Monthly archive

March 2020

March 2020 SDR – Voice for the Defense Vol. 49, No. 2

Voice for the Defense Volume 49, No. 2 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.


Editor’s note: No significant criminal cases were handed down by the SCOTUS since the last SDR.

United States Court of Appeals for the Fifth Circuit

United States v. Foley, No. 19-20129, 2020 U.S.App.LEXIS 61 (5th Cir. Jan. 3, 2019) (designated for publication)[Bare allegations in revocation petitions] 

  • A sentence imposed on revocation of supervised release is reviewed under a “plainly unreasonable” standard: (1) ensure that the district court committed no significant procedural error (failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, failing to adequately explain the sentence, including explaining deviations from the Guidelines range; then (2) consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard (A sentence is substantively unreasonable if it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor that a dominant factor in the sentence, or (3) represents a clear error of judgment in balancing the sentencing factors. Even if a sentence is substantively unreasonable, it is vacated it if the error is obvious under existing law so it must be plainly unreasonable.  
  • No limitation is placed on information about the background, character, and conduct of a person convicted of an offense that a district court may consider for imposing a sentence. But it is improper to rely on a bare arrest record. An arrest record is bare if it refers to the mere fact of an arrest—date, charge, jurisdiction and disposition—without information about the underlying facts. An arrest record is not bare and may be relied on when accompanied by facts that gave rise to an unadjudicated arrest and has an adequate evidentiary basis with sufficient indicia of reliability. A district court errs when it relies on a bare allegation of a criminal violation in a revocation petition unless it is supported by evidence adduced at a hearing or contains other indicia of reliability. 

Editor’s note: although all factors of an impermissible upward-variance exist because the petition contained “bare allegations” of new criminal violations, the error was “not clear under existing law because the court has never held in a published opinion that it is impermissible for it to rely on ‘bare allegations’ of new criminal violations.” Circular reasoning?  

United States v. Tapia, No. 18-10161, 2020 U.S.App.LEXIS 206 (5th Cir. Jan. 6, 2019) (designated for publication) [Preservation of error and plain error review] 

  • To preserve error, a party must raise an objection that is sufficiently specific to: (1) alert the court to the nature of the error; and (2) provide an opportunity for correction. A party is not required to object in ultra-precise terms but must provide the court an opportunity to adjudicate the issue and cure any alleged breach. 
  • When the defendant does not object to error, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) and United States v. Olano, 507 U.S. 725 (1993), a reviewing court may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. The defendant must show that the error: (1) was not intentionally relinquished or abandoned; (2) is plain (clear or obvious); (3) affected substantial rights (must show a reasonable probability that but-for the error, the outcome of the proceeding would have been different); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.

United States v. Varner, No. 19-40016, 2020 U.S.App.LEXIS 1346 (5th Cir. Jan. 15, 2019) (designated for publication) [Jurisdiction of district courts; postconviction means to amend a judgment] 

  • Absent jurisdiction conferred by statute, district courts lack power to consider claims and appellate courts may only correct the error of the district court in entertaining the suit. 
  • Postconviction statutes to amend a judgment are: Fed. Rule Crim. Proc. 35 (14 days post-sentencing to correct arithmetical, technical, or other clear error; or government motion for sentence reduction); Fed. Rule Crim. Proc. 36 (correction of a clerical error); 18 U.S.C. § 3582(c)(2) (amendment to guidelines for modification of sentence based on a range lowered by the Sentencing Commission per 28 U.S.C. § 994(o)); 18 U.S.C. § 3742 (modification during direct appeal); and 28 U.S.C. § 2255 (writ of habeas corpus challenging the validity of conviction or sentence).

United States v. Mazkouri, No. 18-20650, 2019 U.S.App.LEXIS 37167 (5th Cir. Dec. 16, 2019) (designated for publication) [Healthcare Fraud per 18 U.S.C. § 1347; Fed. Rule Evid. 1006; deliberate-ignorance instruction; factual basis for a sentence under Gall v. United States, 552 U.S. 38 (2007); financial loss caused by fraud under U.S.S.G. § 2B1.1(b)(1); vulnerable victims under U.S.S.G. § 3A1.1(b)] 

  • Under Fed. Rule Evid. 1006, a summary, chart, or calculation to prove the content of voluminous writings that cannot be conveniently examined in court is allowed. A summary’s proponent must make the originals or duplicates available at a reasonable time and place but there is no rule about when the summary itself must be disclosed. The essential requirement of summaries is not that they be free from reliance on any assumptions but rather that the assumptions be supported by evidence in the record. 
  • A district court’s evidentiary rulings are reviewed for an abuse of discretion. Mistakes are subject to harmless-error review.  
  • A witness-accomplice’s guilty plea may generally be admitted into evidence if it serves a legitimate purpose and a proper limiting instruction is given. Legitimate purposes include blunting the potential effects of impeachment and clarifying the nature of the arrangement between the Government and the witness for determining credibility.  
  • Jury instructions are reviewed for an abuse of discretion, affording substantial latitude in describing the law to the jury. The 5th Circuit assesses whether the charge was a correct statement of the law applicable to the factual issues confronting the jury. The district court may not instruct the jury on a charge the evidence does not support. The evidence is viewed in the light most favorable to the Government.  
  • A deliberate-ignorance instruction informs the jury that it may consider evidence of the defendant’s charade of ignorance as circumstantial proof of guilty knowledge. Under United States v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999), it is appropriate when the evidence shows: (1) subjective awareness of a high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct. Even if the district court erred by instructing the jury on deliberate ignorance, substantial evidence of actual knowledge renders error harmless.  
  • Under Gall v. United States, 552 U.S. 38, 51 (2007), when the factual basis for a sentence is challenged, the 5th Circuit considers whether the district court relied on clearly erroneous facts. A factual finding is clearly erroneous only if after reviewing all the evidence the court has a definite and firm conviction that the district court erred. The district court’s factual findings at sentencing must be found by a preponderance of the evidence.  
  • Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations. A district court may adopt facts contained in the PSR without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable. 
  • Under U.S.S.G. § 2B1.1(b)(1) & cmt. n.3(C), an increase is allowed in the offense level based on the amount of financial loss caused by fraud. The district court need only make a reasonable estimate of the loss, which is the greater of actual loss or intended loss.  
  • The amount fraudulently billed to Medicare is prima facie evidence of the intended loss, but the parties may introduce evidence showing the amount billed overstates or understates the billing party’s intent.  
  • When fraud is so pervasive that separating legitimate from fraudulent conduct is not reasonably practicable, the burden shifts to the defendant to show that certain amounts are legitimate. Absent such evidence, the district court may treat the entire claim for benefits as intended loss.  
  • Under U.S.S.G. § 3A1.1(b)(1) and § 1B1.3, a 2-point increase applies when the defendant knew or should have known that a victim was vulnerable due to age, physical or mental condition, or otherwise particularly susceptible to the criminal conduct. Under U.S.S.G. § 3A1.1(b)(1) and § 1B1.3, another 2-point increase applies if the offense involved many vulnerable victims.  

Editor’s note: Defendant “sometimes billed more than 24 hours of services in one day, and in one case 58.9 hours for 106 patients in a day.”    

United States v. Noria, No. 19-20286, 2019 U.S.App.LEXIS 37514 (5th Cir. Dec. 18, 2019) (designated for publication) [First page of Immigration Form I-213s; Confrontation clause, public records exception under Fed. Rule Evid. 803(8)] 

  • The first page of I-213s are not testimonial because it contains only routine biographical information and is primarily used as a record for tracking the entry of aliens.  
  • Under Crawford v. Washington, 541 U.S. 36, 53-54 (2004), a defendant’s confrontation right is violated when the government introduces testimonial statements of a witness who did not appear at trial unless that witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Under Davis v. Washington, 547 U.S. 813, 821 (2006), “testimony” means a declaration or affirmation made for establishing or proving some fact and includes prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and interrogations. The testimonial character of the statement separates it from other hearsay that while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. The “testimonial” statement must have a primary purpose of establishing or proving past events potentially relevant to later prosecution. Thus, business and public records are generally not testimonial because they are created for the administration of an entity’s affairs and not for establishing or proving some fact at trial. But if a public record is prepared for use at trial, it is testimonial and inadmissible absent its creator’s testimony. 
  • Under Fed. Rule Evid. 803(8), public records are not excluded by the rule against hearsay regardless of whether the declarant is available as a witness. A “record or statement of a public office” qualifies: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. This exception permits the admission of public records prepared for reasons independent of specific litigation. It assumes that the lack of motivation on the part of the official to do other than mechanically register an unambiguous factual matter makes such records inherently reliable. 
  • Under Fed. Rule Evid. 803(8)(A)(ii), the prohibition against public records of matters observed by law enforcement in criminal cases does not prevent the admission of all reports prepared by officers. Reports prepared in a routine, nonadversarial setting are allowed by those resulting from the subjective endeavor of investigating a crime and evaluating the results of that investigation are not. 
  • Under Idaho v. Wright, 497 U.S. 805, 814 (1990), although hearsay rules and the Confrontation Clause are generally designed to protect similar values, they are not wholly congruent. Even if evidence is sufficiently reliable to qualify for admission under a recognized exception to the hearsay rule, it cannot be admitted if it violates the Confrontation Clause. 

United States v. Ramirez-Cortinas, No. 19-50182, 2019 U.S.App.LEXIS 36958 (5th Cir. Dec. 13, 2019) (designated for publication) [Illegal reentry under 8 U.S.C. § 1326(a); review of the dismissal of an indictment; asylum under 8 U.S.C. § 1101(a)(42)(A); & withholding of deportation under 8 U.S.C. § 1231(b)(3)(A)] 

  • Under 8 U.S.C. § 1326(a), it is a crime for aliens who have been previously deported from the United States to reenter the country unlawfully. Under 8 U.S.C. § 1326(d) and United States v. Mendoza-Lopez, 481 U.S. 828, 838-839 (1987), an alien charged under § 1326(a) may collaterally attack the validity of the underlying deportation order by showing: (1) exhaustion of administrative remedies available; (2) deportation proceedings at which the order was issued improperly deprived him the opportunity for judicial review; and (3) entry of the order was fundamentally unfair. A showing of actual prejudice is required, meaning that the defendant has the burden to show there was a reasonable likelihood that but-for the errors, he would not have been deported. 
  • Under INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) and 8 U.S.C. § 1101(a)(42)(A), asylum is available to an alien who is unable or unwilling to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a social group or political opinion.  
  • Under 8 U.S.C. § 1231(b)(3)(A), to be eligible of withholding of deportation, the alien must demonstrate a clear probability of persecution upon return. 

United States v. Thompson, No. 18-11224, 2019 U.S.App.LEXIS 37512 (5th Cir. Dec. 18, 2019) (designated for publication) [Sufficiency of the evidence; but-for causation; penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C)] 

  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), when reviewing the sufficiency of the evidence, a court views all evidence whether circumstantial or direct in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury’s verdict. The jury has the sole authority to weigh conflicting evidence and evaluate the credibility of witnesses. Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The inquiry is limited to whether the jury’s verdict was reasonable, not whether the reviewing court believes it to be correct. A preserved sufficiency claim is reviewed de novo but with substantial deference to the jury verdict.  
  • If a defendant fails to file motions for judgment of acquittal under Fed. Rule Crim. Proc. 29 after the close of the government’s evidence and after the verdict, review is under the manifest miscarriage of justice standard, in which a claim of insufficiency is rejected unless the record is devoid of evidence pointing to guilt or if the evidence is so tenuous that a conviction is shocking. 
  • Under Burrage v. United States, 571 U.S. 204, 218-219 (2014), where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury. It does not require that the defendant directly distribute the drugs to the end-user or that another be the final link in the causal chain.  
  • Under United States v. Salinas, 918 F.3d 463, 466 (5th Cir. 2019), but-for causation requires the Government to show merely that the harm would not have occurred but-for (in the absence of) the defendant’s conduct. The standard is not difficult to meet because it asks whether the outcome would have occurred in the absence of the action. There may be many but-for causes of any given event.  

Editor’s note: Despite four other dangerous drugs in her system (meth, cocaine, opiates, and benzodiazepine), and Mason alone injecting heroin into Myers, per the government’s expert it was Myers’s use of heroin that was the but-for cause of her “serious bodily injury” even though it’s not clear whether it was Thompson’s heroin that Mason injected into Myers. This gives special meaning to a rule of statistics known as “correlation does not imply causation,” the false cause-and-effect relationship between two variables solely based on an observed association or correlation between them.    

Texas Court of Criminal Appeals

Burg v. State, No. PD-0527-18, 2020 Tex.Crim.App. LEXIS 55 (Tex.Crim.App. Jan. 29, 2020) (designated for publication) (DWI, Montgomery Co.) [License-suspension by a court for DWI is not part of the sentence; waivable error cannot be raised for the first time on appeal] 

  • A license-suspension by a trial court for DWI is not part of a sentence that can render a sentence “illegal” because it is a collateral consequence rather than a punishment.  
  • Under Tex. Rule App. Proc. 33.1, a contemporaneous objection must be made to preserve error. Rule 33.1 applies to category-three “forfeitable” Marin rights and not to category-one “absolute” or category-two “waivable-only” Marin rights—once that are fundamental to the proper functioning of the system.  
  • The right to be sentenced legally is an absolute or waivable-only right. The right to be free of an unauthorized collateral consequence of a criminal conviction is a forfeitable right.  

A person does not have the “right” to be free from a license-suspension because driving is a privilege, not a right. License-suspensions upon conviction are not a “punishment” required in a judgment as part of a sentence. An unauthorized suspension falls outside of an “illegal sentence.” 

Jordan v. State, No. PD-0899-18, 2020 Tex.Crim.App. LEXIS 101 (Tex.Crim.App. Feb. 5, 2020) (designated for publication) (Deadly Conduct, Bowie Co.) [Jury instruction for deadly force in self-defense; multiple aggressors] 

  • Under Tex. Penal Code § 9.31(a), a person is justified in using force when and to the degree he reasonably believes necessary to protect against another’s use or attempted use of unlawful force. Under Tex. Penal Code § 9.32(a), a person is justified in using deadly force if he would be justified in using force per § 9.31(a) and reasonably believes deadly force is immediately necessary to protect himself against the another’s use or attempted use of unlawful deadly force. The evidence does not have to show that the complainant was using or attempting to use unlawful deadly force because a person has the right to defend himself from apparent danger as he reasonably apprehends it. Self-defense is a confession-and-avoidance defense requiring the defendant to admit his otherwise illegal conduct so he cannot invoke it and deny the conduct.  
  • Regardless of the strength or credibility of the evidence, a defendant is entitled to an instruction on any defensive issue that raised by the evidence. A defensive issue is raised by the evidence if there is sufficient evidence to support a rational jury finding on each element of the defense. The evidence is viewed in the light most favorable to the defendant’s requested instruction.  
  • If the evidence viewed from the defendant’s standpoint shows an attack or threatened attack by more than one assailant, the defendant is entitled to a multiple-assailants instruction. The issue may be raised against nonaggressors if they seem to be encouraging, aiding, or advising the aggressor.  

Under Ngo v. State, 175 S.W.3d 738, 743-744 (Tex.Crim.App. 2005) and Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994), if a timely objection is made to jury-charge error, the finding of “some harm” requires reversal. Under Cornet v. State, 417 S.W.3d 446, 449 (Tex.Crim.App. 2013), “some harm” means actual and not theoretical harm. Reversal is required if the error was calculated to injure the rights of the defendant. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) and Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), jury-charge error is egregiously harmful if it affects the basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. To determine whether error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court must examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) other relevant information in the record. Under Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), direct evidence of harm is not required to establish egregious harm.  

Dixon v. State, No. PD-0048-19, 2020 Tex.Crim.App. LEXIS 2 (Tex.Crim.App. Jan. 15, 2020) (designated for publication) (Murder, Lubbock Co.) [Constitutional error and harm] 

  • Under Tex. Rule App. Proc. 44.2(a) (Constitutional error in criminal cases), if the appellate record reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. 


  • Appellant Dixon was a plastic surgeon in Amarillo. Sonnier was a physician in Lubbock. Shepherd was a friend of Dixon’s. 
  • On July 10, 2012, Shepard killed Sonnier. The State’s theory was that Dixon hired Shepard to kill Sonnier.
  • Sonnier was dating Dixon’s former girlfriend and Dixon wanted her back. Shepard’s roommate said that Shepard told him that Dixon paid him to kill Sonnier. 
  • The State introduced 55 pages of cellphone records that showed numerous phone calls and text messages between Dixon and Shepard in the months leading up to the murder and on the day of the murder. These records also included cell-site location information. 51 of the pages were from Shepard’s cellphone provider. From the records, the State showed that Dixon and Shepard exchanged hundreds of texts in the months leading up to the murder and some of them were about the victim. 
  • The day before the murder, Shepard texted, “Perfect day to travel to hub city” and Dixon responded, “Need it done ASAP.”
  • On the day of the murder, Dixon and Shepard exchanged 41 texts. •CSLI from Shepard’s cellphone showed him in Lubbock when he was communicating with Dixon on March 12, 2012.
  • CSLI from Dixon’s phone showed that he was in Lubbock on March 12, 2012.
  • The State did not obtain a warrant for the CSLI for Dixon’s phone.
  • Dixon told the police that he was not in Lubbock on March 12 but at trial he conceded that he must have traveled to Lubbock because the cellphone records showed him there. A gas-station receipt showed that Dixon had bought gasoline in Plainview on March 12.
  • Although Dixon told the police that he knew nothing about Sonnier, he admitted at trial that he had hired Shepard to track and photograph Sonnier—hoping to obtain photos that would cause Dixon’s former girlfriend to break up with Sonnier—and he understood that Shepard would plant a camera at Sonnier’s house for this purpose. 
  • Shepard’s phone records showed that Dixon called Shepard within minutes after the police finished speaking to Dixon.
  • On appeal, relying on Carpenter v. United States, 1138 S.Ct. 2206 (2018), the court of appeals held that the trial court erred in failing to suppress CSLI from Dixon’s cellphone records and that Dixon was harmed by the error. 

