Monthly archive

May 2020

Memorial Day 2020: Honoring TCDLA and HCCLA Veterans

If you think that you are having a bad day because your TV or phone or computer is not working, then get in your car and go to the nearest VA hospital and see real problems. People bitch and complain and gossip about bullshit all the time. In the hospital you will see men and women of the “Greatest Generation” suffering and coping with things most people can not comprehend. When my family members joined the Army in WWII, they signed up for the duration of the war, not for two or three years. They went over the pond as my uncle used to say and did not come back for over four years. When lawyer Richard “Racehorse” Haynes was dodging bullets on Iwo Jima, he was just trying to stay alive. My Abilene friend William Ervin Sims, who recently died at age 92, carried a BAR, a Browning automatic rifle, weighing 16 pounds up the hills of Iwo Jima. Those two men and many others fought 35 days without rest and managed to survive.

Memorial Day has traditionally been a day of observance for the men and women who died in the sacrifice of the cause they were fighting for. This day is different from Veterans Day in that Veteran’s Day is set aside to honor all veterans. Since many in the WWII and Korean War generation are growing older, I felt it incumbent on me to honor all veterans by putting forth a short statement honoring those both living and dead who have served this great country.

One good friend and veteran Victor Blaine went away several years ago and I know he would approve of me writing this article now. John Saur is another Houston lawyer who froze for months when in Korea serving his country. When I asked him about the article, he was happy and said anyone who was worried about the date could come see him and he would have a surprise for them that he brought back in his duffel bag from Korea. John Saur was in the middle of the fighting and came back, finished college and law school, and has been a lawyer almost 50 years.

Memorial Day is a federal holiday originally enacted to honor fallen Union soldiers after the Civil War. It was originally known as Decoration Day. Decorating the graves of their fallen soldiers was commonplace by Confederates even before the Civil War had ended, by southern ladies of Richmond and southern schoolchildren. The catastrophic number of dead soldiers from North and South alike meant that burial and memorialization was very important after the war. Townspeople, mostly the women, buried the dead and decorated graves during the war. The oldest national cemetery was created in 1862. After Abraham Lincoln’s death, many events to commemorate the war began. The first such event was in Charleston, South Carolina, on May 1, 1865. Union soldiers who died there were buried in unmarked graves. Freed slaves knew of this and decided to honor these soldiers. They cleaned up and landscaped the burial ground. On that day, nearly 10,000 people gathered to honor the dead and 3,000 schoolchildren and others brought flowers to lay on the burial field. Historians said this was the first Memorial Day. African-Americans invented Memorial Day in Charleston. Black Americans freed from slavery brought flowers and sang songs about the war. Speeches on Memorial Day were a time for veterans, politicians, and ministers to commemorate the war. People of all religious beliefs joined together and the point was made that immigrant soldiers had become true Americans because they had shed so much blood in battle. By 1870, much of the anger was gone and speeches praised the brave soldiers of blue and gray.

By 1950, the theme of Memorial Day was to uphold freedom in the world. Today, Memorial Day extends to honor all Americans who have died in all wars.

Tennessee was a divided state during the Civil War. Some of the families that served in the Union Army had family members joining the Confederates. My maternal great-grandfather Abraham George Washington Cox and great-great-grandfather Abraham Cox enlisted with the Confederate Army on the same day. Abraham George Washington Cox was 15 and his father Abraham was 51. They served in the Tennessee Calvary. After the war, Abraham George Washington Cox rode a mule from Tennessee to Cooke County, Texas, got married, and had 12 children and named them after Confederate heroes. My grandfather was named Robert E. Lee Cox. Abraham George Washington established the Mt. Zion School Church, and Cemetery. Each year in May, our family meets there to attend “Graveyard Working” like the old customs that started Memorial Day. My paternal great-great-grandfather Joseph Washington Mathis fought with the 1st Alabama Infantry. He was captured at Island Tennessee on 4/8/1862, escaped capture at Port Hudson, Louisiana on 7/9/1863, and was captured again in Nashville, Tennessee, on 12/16/1864. He was held prisoner until the end of war. His children came to Jones County, Texas, in 1899.

My son, who coincidentally was born on July 4, called me from the recruiting station when he turned 17. He said the recruiter would not let him join without my permission and would not let him be a military police officer. I got the recruiter on the phone and he laughed and said you will have to get permission from the Pentagon. I was in Ted Poe’s court that morning and told him. He, himself a veteran, made some phone calls and at four p.m. that day a major at the recruiting station said, “Please don’t make any more phone calls. Meet me here at five p.m. and your son will be sworn in.” My son went to the U.S. Army and was trained at Fort Anniston, Alabama, as a military police officer. He served there and got out but was recalled after 9/11. He served again and left the Army as an E-5 with an honorable discharge.

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie,
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

– John McCrae

We cherish too, the poppy red
That grows on fields where valor led,
It seems to signal to the skies
That blood of heroes never dies…

– Moina Michael

We all complain about high taxes, traffic, bad government, bad judges, bad prosecutors, bad presidents, and bad everything. The list of things we complain about is long. In America we have the right to complain. Try that in some foreign country and your life will be ended. We live in a free country where opportunity exists for all people. People from all over the world want to come to the United States of America. Members of TCDLA and HCCLA and their family members who have served, or are serving, will be listed at the end of this article. They all need to be recognized for their sacrifices, be it large or small. Some of us were in the military reserve and some were in the middle of battle and saw their comrades dying around them.

Some were brave men who did extraordinary things in battle to fight for our country. One member at a recent seminar in Plano said, “I was only in the Naval Reserve.” I reminded him of the phrase by John Milton, “Those also serve who stand and wait.” Even those who were, or are standing in wait, are serving. As we have seen from recent history, many of those who were standing and waiting were called to active duty and sent to foreign lands to serve and fight if needed. Many of those who were standing and waiting went overseas and never came back.

The problems facing veterans have gained some attention and in many counties there is now a Veteran’s Court They recognize that veterans have special needs. Too many times, when representing a veteran, I try to point out to the prosecutor that this person served our country and may have suffered some disability or some change that affected the veteran’s behavior. Too often I have heard the prosecutor say, “Well, everybody has some kind of excuse.” No, I point out everybody did not go through what the veteran did. This attitude prevails in every court room across the state. Most of these people never served in anything, not even Cub Scouts. Few judges in the Harris County courts were in the military. The exceptions are Judge Mike McSpadden, Judge Jim Wallace, Judge Marc Carter, and Judge Ruben Guerrero.

As lawyers representing veterans, we need to get the military records and prepare a mitigation motion or motion to dismiss the case. We need to be vigilant in our fight for the veteran client. If there is a Veteran’s Court, try to get the case transferred there. If there is no Veteran’s Court, then try to get other veterans to help you do your best for the client. Get all the people from the VFW or American Legion to come to court and see what happens. Even bring the members of the veteran’s motorcycle clubs, the Patriot Guard, and Rolling Thunder. Go to military.com to get a list of veteran groups. If the veteran has alcohol or dug problem, bring the AA or NA group too. It has proven to be very effective.

Famous wartime quotes:

“A good battle plan that you can act on today can be better than a perfect one tomorrow.”
-General George Patton

“Freedom is the right to be wrong, not the right to do wrong.”
-John Riefenbaker

“Never trust a private with a loaded weapon, or an officer with a map and compass.”
-A Murphy’s Law of Combat

“You don’t win a war by dying for your country. You win a war by making the other son-of-a-bitch die for his.”
-General George Patton

Richard Grenier said, as George Orwell pointed out, “People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.”

The following members of TCDLA or HCCLA (or their family members or investigators) served in the military and we honor them all:

*Reiffert Riley Evans
*Alan Schein
Richard “Racehorse” Haynes
Robert Scardino, Sr.
John Saur
Andrew Lannie
Victor Blaine
G. Wesley Urquhart
John Urquhart
Lucio Martinez
Bobby Mims
Bernie Trichter
Herman “Hymie” Trichter
Lucille Trichter
Albert Fickman
Philip Fickman
Albert Schein
Max NewDelman
Jack Zimmermann
Terri Zimmermann
Kyle Sampson
Abraham Cox
Abraham George Washington Cox
Ernest L. Pelton
Wilmer M. Pelton
Joe L Pelton
Robert C. Pelton
Robert O. Pelton
Joseph Washington Mathis
BF Harless
WD Harless
Cullen Harless
SL Hardcastle
Charles Hardcastle
Norman Harless
Robert W. Kelly
Jack Kelly
Marcel Kelly
Charles Dirnbauer
Mark Dirnbauer
Katie Dirnbauer
Rod Schuh
Rod Schuh, Jr.
Will Gray
John Morgan
Warren Burnett
Buck Files
Jim Brown
Rodney Williams
Pat Williams
Dr. Phillip Lewis
Maricia Brooks
Max Scott
Stan Weinberg
William Flynn
Mike McCollum
Charles Wetherbee
Terence Russell
Jesus Garza
Don Davidson
Charles Mabry
Richard Mabry
Zachary Curtis
Steven Green
Dorsie Ray Green
James Matthew Ratekin
Matthew Brent Ratekin
Donald Hoover
Don Bailey
John Hunter Smith
Eliseo Morin
Charles Easterling
Bill Torrey
Frederick Ullrich
Dale Ullrich
Louis Ullrich
Michael Finger
John David Leggington
Harry Belden
Louie Greco
Raymond Zimmerman
Charles W. Tessmer
George Miner Jr.
Bill Torrey
Louis Greco
Lorton E. Trent
Oscar Trent
Olen Poole
Max Basket
Bill Baskett
Arthur Leslie Kagan
Harry Belden
Gerald Rogen
Jesse Pruett
Max Scott
James Story Sr.
James Story II
Santiago Salinas
Tom Berg
Tom Moran
Pat McCann
Bennie Ray
Mark Vinson
Tony Chavez
John Patrick Callahan
David Patrick Callahan
Donald Hoover
Don Bailey
John Hunter Smith
Eliseo Morin
George E. Renneburg
Jeffrey Brashear
Steven Green
Lanhon Odom
John M. Economidy
Byron G, Economidy
John “Bud” Ritenour
Larry Sauer
Forrest Penney
Frederick Forlano
Daniel Moreno
Abel Palomo
Michael Moreno
Joseph Moreno
Randi Ray
Steve Green
Jeusu JD Garza
Jerry Parr
Jefferson Moore
Leonard Martinez
Stephen Ferraro
John Convery
Julie Hasdorff
Benjamin Thomas Hudson Jr.
Ebb Mobley
Louis Akin
Sergio Tristan
John Youngblood
Charles Wetherbee
Dr. William Flynn
Alfred Dane
Alvie Dane
Charles Russell
Terence Russell
David Randall
Tanner Yeats
Herman “Hank” Lankford
Robert Harold Jackson
Arlan J Broussard
Richard Trevathan
Jim Skelton
George Parnham
James Barlow
David Black
J.C. Castillo
Logan Dietz
Ralph L. Gonzalez
Connie Williams
Hal Hudson
Guy Womack
Charles W. Lanehart
Matthew Daniel
Lonzo McDonald
Patrick McDonald
Warren McDonald
Ron McLaurin
Herbert Wolf
Theodore A. (Tip) Hargrove, III
Buddy Balagia
Travis E. Kitchens
Zachary A. Garcia
Jeff King
Patrick McLain
Cullen Elrod
DeSean Jones
Joe Varela
Bob Heath
Hank Johnson
David Zimmerman
Todd Lehn
Thomas Kelton Kennedy
David G. Ritchie, Jr
Anne K. Ritchie
Bobby Mims
Bob Estrada
Edward Mallett
Mike Peters
U.S. Army Special Forces.  1969–1970
Joseph Connors, USMC
Virgil Poe
Ted Poe
Mac Cobb
Danny Morris
Neil Elliott
Ron McCoy
Jim Jordan
Kirk Holder
Rocky Hood
Mike Latimer
Mike Murphy
Richard Valdez
Donnie Martin
Portis Wooley
Don Wooley
Mike McCoy
Joe Haralson

*Killed in Action

This article is dedicated to my high school friends, Frank Dunlevy and Robert Paul Robbins, both of whom served in the 101st Airborne Division; and Jack Zimmermann, U.S. Marines; Joseph Connors; Bobby Mims; Lazaro Iziguire, 82nd Airborne; my brother, Joe Pelton, who graduated from Army Infantry Officer candidate school at age 19; and my son, Robert C. Pelton, who served as a military police officer in Enduring Freedom.

How to Fix a Blood Warrant Scandal

If you haven’t seen the Netflix docuseries How to Fix a Drug Scandal, stop what you are doing.  Go invest four hours of your life.  Prepare to be blown away.  Director, Erin Lee Carr, explores how far government employees (attorneys, judges, and lab personnel) are willing to go to prevent mass decriminalization.  While the cases in the docuseries involved two drug lab analysts compromising drug testing in Massachusetts, a similar battle is raging in Texas involving blood labs and the way blood warrants are written.  Since the Court of Criminal Appeals landmark decision in Martinez, which declared that the seizure of one’s blood and the subsequent testing of one’s blood are two distinct searches under the Fourth Amendment, various Courts of Appeal are trying to distinguish the language to avoid suppressing blood results in Driving While Intoxicated (DWI) related cases and accidents.  The fix is in, and courts seem more concerned with protecting convictions than following the law.  Until our courts force the government to follow basic Fourth Amendment Law, the fix may be in, but the problem remains.

Massachusetts’ Scandal

In 2013, Massachusetts State Police arrested 35-year old Amherst crime lab chemist, Sonja Farak, for tampering with evidence: and that was only the beginning.1  Over time and once Farak had been given immunity, details emerged that Farak had been in fact using the drugs that she was tasked with testing—for nearly a decade.  The scope of Farak’s addiction and the number of people convicted as a result of her drug testing came to light despite repeated efforts to hide the scope of Farak’s wrongdoing.2  The docuseries How to Fix a Drug Scandal examines the lengths to which some actors in the criminal justice system will go to protect convictions, cover up a scandal, and affect 35,000 lives in the process.

Farak was not the only one.  Just six months before Farak’s arrest, another Massachusetts lab chemist, Annie Dookhan, was caught dry labbing her results.3  Dry labbing is simply plucking a result out of thin air and reporting it—without ever testing a sample.  Dookhan’s work affected thousands of cases.  Whereas Farak was literally high for most of her Amherst lab career, she actually tested the samples.  Dookhan, on the other hand, lied about testing every sample.4

Together, Farak and Dookhan were responsible for compromising over 35,000 drug cases which helped land thousands of people in prison.5

But in April 2017, 21,587 cases were dismissed because of Dookhan’s involvement, according to Bustle.6  In 2019, the Boston Globe reported that over 24,000 charges from around 16,000 cases were dismissed due to Farak’s involvement.7

Texas’ Growing Scandal

When analyzing the atrocities that occurred in Massachusetts and the nature of the scandal, one realizes the limitless potential for abuse by lab employees with little or no oversight.8  It starts with the police who are tasked with getting crime off the streets.  Any evidence collected should be analyzed and reported by an independent lab.  An independent lab is critical for accurate, reliable and credible results since it is such powerful evidence.  As we know, all labs make mistakes. However, very few labs or analysts will ever admit making mistakes.9  The accused then hires a criminal defense attorney to essentially audit the lab results and ensure that any search and seizure was in accordance with the Constitution.  Ultimately, the trial judge should then act as “Gate Keeper,” refusing evidence when the testing does not clearly and convincingly show reliable, accurate results.

As Massachusetts showed us, the desire to keep convictions and prevent a scandal far outweigh following the law, being open and honest with juries about all of the issues, and requiring proper policy and procedure checks and balances.  When a mistake is made, Judges should encourage dissemination of all faulty evidence and demand corrective action.  But in reality, Massachusetts fought tooth and nail to keep the public at large—and those affected and on trial—in the dark about the evidence at the heart of the scandal.

These lab issues are not unique to Massachusetts.  Already in Texas, private chemist Amanda Culbertson discovered dry labbing (28 of 32 people in a sample batch run) by Texas Department of Public Safety crime lab El Paso analyst Ana Romero.  Culbertson found Romero had essentially copied and pasted the data from one subject to another.  And those electronic data files were “magically erased.”  In two complaints, Culbertson reported her findings to the Texas Forensic Science Commission (TFSC), which investigated the claim.10  The TFSC found evidence Romero may have dry labbed or may just have been negligent for the lab not to have procedural safeguards in place protect against dry labbing.11

The TFSC abandoned the 28 blood tests and enacted preventative measures but never talked to Romero.12  To date, Romero has not been charged or properly investigated and granted immunity to disclose how far her dry labbing goes back to determine how many cases were truly affected over her tenure in the crime laboratory. 

