before, on, or after September 1, 2017.

  • Automatic Nondisclosure (411.072)—applies to a person who receives a discharge and dismissal for certain nonviolent misdemeanors on or after September 1, 2017; has never before been convicted of or placed on deferred for another offense other than a traffic offense that is punishable by a fine only; is mandatory and does not require a petition, just a request; requires some evidence establishing that person is eligible (can be an affidavit from client); can happen as soon as 180 days from the date person placed on deferred; and is only a $28 fee.
  • Non-Automatic Nondisclosures (411.0725)—applies to a person otherwise ineligible for an automatic nondisclosure; and mandates a two-year wait for certain misdemeanors and five-year wait for felonies before filing; no requirement of no prior criminal history.
  • Completion of Veterans Treatment Court (411.0729)—specifically applies to a person who completes a VTC program; applies regardless of whether the petitioner meets other eligibility criteria under the subchapter.
  • Misdemeanor Convictions (411.073)—section applies to a person placed on straight probation for a misdemeanor (other than the regular disqualifiers); a person who has never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense that is punishable by fine only; not the result of a revocation; mandatory waiting period for certain enumerated misdemeanor offenses; if ineligible under 411.073, then may still be eligible under 411.0735. (Note: There is no provision that provides for sealing records for the successful completion of straight felony probation.)
  • Deferred Probation in DWI Cases (411.0726)—there must be evidence in the petition that the person is entitled to file a petition; no revocations; has never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense that is punishable by fine only; not eligible if evidence presented that offense involves car accident involving another person (not the driver/petitioner); two-year wait after discharge and dismissal.
  • Probation in Certain DWI Cases (411.0731)—there must be evidence in the petition that the person is entitled to file a petition; no revocations; has never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense that is punishable by fine only; not eligible if evidence presented that offense involves car accident involving another person (not the driver/petitioner); two-year wait if interlock for six months; five-year wait if no interlock; may be eligible under 411.0736 if ineligible under this section

Of course, a petitioner under any section of the Government Code cannot have been in trouble for anything other than a traffic ticket during any applicable waiting period.

Importantly, Section 411.0755 explicitly states that the person who has obtained the nondisclosure is not required in any application for employment, information, or licensing to state that the person has been the subject of any criminal proceeding related to the information that is the subject of the order of nondisclosure. However, Section 411.0775 states that the criminal history record information that has been sealed may be admitted in trial during any subsequent offense if the information is admissible under the Rules of Evidence or disclosed to a prosecuting attorney for a criminal justice purpose.

The remainder of the sections detail the requirements for petitions and orders; they are substantive. Are you feeling overwhelmed about preparing a petition with all the (relatively) new nuances? Don’t. The Office of Court Administration has a form petition and order for each type of nondisclosure at

Helping a client expunge or seal their record is a happy part of our job. There’s no real risk involved and it’s something the client wants. We could all use a fresh start every so often. So, let’s be a part of helping our clients achieve their own fresh start.

P.S. –  You may notice a fresh, clean look to the Voice this year, too!  We are always striving to improve and get you the best quality publication possible. We officially welcome Billy Huntsman as TCLDA’s new communications director.  Be sure to send your articles and let us know how we can continue to improve.

Ethics & The Law: Caution: Danger Ahead

I can still hear my mother telling my brother and me to BE CAREFUL every time we left our house. As lawyers and in daily life, those words are very important. The following recent case is an example of not being careful. It is not wise to talk about cases in elevators or in the hallway. Terry Gaiser and I had a recent case where we had told our client to be careful—and be quiet. In the hallway he was cursing the officers who arrested him, the judge, and the prosecutor. He thought only his family and our witnesses were hearing this. In the courtroom after the state had put on the major witness, they then called a police officer who who had been in civilian clothes in the hallway. There is no doubt after hearing what the officer said he heard that the years moved up on what we had thought the sentence would be. The following summary is a good example of not being careful.