The error was harmless

  • Under Tex. Rule App. Proc. 44.2(a) (Constitutional error in criminal cases), if the appellate record reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
  • The CSLI evidence showed that Dixon was in Lubbock on March 12, 2012, but the victim was killed on July 10, 2012. Because this was a murder-for-hire case, the evidence did not have to show that Dixon was in Lubbock at all. The evidence showed that Dixon was not in Lubbock on the day of the murder. His presence in Lubbock on some other day, even coupled with Shepard’s presence and their conversation, was not important to the prosecution.
  • Of the 55 pages of cellphone records introduced by the State, only 4 pages were from Dixon’s cellphone provider. The other 51 pages were records from Shepard’s cellphone provider, the admission of which is not challenged. Shepard’s records provided plenty of evidence that Dixon and Shepard were working together. 
  • Thus, the March 12 CSLI information was not significant considering the evidence from Shepard’s phone.
  • Dixon’s whereabouts on March 12 and deception about those whereabouts were not a significant part of the State’s case. 

Simpson v. State, No. PD-0578-18, 2020 Tex.Crim.App. LEXIS 5 (Tex.Crim.App. Jan. 15, 2020) (designated for publication) (Abandoning or Endangering a Child, Houston Co.) [collateral estoppel does not apply when in an earlier revocation proceeding the defendant could have claimed self-defense but instead pleaded “true.”] 

  • The State cannot invoke collateral estoppel offensively to prevent a defendant from claiming self-defense when in an earlier revocation proceeding the defendant could have claimed self-defense but instead pleaded “true.”  
  • Under State v. Waters, 560 S.W.3d 651, 663 (Tex.Crim.App. 2018), jeopardy does not attach in revocation proceedings for an offense alleged as a violation of the terms of community supervision. Collateral estoppel applies only when facts in the first proceeding were necessarily decided and essential to the judgment, a criterion not satisfied by a finding of “not true” in a revocation proceeding. 
  • A trial carries substantial procedural consequences, including the right to a determination of guilt or innocence. There is a notable difference in the quality and extensiveness of the procedures followed in a motion to revoke as compared to a trial, weighed against the application of collateral estoppel.  


  • Simpson pleaded guilty in 2015 to abandoning or endangering a child and was placed on one year of deferred adjudication. 
  • While still on probation, during a fight Simpson hit her roommate in the head with an ashtray. Simpson was arrested for assault. 
  • While being taken to jail, Simpson assaulted an officer.
  • The state moved to adjudicate Simpson, alleging that she: (1) assaulted her roommate with a deadly weapon; (2) assaulted a public servant lawfully discharging an official duty; (3) tested positive for marijuana use once; and (4) admitted to using marijuana another time. Simpson pleaded true to these allegations. 
  • The trial court convicted Simpson of abandoning or endangering a child, revoked her probation, and sentenced her to 6 months in SJ.
  • Simpson was later tried for Aggravated Assault on a public servant (Count 1) and Aggravated Assault with a deadly weapon against the roommate (Count 2). Simpson testified and admitted that she hit her roommate with the ashtray but did so in self-defense. She claimed to have attacked the officer in self-defense. 
  • Simpson requested a self-defense instruction for both offenses.
  • The trial court denied the requested self-defense instruction based on res judicata based on the prior plea of “true” to the assaults.
  • On Count 1, the jury found Simpson guilty of the lesser-included offense of assault on a public servant and sentenced her to 10 years.
  • On Count 1, the jury found Simpson guilty of aggravated assault and sentenced her to 11 years in TDCJ.
  • Simpson did not appeal Count 1. Simpson appealed Count 2, arguing that the trial judge erred to deny her a self-defense instruction as to that count. The court of appeals thus decided that despite her earlier plea of true” in the revocation proceeding, Simpson’s self-defense claim was not barred by collateral estoppel and that she was harmed.
  • The State filed a PDR. 

The State cannot invoke collateral estoppel offensively to prevent a defendant from claiming self-defense when in an earlier revocation proceeding the defendant could have claimed self-defense but instead pleaded “true.” 

  • Under State v. Waters, 560 S.W.3d 651, 663 (Tex.Crim.App. 2018), jeopardy does not attach in revocation proceedings for an offense alleged as a violation of the terms of community supervision.
  • Collateral estoppel applies only when facts in the first proceeding were necessarily decided and essential to the judgment, a criterion not satisfied by a finding of “not true” in a revocation proceeding.
  • The motion to proceed against Simpson alleged that Simpson: (1) assaulted her roommate (offense underlying this appeal); (2) assaulted a public servant; (3) tested positive for marijuana use on one occasion; and (4) admitted to using marijuana on another occasion. Any of these allegations, alone or in any combination, would have authorized the judge to proceed to an adjudication of guilt. Thus, the necessary or essential requirement for common law estoppel is not established.
  • A trial carries substantial procedural consequences, including the right to a determination of guilt or innocence. There is a notable difference in the quality and extensiveness of the procedures followed in a motion to revoke as compared to a trial, weighed against the application of collateral estoppel. 
  • The judgment of the court of appeals is affirmed.

Texas Courts of Appeals

State v. Hodges, No. 07-19-00237-CR, 2020 Tex.App.-LEXIS 250 (Tex.App.-Amarillo, Jan. 8, 2020) (designated for publication) (DWI, Lubbock Co.) [What is a sworn affidavit supporting a search warrant] 

  • Under Marcopoulos v. State, 538 S.W.3d 596, 600 (Tex.Crim.App. 2017), review of a ruling on a MTS is for abuse of discretion: the reviewing court considers the evidence in the light most favorable to the trial court’s ruling—with almost complete deference to the trial court’s express or implied findings of historical fact—and de novo on the application of the law to those facts.  
  • Under Tex. Code Crim. Proc. Art. 18.01(b) and Clay v. State, 391 S.W.3d 94 (Tex.Crim.App. 2013), no search warrant shall issue unless sufficient facts are presented to satisfy the magistrate that probable cause exists for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed if a search warrant is requested. The affidavit must be administered before a magistrate or other qualified officer before it becomes a valid sworn affidavit.

Mendoza v. State, No. 01-18-01140-CR, 2019 Tex.App.-LEXIS 8654 (Tex.App.-Houston [1st Dist.] Sep. 26, 2019) (designated for publication) (Sexual Assault, Brazoria Co.) [Withdrawal of a guilty plea] 

  • Under Mendez v. State, 138 S.W.3d 334, 336, 345 (Tex.Crim.App. 2004), a defendant may withdraw a guilty plea if he does so before the jury retires to deliberate its verdict. His right is unqualified, and the trial court has no discretion to deny the request.  
  • Under Payne v. State, 790 S.W.2d 649, 651 (Tex.Crim.App. 1990), when a trial court errs by refusing a defendant’s timely request to withdraw a guilty plea, the error is harmless if there is no evidence suggesting that the defendant is not guilty or is guilty only of a lesser-included offense. The defendant’s testimony denying guilt is sufficient to raise a fact issue rendering the error harmful. 

Perez-Mancha v. State, No. 14-18-00713-CR, 2019 Tex.App.-LEXIS 10110 (Tex.App.-Houston [14th Dist.] Nov. 21, 2019) (Continuous Sexual Abuse of a Child, Harris Co.) [Jury charge with a “broader chronological perimeter” than the statute permits is error] 

A jury charge with a “broader chronological perimeter” than the statute permits is error. 

Porras v. State, No. 05-18-01108-CR, 2020 Tex.App.-LEXIS 678 (Tex.App.-Dallas Jan. 24, 2020) (designated for publication) (probation revocation, Dallas Co.) [Trial court’s jurisdiction to hear a motion to revoke community supervision after community supervision is expired] 

  • Under Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006), Review of an order revoking probation is for an abuse of discretion standard. The State must prove by a preponderance of the evidence that a defendant violated the terms. The trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. The evidence is reviewed in the light most favorable to the trial court’s ruling.  
  • Under Garcia v. State, 387 S.W.3d 20, 26 (Tex.Crim.App. 2012), any violation of a condition is sufficient to support revoking probation.  
  • Under Ex parte Moss, 446 S.W.3d 786, 792 (Tex.Crim.App. 2014), a probation revocation proceeding is an administrative hearing, not civil or criminal. It is an extension of the original sentencing and is subject to the continuing jurisdiction of the trial court. The trial court maintains its jurisdiction to hear a motion to adjudicate guilt if the motion is filed, and a capias is issued before the end of the probationary period.  
  • Under Tex. Code Crim. Proc. Art. 42A.103(a), in a felony case the period of deferred adjudication may not exceed ten years. For a defendant charged under Tex. Penal Code §§ 21.11, 22.011, or 22.021, regardless of the age of the victim the period of deferred adjudication may not be less than 5 years. A court may extend deferred adjudication per Arts. 42A.753 or 42A.757 as frequently as it determines necessary but for no more than 10 years.

Prestiano v. State, No. 01-17-00763-CR, 2019 Tex.App.-LEXIS 7326 (Tex.App.-Houston [1st Dist.] Aug. 20, 2019) (op. on reh.) (designated for publication) (Aggravated Sexual Assault under Tex. Penal Code § 22.021, Tom Green Co.) [Legal sufficiency; Aggravated Sexual Assault by contact and Aggravated Sexual Assault by penetration] 

  • Under Villalon v. State, 791 S.W.2d 130, 133-335 (Tex.Crim.App. 1990), the uncorroborated testimony of the child is sufficient to support a conviction and the child need not directly and explicitly testify as to contact or penetration with the same clarity and ability of an adult. 
  • Under Green v. State, 476 S.W.3d 440, 447 (Tex.Crim.App. 2015), because “penetration” is not defined by statute, its ordinary meaning in the context of aggravated sexual assault is assigned, which means “to enter into” or “to pass through.” This definition distinguishes penetration from “mere contact with the outside of an object” per Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992). 
  • Under Lee v. State, 537 S.W.3d 924, 927 (Tex.Crim.App. 2017), when an appellate court finds the evidence legally insufficient to prove an element of the charged offense but finds the defendant guilty of a lesser-included offense, the court must reform the judgment to reflect conviction for the lesser-included offense.  
  • Aggravated Sexual Assault by contact and Aggravated Sexual Assault by penetration differ only in the degree of physical invasion involved, with the latter factually subsuming the former. Though criminalized by the same statute and subject to the same range of punishment, Aggravated Sexual Assault by contact is a lesser-included offense of Aggravated Sexual Assault by penetration.

Privette v. State, No. 06-19-00162-CR, 2019 Tex.App.-LEXIS 10213 (Tex.App.-Texarkana, Nov. 26, 2019) (designated for publication) (Aggravated Assault, Hopkins Co.) [Deferred adjudication stacked on sentence for crime arising out of the same criminal episode] 

  • When a defendant is charged with more than one offense arising out of the same criminal episode—and guilt for one of the offenses is deferred through deferred adjudication—the probation for the deferred adjudication may be stacked on any sentence for the other convicted offenses 
  • Under LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992) and Tex. Penal Code § 3.03(a), when the defendant is convicted of more than one offense arising out of the same criminal episode—and prosecuted in a single criminal action—a sentence for each shall run concurrently unless one of the § 3.03 exceptions apply. A defendant is prosecuted in “a single criminal action” if allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial whether under one or several charging instruments.  
  • Under Tex. Penal Code § 3.01(1), criminal episode means the commission of two or more offenses—regardless of whether the harm is directed toward more than one person—that are committed during the same transaction.  
  • Under Donovan v. State, 68 S.W.3d 633, 636 (Tex.Crim.App. 2002), when a defendant receives deferred adjudication, there is no finding of guilt—instead the court finds that the evidence substantiates guilt and then defers adjudication. 

Alcoser v. State, No. 07-18-00032-CR, 2019 Tex.App.-LEXIS 11107 (Tex.App.-Amarillo Dec. 20, 2019) (designated for publication) (Assault family violence, McLennan Co) [Egregious harm in the jury charge] 

  • Under Tex. Code Crim. Proc. Art. 36.14 and Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex.Crim.App. 2019), the trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case. A jury charge: (1) must be in writing; (2) must distinctly set forth the law applicable to the case; (3) cannot express any opinion as to the weight of the evidence; (4) may not sum up the testimony; and (5) cannot discuss the facts or use any argument calculated to arouse sympathy or excite the passions of the jury. The abstract paragraph of a jury charge serves as a guide to help the jury understand the meaning of concepts and terms used in the application paragraph. The failure to give an abstract instruction is reversible error it is necessary to correct or complete the jury’s understanding of concepts or terms in the application paragraph. A trial court must maintain neutrality in providing such information and guidance and avoid any special allusion to a certain fact as the jury might construe this as judicial endorsement or imprimatur. An instruction is improper if it impermissibly guides a jury’s consideration of the evidence or focuses the jury on certain evidence because it amounts to an impermissible comment on the weight of the evidence.  
  • Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), a reviewing court must: (1) determine whether charge error occurred; and (2) analyze the error for harm. Charge error requires reversal when a proper objection has been made and a reviewing court finds some harm (error calculated to injure the rights of the defendant). If the alleged error was not preserved, only egregious harmed allows reversal, which is error that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. The harm must be determined considering: (1) the instructions, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record. There is no burden of proof or persuasion in a harm analysis conducted under Almanza.  
  • When trying multiple offenses in the same proceeding, a trial court must distinguish in the jury charge the culpable mental states applicable to each offense because the failure to do so is error. Under Tex. Penal Code § 6.03, the culpable mental states are intentionally, knowingly, recklessly, and criminally negligent. Under Young v. State, 341 S.W.3d 417, 423 (Tex.Crim.App. 2011), offenses must be distinguished into three categories based on the offense-defining statute’s gravamen or focus: (1) result-of-conduct offenses (result or product of the complained-of conduct), (2) nature-of-conduct offenses (defined by the act or conduct that is prohibited regardless of the result that occurs), and (3) circumstances-of-conduct offenses (prohibit otherwise innocent behavior that becomes criminal only under specific circumstances like failure to register as a sex-offender it is criminalized only if one must register). A trial court errs by failing to limit the definitions of the culpable mental states to the conduct element or elements of the offense to which they apply.  
  • Under Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App. 1999), generally no egregious harm results from an erroneous abstract paragraph when the application paragraph is correct.  

Davis v. State, No. 01-18-00519-CR, 2019 Tex.App.-LEXIS 9073 (Tex.App.-Houston [1st. Dist.] Oct. 15, 2019) (designated for publication) (Theft & probation revocation, Harris Co.) [Factors under Tex. Code Crim. Proc. Art. 42.037(h) supporting revocation] 

  • Under Hacker v. State, 389 S.W.3d 860, 865 (Tex.Crim.App. 2013, when reviewing an order revoking community supervision, the sole question is whether the trial court abused its discretion. Under DeGay v. State, 741 S.W.2d 445, 450 (Tex.Crim.App. 1987), The central issue to be determined in reviewing a trial court’s discretion in a community supervision revocation is whether the defendant was afforded due process of law. 
  • Under Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984), the limits to a trial court’s discretion to revoke supervision are: (1) the State must prove at least one violation of the terms and conditions; (2) an appellate court reviews the trial court’s decision for an abuse of discretion; and (3) federal due process requires that a trial court consider alternatives to imprisonment before incarcerating an indigent defendant who is unable to pay amounts due under community supervision. The State has the burden to establish by a preponderance of the evidence that appellant committed a violation. The standard is met when the greater weight of credible evidence supports a reasonable belief that a condition was violated.  
  • Under Tex. Code Crim. Proc. Art. 42.037(h), in determining whether to revoke community supervision, parole, or mandatory supervision, the court or parole panel shall consider: (1) the defendant’s employment status; (2) the defendant’s current and future earning ability (the amount and frequency of earnings compared to the frequency of court-ordered restitution should be considered with this factor); (3) the defendant’s current and future financial resources (If defendant has the ability to borrow money but unreasonably fails to employ this option, this factor weighs in favor of revocation); (4) the willfulness of the defendant’s failure to pay; (5) any special circumstances that affects the defendant’s ability to pay; and (6) the victim’s financial resources or ability to pay expenses incurred by the victim because of the offense. Under Bryant v. State, 391 S.W.3d 86, 93 (Tex.Crim.App. 2012), Art. 42.037(h) is a mandatory evidentiary provision. So long as a trial court considers the factors in its decision whether to revoke, a court is not required to weigh the factors in any particular manner. No element is necessary to justify revocation or alone is sufficient to justify revocation. Under Carreon v. State, 548 S.W.3d 71, 78 (Tex.App.-Corpus Christi-Edinburg 2018, no pet.), there must be some evidence of each Art. 42.037(h) for the trial court to consider. 
  • Under Tex. Code Crim. Proc. Art. 42A.751(i), in a revocation hearing at which it is alleged only that the defendant violated conditions by failing to pay fees or court costs or by failing to pay the costs of legal services under Art. 42A.301(11), the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge. 
  • Usually a plea of true to any alleged violation is sufficient to support a revocation order. But if all alleged violations are based on financial obligations, imprisonment is allowed only when the failure to pay was willful. 