Just like Massachusetts and any science lab run by human beings, Texas has crime lab evidence issues.  The next wave to fix a blood warrant scandal is making its way through the judiciary—fighting the mass suppression of results and failure to demand narrowly drawn warrants and searches of the “informational dimension” of blood evidence.

Judges Fighting Martinez

Martinez requires the government to obtain an additional search warrant to authorize the testing and analysis of blood separate from seizing the blood for medical purposes.13  After a traffic accident, Martinez was taken to the hospital where medical personnel drew his blood for medical purposes.14  Martinez voluntarily left the hospital after informing nurses he could not afford any tests.15  Subsequently, upon the State’s presentation of a grand jury subpoena, the hospital released Martinez’s blood to a Department of Public Safety agent; the State sent the blood to a crime laboratory for testing.16 Martinez moved to suppress the blood test results, and the trial court granted the motion.17  Affirming the trial court, the Court of Criminal Appeals held “there is a Fourth Amendment privacy interest in blood that has already been drawn for medical purposes.”18  Martinez had a subjective expectation of privacy in his blood drawn for medical purposes, and the State’s warrantless testing of the blood “was a Fourth Amendment search separate and apart from the [initial] seizure of the blood by the State.”19  Because no exception to the warrant requirement applied, the State was require to obtain a warrant before testing Martinez’s blood.20

Some trial courts are properly suppressing blood in accordance with the Fourth Amendment and Martinez—finding that a blood warrant was obtained to draw the subject’s blood (seizure), but a subsequent search warrant for the testing and analysis (searching) was never obtained.21  However, various Courts of Appeal are refusing to follow Martinez and are narrowly construing the facts in order to avoid proper suppression.22  In CriderHyland, and Staton, the courts mistakenly relied on the fact that in Martinez the blood was drawn by a hospital for medical purposes.23

How to Prevent a Scandal

It may seem like a rhetorical question, but how can the Judicial Branch (Judges) and the Executive Branch (State attorneys) remain distinct to prevent this growing scandal?  

  1. Seize the Blood Legally

There are really only three ways that the people of Texas can have their blood drawn legally.  The first is by consent.  But consent to a blood draw must be freely and voluntarily given.24   Or they are unconscious and have deemed to consent via Texas’s Implied Consent statute.25  The second way is that a hospital is allowed to draw someone’s blood for medical purposes and not at the direction of the police.  HIPAA governs and protects the person’s privacy.  But the State may then go get a grand jury subpoena and ask for the person’s records or evidence.26  This is what happened in Martinez—the State used a grand jury subpoena for evidence obtained for medical purposes.27  And third, as is custom around Texas, a Judge signs a blood warrant to draw the blood from the person and authorizes a variety of people to help in that extraction. 

The Court of Criminal Appeals already acknowledged there are two distinct triggering events implicating Fourth Amendment protection: 1) the initial extraction of the blood from the arm, and 2) the subsequent search of the “informational dimension” of the blood.28

Various Courts of Appeal are fighting Martinez and using the hospital draw as the distinguishing factor.  However, no one is arguing that a valid blood draw warrant doesn’t grant the police agency authority to properly seize the blood from the arm. Martinez’s blood was drawn in a valid manner just as a valid blood draw warrant would allow.  What’s missing is the subsequent authority or power to violate a person’s Fourth Amendment privacy concerns and conduct a search on the information contained within the blood.

  1. Search the Blood Legally

Blood draws and warrants really began to be the normal policy and procedure around 12 years ago.  Since that time, many counties are able to get blood warrants 24 hours a day, seven days a week.  And somewhere about 7 years ago, the State began drafting form affidavits for blood warrants and form blood warrants for judges or magistrates to sign.  These forms were undoubtedly written to make the State more efficient and reduce the number of mistakes that could invalidate a warrant.  But, importantly, these pre-Martinez form warrants only authorized an extraction of blood—not subsequent testing. 

Remember, if properly drawn in a grey top tube as required by Texas DPS procedure, these tubes should contain a preservative and an anti-coagulant and be properly refrigerated.  Numerous State analysts testify that the blood was properly drawn, stored and available to the defense to retest at any time.  If that’s the case, what is stopping the State from retesting the blood with a proper search warrant?  

  1. No Common-Sense Exception to the Fourth Amendment

The Crider and Staton courts boldly claim “common sense dictates that blood drawn for a specific purpose will be analyzed for that purpose and no other.”29  But a neutral, detached magistrate’s “common sense” reading all depends on what the affiant-officer is qualified to opine about.  Most blood warrant affidavits are signed by an officer who was certified only in Standard Field Sobriety Tests, which are exclusive to determining intoxication by alcohol.  Most of these affidavits only show signs of alcohol intoxication and ultimately opine only alcohol as the intoxicating substance.  And then, the results come back under the legal limit, or it involves a death or serious injury and the State then tests the blood for drugs or medications.

What if the officer is not a Drug Recognition Expert? What qualifications does he possess even to speculate on what substance the person is intoxicated?  And did he conduct an examination?  The magistrate or judge signing the warrant must first determine the scope of the search based on the facts and qualifications of the officer swearing to the information in the affidavit.

While the Courts of Appeals suggest using “common sense” in order to determine what the State of Texas will want to search for, they obviously underestimate the zeal of the State of Texas and overlook the constitutional purpose behind the Fourth Amendment.  

Our current practice violates the most fundamental tenant of Fourth Amendment law—preventing the government from conducting limitless, general searches.30  Presumptions should be in favor of citizens, not the government.  Drafting warrants to cover these situations is nothing new, and courts should not worry about testing other seized evidence: “Because biological evidence is sui generis, this practice need not be replicated under circumstances when the object of the warrant is nonbiological[.]”31  The State can, moreover, streamline the process by drafting a single warrant properly tailored to authorize both drawing and testing.  Professor LaFave’s treatise explains:

When a magistrate is faced with a petition for a search warrant attempting to seize biological evidence (such as blood) from a criminal suspect, the warrant that issues should explicitly incorporate the scope of testing authorized on that sample. To obviate the general warrant problem, such restrictions need to be narrowly tailored in light of the supporting affidavit of probable cause presented.32

The State routinely searches for alcohol, medication, and/or illegal drugs on their own request all without a warrant specifically allowing the search.  The State must be required to rewrite the pre-Martinez warrants to expressly authorize what the blood is to be searched for, using what type of analysis, and for what length of time, just like a warrant to search a house, which contains less sensitive information than a person’s blood.

Easy Fix to Prevent a Scandal

It’s now in the hands of the Court of Criminal Appeals. Some trial courts have followed Martinez by properly suppressing evidence, but various courts have tried to distinguish or interpret the intentions of the Court of Criminal Appeals in Martinez to avoid suppression.  What if the State of Texas just did it right?  The State has been relying on pre-Martinez forms to get what are now insufficient blood warrants.  First, the State should be required to rewrite all the blood warrant forms to accurately reflect Martinez.  This would require specifically stating the blood is to be tested and analyzed, how it will be analyzed, for what substances and within what period of time.  Second, for all current cases with this outdated paperwork, the State needs to go get a new warrant and retest all of their samples.

Yes, Martinez may require more paperwork.  It is not busy work, though.  Justice favors protecting our Constitutional rights more than potentially suppressing blood, reopening cases, and decriminalizing some people.  Massachusetts learned the hard way by trying to cover up a drug lab scandal.  Texas is in the midst of a blood warrant scandal.  The Courts can remain unbiased and detached and not feel any guilt by trying to cover up the State’s outdated paperwork or desire not to back log the crime labs.  Let’s not trample our Fourth Amendment to prevent suppression of illegally searched evidence.  Get the State to do their job and not aid in covering up this injustice.

* The authors would like to thank Dustin Hoffman, Law Clerk at Westfall Sellers and 2020 Texas A&M School of Law J.D. Candidate, for helping write this paper.

General Information on Immigration Issues During the COVID-19 Pandemic

Is Immigration and Customs Enforcement (ICE) still enforcing immigration holds and moving detainees into ICE custody?

Yes. ICE is still enforcing all current immigration holds. There is currently no direct relief due to the COVID-19 pandemic. However, in March ICE identified over 550 detainees over 60 years of age or pregnant but only released 160 individuals after a lengthy evaluation of their immigration histories, criminal records, potential threat to public safety, flight risk, and national security concerns.

All new detainees will be screened upon entering the facilities and those who meet the CDC’s criteria for epidemiologic risk of exposure to COVID-19. ICE Health Service Corp. (IHSC) will isolate detainees with fever and/or respiratory symptoms to observe them for a specified time period.

Please call an immigration attorney for more information and refer to ICE March 27, 2020, memo (below Resource #1) for further details.

Is Immigration Court still proceeding with removal hearings?

Yes–on a limited basis. All immigration courts located in detention facilities are open and adjudicating removal proceedings. To enter the detention courtrooms, persons will be screened by answering a questionnaire about travel, health, and other various indicators of exposure to COVID-19, as well as having his/her temperature taken. Additional safety measures, such as eyeglasses, mask, and gloves may be provided or required. Please check with the local facility in your area and refer to ICE April 10, 2020 response (below Resource #2) for further details.

 **In Houston, the Conroe facility is conducting telephonic hearings with the approval of the court on a limited basis.

Non-detained hearings, status dockets, and USCIS fingerprinting, swearing ceremonies, and field office visits will be suspended until further notice. Please call an immigration attorney for more information and refer to USCIS Response site (below Resource #3) for further details.

Is ICE still accepting bonds?

Yes. ICE will limit the acceptance of bonds to locations with “bond windows” or other appropriate barriers. Only the individual appearing to post the bonds will be permitted to enter the office. Please contact your local immigration court for further details or call an immigration attorney for more information and refer to ICE Guidance to COVID-19 site (below Resource #4) for further details.

Is ICE allowing visitations of persons in detention facilities?

Yes–to legal representatives. Detention facilities are working on video or teleconference options for lawyers but will allow person-to-person contact if declared essential by the legal representative.

No to family or social visitors. ICE has suspended social in-person visitation until further notice. ICE is “requesting” detention facilities to utilize teleconferencing, video visitation (e.g., Skype, Facetime), email, and/or tablets, with extended hours where possible. Detention facilities should identify indigent detainees to be afforded the same telephone access and related privileges as other detainees. Each facility must ensure all detainees are able to make calls to the ICE-provided list of free legal service providers and consulates at no charge to the detainee or the receiving party, and that indigent detainees may request a call to immediate family or others in personal or family emergencies or on an as-needed basis to maintain community ties. A detainee is considered “indigent” if he/she has less than $15 in his/her account for 10 days.

Please call an immigration attorney for more information and refer to ICE March 27, 2020 memo (below Resource #1) for further details.

RESOURCES:

1)  Memorandum to ALL DETENTION WARDENS on COVID-19 Action Plan, Revision I, (March 27, 2020)

2)  ICE COVID-19 PANDEMIC RESPONSE REQUIREMENTS (April 10, 2020)

3)  USCIS Response to COVID-19

4)  ICE Guidance to COVID-19 website

Memories of TCDLA’s 1st President

March 10, 2020

This is a Veteran’s Day story. When I was a young guy just out of law school, I went to work as an assistant district attorney for Les Proctor here in Travis County, Texas.

One of the first cases I tried before a jury along with John Allen, first assistant, who became ill during the trial and had to be put to bed, resulted in a loss. Proctor was furious and called me into his office. He asked for an explanation, and I had none. He stated to me that the reason the case was lost was because, “You look funny.”

I had been shot up in Korea, and my facial countenance was not the best in the West.

“I want you to wear one of your medals as an explanation,” he said.

“No, sir,” said I, ready to resign.

Bob Smith, chief trial attorney, joined in: “Next case we’ll try it together and I’ll wear one of mine.”

Proctor ordered it, and after a lot of discussion, I agreed. So, Bob and I wearing a medal button in our suit lapels, tried an enhanced theft case before a jury, and we promptly lost. Proctor, being a veteran Marine, Smith being veteran Air Force, and I were then in agreement that medals were not the answer and I went on looking funny… probably should have become a personal injury lawyer.

March 19, 2020

Another story about the sleepy town-city Austin, Texas, in the late 1950s. Mostly university, government, and stores along Congress Ave. and East 6th St. But with three whore houses nestled in the South Congress area – one of them run by herself, the great Mrs. Hattie Valdez. The population of Austin as time moved forward increased as did its moral and religious awareness and pressure was brought through various grand juries to do justice and padlock them. Proctor, the DA, assigned this to me, and I promptly did justice through injunctive action, closing them down. During this operation, I learned that Hattie operated several houses throughout the state and treated her girls who rode the circuit as her daughters. When I later became an assistant attorney general, public pressure, then at its zenith, demanded the attorney general take action and close down the whore houses throughout the state. This really fell within the jurisdiction of the various district and county Attorneys, but for some reason most of them were reluctant to do so. So, armed with the Texas Rangers in the various venues, I charged. Reenter Hattie Valdez. On the day I was to appear in district court in one of the east central counties, to padlock one of her houses, I received a phone call from Hattie asking if she could bum a ride with me to the county since she was to appear in court. She said that we would only have to make one stop to pick up the linens in the house to be padlocked, and that is another story…

March 20, 2020

The Criminal Bar of Austin Travis County in the middle ‘50s was relatively small – Paul Holt, Perry Jones, Roy Martin, Bill Yelderman Vic Rogers, John Brady, Wright Stubbs, Arthur Mitchel, Jack Darrouzette, and a few others. The civil lawyers, with rare exception, seldom ventured into the criminal courts. There were only three district courts: 53rd, 98th, and126th. Judge Jack Roberts, a prior DA, presided over the 126th. Charles Betts the 98th and J. Harris Gardner the 53rd. The defense lawyer seldom won a jury case. The great Warren Court decisions Miranda, Escobedo, Mapp, Malloy v. Hogan, Murphy v. Waterfront, and Massiah had yet to be decided. The poor defense lawyer went into battle blind, no discovery, not entitled to see his client’s confession or rap sheet. Such was the case when Roy Martin, one of the better lawyers in the system, appeared before Judge Roberts and a jury defending some poor devil charged with the inglorious offense of theft of edible meat (a chicken) carrying a possible punishment of two years to life if convicted.

Now, Roy was not known for his quiet demeanor nor his acceptance of what he considered to be an out-and-out deception by others. When he talked to you in what he considered a normal voice, he could be heard for at least 200 feet around him. Thus was the case when a police officer was testifying for the state. Roy’s client had insisted and again told Roy that he had no prior police arrest record except for minor traffic cases. A defendant’s prior arrest record, unless he took the stand and testified or put his character in issue, was not admissible before the jury. Roy, when it was time for cross examination, said, “Now, Officer, you know my client has no criminal record. You have the police report on that. Read it if you will.”

The officer looked astounded, and putting on his glasses began reading, “Theft, theft, burglary, theft, burglary.”

Roy turned to his client and said in what he assumed was a whisper, but could be heard in the next courtroom, “You son of a bitch.”

March 24, 2020

Just before the 1900s, there were more Sheltons in Travis and Williamson Counties than most large families. Born to that clan were Polk, Emmett, and Earl Shelton who, according to Emmet, became lawyers for their own protection. Practicing law in the 1950’s, Polk was known for his success in the criminal and domestic Courts, Emmet was a leader in Texas politics, and Earl was the scholar. In 1956, the district attorney’s office along with the grand jury room, the jury dormitory, and the court library were on the fifth floor of the Travis County Courthouse. The courthouse, built in the 1930’s, was crowded, and my office (cubicle) was open and abutted the library where Earl kind of lived, researching the law and regaling me with the most interesting stories of the practice of law by the Shelton family in early Texas. Being a Yankee, and new to Texas – having been here for only the last seven years – I could not get enough of his colorful and educational stories. I remember him saying, “Back in the old days , when the Sheltons were so numerous you couldn’t count them and some you weren’t even sure you were related to, one was falsely accused and convicted in Williamson County of some type of offense despite the efforts of a distant Shelton lawyer. On the day of the hanging, about 50 well-armed Shelton men arrived on horseback and presented themselves before the gallows outside the Williamson County Courthouse. The hanging was called off, the defendant was freed, and justice was done. I told Earl he should write a book, but he never did. Emmet, however, presented me with about 10 tapes recording much of his experiences in Texas politics, particularly those involving the state and county conventions during the Shivers and Daniel years, but that is another Texas lawyer story…

March 25, 2020

There were not any woman lawyers in the district attorney’s office until very late in the 20th century. In fact, there were very few woman lawyers in Travis County. I recall that in one of our courts in 1960, a woman lawyer appeared at docket call wearing long pants and was summarily ordered by the judge to leave the court until she properly dressed. However, this did not mean that women did not have influence or make substantial contributions to the running of the Travis County District Attorney’s Office. In 1956, there were four male Assistant DAs and one woman secretary. All of the lawyers worked weekends and late hours. Proctor, the DA, was a bachelor, the rest of us had families and it was hard to be absent husbands and parents. This was particularly true on change-of-venue cases since we had jurisdiction to prosecute state officers and were called upon to try cases in counties far away from Austin. Finally, in 1958, we went from four assistants to six and four woman secretaries.