Morrison v. State (Murder)(Lamar)(06-17-00159-CR)(March 27, 2019). OPINION: Justice Burgess. Because billing records exist to secure an indigent defendant’s right to the appointment of counsel, the prosecutor’s “affirmative obligation” requires a prosecuting attorney to refrain from reviewing indigent defense billing records during the case against the defendant, regardless of how the prosecutor may acquire that information and regardless of whether any privilege attendant to those records was waived by public disclosure; a defense attorney who (a) creates detailed billing records disclosing confidential client communications and attorney work product, (b) fails to protect strategic defense information from public disclosure during the payment process, or (c) fails to take remedial actions after learning that the prosecuting attorney has reviewed his billing records provides ineffective assistance of counsel; and because the State violated the first principle, and because defense counsel violated the second principle, the defendant’s Sixth Amendment right to counsel and her Sixth Amendment right to be free from State intrusion into the attorney-client relationship were violated, and the defendant is entitled to a new trial.

Here are examples of calls or emails we received on the Hotline.

HOTLINE QUESTION: I have recently had requests from federal clients for the discovery from their file. I know that certain documents such as offense reports cannot be given to clients, but I don’t know which, if any, documents can be given to clients and the law governing the dissemination of federal discovery.

ANSWER: We are talking only about discovery that was received from the government under Fed. Rule Crim. Proc. 16. 
 First, see if the government will agree to releasing all or part of the discovery to the client. Some AUSAs don’t care about parts or all of the discovery. Get that agreement in writing (email is fine).
 Second, if you cannot obtain an agreement for any part of the Rule 16 discovery, ask the court for permission and get a court order. See attached for such a motion I filed and the court’s order. Once a court orders that you cannot turn over certain documents to the client, you will be protected from a grievance. See Voice for the Defense Online for Lawyer Mowla’s Motion and Order.

Ethical issues are best presented directly to TCDLA’s Ethics Committee phone hotline or by email to that committee’s chairpersons, Robert Pelton or Michael Mowla. Article 39.14, C.C.P., is the only limitation on what you can send a client who has asked for “all” his file created while you represented the client in a criminal case. At your expense, your ex-client is entitled to promptly receive from you all contents of his paper and digital file(s) in your office—except the e-discovery you received from the state’s DA. If you obtain a court order from the same court having jurisdiction over your client’s indictment, that court’s express order can permit your making judicially compliant additional disclosures to your client, and you can send the state’s e-discovery you got under Article 39.14., C.C.P. Continue to ignore the client’s file request and you will lose at the grievance committee! So beware.

QUESTION: I had a client I represented on a world of felony drug cases in two different counties last year. The client is drug-enhanced crazy (meaning the client was crazy to begin with) but is not quite incompetent. I managed to get good outcomes for him (he was facing decades in prison, but received multiple concurrent 7-year sentences, if memory serves). While his cases were pending, he visited me in my office and went over discovery on some of the cases—this was before his bond was yanked for failing drug tests while on “pretrial probation” (in Smith County they do things like this and never mind the Constitution, the presumption of innocence, justice, or other quaint outdated notions in today’s modern world)—and I went over the remain­der of his discovery with him during multiple visits to the jail.
 My now-ex client sent me a letter a few weeks back demanding his file and everything in it, to include multiple discovery discs, many pages of police reports, witness statements, and multiple documents containing confidential information. The client saw all this on multiple occasions while his cases were pending. I consulted with a defense attorney about the issue and followed his advice: I did not reply. 
 The ex-client has filed a “Motion to Compel Attorney to Produce Client’s File” with the Smith County District Court that convicted him. Never mind a possible lack of jurisdiction, and never mind that the judge in that court probably doesn’t give a whit about the motion, but what exactly—legally and ethically—can I send to the ex-client? What, legally and ethically, if anything, am I required to send him? Am I obligated to pay for copies of whatever I can legally/ethically send him?
 I am concerned about violating rules about not releasing confidential information—to include phone numbers, addresses, and other sources of contact information for witnesses. On the other hand, I don’t want to get hammered by the Bar. I feel in a bit of a Catch-22 situation here—damned if I do and damned if I don’t.