Ex parte Edwards, No. 01-19-00100-CR, 2019 Tex.App.-LEXIS 7755 (Tex.App.-Houston [1st Dist.] Aug. 27, 2019) (designated for publication) (Habeas corpus, Harris Co.) [Pretrial habeas corpus attacking running of the statute of limitations; tolling of the statute of limitations for prosecution of sexual assault under Tex. Code Crim. Proc. Art. 12.01(1)(C)(i)] 

  • Under Ex parte Smith, 178 S.W.3d 797, 802 (Tex.Crim.App. 2005) and Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App. 2001), a defendant may use a pretrial writ of habeas corpus to challenge a court’s jurisdiction if the face of the indictment shows that the statute of limitations bars prosecution.  
  • Under Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006, the applicant for a writ of habeas corpus has the burden to establish entitlement to relief by preponderance of the evidence. Review is for an abuse of discretion. The reviewing court considers the facts in the light most favorable to the ruling and defers to the trial court’s implied factual findings that are supported by the record. When resolution of the ultimate issue turns on an application of purely legal standards, review is de novo.  
  • Under Tex. Code Crim. Proc. Arts. 12.01(2)(E), 12.03(d), and Ex parte Goodbread, 967 S.W.2d 859, 865 (Tex.Crim.App. 1998), the statute of limitations for Aggravated Sexual Assault (adult) is 10 years from the offense. Under Tex. Code Crim. Proc. Art. 12.01(1)(C)(i), there is no statute of limitations if during the investigation biological matter is collected and subjected to DNA-testing and the results show that the matter does not match complainant or another whose identity is readily ascertained. 

Espino-Cruz v. State, 586 S.W.3d 538, 2019 Tex.App.-LEXIS 8560 (Tex.App.-Houston [14th Dist.] Sep. 24, 2019) (designated for publication) (Possession with Intent to Deliver a Controlled Substance, Harris Co.) [Sufficient evidence to prove possession with intent to deliver contraband; affirmative links] 

  • Under Blackman v. State, 350 S.W.3d 588, 594 (Tex.Crim.App. 2011), to support a defendant’s conviction as a principal actor, the State must prove that the defendant knowingly possessed the contraband, which requires proof that the defendant: (1) exercised actual care, custody, control, or management over the substance; and (2) knew the substance was contraband. Under Tex. Health & Safety Code § 481.002(8), “deliver” means to transfer—actually or constructively—to another a controlled substance, including an offer to sell a controlled substance. The State need not show exclusive possession to support conviction as a principal actor because control may be exercised by more than one person.  
  • To prove possession of a controlled substance as a party, the State must show: (1) that another possessed the contraband; and (2) with the intent that the offense be committed, the defendant solicited, encouraged, directed, aided, or attempted to aid the other’s possession. Events occurring before, during, and after the commission of the offense may be considered, including the defendant’s actions that show an understanding or common design to commit the offense. Mere presence or knowledge of an offense does not make one a party to possession. The evidence must show that at the time of the offense, the parties were acting together, each contributing towards the execution of their common purpose.  
  • Under Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005), when a defendant is not in exclusive possession of the place where the contraband is found, the defendant is not considered to have knowledge of and control over it unless the State establishes an affirmative link between the defendant and the contraband. A link generates a reasonable inference that the defendant knew of the contraband’s existence and exercised control over it. It may be proven through direct or circumstantial evidence. The evidence must establish that the defendant’s connection with the contraband was more than fortuitous. The nonexclusive factors are: (1) whether defendant was present when a search is conducted; (2) whether the contraband was in plain view; (3) defendant’s proximity to and the accessibility of the contraband; (4) whether defendant was under the influence of narcotics when arrested; (5) whether defendant possessed other contraband when arrested; (6) whether defendant made incriminating statements when arrested; (7) whether defendant attempted to flee; (8) whether defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; (14) whether the conduct of defendant indicated a consciousness of guilt; (15) the quantity of contraband found. The number of factors is not as important as the logical force they collectively create to prove that a crime has been committed. The absence of links does not constitute evidence of innocence to be weighed against the links present.  
  • Intent to deliver contraband may be proved by circumstantial evidence, including evidence that the defendant possessed the contraband and the quantity of the drugs possessed. Intent can be inferred from the acts, words, and conduct of the defendant: (1) the nature of the location at which defendant was arrested, (2) the quantity of contraband in the defendant’s possession, (3) the manner of the packaging of the contraband, (4) the presence of or lack of narcotics paraphernalia for either use or sale, (5) large amounts of cash, or (6) defendant’s status as a narcotics user. The quantity of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Expert testimony by experienced officers may be used to establish a defendant’s intent to deliver. 

State v. Fikes, No. 03-19-00338-CR, 2019 Tex.App.-LEXIS 8157 (Tex.App.-Austin Sep. 6, 2019) (designated for publication) (DWI, Travis Co.) [Reasonableness of the procedures of a blood-draw] 

  • Under Schmerber v. California, 384 U.S. 757, 769 (1966) and Missouri v. McNeely, 569 U.S. 141, 148 (2013), a blood-draw is a Fourth Amendment search and an invasion of bodily integrity that implicates an individual’s most personal and deep-rooted expectations of privacy.  
  • Under State v. Johnston, 336 S.W.3d 649, 658 (Tex.Crim.App. 2011), a blood-draw is reasonable if police had justification for requiring it and reasonable means and procedures were used in obtaining the sample. When assessing whether the means and procedures were reasonable, courts must consider whether the test was reasonable and was performed in a reasonable manner.  
  • Under State v. Cortez, 543 S.W.3d 198, 203 (Tex.Crim.App. 2018), review of a trial court’s ruling on a MTS is for an abuse of discretion. The record is viewed in the light most favorable to the trial court’s ruling and the judgment is reversed only if it is outside the zone of reasonable disagreement.  
  • 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 a 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. 

Fraser v. State, No. 07-15-00267-CR, 2019 Tex.App.-LEXIS 11105 (Tex.App.-Amarillo Dec. 20, 2019) (designated for publication) (Murder, McLennan Co.) [Egregious harm; jury charge for felony murder] 

  • Under Tex. Code Crim. Proc. Art. 36.14 and Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex.Crim.App. 2019), the trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case. The charge: (1) must be in writing; (2) must distinctly set forth the law applicable to the case; (3) cannot express any opinion as to the weight of the evidence; (4) may not sum up the testimony; and (5) cannot discuss the facts or use any argument calculated to arouse sympathy or excite the passions of the jury. The abstract paragraph of a jury charge serves as a guide to help the jury understand the meaning of concepts and terms used in the application paragraph. The failure to give an abstract instruction is reversible error it is necessary to correct or complete the jury’s understanding of concepts or terms in the application paragraph. A trial court must maintain neutrality in providing such information and guidance and avoid any special allusion to a certain fact as the jury might construe this as judicial endorsement or imprimatur. An instruction is improper if it impermissibly guides a jury’s consideration of the evidence or focuses the jury on certain evidence because it amounts to an impermissible comment on the weight of the evidence.  
  • Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), a reviewing court must: (1) determine whether charge error occurred; and (2) analyze the error for harm. Charge error requires reversal when a proper objection has been made and a reviewing court finds some harm (error calculated to injure the rights of the defendant). If the alleged error was not preserved, only egregious harmed allows reversal, which is error that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. The harm must be determined considering: (1) the instructions, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record. There is no burden of proof or persuasion in a harm analysis conducted under Almanza.
  • Under Tex. Penal Code § 19.02(b), a person commits Murder if she intentionally or knowingly causes death ; intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes death; or commits or attempts to commit a felony other than manslaughter and during the commission, attempt, or in immediate flight from the commission or attempt, commits or attempts to commit an act clearly dangerous to human life that causes death. Under Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App. 2003), the statutory focus (gravamen) of Murder is causing death so Murder is a result-of-conduct or result-oriented offense (the proscribed conduct must have caused the death) as opposed to simply engaging in conduct that results in death. For felony murder, the factfinder must determine that the act clearly dangerous to human life must have caused death. 


  • The entire charge: was affected because the definition of reckless was not properly tailored to Murder. This error was emphasized by the failure of the application paragraphs to include an application of the law concerning the elements of injury to a child and child endangerment to the facts of the case. 
  • State of the evidence: no one maintains that Appellant intended to cause the infant’s death. When it comes to intent, the State’s evidence at best shows that Appellant intentionally engaged in conduct that ultimately caused the infant’s death, but this alone is not Murder. 
  • Arguments of counsel: The prosecution pursued a conviction based in part upon the theory that Appellant recklessly or with criminal negligence committed either injury to a child or child endangerment. During the entire trial the prosecution emphasized the reckless nature of the alleged conduct. It seems apparent that the prosecution did not understand the distinction between a result-of-conduct offense and a nature-of-conduct offense. The prosecutor repeatedly told the jury that a conviction could be based on reckless conduct alone. 
  • Any other information in the record: A review of the record illustrates the inherent risks of relying upon reckless or criminally negligent injury to a child or endangerment as the underlying felony offense for felony murder.
  • The judgment is reversed, and the case is remanded for a new trial.

EXTRANEOUS CRIMES, WRONGS, AND ACTS: What are they and how can they impact your case?

I. Evolution of the Meaning of Extraneous Offense

The definition of an extraneous offense has evolved in Texas jurisprudence. It was once defined as “one that is extra, beyond, or foreign to the offense for which the party is on trial.” Ridinger v. State, 174 S.W.2d 319, 320 (Tex. Crim. App. 1943). Later, several cases held that where the State offers evidence of more than one act of criminal conduct alleged in the indictment, the acts not relied upon by the State for conviction were extraneous offenses. O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988); Crawford v. State, 696 S.W.2d 901 (Tex. Crim. App. 1985); Yzaguirre v. State, 957 S.W.2d 38, 40 (Tex. Crim. App. 1997) (Myers, J., concurring). “An extraneous offense is an offense other than the offense charged.” Guidry v. State, 896 S.W.2d 381, 385 (Tex. App. – Texarkana 1995, pet. ref’d, reh. den.), citing Parks v. State, 746 S.W.2d 738 (Tex. Crim. App. 1987). The Court of Criminal Appeals said the following about the purpose of admission of extraneous offenses:

It is a fundamental tenet of our system of jurisprudence that an accused must only be tried for the offense for which he is charged and not for being a criminal in general. See, e.g., Templin v. State, 7y99 S.W.2d 30 (Tex. Crim. App. 1986); Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972). Because extraneous offense evidence carries with it the apparent risk that a defendant may be convicted because of his propensity for committing crimes generally—i.e., his bad character—rather than for the commission of the charged offense, courts have historically been reluctant to allow evidence of an individual’s prior bad acts or extraneous offenses. Under Tex. R. Crim. Evid. 404(b), extraneous offense evidence may be admissible only if it tends to prove a material fact in the State’s case, apart from its tendency to demonstrate an accused’s general propensity for committing criminal acts.

Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992, reh’g deneid). In Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996), the Court of Criminal Appeals again altered the definition of extraneous offenses without reference to the foregoing cases. The court defined an extraneous offense “as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” Id. at 741.

There was a special exception to the general admissibility of extraneous offenses for cases involving sexual abuse of a child by one standing in a parental relationship. Battles v. State, 140 S.W. 783 (1911). That exception permitted the State to introduce evidence of similar offenses committed by the accused against the same child for the purpose of showing, among other things, the broad context in which the charged offense occurred. This exception became subject to “persistent criticism over the years” until it was abandoned by the Court of Criminal Appeals in Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992), finding it to not “have any legal force independent of Rule 404(b).” Id. at 411. Thus, it became clear that the admissibility of extraneous crimes, wrongs, and acts in child abuse cases would be governed by Rule 404(b), Tex. R. Evid. Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990); Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992); Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992); Pavlacka v. State, 892 S.W.2d 8972 (Tex. Crim. App. 1994).

The prosecutors came to believe that Rule 404(b) was a substantial impediment to the State’s ability to secure convictions in child abuse cases because of a perceived reluctance of jurors to believe a child, when asked to make a decision about guilt or innocence on a single identified offense, and in having the child identify a particular act upon which the State relied for a conviction and distinguishing that act from extraneous conduct. The Court of Criminal Appeal’s interpretation of Rule 404(b) limited the introduction of extraneous offense evidence at trial in a way the prosecution believed made securing convictions more difficult.

II. Article 38.37, C.C.P.

A. Original Version

This difficulty remained the state of the law in Texas until September 1, 1995, when the Legislature passed Art. 38.37, C.C.P. It appears that the Legislature was attempting to reinstate the common law exception in child abuse cases for the admission of extraneous offenses. Under the statute, evidence would be admitted of other crimes, wrongs, or acts committed by the defendant against the child who was the victim of the alleged offense “for its bearing on relevant matters,” including the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child. Art. 38.37, C.C.P. The rule has been roundly criticized as allowing the State to prosecute a defendant for generally being a “child molester.” The belief by the critics has been that the limiting instructions to the jury did not really limit its consideration of the evidence to the particular purpose set forth in the statute, but instead the jury simply considered the evidence as showing propensity and character of the accused. The admission of extraneous offense evidence under Art. 38.37, in conjunction with the Court of Criminal Appeals’ change in the definition of extraneous offense in Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2001), changed the nature of trials of child abuse allegations to trials about the character of the accused, and not trials about whether the accused committed a particular offense. That the defendant was entitled to be indicted and tried for a particular single act of conduct had become a mere pretense. That pretense was finally dropped by amendments to Art. 38.37, C.C.P., that were effective September 1, 2013.The original version of Art. 38.37 applied to cases where the victim was a child under the age of 17 in prosecutions for offenses defined under Chapter 21 (sexual offenses); Chapter 22 (assaultive offense); Section 25.02 (prohibited sexual conduct); and where the victim was younger than18 years of age, in prosecutions under Section 43.25 (sexual performance of a child); Section 20A.02(7) or (8) (human trafficking); or Section 43.05 (compelling prostitution); and any attempt or conspiracy to commit one of the foregoing offenses. Prior Art. 38.37, Section 1, C.C.P.

B. Amendments Effective Sept. 1, 2013

The 2013 amendments to Art. 38.37 combined Sections 1 and 2 of the old statute into Section 1 of the new statute, without change, and added a new Section 2, which creates a second “tier” of offenses for which evidence of extraneous offenses may be admitted at trial, for a different purpose than for the offenses set forth in Section 1 of both of the prior and amended articles. New Section 2 of Art. 38.37 applies to a narrower group of offenses than does new Section 1. Section 2 applies only to the trial of a defendant for an offense under the following provisions of the Penal Code: (A) Section 20A.02, if punishable as a felony of the first degree under Section 20A.02(B)(1) (sex trafficking of a child); (B) Section 21.02 (continuous sexual abuse of a young child or children); (C) Section 21.11 (indecency with a child); (D) Section 22.011(a) (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); or an attempt or conspiracy to commit an offense described in Section 2. See Aquillan v. State, 584 S.W.3d 701 (Tex. App.–Texarkana 2017), where a court of appeals found that evidence of the defendant having physically abused the complainant’s sisters was not an admissible extraneous offense because it was not similar to the indecency-with-a-child charge for which the defendant was being tried.   

C. Operation of Current Statute

Upon a trial of one of the offenses described in new Section 2(a)(1) and (2), evidence that the defendant “committed a separate offense described by Subsection (a)(1) or (2)” of Section 2 may be admitted “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” New Art. 38.37, Section 2(b), C.C.P.; Carmichael v. State, 505 S.W.3d 95, 102 (Tex. App.–San Antonio 2016, pet/ ref’d). Art. 38.37, § 2 creates an exception to the Rules of Evidence that otherwise make character evidence inadmissible. Manning v. State, 2015 WL 8473347, *2 (Tex. App. – Beaumont 2015, pet. ref’d).

The limitations upon the use of character evidence in Rules 404 and 405 do not apply regarding the admission of extraneous offenses upon the trial of the kind of cases listed in new Section 2 of Art. 38.37. Said another way, upon trial of a Section 2 offense, evidence of other sexual offenses committed by the defendant will be admitted as evidence of the defendant’s character and to show he acted in conformity with that character. Lara v. State, 513 S.W.3d 135 (Tex. App.–Houston [14th Dist.] 2016, no pet.); Carmichael v. State, 505 S.W.3d 95 (Tex. App.–San Antonio 2016, pet. ref’d). This appears to apply only to other offenses, not to wrongs or acts, as in new and prior Section 1; and applies to separate offenses against other victims and is not just limited to offenses against the complainant in the case being tried. Said another way, the Legislature has authorized the trial of a defendant for being a “child molester” generally, and as a practical matter has done away with the requirement that the State prove beyond a reasonable doubt that the defendant committed a particular act. See Moore v. State, 2015 WL 1317205, *2 (Tex. App. –Austin 2015, pet. ref’d) (sexual acts that were not considered sexual acts for purposes of §21.02, continuous sexual abuse statute, were admissible as circumstantial evidence that the defendant had engaged in other conduct that could form the basis of his conviction). However, evidence offered pursuant to Art. 38.37 is subject to the Rule 403 balancing test of whether its probative value is substantially outweighed by the danger of unfair prejudice. Carmichael v. State, 505 S.W.3d 95, 102 (Tex. App.–San Antonio 2016, pet. ref’d); Distefano v. State, 532 S.W.3d 25, 31 (Tex. App.–Houston [14th Dist.] 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.–Tyler 2015, no pet.).