I say secretaries but the first to be hired was an Austin debutant member of the Junior League, beautiful and single and very proper. She had much influence on the selection of the other three ladies Proctor hired. All debutants, all Junior League, all UT graduates with varying degrees from art to history, all beautiful and proper and, as it became evident, all dedicated to the success of the Office of District Attorney. They were in effect better at running the office than we were. But this was not to last. One of them became a successful lawyer, married an astrophysicist, and traveled all over the world where he lectured in various colleges on mathematics. One married a renowned Hollywood actor who excelled in his profession and is still doing so. One married a lawyer who played a great part in changing world affairs in Washington, and one married a young man who with her became an outstanding entrepreneur. All four of them at different times effected the decisional process of the DA’s office, but that’ another lawyer story….

March 27, 2020

As a Massachusetts Yankee, Korean War transplant, then a University of Texas undergraduate and law school alumnus exposed to quiet sophisticated beautiful Austin in the 1950’s, I soon learned that there was a strong belief in Austin that Sam Houston was right that Texas should not have seceded from the union in the 1860s. Most of the people who lived in Austin in the ‘50s were born there or at least in Texas and had a strong pride in the fact that they were Americans, and most certainly Texans. The strength of that pride was evident in how they lived, governed, and interacted with each other…which brings me to the law of the west or maybe of East Texas as it existed in some counties in the 1960s. Texas was governed by the 1925 Penal Code. This was not to change until the Supreme Court decisions, the amendments to the procedural code in the ‘60s, and the enactment of a completely new penal code in 1974. In 1962, the Billy Sol Estes Case was tried on-change-of venue from Pecos County several hundred miles away to Smith County (Tyler).

The prosecutors were R.B. McGowan, district attorney of Pecos, and Weldon Holcomb, district attorney of Smith County. I was there as chief of law enforcement division assistant attorney general assisting them. John and Hume Cofer of Austin were defending. The case ultimately became the seminal case before the U.S. Supreme Court on television in the courtroom. Estes was charged in a three-count indictment under the 1925 Penal Code with various types of theft involving anhydrous ammonium tanks and financial institutions, a simple and boring prosecution complicated by the intrusion of multiple television cameras, coaxial cables, and shotgun mikes in the Smith County courtroom, which of course brought forth numerous objections by the defense. John Cofer: “Your Honor, we object. These cameras along with their created pre-trial publicity violate the defendant’s rights to a fair trial guaranteed to him by the Sixth and Fourteenth amendments to the Constitution of the United States.”

The judge: “Overruled….We are trying this case under the Texas Constitution, not the United States Constitution.”

Whoops, the Supreme Court of the United State agreed of course with the Cofers. And the law of the west (or east) did not prevail. I should have agreed with the Cofers, but when asked by the judge what the state’s position was, I said cowardly, “Whatever the court desires” – words of infamy to be regretted throughout my lawyer career but that’ s another Texas lawyer story…

March 28, 2019

I wish that I could say, like many of my friends, that I had since childhood always wanted to be a lawyer. Fact is, my wish was to be a soldier but my service in the Korean War made this impossible, and when the Army kicked me out, I began searching for another profession. The doctors at Brooke Army Hospital advised me against becoming a doctor, saying that if I lost the remaining eye, I would not be able to even diagnose measles. They suggested the law.

“There’re plenty of blind lawyers.”

At that time, although I was a captain and close to five years in the Army, I was still only a high school graduate. The lawyers I knew about in Worcester were highly respected and well-educated people. While on leave in Worcester, waiting for severance, I told my dad I didn’t think I was smart enough to be a lawyer. He suggested I visit with Judge Meagher, a newly appointed superior court judge and a family friend. The judge was very kind and invited me to sit in and watch one of the great Boston lawyers, Paul Smith, defend three armed-robbery defendants to be tried in his court the following day.

This was in 1951 supposedly in advanced Massachusetts. I arrived, and after sitting at the back of this very large majestic courtroom, saw the three defendants – young 17-year-olds – handcuffed sitting in a cage in the middle of the courtroom. The jury had previously been picked, the opening statements were made, and the district attorney began questioning his first witness, a big police sergeant. sitting in the witness chair. At some point during the cross examination of the officer, things got hot, and before anyone knew what was happening, Mr. Smith picked up a chair and threw it at the witness. The courtroom was cleared, and I found out later that all three defendants were acquitted. This obviously had some effect on my decision to become a lawyer and to be licensed not only in Texas but also in Massachusetts.

Years later, Paul and I became good friends through our association in NACDL and in trying a case in the Commonwealth of Massachusetts but that’s another lawyer story…

March 28, 2020

One of the great things about Texas is its politics, particularly as it relates to prosecutorial or judicial office. You don’t need the permission of any political machine or appointive authority, you just announce, pay the filing fee, and run in the primary of one of the two political parties. You of course have to have the legal qualifications to do so. In 1961, Les Proctor decided not to seek re-election as District Attorney of Travis County but instead to run for attorney general. Tom Blackwell, then county attorney, immediately announced for the office of district attorney, leaving the office of county attorney up for grabs.

I had been prosecuting and doing the so-called Lord’s work, away from home, all over the state and now I felt it was time to reap the harvest. But should I leave this cushiony $13,000-a-year job with the attorney general? Two hours before the deadline, I filed in the Democratic Party primary for the office of county attorney. Three others had already filed: CJ Taylor, a highly respected Austin assistant city attorney, Frank Hoagland, a wealthy well-known private lawyer, and Wally Shropshire, ex-FBI now a lawyer in private practice. Two of us ended in a runoff, Wally and myself. It was obvious from the start that I was the underdog, an outsider. All of the liberal coalitions endorsed Wally. I had the newspaper endorsement and some of West Austin. Wally’s slogan was, “We don’t need anybody from Boston telling us who to prosecute in Austin.” He had two other powers going for him: his lovely wife Doris Shropshire, a true hard-working campaigner, who several years later was elected to the office of county clerk; and his beautiful 10-year-old son who appeared on TV with his dad, saying, “I want to help,” and playing his guitar singing, “Oh where have all the flowers gone.” The election was over before it began. “Where have all the votes gone?” For every two votes that I got, Wally got three. So began Frank Maloney, Attorney at Law – $50 a month office on the sixth floor of the Capital National Bank Building in Austin. I did not know it then but losing that election was the best thing that could have happened to me . Here I was, in 1962, the Warren Supreme Court, and a broke lawyer, but that’s another lawyer story…

PS: Proctor, having made his reputation by prosecuting many state officials, was beaten by past speaker of the house Waggoner Carr and Austin lawyer Tom Reaveley. Carr won in the runoff and Reaveley later became a 5th Circuit federal judge. Proctor became a member of the new Austin law firm of Proctor, Maloney, and Fullerton.

March 29, 2020

It is embarrassing and hurtful remembering those times when super ego controlled your life.

Such was the time when I appeared as an assistant DA against a classmate who did not practice criminal law and who was appointed to defend a man charged with theft of an auto enhanced in the charge with two prior felony theft convictions, making a life sentence mandatory if convicted. I will not name my classmate as he wants to forget that he ever appeared as a defense lawyer in a criminal case. He was one of the cleverest men I ever knew and became a great Texas philanthropist, leaving millions to a Texas town and to the college in that area many years later. This was his first trial in any court and about my 10th as a prosecutor. During the voir dire of the jury panel, he told them about the defendant’s two prior convictions. This was a surprise, because the jury was not allowed to know about those priors unless the defendant was convicted by them of the primary offense and only then at the punishment phase of the trial. Both the judge and I thought my classmate had made a terrible mistake and the judge cautioned him and asked if he wanted a mistrial. No, he wanted to continue. After selection of the jury during recess, I immediately offered a plea deal of 10 years waiving the enhancement count. I was afraid any conviction would be overturned on Sixth Amendment grounds, inadequate counsel. No deal, he said.

The evidence produced by me clearly and without question showed that the defendant stole the 1960 Ford in a wealthy neighborhood in north Austin and wrapped it around a tree near the courthouse where he was then arrested. Adding insult to injury, he testified that the reason he stole the car was that he was late reporting to his parole officer on the day of his arrest. There was no evidence to support this assertion by the defense, other than the fact that he was late for his appointment by a month. After the case was received by the jury, my classmate and I left the court and went downstairs to Nellies for a cup of coffee. Before she could take our order, the court bailiff appeared and advised that the jury had reached a verdict and the judge was waiting for us. I felt sorry for my classmate and tried to comfort him, telling him he should not take this to heart.

A verdict after 10 minutes. Unheard of. They couldn’t have even selected a foreman in that time. We arrived back in court, the sheriff brought the defendant in, and the jury was seated and asked by the court if they had reached a verdict. “We have, Your Honor,” and handed the verdict form to the bailiff to be delivered to the judge. After the judge had studied the verdict form, he handed it to the bailiff to be redelivered to the foreman. “The defendant will please rise. The foreman will read the verdict.”

The foreman stood and with a commanding voice read: “We the jury find the defendant… NOT GUILTY.”

March 30, 2020

The general public of Texas and elsewhere, those who consider themselves in the know, feel that the Attorney General of Texas is in control of all of the district attorneys, the prosecutors, and has criminal jurisdiction throughout the state, i.e., a super, super DA. Nothing could be further from the truth. In fact, the AG has no criminal jurisdiction, and absolutely no control of the district attorneys. Why this is a belief is explained by perhaps a comparison with the federal AG office and its control over the United States attorneys. The fact is that the people of Texas have a strong belief in local government, without any interference or control by Austin. Enter Will Wilson, a powerful, courageous, successful prior district attorney of Dallas County in the late ‘40s, a Supreme Court of Texas Justice in the ‘50s, and soon to be Attorney General of Texas in the late ‘50s and early ‘60s. Seeking the office of attorney general, he ran on the platform that he could curb crime and punish criminals severely. He was elected overwhelmingly. The situation involving crime in Texas had changed, effected by the Vietnam War, the use of drugs by young people, the sexual revolution, and other forces, all of which brought about a change of living and views of many Texans and the rest of the country. Wilson headed an AG office of over 100 lawyers but few were trained in the field of criminal law.

His office was organized to advise and represent the various divisions of state government and take on the massive job of condemnation for highway growth. The condemnation lawyers comprised most of his office. Without criminal jurisdiction, all he could do was offer assistance to the various district attorneys around the state but with what? He had a division which he inherited from his predecessor euphemistically called the criminal division. It had one chief, Riley Fletcher, a competent prior district attorney who had in his division seven lawyers, none of whom had ever been in criminal court and all of who had worked as house counsel in various state offices like game and fish, liquor control, comptroller’s office, etc.

Wilson’s first assistant strongly disagreed with his boss on the duties of the attorney general, Leonard Passmore, a remarkable lawyer in all phases of law, politically knowledgeable, savvy about the ways of Texans, a rural Texan along with Byron Fullerton, the number-two man in the AG’s office and another rural Texan, both with uncommon good sense, placated their boss and convinced him to relieve poor overworked Riley Fletcher and assign him elsewhere, thus allowing the office to do its job as the legal representative of state agencies. For a short time at least. But too much was happening and Wilson felt he was needed rightly or wrongly to get involved. Billy Saul Estes, deviational drilling in the East Texas field, gambling and the slot machine, Maceo Brothers in Galveston, removal of the sheriff and prosecution in Jefferson County, investigation of the District Attorney of Bexar County. Enter Frank Maloney from the Travis County District Attorney’s Office, newly appointed assistant attorney general and now super new chief of the law enforcement division. But..that’s another story, or many other stories, about lawyers in Texas…

March 30, 2020

There existed some highly respected lawyers in Austin in the ‘50s. The law firms were small and excelled in the various fields of civil law. Perhaps the most powerful politically was the Clark Thomas firm. Mr. Ed, as he was referred to, was Lyndon B. Johnson’s mentor and lawyer from the time L.B.J. was elected representative of the 10th Congressional District in the ‘40s all the way through L.B.J.’s presidency. There were other law firms in Austin, excellent ones representing clients from all over the world, but none of the big law firms from Houston. Rumor had it that Mr. Ed just wouldn’t allow it, but that was the civil law bar.

The criminal bar was another animal altogether, barely getting by in some instances, but independent – one or two small firms, but usually in competition with each other for the few clients who needed representation in the courts. Paul Holt and Perry Jones had the majority of cases, half of them non-paying clients. You might say they were, along with the other criminal bar members, the unofficial public defenders long before Gideon v. Wainwright. In the ‘50s, only the poor were prosecuted for the property crimes and the drug offenses, i.e., “only the poor, the minorities, committed crimes.”

The Vietnam War, university student disruptions, youthful drug use, LSD, speed, marihuana, the sexual revolution – all of this changed the practice of criminal law. The criminal lawyer became a desirable commodity, the better ones sought after by disappointed parents of their offspring.

And the court system changed, too. Additional courts were created throughout the state; Travis County received a new criminal district court, relieving the three district courts of their criminal jurisdiction . The judge, his Honor Mace B. Thurman.

As crime increased, the criminal bar exponentially increased. The new firm of Proctor, Maloney, and Fullerton always ready to “inherit the wind,” reaped the harvest primarily because of its “vast experience.” Ah, that is another lawyer story…

March 31, 2020

There were some great district attorneys of Travis County over the years, all different from each other, influenced by the law of the time, the assets they had, the people they served, and the political desires of the community. Some were more effective or less effective than others in different requirements of the office. The ones most familiar to me are people I had dealings with during my practice. Governor Dan Moody, who as district attorney of both Travis and Williamson Counties, convicted and cleared the state of the Ku Klux Klan, is probably the most famous. My dealings with him came long after when I was third chair as assistant DA and he was defending the son of a person who had been of great help to him as a young lawyer. This was a rare thing for him at an advanced time in his career as a prominent civil lawyer. He was impressive even then in the courtroom.

Jack Roberts, later a district judge and then a federal district judge, gave me hell every time he could while I was working for Proctor and then again when I was in private practice before him in federal court. Proctor respected him and valued his advice. There is a story about him that when he was the district attorney prosecuting in the old two-story-high ceiling 126th District Courtroom on the west side of the courthouse, he timed his closing arguments before the jury to be at around three p.m. just as the sun came through the upper window, spotlighting him. He would intone, “Give this jury a sign, oh Lord.” Both he and Paul Holt served together as Army investigators arresting deserters and draft dodgers during the war.

I really know very little about Bob Long. Les Proctor defeated him in a hotly contested race. I do know that Sam Kimberlain, an ex-Marine and fine lawyer, was one of his assistants and thought very highly of him.

I suspect that I probably am prejudiced about Proctor. He hired me right out of law school and taught me how to practice law ethically and correctly. His belief was that each case depended on fact and law and its disposition should be governed by that and not personality. He believed that if a prosecutor followed the law, he could not be correctly criticized. He tolerated no infraction of the law by his people; if that occurred, it brought about immediate dismissal, no excuse. He was highly respected and often honored by the district attorneys around the state. In my 60 years of practice, I know of very few who could approach his excellence as a lawyer.

Robert O Smith. What can I say. I cut my teeth as a defense lawyer against him, defending numerous kids, drug cases, killings, defendants charged with multiple student killings, politicians, Muslims, and numerous others. He was a Proctor clone, honest, efficient, and fair…one of the best.

Tom Blackwell was the last of the full time in-court prosecutors. He was tough and had some pretty good assistant DAs – people like Phill Nelson and others. Ronnie Earl, Emile Limberg, the first woman district attorney, and Margaret Moore each presented Travis County with new and different directions. The office became metropolitan in size. Victims’ rights became a serious factor, and more emphasis on office administration rather than court room ability, but that is another lawyer story…

March 31, 2020

I graduated from law school in 1956. I was not a great student but passed the bar exam along with two of my friends taking it as a preparation for the future exam, thinking we would not come close to passing since we still had a semester left in law school. Because of this fortunate event, I was able to volunteer time to the Travis County District Attorney’s Office during my senior year, which ultimately led to my being hired at graduation. Which brings me to the question, “What happened to a law school graduate in the ‘50s? How did he start off and try to become successful?”