ANSWER by Joseph Connors: It appears that attorney collected various items of evidence to use as substantive or impeachment evidence while representing client. Now that client’s case is over, does attorney have to return same to client or to the person from each item was separately obtained by defense counsel or his/her investigator?

1. Keep everything and face and lose on some issue at attorney’s own grievance hearing.

2. Return each item to the person from whom same was initially obtained on theory it was loaned to counsel and was never “owned” by client.

3. Give all to client and hope client does not misuse such potential evidence by threats, murder, etc.

4. Attorney can study all attached and figure out the ethical and moral answers to this serious dilemma.

Special thanks to Michael Mowla, Joseph Connors, and Sharon Bass. See the Voice for the Defense Online for Motion and Order from Michael Mowla and files from Joseph Connors.

Federal Corner: Fingerprints, Thumbprints and Compelled Biometric Scans to Unlock Encrypted Devices

On November 22, 2019, United States Magistrate Judge Sunil R. Harjani of the Eastern Division of the United States District Court for the Northern District of Illinois entered an order holding that compelling the defendant to place his fingers and thumbs on his iPhone home button in an attempt to unlock the phone would not be testimonial and, therefore, would not violate the defendant’s Fifth Amendment privilege against self-incrimination. In the Matter of Search Warrant Application for Cellular Telephone in United States v. Anthony Barrera, ____F.Supp.3d ___, 2019 WL 6253812 (N.D. Ill.—Eastern Division 2019).

In his opinion, Magistrate Judge Harjani cites three other cases from his district and four from other districts in which district judges or magistrate judges have written on this same issue:

  • United States v. Warrant, 2019 WL 4047615 (N.D. Cal. 2019) [Opinion by Virginia K. Demarchi, United States Magistrate Judge] The Defendant wins.
  • In the Matter of White Google Pixel 3SL Cellphone in a Black Incipio Case, 398 F. Supp. 3d 785 (D. Idaho 2019) [Opinion by David C. Nye, Chief United States District Judge] The Government wins.
  • In the Matter of the Search of a Residence in Oakland, California, 354 F.Supp. 1010 (N.D. Cal. 2019) [Opinion by Kandis A. Westmore, United States Magistrate Judge] The Defendant wins.
  • In the Matter of the Search of [Redacted] Washington, District of Columbia, 317 F.Supp. 3d 523 (District of Columbia 2018) [Opinion by G. Michael Harvey, United States Magistrate Judge] The Government wins.
  • In the Matter of the Search Warrant Application for [Redacted Text], 279 F.Supp. 3d 800 (N.D. Ill.—Eastern Division 2017) [Opinion by Edmond E. Chang, United States District Judge] The Government wins.
  • In the Matter of the Search of: The Single-Family Home and Attached Garage, 2017 WL 4563870 (N.D. Ill.—Eastern Division 2017) [Opinion by Sheila Finnegan, United States Magistrate Judge] The Defendant wins.
  • In Re Application of a Search Warrant 236 F.Supp. 3d 1066 (N.D. Ill.—Eastern Division 2017) [Opinion by M. David Weisman, United States District Judge] The Defendant wins.

So, which judges are correct in their analysis and which are wrong? We can speculate, conjecture, and guess, but as authority, all we have are cases in which district judges and magistrate judges have come to different conclusions. It is interesting that four of these cases come out of the same division of the same judicial district, and that the judges there are split 2–2 on the issue.

Magistrate Judge Harjani’s opinion reads, in part, as follows:

[An Overview]

Consumers are more often than ever using their biometric information to unlock their smartphones and apps with a fingerprint or face scan. Likewise, the government is responding by seeking authority to compel a subject to use their biometrics to unlock devices found during the execution of a search warrant. Such a request triggers potential Fourth and Fifth Amendment considerations that are addressed herein. Because of the differing views about whether a fingerprint unlock warrant violates the Fifth Amendment among courts, and in particular in this district, the Court has issued this opinion to explain its reasoning in this novel area in granting the government’s application for a warrant. For the reasons that follow, this Court holds that compelling an individual to scan their biometrics, and in particular their fingerprints, to unlock a smartphone device neither violates the Fourth nor Fifth Amendment. Accordingly, the Court has signed and authorized the government’s warrant, including the authority to compel fingers and thumbs to be pressed on the iPhone home button in an attempt to unlock the device.