Art. 38.37 requires the trial court to hold a hearing outside the presence of the jury to determine whether the evidence admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt. Art. 38.37, § 2–a. C.C.P.; Carmichael v. State, supra at 102; Agrillen v. State, 534 S.W.3d 701, 710 (Tex. App.–Texarkana 2017, no pet.). If the defendant does not request a hearing, or object to the failure to have the hearing, the right to the hearing is forfeited. Carmichael v. State, supra at 103.   Art. 38.37 does put limitations on the admissibility of such evidence. Section 2-a provides that before the extraneous conduct evidence may be introduced, the trial judge must: (1) determine that the evidence likely to be admitted at trial will be adequate to support a “finding by the jury that the defendant committed a separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for that purpose.”

Also, Section 3 of new Art. 38.37 requires that the State give the defendant notice of the State’s intent to introduce in its case in chief the evidence set forth in Section 1 or 2 of amended Art. 38.37 “not later than the 30th day before the date of the defendant’s trial.” This provision eliminates the need for a request for notice to be filed by the defense in order to trigger the State’s duty to provide notice of intent to offer extraneous offense evidence. This provision also does not include the “reasonable notice” provision of Rule 404(b) and does not require the State to give notice of the county in which the alleged extraneous acts took place, as required by Art. 37.03, Section 3, C.C.P. The purpose of the notice is to prevent surprise. In determining whether a defendant is harmed by failure to give notice of an extraneous offense, an appellate court will consider whether the defendant was surprised and how it affected his ability to mount an effective defense.

A trial court must also conduct a Rule 403 balancing test. Art.38.37, Section 2(b), C.C.P. The statute does not restrict a defendant’s right to have the State elect the incident for which it will seek conviction. Owings v. State, 541 S.W.3d 144 (Tex. Crim. App. 2017); McCombs v. State, 562 S.W.3d 748 (Tex. App.–Houston (14th Dist.] 2018, no pet.); Gauna v. State, 534 S.W.3d 7 (Tex. App.–San Antonio 2017).    

The change in Art. 38.37 applies to a criminal proceeding that commences on or after the effective date of Senate Bill 12, September 1, 2013. Section 2, SB12. This means that the change in the law applies to trials that commence on or after the effective date, whether the indictments were pending prior to the effective date of the amendment or the offense occurred prior to the effective date of the amendments to Art. 38.37. Fahrni v. State, 473 S.W.3d 486 (Tex. App.–Texarkana 2015, pet. ref’d); Bezarra v. State, 485 S.W.3d 133, 138-139 (Tex. App.–Amarillo 2016, pet. ref’d).

There is an argument to be made that application of amended Art. 38.37 to offenses that occurred prior to September 1, 2013, would violate the ex post facto prohibition of the United States Constitution. The Supreme Court has held there are four categories of ex post facto laws. The fourth category is a “law that alters the legal rules of evidence, and requires less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Carmell v. Texas, 529 U.S. 513, 522, 551 (2000). Amended Art. 38.37 certainly admits evidence different than did its predecessor. Some Texas courts have rejected claims that employment of Art. 38.37, in cases where the offense occurred before the effective date of Art. 38.37, violates ex post facto prohibitions. Baez v. State, 486 S.W.3d 592 (Tex. App.–San Antonio 2015, pet. ref’d). Courts have determined that Art. 38.37 does not violate a defendant’s right to due process of law nor lessen the presumption of innocence or the State’s burden of proof. Perez v. State, 562 S.W.3d 676 (Tex. App.–Ft. Worth 2018, pet. ref’d) (unique nature of sexual assault justified the admission of extraneous offense evidence, even though traditional notions of due process generally caution against admission of such evidence); Distefano v. State, 532 S.W.3d 25 (Tex. App.– Houston [14th Dist.] 2016, pet ref’d); Buxton v. State, 526 S.W.3d 666 (Tex. App.–Houston [1st Dist.] 2017, pet. ref’d); Ryder v. State, 519 S.W.3d 391 (Tex. App.–Amarillo 2017, pet. ref’d); Bezarra v. State, 485 S.W.3d 133 (Tex. App.–Amarillo 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840 (Tex. App. –Tyler 2015, no pet.); Robisheaux v. State, 483 S.W.3d 205 (Tex. App.–Austin 2016, pet. ref’d).  

The amendment of Art. 38.37 has probably rendered Rule 404(b) and Art. 37.07, Section 3, C.C.P., largely irrelevant in the trial of child abuse cases. Under new Art. 38.37, all extraneous offenses against any child (or perhaps adult) will be admissible under Art. 38.37, so there is no need for the State to bear the burden of showing their admissibility under Rule 404(b) and Art. 37.07, Section 3, C.C.P. However, these provisions do remain in effect and are available as a means to admit extraneous matters not covered by new Art. 38.37, or where the State does not comply with the requirements of Art. 38.37.

III. Rule 404(b), Tex. R. Evid.; Art. 37.07, Section 3, C.C.P.; and Rule 609(f), Tex. R. Evid.

A. Applicability

Rule 404(b) applies to the admission of evidence of extraneous crimes, wrongs, and bad acts during the guilt-innocence portion of a trial. Art. 37.07, Section 3 applies to the admission of extraneous crimes, wrongs and bad acts at the punishment phase of a trial but is not applicable to a pre-sentence investigation report. Hart v. State, 342 S.W.3d 659, 671(Tex. App.–Houston [14th Dist.] 2011, pet. ref’d); Fielder v. State, 2015 Tex. App. LEXIS 10554, *12, (Tex. App.–Amarillo). Rule 609(f) applies to the admission of records of prior convictions.

B. Notice Requirement

Each of these provisions have in common a notice provision which, upon request by the defendant, requires the State to give the defendant reasonable notice of the intent to introduce extraneous crimes, acts, or wrongs into evidence. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995) (en banc); Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (en banc). Art. 37.07, Section 3, explicitly states that notice of the intent to introduce extraneous conduct evidence under this article shall be given in the manner required by the Rule 404(b). Worthy v. State, 312 S.W.3d 34, 37 (Tex. Crim. App. 2010). The wording of the notice provision of Rule 609(f), Tex. R. Evid., is very similar to that of Rule 404(b). In cases not covered by Art. 38.37 the defendant should specifically request notice of the State’s intent to offer evidence of extraneous matters under Rules 404 and 609. The purpose of the notice provisions for admission of extraneous offenses is to avoid surprise and allow the defendant to mount an effective defense. Pena v. State, 554 S.W.3d 242 (Tex. App.–Houston (14th Dist.] 2018, pet. ref’d).         

Filing a request for notice under Art. 38.37 should not be necessary because that provision appears to be self-executing. In child abuse cases, due to the effect of new Art. 38.37, a request for notice of extraneous offenses pursuant to Rule 404(b) and Art. 37.07 Section 3 may not be necessary. On the other hand, Rules 404(b) and Art. 37.07, Section 3, do remain in effect for all kinds of cases, so some extraneous matters may be admissible pursuant to those provisions, even if not admissible under Art. 38.37. Early discovery of the State’s case and knowledge of your prosecutor and court may inform defense counsel as to what requests and motions should be filed. It is the safer choice to file the request for notice under Rules 404(b) and 609(f) and Art. 37.07, Section 3. That request should be filed with the court very soon after you begin representation. You may want to include Art. 38.37 in your request to bolster your contention that because the State did not give the 30-day notice required by Art. 38.37, the extraneous offenses are not admissible.

C. Triggering the Duty to Give Notice

The State’s duty under Rules 404(b) and 609(f) and Art. 37.07, Section 3, to give notice to the defendant of its intent to offer evidence of other crimes, wrongs, or bad acts, or prior convictions, is triggered by timely serving a REQUEST upon the attorney for the State. Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993, reh’g denied); Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Ford v. State, 106 S.W.3d 765, 766 (Tex. App.–Texarkana 2003, no pet.); Randon v. State, 107 S.W.3d 646, 651 (Tex. App.–Texarkana 2003, no pet.). A copy of such request should be filed with the Court. Espinosa v. State, supra at 38 n. 3. The REQUEST may be in some other format, such as a letter. If the State receives a request for notice of extraneous offenses and fails to give notice of its intent to use such evidence, the evidence should not be admitted. Davis v. State, 315 S.W.3d 908, 919-920 (Tex. App.–Houston [14th Dist.] 2010) (erroneous admission of defendant’s jail disciplinary record as punishment evidence was harmless), rev’d on other grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011). “Rule 404(b) literally conditions the admissibility of other crimes evidence on the State’s compliance with the notice provisions of Rule 404(b).” Hernandez v. State, 176 S.W.3d 821,824 (Tex.Crim. App. 2005).

A REQUEST for notice does not need to be acted upon by a trial court before the State is obligated to comply. The State’s duty to comply is invoked by the receipt of the request. Espinosa v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993). Making the request in the form of a discovery motion is insufficient to trigger the notice requirement unless the accused secures a ruling from the Court. Mitchell v. State, supra at 427; Simpson v. State, 991 S.W.2d 798 (Tex. Crim. App. 1998); Ford v. State, supra at 766-67;. Sanders v. State, 191 S.W.3d 272, 276 (Tex. App.– Waco 2006, pet. ref’d), cert. denied 127 S.Ct. 1141 (2007). The REQUEST should ask for notice under all the applicable provisions. A request for notice under one provision does not constitute a request for notice under another provision. McCarty v. State, 2014 WL 1572455, *2 (Tex.App.–Austin 2014); Hitt v. State, 53 S.W.3d 697, 705 (Tex.App.– Austin 2001, no pet.) (request for notice pursuant to Rule 404(b) does not entitle the defendant to prior notice under Art. 38.37).

D. What is “Reasonable”?

While each statute or rule requires that the State give the defense reasonable notice in response to a request, they do not define what constitutes “reasonable notice” and the appellate decisions determine reasonableness on a case -by-case basis. The State’s open-file policy does not satisfy that notice requirement. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995); Allen v. State, 202 S.W.3d 364, 367 (Tex. App.–Ft. Worth 2006, no pet.). Reasonable notice can be given by actions not constituting an explicit statement of intent. For example, where the State’s notice stated that certain witnesses would be called to testify and attached a copy of the witnesses statements, it was held that the trial court did not abuse its discretion in admitting the witnesses testimony about extraneous offenses where defense counsel had made a request for notice of extraneous offenses and did not contend that he did not receive actual notice of the State’s intent to offer the extraneous offenses into evidence. Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001).           

Whether notice under Rules 404(b) and 609(f) and Art. 37.07 Section 3 is reasonable is determined by the facts and circumstances of each case, including when the request is made, the circumstances of the request, the nature of the response, the timeliness of the response, and any other relevant circumstances, Dix and Dawson, 42 Texas Practice §27:128, 3rd Ed.; Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App. 2001); Owens v. State, 119 S.W.3d 439, 443-444 (Tex. App.–Tyler 2003, no pet.). Again, the purpose of the Rule 404(b) notice requirement is to prevent the defendant from being surprised by extraneous offense evidence and ensure he has time to counter the evidence at trial. Hernandez v. State, 176 S.W.3d 821,824 (Tex. Crim. App. 2005).

What is considered to be a timely request is not clear, although a request made on the day of trial is not timely. Espinoza v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993) (en banc, reh’g denied). The length of time that a request for notice has been pending is a relevant consideration. The longer the pendency of the request before a late notice, the stronger the case for lack of reasonableness. Whether notice is given in sufficient time to prevent unfair surprise is the primary consideration. Dix and Schmolesky, 42 Texas Practice § 27.127, p. 635, 3rd Ed.   

Notice is not reasonable simply because the record shows that the defense was not surprised. An appellate court will “consider the notice that is to be expected or required under the particular circumstances of the case.” Webb v. State, 36 S.W.3d 164, 177 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (opinion on rehearing en banc). In Webb, the notice given on the Thursday before the Monday on which trial was scheduled to start was held unreasonable primarily because the defendant made his request for notice six months prior to trial. In addition, the timing gave the defense only one business day to prepare to cross-examine an important witness and to make any necessary adjustments in trial strategy. Webb v. State, supra at 178. See also, Hernandez v. State, 914 S.W.2d 226, 234 (Tex. App.–Waco 1996) (notice filed on Friday afternoon and apparently received by defense counsel on that day was held not reasonable where the request for notice was made ten months earlier); Sebalt v. State, 28 S.W.3d 819 (Tex. App. –Corpus Christi 2000, no pet.) (receipt of notice on the Friday before Monday trial date was reasonable); Owens v. State, supra at 444 (notice was reasonable, even though received by defendant three days before trial, as State gave notice one day after it received evidence, it was presented to jury 10 days after receipt, defendant had court appointed investigator to assist investigation of evidence and defendant had opportunity to cross-examine complainant about evidence). Waguespack v. State, 2015 WL 3822314 (Tex. App. – Waco 2015) (notice of evidence of extraneous sexual encounter provided on the day of jury selection that was admitted seven days later as punishment evidence was not harmful error because the record did not reveal the deficient notice was due to prosecutorial bad faith and did not impair defendant’s ability to prepare for the evidence and present a defense, so defendant’s substantial rights not affected). Oral notification may satisfy the notice requirement of Art. 37.07, Section 3(g), C.C.P. Jackson v. State, 2004 WL 837876 (Tex. App.–Dallas 2004, no pet.); Martin v. State, 176 S.W.3d 887 (Tex. App.–Ft. Worth 2005, no pet.) (notice seven days prior to trial was reasonable when information came from State’s file which had been open to defense counsel since indictment).

While it is error to admit extraneous offense evidence where notice has not been given, the error was not reversible where defendant did not claim he was surprised or that the lack of notice prejudiced his ability to prepare or present his defense. Hernandez v. State, 176 S.W.3d 821, 825 (Tex. Crim. App. 2005); Gonzalez v. State, 337 S.W.473 (Tex. App.–Houston [1st Dist.] 2011, pet. ref’d); Padilla v. State, 254 S.W.3d 585, 593 (Tex. App.–Eastland 2008, pet. ref’d); Sharp v. State, 210 S.W.3d 835, 839-40 (Tex. App. –Amarillo 2006, no pet.). The State’s notice under Art. 37.07, Section 3, is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred, and the name of the alleged victim. Johnson v. State, 2015 Tex. Crim. App. Unpub. LEXIS 9040, *96-98, No. AP-77,030 (11/18/15). If a notice is deficient, an appellate court must determine whether the deficiency had a substantial and injurious effect on the jury’s verdict when considering the totality of the circumstances. Id. In Johnson v. State, supra, although the notice did not include the day and month of the extraneous conduct, it included sufficient other details that rendered it sufficient. Id.         

Rule 404(b) applies to actual conduct. Evidence of a defendant’s thoughts about or feelings for a minor are not covered by Rule 404(b). Green v. State, 287 S.W.3d 277, 285 (Tex. App.– Eastland 2009, pet. ref’d). When a defendant raises a defensive theory that opens the door to extraneous offenses, the State is not required to give advance notice that it will use an extraneous offense to rebut a defensive theory. Shedden v. State, 268 S.W.3d 717, 739 (Tex. App.–Corpus Christ 2009, pet. ref’d); Jaubert v. State, 74 S.W.3d 1,2-4 (Tex. Crim. App. 2002) (notice provision of Rule 404(b) applies only to the State’s case-in-chief). Rule 404(b) does not apply to impeachment during the appellant’s case in chief. Westbrooks v. State, 2015 Tex. App. LEXIS 12759, *6 (Tex. App.–Houston [14th Dist.] 12/17/15). Notice of extraneous offenses is not required for same-transaction contextual evidence. Buchanan v. State, 911 S.W.2d 11,15 (Tex. Crim. App. 1995); McDonald v. State, 179 S.W.2d571,577 (Tex. Crim. App. 2005); Worthy v. State, 312 S.W.3d 34, 39-40 (Tex. Crim. App. 2010) (sentencing evidence pursuant to Art. 37.07, § 3(g), C.C.P.).

E. Admissibility of Extraneous Offenses Under Rule 404(b) and Article 37.07, Section 3

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. All relevant evidence is admissible except as otherwise provided by constitutions, statutes, or rules. Tex. R. Evid. 402; Montgomery v. State, 810 S.W.2d 372, 376 n.3 (Tex. Crim. App. 1990). Tex. R. Evid. 404(b)(1) provides that “[e]vidence of a crime, wrong or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character.” It may “be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, . . . . . .” Tex. R. Evid. 404(b)(1). “The exceptions listed in Rule 404(b) are neither mutually exclusive nor collectively exhaustive.” De la Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Poindexter v. State, 942 S.W.2d 577, 583-584 (Tex. Crim. App. 1996, reh’g denied); Montgomery v. State, 810 S.W.2d 373, 387 (Tex. Crim. App. 1991) (opinion on reh’g). Rule 404(b) is considered to be a rule of inclusion rather than exclusion. De la Paz v. State, supra at 343. “The Rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad character.” Id.

The proponent of uncharged misconduct evidence “must be able to explain to the trial court, and to the opponent, the logical and legal rationales that support its admission on a basis other than ‘bad character’ or propensity purpose.” Id.; Gibbs v. State, 555 S.W.3d 718 Tex. App.–Houston (1st Dist.] 2018, no pet.).