First, not all graduates of law schools want to become lawyers; my classmate Chauncey Depew Leake was one person who had come to law school from Wall Street and wanted to return there, which he did, making his millions in venture capital. Secondly, those who did become lawyers, if their grades were in the top 10 percent, went to the large law firms and if they put in enough billable hours, made partner and ultimately retired rich like several of my classmates. Some of my classmates went to work for the state and never left. Some, like another classmate Harry McPherson, went to Washington, became a senior adviser to the president, wrote a book, and ultimately became successful in a Washington practice. But the majority of us in 1956 went home and hoped for the best as sole practitioners or with another lawyer in some type of law.

I think it was as it is today. Unfortunately law school graduates, even after passing the bar, are not really capable to act as lawyers. We learn from casebooks and texts how to think like lawyers and some have some experience, but are we ready? Some states like New Jersey require a one-year internship before you can do lawyering on your own.

It was not until 1977, in Bates v. St Bar of Arizona that the Supreme Court of the United States held the prohibition against advertising by lawyers was unconstitutional. So, in 1950, how did the sole practitioner in criminal law get proficient and attract clients?

There was never any type of law that I wanted to practice except criminal law. I was told that in order to learn, I should become a prosecutor; make my mistakes on the state’s time, not while defending some poor devil. I learned that a legitimate way to advertise was to run in an election for a lawyer’s job. Charlie Tessmer, a successful criminal lawyer in Dallas, told me to lecture on law wherever and whenever I could and to write papers and a book, which I did. The best thing though was teaching at the University of Texas as an adjunct professor from 1962 to l980, the required 4-hour course initially until my practice would not allow me the time and then a seminar every other semester on state or federal criminal law. This was really fortuitous, because in the early ‘60s, the Earl Warren Supreme Court began a new era in the field of constitutional criminal law with its decisions on the Fourth, Fifth, Sixth and Fourteenth Amendments a subject that had to be taught in the law schools and was very important in the defense of criminal cases, particularly in search and seizure and confession cases. Soon, I was overwhelmed with new cases since I was teaching the subject.

An additional method of getting known was difficult and time-consuming – becoming active in state, local, or specialized bar work, interacting with your fellow lawyers. This I did by reluctantly becoming president of the Texas Criminal Defense Lawyers Association in 1971 and happily becoming president of the National Association of Criminal Lawyers in the late ‘80s. Referrals from other lawyers is an important source of clients.

Of course, this was all good, but to put food on the table, you had to try cases and have some type of success in the courtroom. Some of my classmates became great trial lawyers, also some of the great trial lawyers in Texas – Percy Foreman, Warren Burnett, Richard Racehorse Haynes, Emmet Colvin were all sole practitioners. But that is another lawyer story…hopefully about someone else…

PS: No one gets to be successful in this field without a hell of a lot of help from others and sometimes we hog the credit…

April 1, 2020

It seems like I should be driving my 1993 Jeep out of my garage at Cape Cod today as I did last year. My sailboat Defiance is already back in the water at its mooring ready to sail the seas of Nantucket Sound. At age 92 I can have these happy-day thoughts, hoping that there will be more soon, yet realizing that we are now experiencing a different world presenting severe challenges and heartbreaking events.

There was a minister, Carl Marney, in Austin who had a TV show in the ‘60s called These Things Too Will Soon Pass. He often lectured to the police during their training; some believed him, some were not too happy and more cynical about the future.

Those were happy times in Austin in the ‘50s; before the turmoils of the ‘60s; before the horrors of the Vietnam War, the riots and marches of students, the strong counter measures against them by the police and authorities, the War on Drugs, and young people being caught up in all of this.

The City of Austin, with more pedestrians than automobiles parading along the “drag,” presented kind of an undisturbed laconic atmosphere with a kind and considerate people a happy place to practice law. On the downside, there were underlying race problems, but they had yet to be exposed. The Civil Rights movements, Jack and Bobby Kennedy, Martin Luther King, were to bring us to new horizons in the ‘60s. But in the ‘50s, the Korean War, the Cold War seemed to be problems not of too much concern and like Miss Scarlet , “We’ll think about that tomorrow.”

In the district attorney’s office, outside of a few murders on the east side, some small pot possessions, and a few misdirected politicians, our biggest problems seemed to be out-of-wedlock pregnancies and child support complaints. The out-of-wedlock pregnancy seduction complaints usually were solved by grand jury marriages where the grieving mother of her pregnant daughter complained to the district attorney, who then presented the matter to the grand jury who subpoenaed the miscreant offender, gave him a choice of prosecution for seduction or marriage, and then marched him and the new bride-to-be to the justice of the peace, who waived the license and performed the short version marriage ceremony (free of charge). Being very Catholic about this, because I was the designee to present these cases to the grand jury, the secretaries in the office soon dubbed me “Marrying Sam.” Child Support was a different matter and because the law at that time put jurisdiction enforcement of failure to pay crimes in the various district attorneys’ offices along with maintaining the collection trust fund, it consumed much of the time and efforts of the office. It was a political nightmare, but that’s another lawyer story…

April 1, 2020

“Yesterday is dead and gone and tomorrow’s out of sight, and it’s sad to be alone. Help me make it through the night.” Kris Kristopher’s wonderful song, “Help Me Make It Through the Night.”

I am not necessarily a gregarious person, and I enjoy being alone…sometimes. This period of hibernation is presenting me with a lot of time to be alone and in order to get through it, I have decided to drag up some of my memories of old lawyer friends or stories about them, with the hope that neither they nor their estates will bring suit against me.

Percy Foreman: One of the best with national stature, impressive. In a crowded room, all 6’4” of him, with his huge head, would command the attention of all. Proctor and I were retained by the wife and the brothers of a cardiovascular surgeon from Boston who was in Austin to become a partner in the practice of surgery with an Austin surgeon. Apparently, the Boston doctor became violent and suffered a nervous breakdown upon arriving in Austin.

I arranged to have him arrested on a sheriff’s warrant and conveyed to the Austin State Hospital for examination. Under the law at that time, if two psychiatrists certified he was mentally ill and a danger to himself or others, he could be detained for treatment. However, absent consent he was entitled to a jury trial in county court within seven days. On the day of trial, in walked Percy Foreman with two beautiful women, one on each arm. The case went on for three weeks before a jury and County Judge Watson, who was not a lawyer. That produced a strange situation: The lawyers would make evidentiary objections and then decide between themselves how to rule. The jury found that the doctor was mentally ill but not dangerous to himself or others. The case produced national press and a picture of Percy and myself in the New York Times, where Percy is calling me the dumbest lawyer in the country. A week after the trial, Percy called me on the phone asking me to please get the good doctor out of his office where he had been camped since his release. Percy and I tried several cases after that on referrals to and from each other. I was always impressed by his abilities.

Other great lawyers: Richard Racehorse Haynes, Warren Burnett, and many more who I tried cases with, but that’s another lawyer story…

April 2, 2020

The poor prosecutors in Texas and elsewhere during the ‘60s and early ‘70s had it tough. Not only did the Supreme Court unload on them with the decisions of Mapp, Miranda, Escobedo, et al, but the Fred Erisman State Bar committee successfully got the legislature to enact a new code of criminal procedure, which encompassed all of the case law of the Supreme Court and more. In the late ‘60s, they had had enough. The Keaton Committee was eagerly preparing a penal code based on the very liberal MPC of the American Law Institute as Florida, Indiana, New York, and California had already enacted, and that coupled with drug use and the rise in crime throughout the state, brought forth a cry of pain and injury by the various district attorneys and their need for help.

The district and county attorneys association, the sheriffs association, and other state and local law enforcement groups massed together to form a powerful lobby and as a thunderous herd descended upon an already citizen-plagued legislature swamping them with draconian-type law enforcement legislation. Enter the about-to-be-newly-formed Texas Criminal Defense Lawyers Association, organized in Dallas during the State Bar Association Convention in 1971 through the efforts of Tony Friloux of Houston and Phil Burleson of Dallas, both of whom had a large group of followers at this hastily called organizational meeting at the Dallas Petroleum Club and both of whom felt rightly that he should be president. Since most of the outstanding criminal law lawyers of the state were there, you could say the place was overloaded with egos all with their own ideas and strongly backing either Friloux of Houston or Burleson of Dallas. Soon both came to the realization that neither could be president at that time and they wanted the association to exist, so they agreed that they should elect an interim president now, Friloux becoming president the next year in Houston, and Burleson assuming the presidency the following year at the bar convention in Dallas. But who should we vote in as president now? We all looked about the room in search of the most innocuous person….Ah, Frank Maloney. No, said I. I was already saddled with too much. The trial of a state senator scheduled next month, the trial of the speaker of the house the following month, and other trials piling up. Yes, you will, said Emmet Colvin, Tony Friloux, and Phil Burleson, and my overwhelming ego said yes. Wow, to be a president of something. I went back to Austin, expecting the association dues to start, hired a young Harvard Law graduate Bill Reed to be executive director, rented an office in the Brown Building for him, and I resumed practicing law. The association became a great success with over 300 dues-paying highly selected lawyers in the first year. More about this later and the hard-working lawyer presidents who followed…

PS: The association was not meant to be a good-old-boys’ group as NACDL was at that time, nor was its purpose just to protect against draconian enactments. This was part of it, but its purpose was also education through seminars, helping each other in practice, amicus assistance, and interaction with each other throughout the state. Its first board drafted bylaws and the corporate charter to be filed with the secretary of state. The board membership was composed of a who’s who of predominant lawyers throughout the state: Foreman, Haynes, Colvin, Tessmer, Semaan, Burleson, and Friloux just to name a few.

April 2, 2020

There are times when it is complete agony in the trial of a case because of the counsel representing a co-defendant, but there are also times when it is a joy, not only because of their astute handling of the matter at hand, but because of their affability. Several lawyers whose personality provided that joy and who I tried cases with come to mind, but the one who stands out above all the rest is Richard “Racehorse” Haynes. I say this because I was forced to share the same motel suite with him in Abilene for a month defending the speaker of the house and two others on an accusation of conspiracy to accept a bribe, which had been transferred on change-of-venue motion by the state from Austin (the so called “Sharps Town Case”).


The case resulted in convictions, but probation and subsequently dismissals. The case was highly publicized both before during and after the trial. The state’s theory was that Frank Sharp had arranged for loans to the speaker, the lieutenant governor, and the governor from the Sharps Town Bank (loans that were not to be repaid), so that they could buy stock in National Bankers Life Insurance Co. at a low rate, a corporation he owned, and he did this in order to get legislation increasing the amount of the insured capacity of his bank. Neither the governor nor the lieutenant governor were indicted, there was never any legislation introduced in the senate, and the governor never agreed to the purchase of the stock. Had the case been tried in Travis County, and if a fair jury was acquired, it might have resulted in an acquittal, but not in Abilene.

The real issue was whether there was an agreement that the loans were not to be repaid. There was no credible proof offered of this or whether Sharp convinced them that the value of stock would increase as it was doing and that the legislation was sound. (In later years, the legislation sought was enacted and became law.) The case required the lawyers being in close contact. One morning at breakfast, I was disturbed by a suggestion of tactics by counsel of one of the co-defendants and proceeded to criticize him. This prompted Richard to say, “Kindly old professor, you take yourself too seriously.” Words and advice I try but seldom am successful in remembering. Haynes was memorable. He kept me laughing each morning and night and probably sane. After the trial, we spent a couple of days crying over the conviction, sailing on my boat and getting drunk. Richard and I shared the lead in the case. This was a mistake. It should have been Haynes all the way. But I had just won the Senator Bates case before a jury in Corpus Christi and had convinced myself that I was “hot stuff.”

PS: We lawyers could tell numerous laughable stories about “Race.” He was one of the most successful trial lawyers of his day and until his recent death…

 

April 3, 2020

Warren Burnett was the epitome of a defiant tiger, a smart one at that. Emmett Colvin, who knew him well, said the guy was born with a book and always had one in his hand thereafter. He was born and raised in Virginia, moved to Texas where he became rich in Midland-Odessa practicing primarily personal injury law, but – and here is what made him the lawyer to go to – he never turned away from a just cause regardless of the money, the strength of the opposition, or the belief that it just couldn’t be won. The problems of the ‘60s and ‘70s, the underdog student activists, the Vietnam War, the fight against what he believed to be a top-heavy state bar unfair and uninterested in activist endeavors of the bar for improvements in the law for the poor, the under privileged, this is what made him famous. Where there was a rebellious meeting to correct a wrong, Warren would be there. He never took a note during trial but was totally ready for his cross examination of witnesses, which was always brilliant.

My first but not last contact with Warren was at the San Antonio Bar Convention or rather outside of the building where it was being held where Warren, at about age 40, was leading a riotously large group of law students who were demonstrating against the state bar on the commons before the Alamo. It was quite a show reminiscent of the great Texas struggle for independence. In the ‘70s I had tried to get him to be more active in the TCDLA production of the new penal code but he said he was too busy in his practice and would probably dislike it anyway. He was right in some ways because, among other things, the 1974 code did away with the requirement of strict construction of its meaning. The legislature in 1970 had rejected the Keaton Committee Code, thus allowing more participation by the prosecutors in the new version enacted as the 1974 Code. Warren never forgave me for this, blaming that “academic Maloney” for this grievous error.

Tony Friloux referred a case to me that he felt needed multiple counsel, finally convincing Burnett to join the defense, allowing Friloux to withdraw. Trying a case with Warren was an experience, a surprise every minute. Warren and I, together with Gerry Goldstein, a well-known San Antonio attorney who represented one of the conspirators, were together for several weeks in federal court before newly appointed federal Judge William Sessions. The case involved several murders in Mexico, fraud, and a so-called “soldier of fortune,” a government witnesses. The jury had a strange but attractive woman as one of its members and she kept pulling her skirt above her knees during the time Warren was cross examining the “soldier of fortune.” This and other conduct by her caused the foreman to seek audience with Judge William Sessions who, with our consent, offered to excuse her. Warren objected and so she was retained, fortunately or unfortunately depending on how you looked at it. During their deliberations, EMS appeared: Apparently, she had broken the foreman’s finger. The jury convicted Goldstein’s client but hung on our client 11 to 1 for conviction. We were told it was the attractive woman who was the holdout for acquittal all because she could never convict a client of that “handsome Warren Burnett.” Sessions was furious with us and ordered the case to the Waco division to be retried the following Monday…

PS: I was then fired by the wife of the defendant for reasons left unsaid, but Sessions would not release me until Warren, who was intentionally late, finally appeared, having flown in his own piper cub through a snowstorm, and resumed the defense. The case after a one-day trial resulted in a conviction and a sentence of what amounted to life.

April 4, 2020

Several months ago, I attended the funeral of one of the better judges who had served on the Texas Court of Criminal Appeals, our Supreme Court for criminal matters. Although we had never been close colleagues on the court, I respected him not only for his keen mind but for his ability to be correct in his decisions. Many of the people who spoke at his funeral remembered him as a strong law enforcement attorney in the prosecutorial division of the attorney general’s office helping various district attorneys around the state. He had been a district attorney before going to the attorney general’s office and before being elected to the court some 12 years before. I was struck by these comments and, in my feelings for him, wanted to correct the impression that was being, what I thought, erroneously given but I didn’t speak and I am thankful I did not disturb those thoughts of the people who spoke as they did. I think they would have misunderstood how hard it is for a judge, as it was for Judge Charles Campbell, to do what all judges have to do, and some never do, and that is put their disciplines of the past on a shelf in order to become impartial and this is particularly true of discretionary review judges, the judges on all supreme courts of each state, and the Supreme Court of the United States.