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[The Background of the Case]

In the current proceeding, the government has alleged that Barrera made various online threats to this confidential informant through postings on a Snapchat account, in violation of 18 U.S.C. § 1512(b). In connection with the government’s motion to revoke Barrera’s bond conditions, District Judge Robert W. Gettlemen ordered that Barrera’s iPhone be turned over to Pretrial Services. The government seeks to search this iPhone, with a home button, that was taken from Barrera in order to develop evidence of his alleged threats. The iPhone has a fingerprint lock function (known as Touch ID), and the government asked this Court for a warrant to compel the defendant to place his fingers and thumbs on the iPhone home button in an attempt to unlock the phone. The government alleged in the affidavit in support of its request for a search warrant that it will select the fingers and thumbs to press on to the home button, and that the iPhone fingerprint unlock function will disable after five incorrect attempts. At that time, the iPhone function will demand a passcode to unlock the phone.

[The Fourth Amendment Issue]

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When the government seeks to search the digital data on a cell phone, the Fourth Amendment generally requires a search warrant. Riley v. California, 573 U.S. 373, 401, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

* * *

The government’s warrant application seeks authorization for another search and seizure, the taking of Barrera’s fingerprints and thumbprints “for the purpose of attempting to unlock the device via Touch ID. . . .”

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The Court’s Fourth Amendment inquiry in this case is thus straightforward: does probable cause support the search of the cell phone and the use of Barrera’s fingerprints to unlock the cell phone?

        The government’s affidavit in support of the warrant application demonstrates probable cause.

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[The Fifth Amendment Issue]

More complicated is the question of whether the forced fingerprint unlock of a cell phone implicates the Fifth Amendment to the United States Constitution. Under the Fifth Amendment, the government shall not compel an individual in any criminal case to be a witness against him or herself. U.S. Const. amend. V.

* * *

[Determining Whether Communication 
Are Testimonial]

The test to determine whether communications or communicative acts are privileged under the Fifth Amendment is whether they are “testimonial, incriminating, and compelled.” Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 603 (7th Cir. 2019) (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)); see also Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) (Fifth Amendment privilege “applies only when the accused is compelled to make a Testimonial Communication that is incriminating”). Applying those three requirements in reverse order here, a biometric scan is certainly compelled—the government is explicitly requesting the Court’s authority to force the scan. . . . The act may also be incriminating, as unlocking the phone may lead to the discovery of a nearly unlimited amount of potential evidence, including text messages, social media posts, call logs, emails, digital calendars, photographs, videos, and location data.

* * *

But if a compelled act is not testimonial, and therefore not protected by the Fifth Amendment, it cannot become protected simply because it will lead to incriminating evidence. Doe, 487 U.S. at 208 n.6, 108 S.Ct. 2341. As a result, the relevant Fifth Amendment inquiry here is whether the compelled act of scanning a subject’s fingerprint to unlock a device is a testimonial act.

* * *

To be testimonial, a subject’s communicative act “must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe, 487 U.S. at 210, 108 S.Ct. 2341. Otherwise stated, the Fifth Amendment’s self-incrimination clause is implicated wherever the compelled act forces an individual to “disclose the contents of the [subject’s] own mind.” Id. at 211, 108 S.Ct. 2341 (citing Curcio v. United States, 354 U.S. 118, 128, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957)).

* * *

For example, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the accused’s “testimonial capacities were in no way implicated” when the government’s officers extracted blood from the accused’s body incident to an arrest, over the accused’s objection, to test for alcohol as evidence of criminal guilt. Id. at 765, 86 S.Ct. 1826. Schmerber reasoned that Supreme Court precedent provided that only compulsion of communicative facts triggered the Fifth Amendment privilege, not compulsion of “real or physical evidence.” Id. at 764, 86 S.Ct. 1826. Thus, the Schmerber Court concluded that the incriminating blood test evidence was not testimonial because it was neither the result of the accused’s communication nor evidence of some communicative act. Id. at 764–65, 86 S.Ct. 1826.