In Montgomery, the Court of Criminal Appeals prescribed a procedure that should be followed when a party offers evidence of extraneous crimes, wrongs, or acts. 810 S.W.2d 372 (Tex. Crim. App. 1990) (opinion on reh’g). The opponent must timely object to the offer of the evidence as being inadmissible under Rule 404(b), as being an “extraneous offense” or “extraneous misconduct,” or that it is not relevant (preferably citing Rules 401 and 402, Tex. R. Evid.). Thereafter, the proponent of the evidence should state the purpose for which it is offered. Once the objection is made, the proponent of the evidence must satisfy the trial court that the “other crimes, wrongs, or act” is relevant apart of its tendency to prove the character of a person in order to show that he acted in conformity with that character. Id. at 387. At this point, if he has not done so, the opponent should request that the proponent articulate into the record the purpose for which the evidence is being offered by the proponent, and, if admitted by the trial court, seek articulation by the trial court of the basis for which the evidence was admitted. Id. This is important because upon timely further requests by the opponent, “the trial judge should instruct the jury that the evidence is limited to whatever purpose the proponent has persuaded him it serves.” Id., citing Tex. R. Cr. Evid. 105(a), now Rule 105(a), Tex. R. Evid. The opponent of the evidence should object to the failure of the proponent and the trial court to follow the foregoing procedure. Failure to follow the procedure should be error. Of course, then the question becomes whether it is reversible error.        

Once a trial court has ruled that evidence has relevance apart from character conformity, it has ruled on the full extent of the opponent’s Rule 404(b), or relevance objection. Thereafter, the opponent may, and should, further object that, under Rule 403, Tex. R. Evid., the probative value of the evidence is substantially outweighed by its unfair prejudice. Id., at 388-389. Once this objection is made, the trial court must weigh the probativeness of the evidence against its potential for unfair prejudice. The burden is on the opponent to levy the objection. Thereafter, Rule 403 imposes a duty on the trial court to conduct a balancing test. When Rule 403 provides that evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,” it simply means that trial courts should favor admission in close cases, in keeping with the presumption of admissibility of relevant evidence.” Montgomery v. State, supra at 389; Fowler v. State, 553 S.W.3d 576 (Tex. App.–Texarkana 2018) (trial court must balance between the probative value and danger of unfair prejudice, although that balance is slanted toward the admission of otherwise relevant evidence).        

Once the Rule 403 objection has been made, “it will not suffice for the trial court simply to determine that the evidence is relevant to some legitimate, non-character-related purpose such as one of those enumerated in Rule 404(b). ‘The determination must be made whether the danger of unfair prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 404(b).’ Advisory Committee’s Note to Fed. R. Evid. 404(b).” Montgomery, supra at 389. These factors include how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence—that is, its inherent probativeness; the strength of the proponent’s evidence to show the opponent in fact committed the extraneous conduct; the potential the ‘other crimes, wrongs, or acts’ have to impress the jury in some irrational but nevertheless indelible way (often the function of the nature of the misconduct); how much trial time does the proponent need to develop the evidence of the extraneous misconduct such that the attention of the fact finder will be diverted from the indicted offense; and how great is the proponent’s need for the extraneous transaction. Montgomery, supra at 389-390. “This last inquiry breaks down into three subparts: Does the proponent have other available evidence to establish the fact of consequence that the extraneous misconduct is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute? When the proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in a probative-versus-prejudicial balance.” Id. The opponent of the evidence should ask the court to engage in the probativeness-prejudice balancing exercise on the record, and if the trial court declines to do so, further object to that failure. 

F. Use by Defendants

Although most often employed by the State, there is nothing in Rule 404(b) that “would lead one to believe that it is a rule intended solely as a benefit for the State to be applied against the defendant . . . . . .” Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998); Torres v. State, 71 S.W.3d 758, 760-762 (Tex. Crim. App. 2002). While Rules 404(a) and 405(a) “specifically disallow particular acts of the victim to demonstrate character,” Tate v. State, supra at 193, evidence of specific acts may be admissible under Rule 404(b) to show intent, motive, knowledge, and to rebut contentions (analogous to defensive theories) of the State. “Rule 404(b) permits the defense, as well as the prosecution, to offer evidence of other acts of misconduct to establish a person’s motive for performing some act – such as making a false allegation against the defendant.” Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016).

IV. Extraneous-Offense Evidence Under Article 38.371

The legislature has also carved out a special exception for the admission of extraneous-offense evidence in family- violence cases. Article 38.371 of the Code of Criminal Procedure provides an avenue for the admissibility of “all relevant facts and circumstances” that would assist the trier of fact in determining whether a defendant committed certain family-violence-related offenses as follows:

(b) In the prosecution of an offense described by Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the action and the alleged victim.

(c) This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.

Areas of relevant and admissible extraneous-offense evidence that complies with Article 38.371 include evidence that: (1) explains why a victim of domestic violence is unwilling to cooperate with prosecution; (2) confirms the victim’s initial—and later recanted— statements to police; or (3) contextualizes the nature of the relationship between victim and assailant. Fernandez v. State, __ S.W.3d __, No. 08-17-00217 (Tex.App. – El Paso, 2020) (citing Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App. – Houston [14th Dist.] 2017, no pet.); Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214, at *3 (Tex.App. – Fort Worth 2019, no pet.) (mem. op., not designated for publication). Importantly, though, by the very terms of the statute, this type of extraneous-offense evidence is subject to the limitations of Rule 403.

V. Particular Applications

A. Remoteness

In Crocker v. State, 2009 WL 4725299 (Tex. App.– Dallas 2009, pet. ref’d) (not designated for publication), the defendant was a preacher who was charged with indecency with an 11-year-old boy by contact and by exposure. Admitted into evidence over the defendant’s objection were three incidents that had occurred nearly 20 years before where the appellant had gone skinny dipping in the presence of three 10-to-12-year-old boys; had gone swimming in the baptistry with one of the same boys; and had been naked while fishing on an overnight fishing trip with the same boy. Although the defendant had been nude in front of 10-to-12-year-old boys, there had been no sexual suggestion, sexual contact, or any physical contact at all. The Court of Appeals found that the three incidents of extraneous conduct were not relevant to any fact of consequence under Rules 401 or 402, because it was not sufficiently similar to the charged conduct, the extraneous conduct was too remote, and there was no intervening sexual misconduct of a similar nature. Id. at *5. In reaching this decision, the Court of Appeals relied on its own prior case of Harrison v. State, 2004 WL 1663982, *6 (Tex. App. –Dallas 2004) (there was no proximity in time between the extraneous conduct 16 years earlier and the charged conduct); and James v. State, 554 S.W. 2d 680, 682-83 (Tex. Crim. App. 1977) (extraneous offense occurring two years and nine months prior to offense being tried, with only certain similarities, and no intervening offenses, too remote in time to be admissible on issue of identity and alibi). The Crocker court held the extraneous conduct offenses were not sufficiently relevant under Rules 401 and 402 and found their admission was harmful.   

In Newton v. State, 301 S.W.3d 315 (Tex. App.–Waco 2009, pet. ref’d 2010), the defendant was charged with sexual abuse of his stepdaughter who was about 10 years of age. The State also introduced into evidence extraneous conduct evidence that the defendant had repeatedly sexually abused his older stepdaughter, L.D., about 25 years before the charged offenses. The court found the extraneous offense sufficiently similar to the charged offense as both victims were the defendant’s stepdaughters; both were about 10 when the defendant sexually assaulted them; both were similar in appearance; the defendant did not threaten either of them; and the defendant abused both of them for several years. The defendant even conceded on cross-examination that the extraneous offense evidence and the charged offense were “remarkably similar.” Id. at 318. The Court of Appeals found that the extraneous offense evidence regarding L. D. was sufficiently similar to the charged offenses to be admissible under Rule 404(b) to rebut the defendant’s fabrication defense. The court found that remoteness is not a consideration under Rule 404(b) and the trial court did not abuse its discretion by overruling the defendant’s Rule 404(b) objection. Id. at 318. The court found that remoteness was to be considered in ruling on a defendant’s Rule 403 objection. In analyzing the relevant Rule 403 factors, the Court of Appeals found that two factors weighed in favor of exclusion and two weighed in favor of admission. The Court found that Rule 403 required exclusion of evidence only when there is a clear disparity between the degree of prejudice of the extraneous evidence and its probative value. Id. at 321-322. As the court could not say there was a clear disparity between the danger of unfair prejudice posed by the extraneous offense evidence and its probative value, it found the trial court did not abuse its discretion by overruling the Rule 403 objection. Id. at 322.       

There is a lack of consistency as to how much remoteness is enough, and not enough, for prior conduct to be admitted as an extraneous offense. Remoteness and the passage of time should be factors in determining whether evidence of other offenses is admissible as same-transaction evidence, but remoteness must be considered with other factors. Yates v. State, 941 S.W.2d 357 (Tex. App.–Waco 1997, pet. ref’d). An unadjudicated extraneous offense of assault against a wife approximately 10 years earlier was so remote as to make it inadmissible in a prosecution for aggravated kidnaping of a former girlfriend and her employer. Lavarry v. State, 936 S.W.2d 690 (Tex. App.–Dallas 1996, pet. ref’d), habeas corpus dismissed 2001 WL 484426. Even ignoring a period of confinement of the defendant for prior sexual assault convictions up until three months before the primary conviction, convictions five and one-half years before the primary offense were not too remote, so as to be inadmissible. Stringer v. State, 845 S.W.2d 400 (Tex. App.–Houston [1st Dist.] 1992, pet. ref’d). In West v. State, 554 S.W.3d 234 (Tex. App.–Houston [14th Dist.] 2018), where prior convictions were similar to allegations in indictment, but were for conduct that was from 29 years before, the remoteness weighed in favor of excluding the evidence.   

B. Same-Transaction Contextual Evidence

One exception to the admission of extraneous offenses, wrongs, and acts, is same-transaction contextual evidence, which is admissible when the charged offense would make little or no sense without also bringing in the same-transaction contextual evidence. Such evidence is admissible only where such evidence is necessary to the jury’s understanding of the instant offense. Beltran v. State, 517 S.W.3d 243 (Tex. App.–San Antonio 2017, no pet.). In that case, evidence that the defendant was dealing drugs was admissible same-transaction evidence that placed charges on multiple accounts of sexual assault of a child in context, as the evidence was offered to show that the victim’s mother allowed the defendant to sexually assault the victim in exchange for cocaine, and thus was relevant to show how the defendant had access to the victim and why the victim would be at the defendant’s home without her mother. Extraneous offense evidence also may be admissible as same-transaction contextual evidence where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction. In that situation, the jury is entitled to know all of the relevant surrounding facts and circumstances of the charged offense, because the trial of an offense is not in a vacuum. Id. Evidence admitted under the “same-transaction” exception to the rule excluding evidence of extraneous offenses to prove conformity is considered general evidence to be used for all purposes and does not require a limiting instruction. Id.  

On the other hand, evidence of a defendant’s possession of pills at the time of his arrest for DWI was not admissible as same-transaction contextual evidence because the evidence did not confirm the identity of the pills as necessary to show whether the defendant was committing an offense by possessing them, and even if possession of the pills was a separate offense, the evidence related to the pills was not necessary to the jury’s understanding of the charged offense because there was no evidence that the defendant’s intoxication was caused from ingesting the pills. Burnett v. State, 488 S.W.3d 913 (Tex. App.– Eastland 2016, pet. granted 2016). 

C. Doctrine of Chances

Another basis for the admission of extraneous offenses is called the “doctrine of chances,” which indicates that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance. Hinojosa v. State, 554 S.W.3d 795 (Tex. App.–Waco 2018); Duntsch v. State, 2018 WL 6445369 (Tex. App.–Dallas 2018, pet. ref’d). There are no rigid rules that dictate what constitutes sufficient similarities between charged and extraneous offenses under the doctrine of chances. A very high degree of similarity is not required where intent, as opposed to identity, is the material issue. Id.

VI. Evidence of Extraneous Conduct Properly Admitted

In a child sexual abuse case, particularly in an indecency -by-contact case, extraneous offenses commonly become admissible on the issue of intent. If the specific intent to arouse and gratify sexual desire cannot be inferred from the act itself, evidence of extraneous acts may be admitted to prove that intent. Morgan v. State, 692 S.W.2d 877 (Tex. Crim. App.1985). Extraneous offenses may also be admissible on the issue of knowledge, Prescott v. State, 123 S.W.3d 506 Tex. App. – San Antonio 2003, no pet.), and motive, Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000); Etheridge v. State, 903 S.W.2d 1 (Tex. Crim. App. 1994), cert denied 116 S.Ct. 314. Additionally, if there is any defensive testimony or evidence that the contact or exposure was accidental or innocent, the door is then opened to evidence of extraneous acts to show the intentional nature of the charged offense. Baldonado v. State, 745 S.W.2d 491 (Tex. App.–Corpus Christi 1988, pet ref’d). Extraneous act evidence may be admissible to rebut defensive theories of retaliation, Moses v. State, 105 S.W.3d 611 (Tex. Crim. App. 2001); and lack of opportunity, Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001), Rivera v. State, 269 S.W.3d 697 (Tex. App.–Beaumont 2008); Blackwell v. State, 193 S.W.3d 1 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d); Dennis v. State, 178 S.W.3d 172 (Tex. App.– Houston [1st Dist.] 2005, pet. ref’d).

In an attempt to give meaning to the prohibition of character conformity evidence, courts of appeal in Texas distinguished a frame-up defense from a fabrication defense. Case law defined a frame-up theory as where the defendant suggests that he is the victim of a conspiracy, while a fabrication defense is where a defendant contends that the allegations are entirely made up. Courts generally found that extraneous offenses were admissible to rebut a frame-up theory, but not admissible to rebut a fabrication defense. Bass v. State, 222 S.W.3d 571 (Tex. App.– Houston [14th District.] 2007, rev’d in Bass v. State, 270 S.W.3d 557). On petition for discretionary review, the Court of Criminal Appeals held that its case law makes no categorical distinctions between ‘fabrication’ defenses and ‘frame-up’ or ‘retaliation’ defenses. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). The issue does not necessarily turn on the type of defense presented, but on whether the extraneous-offense evidence has non-character conformity relevance by, for example, rebutting a defensive theory or making less probable defensive evidence that undermines an elemental fact. Id. at n.8. Since its decision in Bass, the Court of Criminal Appeals has reversed other courts of appeals’ decisions regarding the distinction between the frame-up and fabrication defenses, instructing the courts of appeals to reconsider their decisions in light of Bass. Galvez v. State, 2008 WL 5259226 (Tex. Crim. App. 2008); Newton v. State, 275 S.W.3d 490 (Tex. Crim. App. 2009). The Court of Criminal Appeals partially relied on Bass in reversing the 5th Court of Appeals in De La Paz v. State, 279 S.W.3d 336, 347 n.33 (Tex. Crim. App. 2009).

The Court’s decision in Bass was noteworthy in other respects. The Court clearly held that a defendant’s opening statement that suggested he did not have the character flaws which would cause him to sexually abuse a child opened the door to the admission of extraneous offense evidence to rebut the defensive theory presented in the defense’s opening statement. Bass v. State, supra at 563, citing Powell v. State, 63 S.W.3d 435, 438-440 (Tex. Crim. App. 2001) (defendant’s opening statement that he lacked opportunity to molest the complainant under the circumstances of the charged offense opened the door to admission of extraneous offense evidence that defendant molested others under almost identical circumstances to rebut defendant’s lack of opportunity theory); Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim. App. 2005) (defendant’s sweeping direct examination testimony disavowing any sexual misconduct with minors opened the door to admission of extraneous offense evidence of defendant’s sexual misconduct with another minor to rebut his sweeping testimony).

In Bass, the defense’s opening statement put the defendant’s character in issue, and also mentioned that there might be evidence of other allegations. The Court held that the opening statement opened the door to the admission of extraneous offense testimony, in the State’s case in chief, of two other girls who claimed that the defendant molested them. Further, the Court went on to agree with the State’s contention that if the State can show that a defendant has committed similar sexual assaults against unrelated and unconnected children, an affirmative defense allegation that the victim [of the charged offense] fabricated her claim is less likely to be true. By showing that the victim’s allegations are less likely to be fabricated, the evidence directly rebuts the defensive claims and has logical relevance aside from character conformity. Bass v. State, supra at 562-563.

In James v. State, 555 S.W.3d 254 (Tex. App.–Texarkana 2018, pet. dismissed as untimely filed), the trial court did not abuse its discretion in admitting evidence of extraneous offense that defendant evaded arrest 20 days prior to charged crime, as evidence of his modus operandi, and prosecution for evading arrest where the defendant placed his identity at issue during opening statement, which allowed the State to offer evidence of an extraneous offense to prove his identity where there were distinguishing characteristics common both to the extraneous offense and the offense for which he was on trial. The State presented evidence that, in each instance, the defendant led the police on a high-speed chase, took the same roads during the chase, abandoned the same vehicle at the same train crossing, and fled on foot.

In Struckman v. State, 2011 WL 4712236 (Tex. App.–Waco 2011, no pet.) (not designated for publication), the defendant was charged and convicted of continuous sexual abuse of a young child, indecency with a child, and aggravated sexual assault. The complainant was the daughter of the defendant. The conduct began at ages two to three. She was seven at the time of the trial. At trial testimony was admitted from a seven- and a nine-year-old girl of incidents of sexual abuse by the defendant. While the conduct was not the same, the court found it similar enough to be admissible to rebut a defensive theory as both of the victims were young girls, both had their privates rubbed by the defendant’s hand or finger, and both offenses occurred while the victims were in bed. Id. at *4.