Judges wrestle with this problem on most of the review cases that come before them because in those cases they are forced to choose between conflicting case law or no case law at all. Judge Campbell and I were from different recent disciplines, and I valued his views and quite often he convinced me to change my view as I caused him to change his. This made us both better in what we did. An example of my respect for him is evidenced by his authorship of Kelly v. State, a case that changed the whole law on the admissibility or lack thereof of so-called expert testimony. True, it was fostered by two Supreme Court decisions, but there was need to also reinterpret a Texas statute and enlarge on the Supreme Court mandates. Judge Campbell showed by that opinion and other opinions by him what a true judge is. He was impartial and correct. I have other stories about judges, but that’s for the future…

PS: President Nixon coined the phrase, “We want judges who will follow the law, not make it.” If every certiorari Judge, every discretionary review judge followed that mandate, few if any reviews would be granted, and there would be no interpretation of conflict or of non-existent law, every issue needed to be decided would remain undecided or sent back to the executive branch, or legislative (congress) branch, contrary to Marbury v. Maddison or McCullough v. Md., leading to the destruction of the separation of powers doctrine. It would be an interesting question of which would grasp the power first; a tug of war between the legislative and executive branches of government…

April 4, 2020

Every Friday night at a local bistro in Dallas County, two famous lawyers would hold court and entertain an enraptured audience of lawyers eager to soak up the wisdom of these two while imbibing in a touch of the bitters. Charlie Tessmer and Emmet Colvin were the two and deserving of this admiration would be an understatement of their abilities and successes both in state and federal Court. (As an aside, in my opinion, if either had defended Jack Ruby, Ruby probably would have been acquitted.) Emmet, from Arkansas, first came in contact with Charlie when Emmet was an assistant district attorney for Henry Wade of Dallas County. Wade set the paradigm for zealous prosecution throughout the State of Texas. His office had promulgated several rules for successful prosecution that were removed because they violated every rule of due process you could think of, particularly in jury selection. Although Emmet and Wade remained friends, he soon realized that heavy prosecution was not his bag and that he should resume defending in federal court. Charlie and Emmet formed a partnership with Charlie handling state defense, and Emmet federal, and were soon accomplishing outstanding professional and ethical work that was recognized by others. After several years though, the partnership dissolved in a friendly way with each continuing their successful practice – in state for Charlie and federal court for Emmett. He felt he was overly successful, until, he said, “The Feds discovered the law of conspiracy.”

In the ‘60s and early ‘70s, Emmet and I and our families developed a strong relationship that would go on until his death in Fairfax, Virgnia, where he had retired. He should have received more recognition for helping TCDLA get going because he was instrumental in helping Phil Burleson in its organization in Dallas. It was there that we began our association in helping each other in the trial of several federal cases including the first RICO conspiracy case tried in Texas. That case involved a kickback scheme with purchases of IBM equipment by Southwestern Bell. Along with employees of Bell, several lawyers and two ex-FBI agents were indicted and all tried in one gigantic trial before Sarah Hughes, the famous judge who had sworn in L.B.J. as president directly after Jack Kennedy’s assassination in Dallas. Judge Hughes was not a happy camper and treated the defense lawyers, her clerk, and the jury harshly, at one point holding a juror in contempt for being late. At the time of trial, a young lawyer, David Botsford, was in the employ of Emmet and played an important part in the trial. We represented a lawyer who previously had been a law student of mine who had unwittingly been caught up in the scheme. Suffice it to say our client, primarily due to the efforts of Emmet and David, was acquitted. Several side events: Besides the heavy drinking at the Playboy Club, which kept us sane, there was an event which involved the good Judge Sarah who, along with Emmett (between marriages), was a bachelor. One morning, halfway during the trial, Judge Hughes scheduled an in-chambers conference for the following day at eight a.m. At the conference, she announced with a twinkle in her eye, “Emmet, today is bachelor’s day.” The conference then ended without any other business as does this story but with many to follow about the great Emmet Colvin…

April 5, 2020

In 1982, a jury in Washington, D.C., under D.C. law as opposed to federal law, found John Hinckley not guilty by reason of insanity of the attempted assassination of President Ronald Reagan. The District of Columbia law contained a volitional incapacity test as opposed to a pure right and wrong test on the issue. The verdict of the jury created a national outrage resulting in hearings before the United States Senate Judiciary Committee where the jurors in that case were subpoenaed to testify and various so-called experts on the insanity law and me also testified on some 10 bills offered to modify or do away with the insanity defense, I guess because I had tried several insanity defense cases or because I had published as an adjunct professor on the issue, or because NACDL asked me to, but probably because my ego insisted that I do so. I appeared representing NACDL. At any rate, having written out my opening statement, I traveled to Washington at my own expense, I testified before Senators Spector, Heflin, and Thurmond. During my testimony, I was interrupted by a quorum call, asked if I should wait, was told by Senator Heflin, “Sure if you want to flap your lips some more?” The only positive thing that I liked about my testimony was that I gave them hell for subpoenaing the jurors and questioning them on their verdict. What a waste of time.

Jerry Gold of Cleveland, Ohio, a past president of NACDL, and an attorney of national repute, a guy who I traveled with all over Europe in the ‘80s, along with some great lawyers on a people-to-people tour, was the legal hero in a book written about the “Mad Murderess of Shaker Heights” by one William L. Tabac because Jerry successfully defended her on an insanity defense. The case was in 1965 and Ohio law was much like the D.C. law was in 1982, but different from Texas law. All three laws encompassed a test dealing with right or wrong but D.C. and Ohio had the volitional incapacity test also. The book was not published until 2018, but Jerry’s accomplishments were widely known. He rather than I should have been the guy testifying. I considered myself an expert on the insanity defense, being the designated authority in the DA’s office in the ‘50s, and having never lost a case involving that defense. The reason was that all defendants who were considered insane by the state psychiatrist were by agreement found insane. No Texas lawyer including myself knew how to try an insanity defense case at that time.

However, when I became a defense lawyer and having observed others in the ‘60s, I utilized the insanity defense in every case I could, in all capital cases, and even in a federal conspiracy-to-kidnap case and several others. I can say that unfortunately none of my defendants were found insane , but none of them were executed all because the evidence offered on the insanity issue explained what made them tick and as my good friend Racehorse Haynes would teach, “You gotta humanize the defendant.”

April 6, 2020

Every middle-size town has at least one or more lawyers who are so universally liked, politically active, and extremely able , that they can occasionally push the envelope in their desire to help their clients, with conduct not particularly important or necessary, or which does not matter anyway..or is just plain laughable. To be this kind of lawyer , and have a successful practice, you’ve got to be loved and respected, but more importantly, you have to be just damn good. Such was Roy Q. Minton of Austin. A fighter pilot during the Korean War, he attended and graduated from the University of Texas Law School in 1961, spent a year with his friend Charlie Burton as an assistant DA in the Travis County District Attorney’s Office, working for Tom Blackwell, and ultimately was recognized as having outstanding abilities by Perry Jones , leading to the formation of the Austin firm of Jones Minton and Burton in 1963.


Anyone who is charged with a crime wants a lawyer who believes in them , a lawyer who will fight for them and win. Perry Jones was that type of lawyer, as were Minton and Burton . Together they had a large and successful practice representing people from all environs charged with every type of crime, creating a very large following.
As the years went by, the young lawyers involved in criminal law, anxious to emulate them in the practice, would gather in “the little red brick school house,” as their office at 1000 Guadalupe was called, for a beer or two on Friday evenings after court to gather pearls of wisdom from Roy and Charlie.
Since the firm of Proctor Maloney and Fullerton was also engaged in the practice of law at that time , Roy and I became vocal competitors. As Roy would much later say, we had a love-hate relationship. I think, and I am sure Roy would agree , it probably was more hate than love. I knew Roy was a fighter and we sometimes ended up with each other’s clients fostering the belief that the two firms were at each other’s throats. It is also true that each time Roy had a speaking engagement, he would spend an inordinate amount of time saying something about Frank Maloney, but what was not known was that there was some cooperation and one or two referrals between us.
There are a lot of stories that are told about Roy; he was the type of lawyer by his actions or imagined actions stories followed and were memorialized. But here is one true story.

He could pick a jury and convince them about as well as any lawyer I ever knew.


PS: Roy is at home today with his lovely wife Barbara, having taken early retirement. His firm with Sam Bassett and Perry and David Minton along with others are there in the “little red brick schoolhouse “at 1000 Guadalupe still as active and productive as though Roy was still at the helm…

April 8, 2020

This is a difficult time for families, a season usually culminating in the happiness of Easter Sunday, and without the fear of this Easter week.
I am reminded of how the military celebrates all of the various religious holidays for those who are on post or in combat areas and of how conscientious the military is in protecting and fostering those religious beliefs.
This is a soldier story about a 23-year-old lieutenant who graduated West Point in 1948 and also of a Catholic chaplin, and their friend, another lieutenant…all of whom had been in Japan in the 1st Cavalry for a year just preceding the invasion of South Korea, and who were then sent to Korea in June of 1950 to defend at the Nactong River defense line.


Just before that, in April or May at Camp Drake, Japan, the Easter and Passover season was celebrated by each company of the Regiment, 7th Cavalary, with Protestant, Catholic, and Jewish services, followed by wonderful feasts in greatly decorated mess halls.
The young lieutenant and the chaplin had, for several months, been carrying on a dialogue about religion, the lieutenant not necessarily being convinced and seriously doubting his own faith. This doubt was to change two months after being in Korea. But the young lieutenant, wanting to believe, was killed while leading his unit during an assault. His body had to be abandoned, leaving him the only casualty there. The chaplin insisted that the lieutenant’s body be recovered. Three volunteers and the lieutenant’s friend went up into the hills and recovered his body. The chaplin and friend then took the lieutenant to grave registration a few miles away in Teague.
At that time in Teague, at the top of a hill was a beautiful and serene-looking Catholic church whose pastor was Korean and could only converse with the chaplin in Latin. They agreed and the church bells rang, the people came, and Charles Frederick McGee, class of 1948, on that afternoon, had his Catholic mass.

April 9, 2020

When as now I have an inordinate amount of time to sit at my favorite place and think back on the events that channeled the direction of my life in the legal world, my thoughts are of the people who I owe so much to. Lawyers, nonlawyers, assistants, and others. The people I worked with in my profession.
In the district attorney’s office, Les Proctor, Bob Smith, Bob Towery, David McAngus, Phil Sanders, Jo Betsy Llewallen, Carol Corley, Ann Swenson. Neilyn Griggs Maloney.
In the attorney general’s office, Will Wilson, Lenorad Passmore, Harry Nass, and Byron Fullerton.
In private practice, Mary Ann Barton, Gwen Montgomery, Rose Snyder ,Ken Houp, David Botsford, Phil Nelson, David Reynolds, John Yaeger, Belinda Wright, Mary Golder Robinson, Sarah Wolk, Tom Black, Doug Hearne, Jack Stayton, Charlie Babb, Neilyn Griggs Maloney, Phil Joseph.
At the Court of Criminal Appeals, Judges Sam Clinton, Charles Campbell, Marvin Teague, John Onion, Leon Douglas, Charlie Baird, Morris Overstreet, Truman Roberts, Mike Mc Cormick. Assistants there Carolyn Denero, Belinda Wright, and of course Valarie Strauss. (The research attorneys of all the judges)
At the law school, Dean Page Keaton, Professors George Stumberg, Fred Cohen, Corwin Johnson, Millard Rudd, Joe Witherspoon, T.J. Gibson, Bob Dawson, Dean Charlotte.
In professional organizations, TCDLA: Bill Reed, Phil Burleson, Tony Friloux, Jo Keagan, Richard Haynes, Warren Burnett, Emmet Colvin; NACDL: Paul Smith, Morris Schenka, Al Kriger, Mike Bender, Terry McCarthy, Bruce Lyons, Emmett Colvin(help in everything I did).
There most certainly were others but these fill my thoughts when I venture in to my legal world activities. There are stories that could fill several books about them and help I received from each one of them..

April 12, 2020

I want to say something about judges.
First of all, not all judges have the same job. Some are “trial judges”and some are “appellate” or “ Supreme Court Justices (discretionary review)”.
Secondly, not all are elected in either partisan or nonpartisan elections; most in this country are appointed by various methods by the governors or in the federal system by the president confirmed by the Senate.


Thirdly, being a judge does not mean that we are fungible.
Fourthly, a basic tenant of any judiciary is its independence from political pressures.
Is there a problem in Texas? Are we getting the best judges? Are elections the best method of selection?
With the exception of municipal judges, Texas elects all of its judges statewide and locally but with obvious problems. This long history has produced the factual ammunition mandating change.
Over the years, several state bar committees headed by the various chief justices of this state , composed not only of lawyers but including journalists , business people, academicians, and members of other professions, have recommended a different method of selection.

Bills have been introduced in the legislature but all have been defeated primarily because of special interest groups.
A common belief is that it would not be democratic if we didn’t elect our judiciary.
But most, including lawyers who should know, do not have the slightest idea who they are voting for either in the primary or the general election. How many of us can name one judge of the nine-member Supreme Court or the nine-member Court of Criminal Appeals or of the 14 Courts of Appeals , or of any of the trial courts, county or district ?
Campaigns cost money, TV, communication media, traveling in this huge state; where does it come from?

Mostly from lawyers. The public is shaken as they should be by this. It almost sounds like bribery. In the general election, people vote for judges by their party. History shows us that by this method, we have elected some terrible judges and it takes four or six years to get rid of them if we ever do.
What is the solution?
At the very least, take us out of partisan elections. If we have to be elected, let us run as independents.
We cannot endorse a party platform, we have no business saying we can.
The justices of the Supreme Court, the Court of Criminal Appeals, and the intermediate appellate courts should be appointed by the governor from a council recommended number of the best, confirmed by the Senate, who will then run against themselves after six years, i.e., “Should X be retained”


The trial judges, since they would be running in county local elections and therefore screened and known, could run as independents and, if elected, after four years run against themselves, i.e., “Should X be retained?” If no, then a new election is held.
The above is the recommended solution of the various research committees and is utilized by many states.It is not a perfect solution, but it is better than what we have.


I ran for an open seat on the nine-member Court of Criminal Appeals in the Democratic primary, runoff, and against a Republican judge from Dallas in the the general election in 1989. I was elected to a six-year term. At that time, Texas was a Democrat-oriented state as it had been since theCivil War.
This changed so that in 1996 when I ran, against my better judgment and the advice of others including my friend Ann Richards, for re-election and as the only in-office statewide Democrat, I along with most Democrats suffered ignominious defeat by the Republican takeover of the state. (I was endorsed by every newspaper in the state except the Lubbock Avalanche Journal, had a 10-to-1 vote in the bar poll, and even some Republican help. I campaigned all over the state. My Republican opponent never left his office, did not campaign, did nothing except announce as a Republican.)

PS: I have to admit that after my defeat, I was not too unhappy. I sat as a visiting Judge in most of the 14 Courts of Appeals for a couple of years by assignment of the Supreme Court, and then by assignment to the various trial courts in Dallas, Houston, San Antonio, El Paso, Austin, etc., all very enjoyable. During this time I continued to teach at the law school and was of-counsel to a great Houston-Dallas-Austin law firm that allowed me to do this, retiring in 2012.
The Republican Party during those years captured the judiciary. If you wanted to be a judge, you ran against a Democrat. The Republicans elected several people who became embarrassments to them and fought hard to get rid of them with partial success in the next election cycle. Conversely in some Democrat areas where appointments were made of excellent Republican judges , they were defeated in the next election cycle because they were Republicans.
I wish that I could add a little humor to this, but there is nothing funny about an inadequate method of selecting the third branch of government .

April 12, 2020

Another story about Percy Foreman.
When oil controlled rough and tough Houston, and the authorities were trying, in some instances illegally, to put a lid on the crime rate, the best lawyer in the state was Percy Foreman and he ruled the roost.

Recognized throughout the country for his flamboyant behavior and success before juries, he was literally hated by every law enforcement agency within the state including the Texas Rangers. Particularly the Texas Rangers. And he had a mutual feeling for them and did everything he could to defeat their efforts.
Houston was a boom town in the ‘50s and ‘60s and geographically was spreading out all over the place. The newly built Glen McCarthy Shamrock Hotel seemed to attract celebrities and Percy quite often was seen having breakfast in its beautiful dining room because at that time he held possession of a suite of rooms there.


The rangers during one of their important statewide investigations suspected Percy of having secreted evidence of one of his clients, who was the subject of their investigation, in his suite of rooms. Three of the rangers went to his suite, pounded on his door, and tried to gain entrance.

“No search warrant, entrance denied!” roared Percy.

This was before Mapp v. Ohio and the rangers were not accustomed to being denied. In fact the sound of their boots brought fear to the hearts of their suspects. The rangers stood in the doorway perplexed. Percy turned his back to them, dropped his pants, and mooned them, whereupon one of the rangers hit Percy, breaking his nose.
The press took pictures of Percy with an exaggerated splint and bandaged
nose with captions: “Foreman fights rangers on illegal search.”


A million dollars’ worth of publicity on the fight against tyranny, claimed Percy to his acquaintances..