        The Supreme Court has similarly held that requiring grand jury witnesses to produce voice and handwriting exemplars neither violates the Fourth nor Fifth Amendment, even though speaking and writing are quintessential means of communication. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, (1973); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The Dionisio and Gilbert Courts reasoned that the voice/handwriting exemplars were identifying physical characteristics that did not reflect the subject’s mental impressions.

* * *

In another compelled physical act case, the Supreme Court rejected an argument that the government had violated the privilege against self-incrimination by forcing a defendant to try on a blouse for identification purposes. Holt, 218 U.S. at 252, 31 S.Ct. 2.

* * *

One type of compelled physical act that has been considered testimonial in certain cases is the act of producing documents. Courts have found that producing documents in response to a criminal subpoena request could be a testimonial communicative act because the responding party may need to “make extensive use of ‘the contents of his own mind’ in identifying the hundreds of documents responsive to the requests in the subpoena.” United States v. Hubbell, 530 U.S. 27, 43, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) (citing Curcio, 354 U.S. at 128, 77 S.Ct. 1145).

* * *

[The Key Questions]

In analyzing this issue, the key questions, in this Court’s view, are threefold: (1) whether the biometric unlock is more like a key than a combination; (2) whether the biometric unlock is more like a physical act than testimony; and (3) whether the implicit inferences that arise from the biometric unlock procedure is sufficient to be of testimonial significance under the Fifth Amendment.

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[Key Versus Combination]

First, the Court holds that the biometric unlock procedure is more akin to a key than a passcode combination. The Supreme Court in Doe, and later in Hubbell, has illustrated the difference between testimonial and non-testimonial physical acts via this helpful comparison, which aptly applies to an iPhone that has two different unlock features—a fingerprint and a passcode. In Doe, the Court noted that the Fifth Amendment permits the government to force an individual to surrender a key to a strongbox containing incriminating documents, but not to reveal the combination to a subject’s wall safe. Doe, 487 U.S. at 210 n.9, 108 S.Ct. 2341. Thus, using the Doe framework, this Court examines whether a biometric scan of an individual’s finger or thumb is more like a key or a combination.

* * *

[Physical Act Versus Testimony]

Second, the biometric procedure is first and foremost a physical act. It utilizes a body part on an individual to perform an act—rather than any implicit or explicit verbal statement. Put another way, the biometric feature is a body part used to essentially determine whether an item of evidence for a case (i.e., a cell phone) has any evidentiary value—much like a blood sample, voice exemplar, or blouse is used to determine whether it matches the blood, voice, or physical characteristics of a suspect that would provide evidentiary value in a case. As the Supreme Court appropriately stated in Wade, compelling an individual to exhibit his person to the government before trial does not violate the Fifth Amendment because such a forcing is “compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.” Wade, 388 U.S. at 222, 87 S.Ct. 1926.

* * *

Furthermore, the government selects the fingers or thumbs to impress on to the phone, not the defendant. This further supports a finding that the compelled party’s thoughts are not being used in the process.

* * *

[The Implicit Inference]

Third, the Court holds that the implicit inference from the biometric unlock procedure, that the individual forced to unlock had some point accessed the phone to program his or her fingerprint, is not sufficient to convert the act to testimonial.

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For the reasons discussed above, the Court finds that the government’s application for the biometric unlock procedure does not violate the Fourth or Fifth Amendments, and as a result, the Court has signed the application and the warrant after its finding of probable cause.

My Thoughts

  • At this time, there are no cases from any of the United States Courts of Appeal on this issue.
  • Surely, the Supreme Court will write on this issue. The problem is that it will probably be in the 2022 or 2023 term before they will have the opportunity to do so.
  • Until then, we can only give an educated guess as to what the nine justices will decide.

Buck Files is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 238th column or article. He practices in Tyler with the law firm of Bain, Files, Jarrett and Harrison, P.C., and can be reached at .