In Cross v. State, 2012 WL 6643832 (Tex. App.–Beaumont, pet. ref’d 2013), the defendant was convicted of continuous abuse of a young child. At trial the State was allowed to introduce, over objection, evidence he forced an 18-year-old female to have intercourse with him, even though the criminal charge based on that allegation had been dismissed. The State offered the testimony to rebut defensive theories of fabrication and that the complainant’s claims were not humanly possible because the defendant was of average size. The victim of the extraneous offense was somewhat smaller in size than the complainant in the indictment. The appellate court held the testimony was admissible under Bass to rebut the defendant’s defensive theories, Id. at *2, and the trial court did not abuse its discretion in overruling the defendant’s Rule 403 objection. Id. at 3.

CAVEAT: In the past, extraneous offenses were often admitted in order to rebut a false impression left by a defendant or his witnesses that he is not the type of person to commit such an offense. Townsend v. State, 776 S.W.2d 316 (Tex. App.–Houston[1st Dist.] 1989, pet. ref’d). However, in Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002), the Court made it clear that false impression evidence may only be rebutted by cross-examination of the witness as to the extraneous offenses, not by introducing extrinsic evidence of them. Id., at 885. The Court, nonetheless found that the admission of extrinsic evidence was proper in Wheeler, to rebut the defendant’s frame-up evidence.

VII. Admission of Extraneous Conduct Evidence Was Error

Although there appears to be wide latitude in the admission of extraneous offenses, courts have found some evidence goes too far. In Pittman v.State,321S.W.3d 565 (Tex. App. –Houston [14th Dist.] 2010, no. pet.), the defendant was indicted, as part of the “Mineola Swingers” investigation, for one count of aggravated sexual assault in which he was alleged to have caused two minor children to engage in sexual conduct with one another. The trial court admitted extensive evidence pertaining to the other Swinger defendants and complainants on the theory that it showed the defendant’s plan to engage in a sexual exploitation/abuse scheme with several other defendants. However, the court of appeals held that the evidence of the many extraneous acts did not show a plan to sexually assault the two complainants for whom the defendant was indicted, but rather, was evidence of repeated occurrences of the same bad act, compounded by numerous additional bad ones. Id. at 573. The court found the evidence was inadmissible under Rule 404(b) because it was character conformity evidence, and under Rule 403.      

In Fox v. State, 283 S.W.3d 85 (Tex. App.–Houston [14th Dist.] 2009, pet. ref’d), the defendant was charged with indecency by contact with his former stepson. The defendant complained on appeal of the admission at trial, over objection, that he was a cross dresser, had a homosexual experience as a teenager, and was the victim of attempted sexual abuse by an adult male. The Court of Appeals found that the evidence of cross dressing was not relevant because it did not assist the jury in its determination of whether the defendant sexually assaulted the complaining witness.

In Atnipp v. State, 517 S.W.3d 379 (Tex. App.–Eastland, pet ref’d), a witness’ testimony that she heard gunshots, saw the defendant shoot chickens, and saw the defendant pile them on the road in front of his residence was not admissible in prosecution of the defendant for cruelty to a non-livestock animal, because this other act evidence did not logically relate to the impeachment of the testimony given by the defendant during his direct examination, namely that the dog, which was outside the house, acted aggressively toward the defendant and the defendant’s dog, and that the defendant was concerned for the safety of his dog, and this evidence was aimed to discredit the defendant by demonstrating that he had a bad character or that he had a propensity for committing bad acts.

VIII. Conclusion

The appellate courts have steadily widened the circumstances where extraneous offenses may be admitted. If evidence has relevance for a reason other than character conformity, the extraneous evidence will likely be found to be relevant, pursuant to Rules 401, 402 and 404(b), Tex. R. Evid. and Art. 37.07, Section 3, C.C.P. Defense counsel should be sure to follow any adverse relevancy ruling with a Rule 403 objection. As the relevancy window widens, the Rule 403 balancing exercise becomes even more important.

THE SAGA OF SLIPPERY SAM CATES, Crosby County’s Crafty Miscreant

Two shotgun blasts 100 years ago rocked Crosbyton, exposing the tiny Texas South Plains town as a seeming cauldron of sexual promiscuity, leading to death, scandal, and intrigue. Yet the compelling Roaring Twenties tale of Sam Cates, at the center of the drama, seems to have been forgotten. Until now…

Cates and Burton

Samuel Wavely Cates was born to Maggie and Samuel Absalom Cates in McKinney, Texas, in 1896.1 The fourth of 11 children, he completed eight years of school.2

Little is known of his childhood, but a family tragedy must have had a devastating effect on young Sam. In 1915, Sam’s father, Samuel, attended a Methodist Church ladies’ box supper at Jean, in north Central Texas. Following the meal, Samuel was shot three times and killed.3 He was 49 years old.

Two young men were arrested for the killing of Samuel but no-billed by the grand jury.4 Predictably, there was idle talk in the Young County community about the reason the men were not prosecuted.5 Samuel’s 47-year-old widow, Maggie, was left to care for her three youngest children on her own. She never remarried and died at age 82.6

Samuel’s son, Sam, was rather small, 5’8” tall and 135 pounds, with brown eyes, light hair, and gold crowns covered his two front teeth. He did not smoke or drink.7

His registration form for the 1918 World War I draft listed his occupation as “farmer,” and he listed his residence with his mother in Walters, Oklahoma.8 Perhaps Sam was attempting to dodge the draft, for he did not live in Oklahoma in 1918. Since 1917, he had lived in the tiny South Plains town of Crosbyton—population 800.9

Sometime prior to 1920, Sam was accused of homicide, though no details of the crime are known. Attorney J.W. Burton of Crosbyton was said to have helped him avoid the hoosegow.10

Joseph Warren Burton was born in Iowa in 1873. He and his wife, Metta, an Indiana native, were married in 1905. According to a newspaper account, he was the first man to settle the town of Crosbyton, yet no evidence backs the dubious claim.11 12 He was “a well-known practicing lawyer” on the South Plains and was called “Judge” Burton.13 There is no record of J.W. having served on the bench, but his father was once a district judge in Iowa.14

Despite the mysteries surrounding the relationship between J.W. and Sam, it is clear J.W. hired young Sam to work as a clerk in his law office and as a chauffeur for his wife, Metta.15 16 Sam also boarded at the Burton home.17

The Killing

On Monday, March 8, 1920, Sam drove to Lubbock to pick up Metta, who had been hospitalized for a “mental and nervous” condition.18 When Sam and Metta returned to their Crosbyton home at about 10 p.m., J.W. was waiting.19

Jealous accusations flew, as Metta accused her husband of having an affair with her young niece, Florence Carlton, a houseguest. Sam had informed Metta that, while she was away, J.W. and Flo had taken two excursions, one to Lubbock and one to “the canyon,” each time returning home after midnight.20

Sam told Metta, “They might have found an opportunity for the gratification of any mutual desire they might have had.”21 According to Sam, “Mrs. Burton had been taught from past bitter experiences that her husband was not immune from the lure of the opposite sex.”22

Then all hell broke loose.

Metta began “fighting and upbraiding” her husband, Sam said. J.W. accused Sam of spreading lies about Flo and the lawyer. He told Sam to leave the Burton home the following morning. As Sam described the scene, an enraged J.W.—over six feet tall—suddenly attacked the smaller Sam and then backed Metta against a wall, violently beating and choking his wife.23 24 25 

Sam settled the dispute. He grabbed a shotgun and fired two blasts, the first hitting the lawyer’s arm, a superficial wound. The second blast, to J.W.’s side, proved fatal.26

Sam placed a pillow beneath the head of the dying lawyer and apologized.  “Mr. Burton, I’m awful sorry this happened.” He heard J.W.’s reply, “Sam, I jumped on the wrong man, I jumped on two innocent kids.”27 J.W. clung to life and remained conscious for hours, whispering his last words early Tuesday morning. He was 46 years old.28

Metta’s Will

If J.W. Burton left a will, it was never probated.29

Immediately after J.W.’s death, Metta executed her will, leaving almost half of her estate to Sam Cates! Within a few weeks, the widow was dead. “Her constant refusal of nourishment in any form, together with the sorrow caused by the untimely death of her husband is conceded to have been the cause of her death,” according to her obituary.30 She was 45. Sam’s inheritance amounted to about $7,000, worth $90,000 in present-day dollars.31

The relationship between 23-year-old Sam and 45-year-old Metta must have generated much local gossip. Sam eventually admitted the couple was involved in a torrid two-year sexual affair.32

Another major beneficiary of Metta’s estate was her maid and cook, 22-year-old Mary Steffen. Mary, who had worked for the Burtons since age 16, was—like Sam—bestowed property valued at $90,000 in modern dollars.33

A smaller bequeath went to J.W.’s law partner, Parke N. Dalton, who may have also had a love affair with Metta.34 35 

Despite the shameful controversy, J.W. and Metta Burton were buried side-by-side in an Iowa cemetery.36

The First Trial

The district attorney and district judge arrived in Crosbyton and conducted a “preliminary trial,” probably an examining trial. Sam was immediately arrested and jailed.37

In May of 1920—only three months after the shooting—the Crosby County Courthouse was the setting for Sam’s trial. The indictment charged “murder with malice aforethought,” a capital crime. If convicted, Sam faced the prospect of execution by hanging.38 39

The prosecution alleged Metta and Sam conspired to murder J.W..40 There was speculation Sam would enter a plea of insanity, but instead Sam said he acted in self-defense and in defense of Metta.41 42

The jury was told of Metta’s generous bequest in favor of Sam. They also heard of Sam’s intense interest—from jail—of whether Metta had executed her will before her death.43

Sam testified, and denied having a sexual relationship with Metta.44 But in later court documents, he described their love affair in quaint prose.

Sam “had access to the person of Mrs. Burton almost as unlimited and free as that of the deceased himself,” court pleadings revealed. “Such relations were invited by Mrs. Burton and took place not only in distant parts of the country, but also in the home of the deceased.”45

Sam attempted to deflect the issue of his inheritance from Metta. He alleged one of the State’s witnesses, attorney Parke N. Dalton, had engaged in a love affair with Metta. Dalton was J.W.’s law partner and was left a small inheritance from the lawyer’s wife.46

An eyewitness to the shooting was 22-year-old Mary Steffen, the Burton’s maid and cook.47 She was expected to be the prosecution’s most important witness.48 Instead, Mary testified for the defense. She portrayed J.W. as the aggressor on the night of March 8, “jumping” on Sam and choking Metta.49

However, on cross-examination, Mary’s testimony did not help Sam.

The defense argued the prosecution used unreasonable pressure to persuade Mary to reveal evidence harmful to Sam’s defense. According to Sam’s lawyers, “She was not accustomed to quick thinking . . .  readily susceptible to psychological suggestion.”50

She described in explicit detail Sam’s love affair with Metta, including far-flung liaisons she witnessed in Texas, Iowa, and Illinois.51 Mary’s testimony may have sealed Sam’s fate. She said a defenseless J.W. was on the ground—and not choking his wife—when the fatal second shot was fired.52

Several State’s witnesses discredited Sam’s claim that J.W. choked Metta, offering testimony that there were no marks or bruises found on Mrs. Burton’s neck.53

The defense countered, “Mrs. Burton was wearing a high fur collar closely fastened about her neck . . .  of sufficient thickness to have prevented . . .  the leaving of marks upon the flesh of her neck.”54

The prosecution made a “herculean effort” to obtain the death penalty.55 Sam dodged the hangman’s noose but was convicted and sentenced to 99 years in prison.56 He appealed.57

The Texas Court of Criminal Appeals ruled in Sam’s favor: The evidence of his inheritance from J.W.’s wife Metta was inadmissible.58 The matter was returned to Crosby County for a new trial, but the case was so notorious, an impartial jury could not be found.59 Lubbock County was chosen for a change of venue.60

The Second Trial

Lubbock was four times larger than Crosbyton but was still a small town—population of 4,000. The city was just 40 miles west of Crosbyton, so the residents had been subjected to a fair amount of publicity on the Sam Cates case in the Lubbock Avalanche. But it was June of 1921, and the Burton killing was now a year in the past. Twelve male jurors were chosen in less than a day.61

Sam’s defense lawyer was the powerful W.H. Bledsoe of Lubbock, famous for winning an acquittal for his client in the first Lubbock County murder trial eight years earlier.62 In 1923, as state senator, Bledsoe would sponsor legislation that brought Texas Technological College to Lubbock.63 The establishment of the college was the defining moment in the educational, economic, and cultural history of Lubbock.

How Sam was able to afford such a prominent attorney is curious, as Sam’s inheritance from Metta never materialized. Her sister, Letta McCullough of Illinois, contested the will. Many witnesses testified Metta was of “unsound mind” when she executed the document.64 Affidavits were filed claiming she was “ranting and raving” much of the time following her husband’s death.65

Witnesses said Metta suffered from a variety of “mental and nervous diseases” for many months. After her husband’s death, she would talk about how much she loved “poor Jodie,” which was J.W.’s nickname. In the next breath, she would talk about her affection for “poor Sam,” and then she would rage against everyone in Crosbyton in the most “vile and obscene language.”66

The probate judge agreed the will was illegitimate.67 Both Sam and Mary Steffen lost their claims to Metta’s estate.68 Ironically, Bledsoe represented the successful will contestant, Letta McCullough.69

It seems the lawyer who convinced the court to deny Sam his inheritance would have a serious conflict of interest representing the same man in his murder trial, but that’s exactly what happened. Perhaps legal ethical rules of the day were not well understood or enforced. Or did Bledsoe feel guilty and offer to represent Sam pro bono? No records show Bledsoe was court-appointed, so the matter remains a mystery.70

The Crosbyton Review and the Lubbock Avalanche published dramatic accounts of the second trial in June 1921.

The gathering of legal talent could have been called the West Texas “dream team” of the 1920s.

The defense was led by Bledsoe, assisted by Lloyd Wicks of Ralls and Lubbock lawyers W.C. Huffhines and Clark Mullican. Prosecutors were District Attorney Gordon McGuire of Lamesa, R.E. Underwood of Amarillo, Parke Dalton of Crosbyton, and John R. McGee, Lubbock county attorney.71 Judge W.R. Spencer, the first district judge to be based in Lubbock, presided.72

Many witnesses were “taken through a close examination, and when the State would draw out several points in their favor, the counsel of the defendant would tear down the evidence until so to speak, they would break about even.”73

Metta’s niece, Florence Carlton, a houseguest at the time of the shooting—and accused by the defense of having an affair with J.W.—testified she heard no threats from the lawyer.74 She saw Sam fire both shots and saw J.W. lying on the ground when the second shot was fired.75

Sam testified for five hours. “Answering in a very mild and polite tone of voice, and sometimes with a smile,” he swore J.W. attacked him and then attacked Metta.76

He said his first shot was not to kill, but to show he meant business. Sam said he accidentally wounded J.W. in the arm. The lawyer did not fall but continued to choke his wife. J.W. cried, “Kill me, damn you!” Sam then shot to kill.77

“I knew at this time my life was in danger,” Sam testified. “Judge Burton was in the habit of keeping a revolver in the house. I have known him carrying a revolver with him. He was looking for trouble all the time.”78

If J.W. was in the act of choking his wife when Sam fired the shotgun, it is remarkable Metta was not injured by the deadly blast.

The prosecution subpoenaed Mary Steffen to repeat her vivid description of Sam and Metta’s love affair, and to testify she saw a defenseless and wounded J.W. on the ground when Sam shot-gunned the lawyer to death.

However, in a bizarre but brilliant move, minutes before she was to take the witness stand, Mary and Sam were joined in holy matrimony in a civil ceremony at the courthouse! Mary’s testimony, harmful to Sam’s case, was never heard, barred by the marital privilege.79

The legal-stunt marriage probably saved Sam from a much longer prison term. After a week-long trial, the Lubbock jury convicted Sam and sentenced him to 14 years in the Texas penitentiary.80

The law of the era provided a successful appeal and retrial could result in no worse than the lenient 14-year sentence Sam received. So, with little downside to filing an appeal, Sam’s lawyers took his case to the Court of Criminal Appeals a second time.81

But this time his appeal did not get far, because Sam took an unauthorized leave of absence.

The Escape

In August of 1921, while housed at the Lubbock County Jail awaiting transfer to prison, Sam wrote a letter to Clyde Anderson of Dallas: “Listen, Clyde, we are in great need of some ‘hack saws.’ You get a half dozen, and pack them in a box of candy. You know how to pack them so ‘would-be Sheriff’ won’t find them. Do this as quick as possible. Address the candy to Hewlett Smith, your brother. Have it to return to a fake name, you will know how to do that old stuff.” A deputy intercepted the note, and no hack saws were delivered to the jail, averting a possible getaway.82

A month later, when Lubbock County Sheriff Charles A. Holcomb and his wife, Minnie, served lunch at the jail, Sam and two other prisoners attacked.83

The sheriff fought back, but the prisoners overpowered him, and Sam took the sheriff’s gun, commanding Holcomb: “Throw up your hands! Put ‘em up!”84

As Sam held the gun on the sheriff, the others attempted to gag his wife and “choked her severely.”85 Suddenly, Deputy Sheriff John McCulloch appeared and leveled his pistol on Sam.86

The sheriff shouted, “Shoot him, John!” The deputy fired, but the bullet passed under Cate’s arm. After the deputy’s miss, Sam sprang for the door. The sheriff took advantage of the chaos and tackled Sam, wrestling the gun away. All prisoners were subdued.87

When the dust settled, the inmates were locked away in the jail’s “dark cell,” which the sheriff thought was escape-proof.88 As Sheriff Holcomb busied himself investigating a major chicken theft involving 35 hens and seven fryers, he was confident the prisoners were secure in his dungeon.89

But the sheriff was wrong.