April 14, 2020

Another story about Racehorse Haynes. Although I have no empirical proof, most of the lawyers in the field of criminal law do not like to appear in federal court as opposed to appearing in state court. The reasons vary: The federal system is too hard, too formal, too complex in law and procedure, too nonnegotiable. The overriding reasons: too powerful and not controllable.

The American Bar Association has as one of its stated purposes the job of educating its members in the field of federal practice, no easy job.
The ABA, at one of its annual meetings, created a program where four different lawyers out of the presence of each other conducted a live cros-examination of a federal tax agent in a mock federal tax-evasion case , Agent Tadowitz from Baltimore. The judge presiding over the seminar was Judge James Nowlin, Western District of Texas. The U.S. attorney from Chicago representing the government. The four attorneys cross- examining individually: one from Washington, one from San Francisco, Bob Richie from Tennessee, and Albert Krieger from New York and Miami. I was the moderator. Richie and Krieger were outstanding , the other two were adequate but not stars.
It was then that I realized I should have invited the greatest cross-examiner of all time to participate: Richard Racehorse Haynes..

Sometime in the ‘70s, Race was defending some poor citizen charged with a federal crime in Judge John Singleton’s federal district court in Houston. He had agreed to defend this person at the request of Jim Kronzer, one of the leading trial lawyers in Houston and a close personal friend of both Judge Singleton and Race. The case ended in a rare conviction for Race and he requested that I handle the appeal, so I got to read the record and from Kronzer got the rest of the story.
Each successful cross-examiner has his or her own method of emphasis in cross-examination depending on a myriad of factors.

Race’s method was detail, detail, and detail regardless of the case. He was usually successful in getting what he wanted from the witness, particularly in state court, but this case was before a jury in Judge Singleton’s federal court. During his cross of the principle government witness, an FBI agent, concerning the agent’s entry into the defendant’s home , the agent having testified on direct that there was a key in the door, the following occurred:

Race: You say you had a key.


Agent: Yes


Race: What did you do with the key?

Agent: I put it into the keyhole in the lock.


Race: Where was keyhole?


Agent: In the door.


Race: Was there a knob on the door?


Agent: Yes.


Race: Was the keyhole above the knob?


Agent: How do I know? I don’t know.


Race: Was the keyhole below the knob?


At which point, without objection from the government–

Judge Singleton: Stop, enough is enough. Move on.


Race: Where was the keyhole?


Judge Singleton excused the jury, held Race in contempt, and stated he would assess the proper punishment at the end of the day.The jury was then brought back and Race resumed his cross examination.


Race: Where was the keyhole?


The judge excused the jury, ordered the marshall to take Race into custody, and instructed Race that trial would resume the following day and that a night in jail would do him good.
The following morning, resuming his cross-examination–

Race: Where was the keyhole?


The trial somehow went to verdict with Race spending three nights in jail and with Kronzer appealing to Judge Singleton to release Race at the end of the trial, which the judge agreed to do, providing Race apologize to the court.
Race never did apologize until a chance meeting in front of the Rice Hotel months later. There were other ramifications, but Race’s view was he didn’t like federal court anyway. The fact of the matter is that Race was very, very successful in federal court and always victorious. He and Judge Singleton much later became fast friends and were honored together as leading law octogenarians…

To be continued.

Padilla at 10: Myths, Facts, and Tools for Immigration Consequences of Conviction

1On March 31st, Padilla v. Kentucky turned ten. The United States Supreme Court held in Padilla that criminal defense attorneys must advise their clients of the immigration consequences of conviction.2 Despite a clear mandate, Padilla compliance and resources remain low while Padilla litigation—including ineffectiveness claims—continues to rise. In this article, we dispel three myths about Padilla and share with you a new tool that may help Texas defense attorneys.

Myths and Facts

Myth 1: A Padilla “cheat sheet” can tell me the immigration consequences of any offense in the Texas Penal Code.

Fact: Immigration consequences depend not only on the offense, but also on a client’s criminal history, immigration status, and available options. An immigration consequences cheat sheet—e.g., this offense is a “crime involving moral turpitude” (CIMT) and could trigger immigration consequences—doesn’t suffice.

Let’s take an example.3 If your client is Mario, a Legal Permanent Resident (LPR) with no priors, who first entered the U.S. as an LPR 2 years ago, now charged with a State Jail Felony (SJF) theft: Mario will be rendered deportable by a “conviction for immigration purposes”—let’s assume deferred adjudication4— of this offense.5

But if your client is Maria, who is like Mario in all respects except that before becoming an LPR, she entered on a tourist visa 6 years ago: Maria won’t be rendered deportable by taking deferred adjudication for this offense6, but the final result will make her inadmissible7—meaning ineligible to return as an LPR from a trip home to see her family—and you’d need to advise her of that.

Now, let’s assume that, instead of an SJF theft, it’s a Class B. Mario won’t lose his green card as a result of that plea.8 But Martin, who is similar to Mario in all respects except that he had a prior theft conviction last year, will.9

And what about Mario’s eligibility for bond from immigration detention? Maria’s eligibility to naturalize (become a citizen)? Martin’s ability to apply for relief from removal in immigration proceedings?

We quickly see that a cheat sheet doesn’t cut it.

Accurately advising your client10 about how an offense will affect them—as to deportability, inadmissibility, eligibility for bond, and eligibility for relief from removal11— will depend not just on how immigration law categorizes the offense, but also on your client’s immigration status and prior criminal history.

Myth 2: I don’t need a Padilla consult for certain offenses.

Reality: Immigration law changes rapidly. What’s an immigration-safe plea one day may not be the next. We’ve seen the following major recent changes to crimmigration:

  • Major overhaul in the way the Fifth Circuit interprets 18 U.S.C. § 16(a) and thus the “crime of violence” aggravated felony ground and “crime of domestic violence” deportability ground12
  • Some pretrial diversion agreements considered convictions for immigration purposes13 and continuing litigation about the scope of that decision
  • Subsequent DWI conviction as a presumptive bar to “good moral character,” which is relevant for certain immigration purposes14
  • Manufacture/delivery conviction considered a “particularly serious crime” despite not being a drug trafficking aggravated felony15
  • Significant flip-flopping about whether Texas burglary is federal burglary16
  • A proposed rule by DOJ/DHS which would make individuals ineligible for asylum if convicted of a DWI, a controlled substance offense, a domestic violence offense, any felony, and more17

And we are awaiting two Supreme Court decisions argued this term: one on the future of the DACA program18; the other on whether certain crimes affect an LPR’s eligibility for cancellation of removal.19

Because this area of the law is dynamic, any time you represent a client who is not a U.S. citizen, you need a Padilla consult.

Myth 3: I don’t need to consult a Padilla attorney. I can just read the Immigration and Nationality Act.

Reality: This is akin to cracking open the Internal Revenue Code to file your taxes. You might get it right, but it’s smarter, cheaper, and less painful to consult an expert.

Crimmigration is one of the thorniest areas of the law. Courts have described the INA as “second only to the Internal Revenue Code in complexity”20 and “dizzying,”21 likening it to “King Minos’s labyrinth in ancient Crete.”22 A Supreme Court Justice has described voluntarily reading the statute as “masochistic,”23 and the Fifth Circuit bemoans that the law “yield[s] up meaning only grudgingly.”24

The Texas Court of Criminal Appeals agrees:

[Because] criminal law attorneys are generally not knowledgeable of specialized immigration law and may not understand the effect of a criminal conviction on a noncitizen . . . we [ ] expect [ ] that criminal law attorneys will rely on their immigration-law counterparts when representing noncitizens.25

Courts don’t expect you to be an immigration law expert. But they do expect you to contact one.

Tools

So, you need to consult a Padilla attorney. Where can you turn?

Many of Texas’s urban areas—including Dallas, Harris, Fort Bend, Webb, and Travis Counties—have Padilla attorneys within public defender and managed assigned counsel offices available to assist often for free. If you need help contacting them, feel free to reach either of the authors directly.

But what about Texas’s other 200+ counties? Until recently, there were few options available for criminal defense attorneys in rural or midsized counties.

Today, if you’re in the 3rd Administrative Judicial Region, you can use a tool called myPadilla. Available online at myPadilla.com, this tool allows defense attorneys to interview clients, submit secure intake forms, and receive individualized, written Padilla advice that ensures Sixth Amendment compliance.

If you represent an indigent client in any of the included counties, your access to the service is free through a pilot program grant from TIDC in partnership with Hays County. While this service is free through the pilot program for indigent cases in the 3rd Administrative Judicial Region, we hope the program can be expanded beyond the 3rd AJR in the future.  For now, feel free to reach out to myPadilla at to discuss your needs and how we can help.  For retained cases, whether in the 3rd Administrative Judicial Region or not, you may access myPadilla for a fee.  

Defense attorney feedback for myPadilla has been extremely positive:

  • “It’s the gold standard; the Rosetta Stone. It’s free to the indigent. Got to be nuts not to use it.”
  • “I can’t imagine not wanting to continue to use it once you try it. It was thorough and easy to use with my client.”
  • “myPadilla is a valuable user friendly tool that provides critical information in a comprehensive report to assist both attorneys and clients in making informed decisions regarding pending cases and immigration matters affecting the client.”
  • “myPadilla helped me feel confident giving my clients information about their criminal case and the consequences it could have on their immigration status.”
  • “It’s fast, accurate, and covers all contingencies.”
  • “It makes a very complex and important legal issue understandable for both the client and defense attorney.”

We invite you to visit myPadilla.com to take advantage of this program or reach out to with questions. We hope you find it a useful resource for representing immigrant clients.

Opinion: Many Texas Judges Acting Inhumanely

Our nation and the world are engaged in an awful battle with a deadly pandemic. Over a million people are already sick and many thousands will die. Officials have urged us to stay at home. They have called on courts to cease operating in all but the most essential situations.

Have all the criminal courts in Texas heeded the official admonishments?

No.

Many of our judges are still requiring the presumptively innocent accused on bond to attend court. These dockets are most often unnecessary. The accused who do not appear risk revocation of their bond and incarceration.

To needlessly require an individual charged with a crime to choose between risking the loss of their liberty or the loss of their life is nothing short of cruel.

People define themselves, particularly in times of crisis. Lincoln said if you wanted to test a person’s character, you need only give them power.

Unfortunately, at this critical time, too many of our Texas criminal court judges have chosen an inhumane path. In so doing, they have failed Lincoln’s character test.

These judges who have abused their authority and needlessly require court appearances have disgraced themselves, the bench on which they sit, and our criminal justice system.

Let these judges who have so acted be remembered for the poor and inhumane judgment they showed when it counted most.

WE WILL NOT BE DETERRED: Reading of the Declaration of Independence 2020

TCDLA is committed to celebrating our freedoms by organizing local readings of the Declaration of Independence throughout Texas every year. This year, perhaps more than ever, our annual patriotic project is especially warranted.

Criminal defense lawyers are at the point of the spear against despots, unreasonable laws, and misguided regulations. We therefore must remind the public how America’s founding document is relevant even in the face of a worldwide pandemic.

State Declaration reading co-organizer Robert Fickman and I invite all members to celebrate the Declaration of Independence on or about July 3 in a reasonable fashion depending on health risk circumstances. We hope you will follow whatever social distancing measures are recommended in your community. It may mean just one TCDLA member will read the Declaration on the courthouse steps without inviting an audience. It may mean a ZOOM reading. Whatever works best in your town is okay, as long as the Declaration gets read. As always, your event should be properly memorialized, so please send TCDLA your best photos/selfies of the reading, and please post the pix on social media.

We will not be deterred by the pandemic. Our commitment to the principles enunciated in the Declaration has never been stronger.

May 2020 SDR – Voice for the Defense Vol. 49, No. 4

Voice for the Defense Volume 49, No. 4 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

 

Supreme Court of the United States

Holguin-Hernandez v. United States, No. 18-7739, 206 L.Ed.2d 95,  2020 U.S. LEXIS 1365 (U.S. Feb. 26, 2020) (Slip Op.) (5th Cir.) [Specificity required for preserving error]

A defendant who wishes a court of appeals to consider a claim that a ruling of a trial court was in error must make his objection known to the trial-court judge. Per Fed. Rule Crim. Proc. 51(b), a party preserves error by informing the court of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. Per Rule 52(b), errors not brought to the court’s attention in these ways are subject to only plain-error review. Parties need not use certain language or even to wait until a court issues its ruling. Defendants must only bring the error “to the court’s attention.” 

To preserve sentencing error, defendants are not required to refer to the “reasonableness” of a sentence.

Facts:

Petitioner was convicted of drug-trafficking and sentenced to 60 months BOP. At the time of conviction, he was also serving supervised release related to an earlier crime.

  • The Government asked the court to find that petitioner had violated the conditions of supervised release, revoke it, and impose a consecutive prison term per USSG §§ 7B1.4(a) & 7B1.3(f).
  • Petitioner argued that under 18 U.S.C. § 3553,a consecutive sentence would not get Petitioner’s attention “any better than” the 60 months imposed.
  • The district court imposed a consecutive term of 12 months, a sentence at the bottom of the USSG-range.
  • Petitioner appealed, arguing that under Kimbrough v. United States, 552 U.S. 85, 101 (2007) and Gall v. United States, 552 U.S. 38, 49-50 the 12-month sentence was unreasonably long because it was greater than necessary to accomplish the goals of sentencing.
  • The Court of Appeals held petitioner forfeited this argument by failing to object to the “reasonableness” of the sentence imposed and it found no plain error.

The defendant’s district-court argument for a specific sentence—nothing or less than 12 months—preserved his claim on appeal that the 12-month sentence was unreasonably long

  • A defendant who wishes a court of appeals to consider a claim that a ruling of a trial court was in error must make his objection known to the trial-court judge. Per Fed. Rule Crim. Proc. 51(b), a party preserveserrorby informing the court of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. Per Rule 52(b),errors not brought to the court’s attention in these ways are subject to only plain-error review. Parties need not use certain language or even to wait until a court issues its ruling. Defendants must only bring the error “to the court’s attention.” 
  • To preserve sentencing error, defendants are not required to refer to the “reasonableness” of a sentence.
  • Petitioner properly preserved the claim that his 12-month sentence was unreasonably long by advocating for a shorter sentence and in effect arguing that this shorter sentence would have proved “sufficient” while a sentence of 12 months or more was “greater than necessary” to “comply with” 18 U.S.C. § 3553(a).
  • The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings.

McKinney v. Arizona, 140 S.Ct. 702, 2020 U.S. LEXIS 1363 (U.S. Feb. 25, 2020) (Supreme Court of Arizona) [After Eddings error is identified, an appellate court may resentence a capital defendant]

  • Under Eddings v. Oklahoma, 455 U.S. 104, 113-114 (1982), a capital sentencer may not refuse as a matter of law to consider mitigating evidence. After Eddingserror is identified, an appellate court may resentence a capital defendant.
  • Under Clemons v. Mississippi, 494 U.S. 738, 745-750 (1990), an appellate court can reweigh permissible aggravating and mitigating evidence. This reweighing is not a resentencing but instead is like harmless-error review that may be conducted by an appellate court. Appellate courts can fully consider and give effect to the mitigating evidence at the sentencing phase.

Facts:

  • In 1991, McKinney and Hedlund burglarized five residences in the Phoenix area. During one, they beat, stabbed, and shot Mertens in the back of the head, killing her. In another, they killed McClain by shooting him in the back of the head with a sawed-off rifle.
  • An Arizona jury convicted McKinney of two counts of first-degree murder. The trial judge found that McKinney killed Mertens for pecuniary gain and in an especially heinous, cruel, or depraved manner and that McKinney killed McClain for pecuniary gain and had been convicted of another offense with a potential sentence of life imprisonment or death (Mertens murder). The trial judge sentenced McKinney to death for both murders. The Arizona Supreme Court affirmed.
  • 20 years later, on federal habeas corpus review, an en banc panel of the 9th Circuit decided 6-5 that in sentencing McKinney, the Arizona courts failed to properly consider McKinney’s PTSD and had thus violated Eddings v. Oklahoma (capital sentencer may not refuse as a matter of law to consider mitigating evidence).
  • The Arizona Supreme Court reviewed the evidence and reweighed the relevant aggravating and mitigating circumstances, including McKinney’s PTSD, and upheld both death sentences. 

After Eddings error is identified, an appellate court may resentence a capital defendant

  • Under Tuilaepa v. California, 512 U.S. 967 (1994), Zantv. Stephens, 462 U.S. 862 (1983), and Gregg v. Georgia, 428 U.S. 153 (1976), a defendant convicted of murder is eligible for a death sentence if at least one aggravating circumstance is found.
  • Under Eddings v. Oklahoma, 455 U.S. 104, 113-114 (1982), a capital sentencer may not refuse as a matter of law to consider mitigating evidence. After an Eddings error is identified, an appellate court may resentence a capital defendant.
  • Under Clemons v. Mississippi, 494 U.S. 738, 745-750 (1990), an appellate court can reweigh permissible aggravating and mitigating evidence. This reweighing is not a resentencing but instead is like harmless-error review that may be conducted by an appellate court. Appellate courts can fully consider and give effect to the mitigating evidence at the sentencing phase.
  • The judgment of the Arizona Supreme Court is affirmed.

Shular v. United States, No. 206 L.Ed.2d 81, 2020 U.S. LEXIS 1366  (U.S. Feb. 26, 2020) (11th Cir.) [“Serious drug offense” definition of the ACCA]

  • The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.
  • Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a 15-year minimum sentence is mandated for defendants with prior convictions for “serious drug offenses,” which involve manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance.
  • The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.
  • Under Mathis v. United States, 136 S.Ct. 2243, 2251 (2016), to determine whether a prior conviction qualifies for ACCA-enhancement, the “categorical approach” is used: a court looks to the statutory definitions of the prior and not the underlying facts nor the label a State assigns to the prior. To apply the ACCA’s definition of “violent felony” to burglary, the court asks only whether the elements of the prior constitute burglary, not about the facts or whether it was called “burglary.” Sometimes the categorical approach requires a court to come up with a “generic” version of a crime—elements as commonly understood—if the statute refers to an offense without specifying its elements. The court must define the offense so that it can compare elements, not labels.  Other times the categorical approach requires a court to determine whether the prior meets some other criterion rather than determining whether it was for a certain offense.

Facts:

  • Shular pleaded guilty to felon in possession of a firearm per 18 U.S.C. § 922(g)(1) and possessing with intent to distribute cocaine and cocaine base per 21 U.S.C. § 841(a)(1) and (b)(1)(C).
  • The District Court sentenced Shular to 15 years, the mandatory minimum under  the ACCA, taking into account Shular’s prior six Florida convictions for selling controlled substances and finding that they qualified as “serious drug offenses” triggering the ACCA under 18 U.S.C. § 924(e)(2)(A)(ii).
  • The 11th Circuit affirmed, finding that a court applying § 924(e)(2)(A)(ii) need not search for the elements of “generic definitions” of any offense because the ACCA requires only that the predicate offense involve certain activities.
  • The conflict between Courts of Appeals is whether § 924(e)(2)(A)(ii)’s “serious drug offense” definition requires a comparison to a generic offense.

The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.

  • Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a 15-year minimum sentence is mandated for defendants with prior convictions for “serious drug offenses,” which involve manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance.
  • The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.
  • Under Mathis v. United States, 136 S.Ct. 2243, 2251 (2016), to determine whether a prior conviction qualifies for ACCA-enhancement, the “categorical approach” is used: a court looks to the statutory definitions of the prior and not the underlying facts nor the label a State assigns to the prior. To apply the ACCA’s definition of “violent felony” to burglary, the court asks only whether the elements of the prior constitute burglary, not about the facts or whether it was called “burglary.” Sometimes the categorical approach requires a court to come up with a “generic” version of a crime—elements as commonly understood—if the statute refers to an offense without specifying its elements. The court must define the offense so that it can compare elements, not labels.  Other times the categorical approach requires a court to determine whether the prior meets some other criterion rather than determining whether it was for a certain offense.
  • The terms in § 924(e)(2)(A)(ii)—”manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance”—are unlikely names for generic offenses. They can be used to describe conduct. They are not universal names of offenses. States define drug offenses with trafficking, selling, giving, dispensing, distributing, delivering, promoting, and producing.
  • But § 924(e)(2)(B)(ii), the enumerated-offense clause of ACCA’s “violent felony” definition, refers to the Career Criminals Amendment Act of 1986, which refers to “burglary, arson, or extortion” and requires a generic-offense analysis. These terms unambiguously name offenses.
  • § 924(e)(2)(A)(ii)’s text and context refer to an offense involving the conduct of “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Because they describe conduct and do not name offenses, a court applying § 924(e)(2)(A)(ii) need not delineate the elements of generic offenses. 
  • The judgment of the 11th Circuit is affirmed.

Editor’s note: Does hoarding and reselling toilet paper and toiletries at scumbag prices fall under “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” under the ACCA?

 

United States Court of Appeals for the 5th Circuit

United States v. Butler, No. 19-10065, 2020 U.S.App.LEXIS 3444 (5th Cir. Feb. 4, 2020) (designated for publication) [ACCA, Bank Robbery is divisible under Mathis]

  • Under 18 U.S.C. § 924(e)(2)(B)(i) and Welch v. United States, 136 S.Ct. 1257, 1261 (2016), the Armed Career Criminal Act (ACCA) imposes a 15-year-minimum if the defendant has 3 prior convictions for violent felonies or serious drug offenses. “Violent felony” means a crime punishable by more than one year of prison that has as an element the use, attempted use, or threatened use of physical force against another person (elements clause). 
  • Under Mathis v. United States, 136 S.Ct. 2243, 2248 (2016), whether a conviction satisfies the elements clause of the ACCA depends on whether the offense-statute is divisible. An indivisible statute lays out a single set of elements to define a single crime. Indivisible statutes are evaluated using the categorical approach, assessing whether the elements include the use of force. The facts of the case are ignored, and the question is whether the defendant’s conviction means he must have used, attempted to use, or threatened to use physical force to commit it. A divisible statute lists its elements in the alternative and defines multiple crimes. When a statute describes multiple crimes, the modified categorical approach permits courts to look to certain documents (indictment, jury instructions, plea agreement and colloquy) to figure out which of the statute’s crimes the defendant was convicted of.  Once the court has narrowed the crime of conviction to a specific offense, it applies the same analysis as the categorical approach, asking whether the elements of that crime include the use of force. The modified approach makes a difference when a statute describes one offense that qualifies as a violent felony and another that does not. Any doubt about whether a defendant committed a violent felony allows him to avoid the ACCA-punishment for armed career criminals because the categorical approach requires certainty. 

Facts:

  • Butler pleaded guilty to felon in possession of a firearm per 18 U.S.C. § 922(g)(1), punishable by up to 10 years per § 924(a)(2). Butler had four convictions for federal bank robbery and two Texas convictions for robbery.
  • The indictments for federal bank robbery show that Butler committed bank robbery by intimidation.
  • The district court concluded that the federal bank robbery convictions were violent felonies, qualifying Butler under the ACCA, so Butler was sentenced to the 15 year-minimum.

Bank Robbery is divisible under Mathis because it lists elements in the alternative and thus defines multiple crimes

  • Under 18 U.S.C. § 924(e)(2)(B)(i) and Welch v. United States, 136 S.Ct. 1257, 1261 (2016), the Armed Career Criminal Act (ACCA) imposes a 15-year-minimum if the defendant has 3 prior convictions for violent felonies or serious drug offenses. “Violent felony” means a crime punishable by more than one year of prison that has as an element the use, attempted use, or threatened use of physical force against another person (elements clause). 
  • Under Mathis v. United States, 136 S.Ct. 2243, 2248 (2016), whether a conviction satisfies the elements clause of the ACCA depends on whether the offense-statute is divisible. An indivisible statute lays out a single set of elements to define a single crime. Indivisible statutes are evaluated using the categorical approach, assessing whether the elements include the use of force. The facts of the case are ignored, and the question is whether the defendant’s conviction means he must have used, attempted to use, or threatened to use physical force to commit it. A divisible statute lists its elements in the alternative and defines multiple crimes. When a statute describes multiple crimes, the modified categorical approach permits courts to look to certain documents (indictment, jury instructions, plea agreement and colloquy) to figure out which of the statute’s crimes the defendant was convicted of.  Once the court has narrowed the crime of conviction to a specific offense, it applies the same analysis as the categorical approach, asking whether the elements of that crime include the use of force. The modified approach makes a difference when a statute describes one offense that qualifies as a violent felony and another that does not. Any doubt about whether a defendant committed a violent felony allows him to avoid the ACCA-punishment for armed career criminals because the categorical approach requires certainty. 
  • 18 U.S.C. § 2113(a) (Bank Robbery) is divisible because it lists elements in the alternative and thus defines multiple crimes: Whoever: “(1) by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or (attempts to or extorts)…property or money…in the…possession of, any bank, credit union…or (2) enters or attempts to enter any bank, credit union…or any building used in whole or in part as a bank, credit union…with intent to commit in such bank, credit union…or building, or part thereof…any felony affecting such bank…or (3) takes and carries away, with intent to steal or purloin, any property or money…exceeding $1,000 belonging to…or in the possession of any bank, credit union…”
  • 18 U.S.C. § 2113(a) (Bank Robbery) could mean traditional bank robbery or burglary of a bank.
  • Because § 2113(a) is divisible, the district court properly used the indictments showing bank robbery by intimidation to narrow the convictions to the violent felonies of taking bank property from another through intimidation. With at least three such violent felonies, he was properly sentenced as an armed career criminal.
  • The judgment is AFFIRMED.

United States v. Mecham, No. 19-40319, 2020 U.S.App.LEXIS 4768 (5th Cir. Feb. 14, 2020) (designated for publication) [Morphed porn; enhancement under U.S.S.G. § 2G2.2(b)(4)(A) for child porn that involves material that depicts violence]

  • Under Osborne v. Ohio, 495 U.S. 103 (1990) and New York v. Ferber, 458 U.S. 747 (1982), “real” child porn is not protected speech.  Under Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002), “virtual” child porn—sexually explicit images created by using adults who “look like” minors or using computer imaging—is protected speech. 
  • Under Miller v. California, 413 U.S. 15, 16, 24 (1973), the government must prove that an allegedly obscene work appeals to the prurient interest, is offensive considering community standards, and lacks serious literary, artistic, political, or scientific value. 
  • The First Amendment does not protect “morphed” child porn, which uses an image of a real child who is not involved in a sex act and falls between “real” and “virtual” child porn.
  • Under U.S.S.G. § 2G2.2(b)(4)(A), 4-levels are added for child porn that involves material that portrays sadistic or masochistic conduct or other depictions of violence. 
  • An image is sadistic if it depicts conduct that an objective observer perceives as causing the victim physical or emotional pain contemporaneously with the image’s creation. This ensures that not every child-porn conviction receives the enhancement as all victim-children are likely to experience emotional pain once they learn that porn depicting them exists. Without contemporaneous emotional harm, an image must portray physical pain to be sadistic. Sexual penetration of an actual prepubescent child qualifies.  But for morphed porn involving the use of an adult body, intercourse alone does not involve the requisite pain.
  • Morphed porn can qualify for the sadism-or-masochism enhancement if the body image is of a prepubescent child, just not the one whose face is shown, the body image shows conduct that is painful or cruel even for an adult (i.e., forced sex), or it reasonably appears that the body image is of a prepubescent child—even though it is not—for whom the sex act is painful.  The inquiry is whether a reasonable viewer would conclude that the image depicts the contemporaneous infliction of pain. 

Facts:

  • Mecham took his computer to a tech for repairs, who discovered thousands of images of nude adult bodies with faces of children superimposed. The tech called the police, who executed a search warrant and seized electronic devices.
  • Mecham waived his Miranda rights and admitted he added the faces of his four granddaughters to photos and videos of adults engaged in sex because after years interacting with his grandchildren, his daughter denied him contact. By creating the images, he sought to get back at his family for cutting him off.
  • A forensic analysis revealed over 30,000 of morphed child-porn of faces of Mecham’s grandchildren, ages 4, 5, and 16.
  • Mecham emailed videos to his oldest granddaughter, one of which—lasting over 9 minutes—showing her face on an adult female having sex and Mecham’s face superimposed on the male. The video uses animation to show the male ejaculating, with semen shooting to the granddaughter’s mouth. All show Mecham’s face morphed into the face of the men.
  • Mecham was indicted for possession of child porn.
  • Mecham filed a motion to dismiss the indictment, arguing that the First Amendment protects morphed child porn. The district court denied the motion.
  • After a stipulated bench trial, the district court found Mecham guilty and sentenced him to 97 months in BOP.

The First Amendment does not protect “morphed” child porn, which uses an image of a real child who is not actually involved in a sex act and is porn that falls between “real” and “virtual” child porn.

  • Under Osborne v. Ohio, 495 U.S. 103 (1990) and New York v. Ferber, 458 U.S. 747 (1982), “real” child porn is not protected speech.  Under Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002), “virtual” child porn—sexually explicit images created by using adults who “look like” minors or using computer imaging—is protected speech. 
  • Under Miller v. California, 413 U.S. 15, 16, 24 (1973), the government must prove that an allegedly obscene work appeals to the prurient interest, is offensive considering community standards, and lacks serious literary, artistic, political, or scientific value. 
  • The First Amendment does not protect “morphed” child porn, which uses an image of a real child who is not involved in a sex act and falls between “real” and “virtual” child porn.
  • Because the porn was created without a child in a sex act means that a sentencing enhancement for images that display sadistic or masochistic conduct does not apply.

The district court erred in applying the 4-level enhancement for child porn that involves material that portrays sadistic or masochistic conduct or other depictions of violence. 

  • Under U.S.S.G. § 2G2.2(b)(4)(A), 4-levels are added for child porn that involves material that portrays sadistic or masochistic conduct or other depictions of violence. 
  • The 4 points meant Mecham’s advisory range was 97-121 months instead of 63-78 months.
  • An image is sadistic if it depicts conduct that an objective observer perceives as causing the victim physical or emotional pain contemporaneously with the image’s creation. This ensures that not every child-porn conviction receives the enhancement as all victim-children are likely to experience emotional pain once they learn that porn depicting them exists. Without contemporaneous emotional harm, an image must portray physical pain to be sadistic. Sexual penetration of an actual prepubescent child qualifies.  But for morphed porn involving the use of an adult body, intercourse alone does not involve the requisite pain.
  • Morphed porn can qualify for the sadism-or-masochism enhancement if the body image is of a prepubescent child, just not the one whose face is shown, the body image shows conduct that is painful or cruel even for an adult (i.e., forced sex), or it reasonably appears that the body image is of a prepubescent child—even though it is not—for whom the sex act is painful.  The inquiry is whether a reasonable viewer would conclude that the image depicts the contemporaneous infliction of pain. 
  • The district court did not make this finding and the record does not support the sadism enhancement, so the district court erred in including the four points.
  • To show a sentencing error is harmless, the government must convincingly demonstrate that the district court would have: (1) imposed the same sentence had it not made the error, and (2) done so for the same reasons it gave at the prior sentencing.
  • The government argues harmlessness but fails the first step. The district court did not say it would have given the same 97-month sentence without the enhancement, which is the most straightforward way to prove harmlessness. 
  • The sentence is vacated, and the case is remanded for Mecham to be sentenced with an advisory range of 63-78 months.

 

Texas Court of Criminal Appeals

Holder v. State, No. PD-1269-16, 2020 Tex.Crim.App.LEXIS 180 (Tex.Crim.App. March 11, 2020) (designated for publication)  (Capital Murder, Collin Co.) [Tex. Const. Art. I, § 9, third-party doctrine, and CSLI records]

  • Under Tex. Const. Art. I, § 9, the third-party doctrine does not apply to CSLI records
  • Under Sims v. State, 569 S.W.3d 634, 642 (Tex.Crim.App. 2019), suppression is not an available remedy for nonconstitutional violations of the Stored Communications Act. Even if the State did not meet the SCA’s “specific and articulable facts” standard, the CSLI should not be suppressed on that basis. 
  • Under Tex. Const. Art. I, § 9, the people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches and no warrant to search shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. A person has an expectation of privacy if he has a subjective privacy interest that society recognizes as objectively reasonable. There is no implicit warrant requirement in Article I, § 9.
  • A warrant is generally needed under the Fourth Amendment to access seven or more days of CSLI information.