On September 30, 1921, Sam and his accomplice, Hewlett Smith, busted out of jail.90 Parts of their cots were strewn about the cell, and a small steel bar about the size of a pencil was also found.91 It was a mystery how the two broke out of the escape-proof dark cell.

Later, the sheriff gave the editor of the Crosbyton Review a tour of Sam’s escape route. The editor wrote, “It is a miracle how Cates and his companion effected their escape from the dark cell, but after going through the jail and having the situation fully explained, one is convinced that such a thing is possible, for the time lock on the cell is defective and a mastermind with nothing else to do but experiment with such things might do wonders.”92

Sam left what might be described as a sarcastically tender parting note to Sheriff Holcomb: “Dear Charlie and Family, I hope you all the best of luck all the rest of your days. Don’t think too hard of me for doing this. I too am very sorry for our other troubles so please forgive me. If you people don’t ever catch me, you can bet that I will always be a good boy. Give my best regards to my Mary. With love, always, Sam.”93

Sam and his accomplice, Smith, went their separate ways after the jailbreak.94 Three days later, traveling by foot at night, Sam reached Seminole. He caught a ride to Midland, sold his watch to his driver, and used the money to reach El Paso. He made his way to Mexico and eventually surfaced in the remote desert town of Indio, California. Using the name of John Lewis, he waited tables at a restaurant and made many friends in the small town of about 1,000 residents.95

The Recapture

Unfortunately for Sam, he made the mistake of telling a friend he was wanted by the law in Texas. The remark was passed along and reached the local sheriff’s office. In January of 1922, a deputy approached Sam from behind as he was cutting bread in the restaurant. He pressed the barrel of a revolver against Sam’s back and ordered him to put his hands in the air, but the outlaw kept the knife in his hands until forced to drop it. Sam was handcuffed and initially feigned ignorance of his Texas arrest warrants, but he soon admitted his identity.96

Upon his recapture in California, Sam had $250 in the bank ($3,000 in current dollars), fine clothes, and other valuable possessions. A letter signed by Indio’s most prominent citizens attested to his excellent character.97 He had been in Indio less than four months.

His employer said, “He was very faithful and honest with me,” and asked authorities to keep him informed of Sam’s fate.98 He seemed always to be “a good boy” in Indio.

Sheriff Holcomb hurried to California to retrieve Sam, the man who had held a gun on the sheriff and choked his wife during a failed escape attempt. He was naturally curious how Sam had broken out of the sheriff’s not-so-inescapable “dark cell.”99

Sam was happy to brag on his intricate and complicated jailbreak. The Avalanche reported, “He and Smith worked out a plan for turning the combination on the jail with a belt made of strips of their cot, opening the other doors and locks with a mechanical device constructed of the lumber in the cot, using as a guide to direct their work on one of the taps they had to take off a small looking glass which was fastened to a long cot rail. The wrench they constructed of two pieces of the cot, making a V shape instrument out of it, pounding the tap off after several tedious attempts and when they finally reached the top of the jail and the open windows, made a ladder of what sheeting and other cloth they had in their cell and swung to the ground.”100

Meanwhile, the Court of Criminal Appeals refused to hear Sam’s appeal of his 14-year Lubbock County murder sentence, deciding “the jurisdiction of the appellate court does not attach because of the escape pending appeal.”101

The Penitentiary

Soon transported back to Lubbock for court, Sam had two years added to his penitentiary term for his assault of Sheriff Holcomb during his failed jailbreak in 1921.102 In addition, Sam was sentenced to four years in prison for a Crosby County forgery, with the sentence to run concurrently with his other convictions.103 The assault sentence was stacked atop the 14-year murder judgment, so he was to be imprisoned for a total of 16 years.

His prison release date was calculated: February 25, 1938, when Sam would be 42 years old.104  Sam set about to rearrange his release date. 

Soon after arriving at an East Texas penitentiary in March of 1922, Sam appeared to assume the demeanor of a model prisoner. He wrote to the Avalanche, reporting the prison library had burned all its books. Sam politely requested donations for the new library, and the newspaper promised to send a carload of books and magazines.105

But Sam had no plans for casual reading.

Within a year of writing the letter, Sam sawed through the bars of his cell window, stole a car, and escaped.106 When recaptured, “20 lashes” were ordered, but somehow the “punishment [was] set aside and lost [good] time restored,” according to his prison conduct record.107

In 1926, after having served less than four years of his 16-year sentence, Sam was granted a full pardon by Texas Governor Miriam “Ma” Ferguson, and he was released from prison.108

Governor Ferguson—who granted more than 4,000 pardons during a four-year period—was rumored to have granted many reprieves in exchange for cash payments.109 Most of Ferguson’s pardons were for those convicted of liquor-related crimes during the Prohibition era.110 As Sam was not a bootlegger and apparently had little money, it is a mystery why he was favored by the governor’s pardon.

The Aftermath

In 1940, census records show Sam was living in Harris County and was employed as a cook at a downtown restaurant. He was divorced, and there is no record he ever fathered children.111

Mary—the girl Sam wed just before she was to testify against him—seems to have disappeared after her name appeared in the 1920 census as a “servant” in the Burton home.112 Records indicate she may have been buried in Wisconsin in 1966 at age 66 or 67.113

When he registered for the 1942 World War II draft, Sam was 45 years old. In 1918, he had registered for the draft during World War I, but never served in the military during either World War.114

In his 1942 draft registration documents, Sam described himself as self-employed and gave the same address he gave as his place of employment in the 1940 census. Perhaps by 1942 he was the proprietor of the downtown Houston restaurant.115

Nothing more is known of Sam’s life after 1942. He died in 1984 at age 87 and is buried in Parker County, Texas.116

It seems Sam Cates, Crosby County’s crafty miscreant, was “always a good boy” after his pardon by Governor Ferguson. He had no more troubles with the law and made no more daring escapes.

It remains a mystery how Slippery Sam—mostly—got away with it all.

A RACE HE COULD NOT WIN: The Case of All-American Swimmer Ryan Harty

Justice is not color blind. Somewhat paradoxically, it is to a large degree black and white, with blacks getting the short end of “equal treatment under the law.” The late African-American comedian Richard Pryor (1940-2005) pretty much nailed it when he said, “If you’re going downtown looking for justice, that’s just what you’ll find—just us.” Pryor, like comic and civil-rights activist Lenny Bruce before him, freely used obscenities to destigmatize those pejorative words and inappropriate stereotypes. They no doubt helped open some eyes to prejudice that demeaned and denigrated others. Still, in spite of the progress to eliminate race as a factor in the treatment of the alleged offender, it saddens me to say that no one reading this may live to see those problems fully resolved. As an eternal optimist, I hope that I am wrong. But I fear that these matters will not be fully resolved in our lifetimes.

As a lifer in the criminal-justice system, with three years as a state’s assistant attorney general and prosecutor, and the remainder as a criminal defense attorney, I have spent four decades on the frontlines of this uneven landscape. I abhor injustice in all its ugly forms, particularly when it is based on the ethnic or racial origin of the accused. With that as background, I will recount a recent example of how race worked against one of my clients.

I recently represented University of Texas swimmer Ryan Harty in three class-A misdemeanor cases in Travis County, Texas. On August 6, 2017, he was arrested on two counts of criminal trespass of a habitation and one charge of evading arrest. The facts were sufficient for a finding of guilt on all three matters. On July 29, 2019, the resolution of Harty’s legal problems was the lead news story of the 10 p.m. broadcast on KVUE TV, Austin’s ABC-affiliate station. Both news reporters on the story and one of the two victimized homeowners questioned whether the defendant received “privileged” status and therefore special treatment because he was a decorated and accomplished University of Texas athlete. On more than one occasion, the aforementioned victim expressed her belief that Ryan received preferential consideration because he is a white male. She is a middle-aged African-American woman.

As is axiomatic and noted in the KVUE piece, justice is in the eye of the beholder. Ultimately, two of the three cases were dismissed, and on April 3, 2019, Harty was placed on deferred adjudication on the remaining criminal trespass case. Deferred adjudication means that if Harty successfully completes his 14-month probationary period and terms, which include counseling, community service, and random drug testing, there will be no finding of guilt on his record. Further, he will be able to file a motion to have his record “sealed” from public view (a petition for a nondisclosure) two years after being discharged from his probation. The maximum punishment for the offense (§ 30.05 (a) of the Texas Penal Code) is one year in our county lock-up and up to a $4,000 fine. However, for reasons I will discuss below, I preferred a different and better result for my client.

In my negotiations with the Travis County Attorney’s Office, I advocated to have Ryan placed on a track that would result in a dismissal on all counts by his participating in one of the County’s available diversion programs. The prosecutor’s office agreed with my proposal and agreed that we would attempt to work out the cases under the auspices of the Restorative Justice Program (RJP). With victim(s) approval, the certified professional counselors who run the RJP bring the parties together to address the transgressions, events, related reactions, and needs of each participant. Understanding the background and circumstances of the violation, as well as the character of the offender, ideally should help the victim(s) advance their healing and move toward closure (a term I find overused, as many of us carry parts of our past traumas for our entire lives).

Not everyone is given the opportunity to be accepted into the program. The first step in that process is to convince the county attorney that the arrested party is worthy of such consideration. Factors to be considered are based upon the specifics of the case, the criminal record, and résumé of the accused, as well as his or her contrition.

This past May, Ryan graduated from the University of Texas with honors (3.48 GPA), receiving a Bachelor of Arts degree in economics. He is currently working on his Master of Science degree in business analytics at UT’s McCombs School of Business. Ryan is a hemophiliac. He has served as a student-athlete ambassador to the Hemophilia Federation of America. In that role, he appears as a guest speaker and participates on panel discussions, serves as an advocate, and also mentors and educates children and teens diagnosed with the disease. In addition, he volunteers and instructs young swimmers with the Gus Garcia Leadership Academy.

And yes, fortunately, Ryan is competing now as a fifth-year senior on the winning-est athletic team in UT’s history (14 national championships and counting). He is an NCAA All-American. Ryan set a Big-12 record this year in the 100-yard backstroke (45.19 sec.) and soon thereafter placed fifth in the NCAA Championship (45.05 sec.). Moreover, he is an Academic All-American and was given the Team Spirit Award in 2017.

Ryan appeared to be the perfect candidate for the “privilege” of the RJP, not because he is an outstanding athlete on the university’s swim team, nor because of his race. The justice system, like most of our institutions, is to some extent a meritocracy. Benefits are primarily earned, not conferred or bought. With regards to Ryan’s case, the prosecutor agreed to go forward with the recommendation to the RJP after carefully reviewing all the relevant facts and supporting documentation I provided.

Notwithstanding the prosecutor’s decision, the victim who characterized Ryan as privileged rejected the opportunity to participate in the restorative process. I was disappointed for Ryan’s sake and also curious as to why this victim declined participation. I believe I have garnered sufficient information to evaluate and comment on the victim’s decision-making process in turning down that option. Her positions were made clear by her court appearance, her subsequent television interview, and by discussions I had with others who communicated with her throughout this procedure.

Pertinent facts about the cases, as well as the possibility of going through the RJP, were left out of the July 29 TV news broadcast. Instead, what the news story focused on was predominantly the victim’s experience: her reliving the event, her justified fear in reaction thereto, her involvement with the case, her continuing fear, and her and her family’s communication with the athletic department at UT to obtain what she felt would be appropriate and severe sanctions. I do not question her right to each of those responses. The remainder of the six-and-a-half-minute piece (following a brief interview with me at the outset) concentrated on the victim’s perception that Harty received privileged treatment because he is a prized athlete and also because of the color of his skin.

The facts of these cases were not pretty for the then 21-year-old Mr. Harty. However, the “facts” are not what they appeared to be, nor as presented in the KVUE segment. The report mentioned that Ryan was under the influence of a hallucinogenic. That is true. Ryan said this was his first experience with a psychotropic substance, which he was told was LSD. It was off-season, and he was with two friends, one a competitive swimmer from another program. He gave in to temptation, weakness, curiosity, and youthful indiscretion. Those factors do not diminish his legal culpability. Ryan, like anyone, is legally responsible for his actions when voluntarily under the influence of a controlled substance. His “high” is offered only to place in context the how and why this criminal episode unfolded.

In his well-written letter of apology and explanation to the victim, Ryan stated that in his drug-induced paranoid haze, he feared his companions were going to harm him. He jumped out of the car in which they were all riding, took off his shirt and shoes, and started running. The two others gave chase, but Ryan lost them. In broad daylight, he then entered the victim’s West Austin home through the unlocked front door, believing he was expected and belonged there as he was going to “transcend” to a different reality. Upon coming face-to-face with the lone person in the residence, whom he thought would guide him on his journey, he said, “You know why I’m here.” The victim did not and could not know why he was there and was understandably distressed.

Other than his illegal and bizarre criminal trespass, Ryan Harty did not commit a crime while in the victim’s residence. Shirtless and barefoot, he uttered what could only be construed as a threatening statement (as the victim could not know what was really on Ryan’s mind). However, there was nothing else even remotely lewd or suggestive about his actions or deeds. Had there been a scintilla of evidence that Mr. Harty had intent to commit an indecent act upon confronting the victim, he would have been arrested for and faced felony charges for burglary of a habitation with the intent to commit sexual assault.

Ryan immediately fled when the victim did and ran in the opposite direction from her hasty retreat. Realizing he was in the wrong place, he entered another neighbor’s home, looking for his place of “transfer.” Finding no one there but the owner’s dog, he quickly left that residence. When he saw the police, he attempted to evade them. Harty was apprehended in short order. Fortunately for Ryan, the owner of the second home agreed to cooperate with the prosecutor (and the defense) to work that criminal trespass case to a dismissal.

Ryan does not remember all the details from that day, but his memory is completely clear in regard to what he thought and how he was feeling. Some may say his version of these events sounds like a good “story,” made up after the fact. On the contrary, many of the specifics were corroborated by various parties, including Ryan’s friends, who were on the scene looking for him prior to his arrest. The police report states that Ryan was speaking incoherently and that both friends told the responding officer of Ryan’s ingesting a mind-altering substance. Upon arrest Ryan was taken directly to the hospital for observation and evaluation. Soon thereafter he was taken to jail.

This case was pending from August 6, 2017, until April 3, 2019. A major portion of that time involved the Restorative Justice team’s reaching out and attempting to work with the victim to ascertain her willingness to participate in the program. In that time period, I met with Ryan on numerous occasions at my office. He knew he had a lot at stake. In addition to his clean record, pride, and reputation, Ryan’s athletic scholarship and his participation on the UT swim team were in jeopardy.

Other than his legal problem, which precipitated his coming to see me, I was immediately impressed by Ryan. He is bright and personable. He is also exceedingly polite and well-mannered. While confident, straightforward, and well-spoken, there is nothing cocky or manipulative about him. What you see is what you get. That is why I believe his version of these events. I am not alone in having a favorable opinion of young Mr. Harty. As part of his defense portfolio, Ryan received ringing and detailed personal letters of endorsement from a former Texas Supreme Court justice, as well as from a UT academic coordinator, both characterizing him as a special young man.

It is unfortunate that the victim in this case did not choose to avail herself of the opportunity to meet Ryan through the RJP. Yes, that could have helped Ryan resolve the case more favorably, but it also could have assisted the victim in the challenging process of easing her continuing trauma. I submit that she would have gotten a better sense of Ryan and what had happened that day, placing the matter in a more favorable and forgiving light. Everyone else who had significant contact with Ryan’s cases believed the collaborative effort of restoration would have been just and appropriate under these circumstances. If the victim had met with the staff of the RJP and Mr. Harty and afterwards was not fully agreeable to resolving the case with the dismissal sought, she would not have been bound to that outcome. In other words, had the victim ventured into the restorative process, she would have been under no obligation to agree to any result with which she did not feel comfortable. Instead, the victim would only agree to the outcome described here, which will no doubt follow Ryan for the rest of his life, despite the case resolution being deemed a deferred adjudication. Both Ryan and I are thankful that she at least agreed to that. It could have been worse.

The victim and about 20 of her supporters appeared in Travis County Court at Law Number 3 on April 3, 2019, to witness Ryan’s plea and sentencing. She was there to see the case to its end and to offer an “allocution.” That portion of the sentencing procedure is where the aggrieved party takes the witness stand and speaks directly to the offending party to inform him of the fear, harm, insult, expense, and/or indignation caused by his actions. I have no doubt the victim was in abject fear at the time of Ryan’s uninvited intrusion, nor do I doubt that she carries some of that fear forward to this day and will for some time. I wish her well in again feeling secure in her home.

A significant part of the victim’s nearly 10-minute courtroom narrative was her concern that Mr. Harty was being given a “privilege” in his sentencing because of his athletic prowess and because he is a white male. She posited the following question in court: Had her African-American son been in Ryan’s place, would he be getting off so “easy?” In the victim’s television interview, she queried whether the punishment would be the same “if the defendant had been an African-American athlete at the University of Texas and had gone into the home of an Anglo female living in West Austin.”

As I sat next to Ryan at the counsel table during the declamation made in court, the answer inside of my head to both of the victim’s questions was a resounding, “Yes.” If her son, or a black athlete at UT, had the equivalent résumé as Ryan’s and was in the hands of a competent defense attorney, the result should have been no worse than Ryan received, and possibly better.

I add “better” because the only reason Ryan did not receive a more favorable result was the victim would not participate in the justice program that seemed tailor-made for this situation. Again, I recognize that the victim was under no compulsion to do so, and I have no doubt about her trauma, haunting memories, and vulnerabilities as a result of what happened. The problem here is that her thought process clearly appears to be based on and influenced by the race of the offender. I find her decision to be some combination of irony, hypocrisy, and overt discrimination.

I commend the Travis County Attorney’s Office for working with me. Within limits, the state rarely crosses the desires and requests of a victim when offering plea bargains. Here, they followed suit when the victim rejected the RJP option and any other track that would have resulted in dismissing the case against Ryan of criminal trespass of her residence.

Recently, I read a column by Leonard Pitts, the nationally syndicated Pulitzer Prize-winning journalist, where he stated, “To be an African-American is to be perpetually exhausted by race. It is to be worn, wasted, spent, and drained from the daily need to prove and defend your own humanity.” I can understand why someone carrying the burden of systemic discrimination might see things the same way this victim did. That does not at all make it right; it only helps explain it. We cannot make substantial progress overcoming racial inequality, institutional or otherwise, until we have open and honest discussions about the complexities of black-and-white bias and prejudice.

The unfortunate reality is that our justice system is disproportionately harsh on African-Americans and Latinos. It is but one of a number of systems that have racist elements. The remedies appear easy on paper but have proven to be nearly impossible to implement in practice. It is clear that part of the solution is not the lowest common denominator of more and uniform punishment for non-minorities, but should be instead to elevate everyone so that each is dealt with on equal footing “with liberty and justice for all.”

Sadly, it looks and feels like our country is becoming increasingly divisive in multiple ways. For that reason and others, it is more important than ever that those who reject racism and embrace diversity speak out and be heard. To move beyond our country’s “original sin,” it is important that minorities who are most affected by “haters” reach back and form a bridge with those who want to live in harmony. William Faulkner wrote, “The past is never dead. It’s not even past.” That does not have to be true. Other than hate crimes where people are targeted for their race, religion, national origin, immigration status, sexual orientation, etc., those classifications should never be a component in the resolution or outcome of a criminal charge.

It is difficult and maybe somewhat unseemly to point a finger at someone who is clearly a blameless victim, particularly if that person is also a member of a minority class that has suffered from historically overt discrimination. Still, I feel compelled to add my perceptions of what I feel are unjust and biased reasons for the victim’s response to this unfortunate-for-all incident. In my experience, the majority of people I have encountered in protected classes rise above the understandable negative reactions to their oppression and do extend a hand in an attempt to mend the chasm. Clearly, some do not. We all need to work toward equality. None of us can close our eyes to injustice. Ever!

To Ryan’s credit, he never said a word, harsh or otherwise, about this victim’s attempt to curtail his swimming career or his scholarship status. Nor did he ever point a finger or ask why his race was being made part of the equation. Ryan truly felt bad and remorseful for what he had done, and he hoped he would have the opportunity to apologize in person to this victim.

Ryan’s race played too large a part in how he was perceived by the aggrieved victim. The relevance of race is an often-delicate matter to discuss and especially so under these facts. I am not attempting to defend Ryan on the question of his guilt. My job as his lawyer was, and is, to place his illegal acts in the proper context and to defend his otherwise stellar character. In this instance, unlike stories of blatant discrimination against African-Americans we too often read and hear about in the justice system, it is a white male who was judged by the color of his skin, not by the content of his character (see MLK Jr’s I Have A Dream speech). Ryan Harty’s race should never have been an element in the ultimate outcome of this matter. Clearly it was.

Disclaimer: Ryan Harty consented to have this article written, as he wants his story to be told.

Current Issue: March 2020




18 | Extraneous Crimes, Wrongs, and Acts: What Are They and How Can They Impact Your Case? – By Craig Jett
29 | The Saga of Slippery Sam Cates, Crosby County’s Crafty Miscreant – By Chuck Lanehart
36 | A Race He Could Not Win: The Trial of All-American Swimmer Ryan Harty – By Bruce S. Fox


6 | President’s Message
7 | Chief Executive Officer’s Perspective
8 | Editor’s Comment
12 | Ethics and the Law
14 | Federal Corner
17 | Shout Outs


5 | CLE Seminars and Meetings
40 | Significant Decisions Report

President’s Message: Great Times in the Caribbean


“We take photos as a return ticket to a moment otherwise gone.”


This month I want to share a few photos to allow those of you who were not lucky enough to be with the 98 of us who traveled via Royal Caribbean to… well… to the Caribbean! An amazing time was had by all. From beautiful beaches to fine dining to a Hush Party, we didn’t miss a second of fun!  Two of our members even came in first and second in the ship’s sexiest man contest! I hope you enjoy the photos. TCDLA is truly my family and I can’t wait for our next adventure. Hope everyone plans to join President-Elect Grant Scheiner for his President’s Trip next February to D.C., where we will be sworn in before the U.S. Supreme Court. When we are together, great times follow!

Chief Executive Officer’s Perspective: New Beginnings


We are excited as we start off the new year with two new key staff. I would like to introduce Billy Huntsman, communications director and Briana Ramos, program coordinator, to our membership.

Billy Huntsman is originally from Albuquerque, New Mexico. He went to college in Las Cruces and moved to Austin in September 2018, following his girlfriend who got a good job here.

Billy has a degree in journalism and has previously worked as a newspaper reporter, social media editor, and public relations specialist.

He’s excited to work at TCDLA because he’ll get to flex his creative muscles and suggest ideas to make our organization work better and more efficiently for you, our members.

Billy lives in Cedar Park but doesn’t mind the commute—he’s usually got a few podcasts ready to listen to, in addition to the music of Bruce Springsteen, John Denver, Aerosmith, and Shinedown, to name a few.

Billy and his girlfriend have a 90-pound Rhodesian Ridgeback named Sully who thinks he’s the size of a Norfolk terrier. His appetite for affection is second only to his appetite for something to eat, which has included maggot-ridden pigeons. At home, you can usually find Billy pinned underneath Sully, watching some sort of horror movie. But if Netflix hasn’t freshened up their offerings, Billy also likes to read–Cormac McCarthy, Ernest Hemingway, and Patricia Highsmith are a couple of his favorites.

Billy is really looking forward to getting to know our members and helping them excel in defending their clients any way he can.

Briana Ramos is a native New Yorker. Briana went to Baruch College to study intercultural communications, where she joined Beta Phi Sigma Sorority in her freshman year. She quickly became the event planning chair for her organization. The success of those functions solidified her passion for event planning and led to the start of her career in the field.

She moved to Austin in March 2018 in search of sunshine, a new adventure, and space for her furbabies to roam. Briana’s a proud mom to two rescues: a sassy Labradoodle named Aura and a 120-pound Rottweiler named Pixie. In her free time, Briana enjoys gardening, swimming, volunteering, or exploring the beautiful sites that Austin provides.

Briana’s excited to be part of the TCDLA team because she found a cause she is passionate about. She can’t wait to infuse her enthusiasm and charisma into the group and is looking forward to all of the experiences to come.  

We hope each of you will get the chance to meet and engage with our new staff. With change comes innovation, energy, and excitement as we grow and strive for success!

Editor’s Comment: The Importance of Storytelling


Everyone has a story. And everyone likes to hear a story. Think about it: From the time we are little when we’re being tucked into bed at night, or riding in the car, we loved having stories read or told to us. Now, we tell stories to our children and to our grandchildren, and we relish their reactions to the stories we tell. We tell stories to our friends and our significant others. Stories are passed along from generation to generation; stories keep cultures and traditions alive.

As trial lawyers, we are storytellers by nature. The ability of each of us to tell our client’s story in the most compelling way—whether it be to judge, jury, or prosecutor—is a must.

So, what makes a good story great? And, what makes a good storyteller a great storyteller?

In storytelling, we have all heard about the drama triangle­ with the rescuer, the persecutor, and the victim at each point. Dr. Stephen Karpman developed this drama triangle decades ago as a model to show the various roles of human interaction in conflict situations. We have all heard, and probably use, some version of Dr. Karpman’s drama triangle. At the start of any criminal case, the persecutor is our client, the victim is the actual victim or complainant, and the rescuer is the lead detective or the prosecutor. In order to be successful, we have to tell our stories to a jury such that the triangle flips, and the jury—rather than the police or prosecutor—becomes the rescuer of our client who is the victim (versus the complainant), and the persecutor is the lead investigator, the analyst, the prosecutor, etc. (instead of our client). Flipping the drama triangle is done through effective storytelling. It’s much easier said than done, though.

Every story, regardless of where or to whom it’s told, has a clear message or theme. So, too, must the stories that we tell in courtrooms. Sometimes the message or theme is apparent from the beginning and sometimes not. It’s there, though. We just have to find it and communicate it in a clear way.

The characters in our stories must have dimension. The jury must be able to really know the characters, whether those characters are our client, the complainant, the officer, or the eyewitness. And the jury must be able to see what motivates them. We must give these characters dimension (or not), depending on their role in the story.

Authenticity and passion are what turn good storytellers into great storytellers, no matter the venue. We must have some sort of connection with our client. It comes naturally in some cases and with some clients, but we must always work to cultivate that authenticity and passion. It takes time—investing our time to get to really know their story so we can effectively tell the story of the case. Juries can always spot a fake. Being genuine is what matters. If we don’t believe the story we are telling, we can’t expect a jury to believe it either.

In short, great storytellers invest their time, patience, and energy into their stories. Great storytellers take the time to develop the story, invest patience to discover the heart of the story, and give the energy to tell the story. With every story we tell—whether to our children, grandchildren, family, or friends—we have a chance to practice and improve our storytelling skills. We can, and should, also learn from those whose stories we enjoy hearing. We generally know someone in our circle who can just tell a really good story—someone who is a gifted storyteller. Study that person; what makes them a great storyteller?

It can be scary to stand in front of a group of captive strangers (i.e., a jury) and genuinely tell a story. Standing alone in the well of the courtroom with only the sound of your own voice can feel simultaneously terrifying and empowering. But it’s important to tell the story. Win, lose, or draw, it matters to our clients. It matters to our system of justice.

Enjoy the great stories in this issue from two great storytellers. You’ll find the Saga of Slippery Sam Cates an intriguing read, and Mr. Hart’s experience with discrimination, as told by his lawyer, is compelling. And, as always, we welcome and invite your stories, too.

Ethics & The Law: No Privilege


The lawyer client privilege is sacred. But it does happen that the client waives the privilege and, by doing so, allows the lawyer to respond to defend against allegations made by client.

This does not allow you to disclose other matters. Keep silent about other work product and privileged things you know. Keep silent about the bank robbery your client was involved in; but you must tell if client planning a future bank robbery.

Joseph Connors added that you have to be careful and if a client files a claiming that the lawyer did something wrong, the accused lawyer should only respond to those specific allegations and cannot bring up any other bad things the lawyer knows about client. This is not the lawyer’s opportunity to seek revenge against that former client.

A lawyer may reveal confidential information:

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.

(2) When the client consents after consultation.

(3) To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client.

(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client.

(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.

Thanks to Joseph Connors, Sharon Bass , Michael Mowla.

Federal Corner: Medical Marijuana and Supervised Release

[Note:  Mea Culpa.  If you thought that my last column – “Fingerprints, Thumbprints and Compelled Biometric Scans to Unlock Encrypted Devices” — was confusing, you were correct.  We unintentionally sent in what was supposed to run in the VOICE along with an earlier draft of the introduction to the column.  So, what you had was, at best, redundant.  The fault lies with me and not with our editor or TDCLA’s staff who are absolutely wonderful to work with.]

More than twenty years ago, I was aware of a conspiracy to obtain and distribute marijuana here in Tyler, Texas.  This is what happened.  Susie had terminal cancer and all the pain that went with it.  Only marijuana could give her any relief.  I had a client who had been an informant for the FBI for more than a dozen years.  With their knowledge, he would purchase marijuana and give it to one of the agents who supervised him.  The marijuana would then go to a former assistant United States attorney who would pass it on to Susie’s husband.  Then Susie could have her “medical marijuana.”  It was not long before Susie died, but, for those last months, she did not have the pain that had been so terrible for her.

In 2015, the Texas legislature authorized prescriptions of low-THC cannabis for patients who were diagnosed with epilepsy; a seizure disorder; multiple sclerosis; spasticity; amyotrophic lateral sclerosis; autism; terminal cancer or an incurable neurodegenerative disease.1

In June, 2019, Governor Abbott signed a bill into law that expanded who can have access to medical marijuana products in Texas.  Effective immediately, specialty doctors can now prescribe medical marijuana to treat multiple sclerosis; Parkinson’s disease; ALS; terminal cancer; autism; and many kinds of seizure disorders.2

So, you ask, why are we talking about medical marijuana?  Because, eventually, we are going to have a much broader medical marijuana statute or series of statutes.  More Texans will be able to take advantage of medical marijuana – and some of them will wind up as defendants in federal criminal cases and be on supervised release.  And then they will be denied the benefits of the Texas medical marijuana statutes.

In Gonzales v. Raich,3 users and growers of marijuana for medical purposes under California’s Compassionate Use Act sought to declare the Controlled Substances Act (CSA), as applied to them, was unconstitutional.  Justice Stevens, writing for the Court, held that the application of CSA provisions criminalizing manufacture, distribution, or possession of marijuana to intrastate growers and users of marijuana for medical purposes did not violate the Commerce Clause.

United States v. Kelly4 is the latest case to discuss this issue. The opinion of United States Magistrate Judge Jay McCarthy reads, as follows:

Decision and Order

May an individual facing federal criminal charges use marijuana for medical purposes, provided that such use is legal under state law? For the following reasons, the answer is no.


Defendant is charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Indictment.  On October 26, 2018, I ordered him to be released from custody subject to various conditions, including that he ‘shall not commit any offense in violation of federal, state or local law while on release,’ and that he ‘submit to any method of testing required by the pretrial services office for determining whether he is using a prohibited substance.’ Order Setting Conditions of Release [4], §§(1), (8)(s).

On October 10, 2019, defendant provided the pretrial services office with a notice of his acceptance into the medical marijuana program at Dent Neurological Institute. That office has asked me whether he may participate in this program, and defendant has asked that I rescind his drug testing condition with respect to the use of marijuana for medical purposes.

The Bail Reform Act provides that any defendant who is on pretrial release must ‘not commit a Federal, State, or local crime during the period of release.’  18 U.S.C. §§ 3142(b), (c)(1)(A). ‘Compliance with federal law is a mandatory condition’ of release.  United States v. Arizaga, 2016 WL 7974826, (S.D.N.Y. 2016). Although New York State has legalized, ‘for state law purposes, approved forms of medical marijuana dispensed and administered under certain, highly regulated conditions’ (id.), ‘[t]he possession of marijuana [remains] illegal under federal law. See 21 U.S.C. § 844(a). There is no federal exception for medical marijuana.’ Id.

While acknowledging that it ‘cannot eliminate the mandatory legal compliance condition,’ the court in Arizaga nevertheless directed its pretrial services department ‘not to charge a violation of Defendant’s release conditions based solely on New York state-approved medical marijuana use or a drug-testing result consistent with New York state-approved medical marijuana usage.’  In doing so, the court invited disobedience of its release order, thereby ‘send[ing] the wrong message to recalcitrant parties … that defiance goes unpunished.’ Rosemond v. United Airlines, Inc., 2014 WL 4245974, (E.D. Va. 2014). A court order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded,’ Coene v. 3M Co., 303 F.R.D. 32, 49 (W.D.N.Y. 2014), and ‘[i]f the courts do not take seriously their own … orders who will?.’  Arnold v. Krause, Inc., 232 F.R.D. 58, 66 (W.D.N.Y. 2004), adopted, 233 F.R.D. 126 (W.D.N.Y. 2005) (Arcara, J.).

Thus, in United States v. Pearlman, 2017 WL 7732811 (D. Conn. 2017), the court denied defendant’s request to remove the drug testing condition of his pretrial release so that he could participate in a state-sanctioned medical marijuana program. The court reasoned that ‘even if [that] Condition were removed, defendant would be barred by Condition 1, which is mandatory and not waivable, from using marijuana while on pre-trial release. Accordingly, the request made by defendant would not achieve the relief he seeks. The Court cannot, and will not, sanction the violation of federal law by a defendant on pre-trial release, even if state law and the weight of public opinion appear to contradict that federal law.’

Congress may one day decide to legalize the possession of marijuana for medical (or other) purposes. However, it has yet to do so, and ‘where, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.’  United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). See also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 736, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) (‘[t]he wisdom of Congress’s judgment … is not our concern. Our responsibility is to enforce [the statute] as written’). (emphasis added)


For these reasons, §§(1) and (8)(s) of my Order Setting Conditions of Release remain in effect.


There are no Circuit Court opinions on this issue.

In the Kelly opinion, Magistrate Judge McCarthy mentions Arizaga5 and Pearlman6. Kelly was from the United States District Court from the Western District of New York.  Arizaga was from the Southern District of New York and acknowledged the conflict between federal law and New York state law.  Pearlman was from the United States District Court for the District of Columbia and reached the same conclusion as Magistrate Judge McCarthy did in Kelly.

There are also other cases in which the defendant was prohibited from participating in a state medical marijuana program while on supervised release; e.g.,

  • United States v. Meshulam7
  • United States v. Small8
  • United States v. Bey9
  • United States v. Johnson10

My Thoughts

  • We live and breathe and have our being in the Fifth Circuit.
  • If Texas ever has a broad medical marijuana program, there is no reasonable expectation that the United States Court of Appeals for the Fifth Circuit or any district courts within the Circuit will authorize a defendant to participate in a medical marijuana program while on supervised release.