Facts:

  • In 2012, Appellant, his girlfriend Casey James, and her children moved into Tanner’s home, who was James’s ex-stepfather.
  • The relationship between Appellant and James soured, so Tanner asked Appellant to move out, which he did.
  • A month later, James told Appellant that her daughter C.J. told her that Tanner was “nasty” and slept without his underwear. James asked Appellant if he had ever seen Tanner act inappropriately around C.J., and he said yes. Appellant hadn’t said anything to James because James was in the room when it happened.
  • James concluded that Tanner had not been inappropriate after she spoke to C.J.
  • James told Appellant that she would be out of town November 9-11 and her kids were going to be with one of her friends.
  • When James returned to Tanner’s home on November 11 at about 8:00 p.m., the garage-door opener did not work, and Tanner’s truck was not at the house. James entered the house through a sliding glass door, it was pitch black, which was unusual, and there was a horrible smell. Someone had hung a blanket over the sliding glass door and there was liquid running down the hallway. James was afraid and went back to her vehicle where her children were sleeping. James called the police.
  • Police found Tanner’s body in the house. It looked like the body had been there awhile. Tanner had suffered blunt-force trauma to the head, was stabbed 20 times, and had defensive-wounds on his hands. There was blood all over his body and around it.
  • Police concluded that the murder was a crime of passion, not a burglary gone wrong even though Tanner’s wallet was stolen. They found two black latex gloves on the kitchen table, which James said were not there when she left. James had never seen black latex gloves at the house or seen Tanner with black latex gloves.
  • On Facebook there was a picture of Appellant wearing black latex gloves while tattooing someone. DNA-testing on three glove swabs showed it was extremely unlikely that anyone other than Appellant was a major contributor.
  • On November 12, police obtained a court order directing AT&T to disclose call log and CSLI (Cell Site Location Information) records showing the location of Appellant’s cellphone between October 20 to November 12, but AT&T declined to produce them because they said the order had to be based on probable cause.
  • The second petition claimed authority under Tex. Code Crim. Proc. Art. 18.21 § 5, seeking all records regarding the identification of Appellant’s account including name, address, date of birth, status of account, history, call detail records, tower information for all calls for October 20, 2012 to November 12, 2012, service and billing address, ANI, method of payment, information on all other numbers ever assigned to the account or user. The officer changed “reasonable suspicion” to “probable cause” for an investigation into a violation of Tex. Penal Code § 19.03. A judge signed the new order.
  • Police interviewed Appellant and asked him where he was the weekend of November 9 and whether he had his cellphone. Appellant said he was in Irving and that he had his cellphone. Police confronted Appellant with the CSLI showing that he was in Tanner’s coverage area multiple times that weekend, which contradicted his story that he was out of town. Appellant remembered that he was near Tanner’s house that weekend, but he was there to buy drugs and never went to Tanner’s house. The police asked Appellant about Tanner and C.J., and Appellant told them that “children shouldn’t be molested.”
  • Call log records showed that Tanner was alive until at least 2:35 p.m. on November 10 because that is when he ended a call with his parents. The records showed that between 3:28 p.m. and 4:16 p.m. the same day, Appellant’s cellphone connected to the tower that best served Tanner’s home. By 4:16 p.m., Appellant’s cellphone had left the area but reentered at 12:41 a.m. on November 11. Appellant’s phone was pinging in Tanner’s coverage area until 12:44 a.m. From 12:44 a.m. to 2:11 a.m., there was no activity on Appellant’s phone. At 2:11 a.m., it pinged a tower near the parking garage where police found Tanner’s abandoned truck.
  • An inmate named Uselton contacted Plano detectives and told them that he knew Appellant for a few years. Appellant called him on November 10 around 3:00 p.m. because he wanted to buy drugs. Appellant sounded hysterical. Appellant called back later that day and asked him to help with “something.” Appellant and his ex-girlfriend picked up Uselton. She drove them to Appellant’s tattoo parlor, where Appellant picked up bleach and black latex gloves, then to Tanner’s house. When they entered, Appellant told him “he’s dead.” Uselton saw Tanner’s body around the corner. Appellant said that Tanner molested a little girl. Appellant’s ex-girlfriend drove them back to Appellant’s tattoo shop. Uselton went to a store to buy cigarettes. When he returned, he overheard Appellant’s ex-girlfriend ask Appellant, “Why did you do it?” Appellant replied, “I had to.” Uselton told police other details that were not public: Appellant unplugged the garage-door opener and Uselton helped Appellant cover up windows and the sliding glass door with blankets and pour gas around the house.

Under Tex. Const. Art. I, § 9, the third-party doctrine does not apply to CSLI records

  • Under Sims v. State, 569 S.W.3d 634, 642 (Tex.Crim.App. 2019), suppression is not an available remedy for nonconstitutional violations of the Stored Communications Act. Even if the State did not meet the SCA’s “specific and articulable facts” standard, the CSLI should not be suppressed on that basis. 
  • Under Tex. Const. Art. I, § 9, the people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches and no warrant to search shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. A person has an expectation of privacy if he has a subjective privacy interest that society recognizes as objectively reasonable. There is no implicit warrant requirement in Article I, § 9.
  • A warrant is generally needed under the Fourth Amendment to access seven or more days of CSLI information.
  • Under Ford v. State, 477 S.W.3d 321 (Tex.Crim.App. 2015), the Fourth Amendment third-party doctrine applies to CSLI under Tex. Const. Art. I, § 9.
  • Under Carpenter, 138 S.Ct. at 2218, CSLI presents great privacy concerns because cellphones are “almost a feature of human anatomy” that track nearly exactly with the movements of its owner, and while individuals regularly leave their vehicles, they carry cellphones with them all the time. A cellphone follows its owner beyond public thoroughfares and into buildings, homes, doctor’s offices, and other potentially revealing locales. When the Government tracks the location of a cellphone, it achieves near perfect surveillance as if it had attached an ankle monitor to the user. Giving the Government access to such records contravenes society’s expectation that law enforcement cannot secretly monitor and catalogue every movement of an individual’s car for long period.
  • Under Tex. Const. Art. I, § 9, the third-party doctrine does not apply to CSLI records
  • The petition did not support a probable cause finding.
  • Appellant had a reasonable expectation of privacy under Tex. Const. Art. I, § 9 in the 23 days of his CSLI accessed by the State. The judgment of the court of appeals is reversed and the case is remanded for a harm analysis.

Walker v. State, No. PD-0399-17, 2020 Tex.Crim.App.LEXIS 176 (Tex.Crim.App. Feb. 26, 2020) (designated for publication)  (Engaging in Organized Criminal Activity, Orange Co.) [Reformation to a lesser-included offense when the greater-inclusive offense is nonexistent]

  • A court may reform a judgment after an acquittal of a greater-inclusive offense to a lesser-included offense if: (1) the jury necessarily found every element necessary to convict of the lesser-included offense when it convicted of the greater-inclusive offense, and (2) there is sufficient evidence to support a conviction for the lesser-included offense. Where the greater-inclusive offense is nonexistent, a court may reform to a lesser-offense authorized by the indictment. A conviction for a charged but nonexistent offense can be reformed to a subsumed and proven offense that exists.
  • Under Hughitt v. State, 583 S.W.3d 623 (Tex.Crim.App. 2019), Possession of a Controlled Substance with intent to deliver is not a predicate offense for Engaging in Organized Criminal Activity

Facts:

  • Appellant, her two daughters, and a man nicknamed “Pill” lived in a house that was a major distribution point for drugs. Two times, a CI purchased marijuana and synthetic marijuana there. People known to the police made short, frequent stops when Appellant was believed to be present.
  • One night, three intruders broke in through the front door and a shootout occurred. One escaped, another limped away, and the third crawled out and died on the lawn.
  • Surveillance cameras showed that after the shootout—but before the police arrived—Appellant made several trips to an Infiniti parked outside carrying a bag of more than 400 grams of dihydrocodeinone pills, sprayed Febreze in the air, and gave a pistol to “Pill,” who left.
  • Police arrived to find the dead body, and occasional guest Brian Grant, who had been shot, sitting near the porch. A search of the house uncovered large amounts of marijuana, cocaine, PCP, Xanax, codeine syrup in a baby bottle, and paraphernalia including digital scales, resealable plastic bags, and cash. The pills Appellant placed in the Infiniti were also found.
  • Appellant was indicted for Engaging in Organized Criminal Activity with the predicate offense of Possession of a Controlled Substance with intent to deliver. Appellant did not object to the indictment for alleging a nonexistent offense.
  • The jury charge tracked the indictment and instructed the jury to determine whether Appellant or another member of a criminal combination possessed at least 400 grams of dihydrocodeinone with intent to deliver. Appellant was convicted.

A conviction for a charged but nonexistent offense can be reformed to a subsumed and proven offense that exists

  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), to determine legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in testimony, weighing of evidence, and drawing reasonable inferences from the facts. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). A factfinder is allowed to draw reasonable inferences that are supported by evidence, Jackson, 443 U.S. at 319 (emphasis supplied), but “[t]heorizing or guessing as to the meaning of the evidence is never adequate to uphold a conviction because it is insufficiently based on the evidence to support a belief beyond a reasonable doubt.” Cary v. State, 507 S.W.3d 761, 766 (Tex.Crim.App. 2016).
  • Sufficiency of the evidence may turn on the meaning of the statute. Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex.Crim.App. 2019); Liverman v. State, 470 S.W.3d 831, 836 (Tex.Crim.App. 2015). A reviewing court must consider whether certain conduct constitutes an offense under the relevant statute. A court must conduct a statutory construction analysis de novo.
  • Under Hughitt v. State, 583 S.W.3d 623 (Tex.Crim.App. 2019), Possession of a Controlled Substance with intent to deliver is not a predicate offense for Engaging in Organized Criminal Activity
  • Measuring the evidence against the hypothetically correct jury charge, more than some evidence existed to enable a rational jury to find that Appellant was part of a criminal combination and that Appellant—or a member of the combination—possessed the alleged controlled substance in the requisite amount.
  • A court may reform a judgment after an acquittal of a greater-inclusive offense to a lesser-included offense if: (1) the jury necessarily found every element necessary to convict of the lesser-included offense when it convicted of the greater-inclusive offense, and (2) there is sufficient evidence to support a conviction for the lesser-included offense. Where the greater-inclusive offense is nonexistent, a court may reform to a lesser-offense authorized by the indictment. A conviction for a charged but nonexistent offense can be reformed to a subsumed and proven offense that exists.
  • Appellant is acquitted of EOCA. Reformation to possession of a controlled substance with the intent to deliver is authorized by the indictment. The case is remanded to the court of appeals to determine if the remaining conditions for reformation are met.

 

Texas Courts of Appeals

In re Cook, No. 14-19-00664-CR, 2020 Tex.App.-LEXIS 1563 (Tex.App.-Houston [14th Dist.] Feb. 25, 2020) (designated for publication) (Mandamus, Harris Co.) [Standing in attorney-client casefiles, attorney-client privilege, work-product privilege]

  • Under In re Powell, 516 S.W.3d 488, 494-495 (Tex.Crim.App. 2017) (orig. proceeding), to be entitled to mandamus relief, a relator must show: (1) that he has no adequate remedy at law for obtaining the relief; and (2) what he seeks to compel involves a ministerial act and not a discretionary act. A ministerial act does not involve judicial discretion and is plainly prescribed under the law. The relator must have a clear right to the relief sought and its merits of are beyond dispute. The facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. A relator can show that no adequate legal remedy exists if it is too uncertain, tedious, burdensome, inappropriate, or ineffective to be deemed inadequate.
  • Under Bailey v. State, 507 S.W.3d 740, 745 (Tex.Crim.App. 2016), the attorney-client privilege is personal to the client and the right to waive the privilege belongs solely to the client. Under In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 221-222 (Tex. 2004) (orig. proceeding), Cook has the right to assert the work-product privilege to prevent documents falling within the scope of the privilege from being produced to another party. Under In re McCann, 422 S.W.3d 701, 705 (Tex.Crim.App. 2013), a client owns the contents of his file. 
  • Under Tex. Rule Evid. 503(b), confidential communications between client and counsel made to facilitate legal services are generally insulated from disclosure. Under Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), the purpose of the privilege is to encourage full and frank communication between attorneys and their clients and promote broader public interests in the observance of law and administration of justice.
  • Under In re Bexar Co. Crim. Dist. Attorney’s Office, 224 S.W.3d 182, 186 (Tex. 2007) (orig. proceeding), the primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his case. The work-product privilege is broader than the attorney-client privilege because it includes all communications made in preparation for trial, including an attorney’s interviews with witnesses. 

Facts:

  • Amy Castillo was a client of attorney Woodfill. Castillo alleged that Woodfillmisapplied funds from her divorce by using unearned funds for services rendered for other clients.
  • Vaclavik, chief fraud examiner for the DA’s Office, investigated Castillo’s allegations by obtaining IOTLA statements.
  • During the investigation, it appeared funds belonging to another Woodfill’s client, Cook, were used contrary to her attorney-client agreement, which required a $75,000 retainer. The $75,000 was deposited into the IOLTA on June 13, 2013. A day before, the account was overdrawn by $49,679.18. Cook’s funds were used to offset the negative balance and to cover a check payable to a party unrelated to the representation of Cook.
  • Cook’s billing for June 6-12, 2013, showed that the firm had only earned $1,313.29 of Cook’s retainer.
  • On June 13, 2013, the IOLTA balance was $25,320.82, indicating that Woodfillhad used more than $45,000 of Cook’s retainer for purposes unrelated to her case.
  • In his affidavit in support of the search warrant, Vaclavik stated that he had reason to believe the firm had had evidence of felony misapplication of fiduciary property, theft, and money laundering.
  • Vaclavik asked permission to seize “Any and all financial, legal files, documents, records, books, ledgers and correspondence containing the names of Amy Castillo and Teresa Cook.”
  • The trial court signed a search warrant, authorizing the seizure of all files pertaining to Castillo and Cook; and logins and passwords for computers, software, file sharing access, telephones, and communication devices owned by Woodfilland the firm.
  • The search warrant was executed, and police PD took 127 boxes.
  • Cook refused to waive her privileges to her files. Cook filed a brief asking the trial court to order the DA to return her files to her. The trial court held an in-chambers hearing during which the ADA advised the court that the taint team (ADAs not involved in the case) was ready to start going through Cook’s files. Cook argued that permitting the taint team to look at her files violates her constitutional right to privacy and evidentiary privileges. The trial court urged the parties to reach an agreement.
  • The DA filed a motion for protective order and procedure for review of confidential or privileged discovery materials, which would allow the taint team to conduct the review.
  • Cook filed a brief regarding the validity of the search warrant.
  • The trial court held another hearing and signed an order allowing the taint team to review the alleged confidential or privileged materials but forbad them from discussing their content with other members of the DA’s office or law enforcement. The United States Secret Service forensic services team was necessary to image or format electronically stored data for review. Their review was limited to that task and they were forbidden from discussing the content with prosecutors or law enforcement not members of the taint team. The materials are to be assigned three categories: (1) evidence that the State and Cook agree is not subject to the attorney-client privilege, (2) evidence that the State and Cook agree is subject to the attorney-client privilege, and (3) evidence that the State and Cook do not agree is subject to the attorney-client privilege, which will be designated for in-camera review.
  • Cook filed mandamus, alleging a clear abuse of discretion.

Requirements for mandamus

  • Under In re Powell, 516 S.W.3d 488, 494-495 (Tex.Crim.App. 2017) (orig. proceeding), to be entitled to mandamus relief, a relator must show: (1) that he has no adequate remedy at law for obtaining the relief; and (2) what he seeks to compel involves a ministerial act and not a discretionary act. A ministerial act does not involve judicial discretion and is plainly prescribed under the law. The relator must have a clear right to the relief sought and its merits of are beyond dispute. The facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. A relator can show that noadequatelegal remedy exists if it is too uncertain, tedious, burdensome, inappropriate, or ineffective to be deemed inadequate.

Cook has standing

  • Under Bailey v. State, 507 S.W.3d 740, 745 (Tex.Crim.App. 2016), the attorney-client privilege is personal to the client and the right to waive the privilege belongs solely to the client. Under In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 221-222 (Tex. 2004) (orig. proceeding), Cook has the right to assert the work-product privilege to prevent documents falling within the scope of the privilege from being produced to another party. Under In re McCann, 422 S.W.3d 701, 705 (Tex.Crim.App. 2013), a client owns the contents of his file. 
  • Cook owns her files, and she has standing to assert her rights to her property and the attorney-client and work-product privileges.

There was probable cause that evidence of the felonies would be found in the files. 

  • Vaclavik’s affidavit described the deposit of Cook’s check into IOLTA and the use of it to cover a negative balance in the account. The affidavit described the retainer and that it was expended for reasons unrelated to Cook’s case. The trial court could have inferred that evidence related to the allegations could have been found in Cook’s files. Deferring to all reasonable inferences the trial court could have made, it could have found probable cause.

The taint team is allowed but work product documents must be included

  • Under Tex. Rule Evid. 503(b), confidential communications between client and counsel made to facilitate legal services are generally insulated from disclosure. Under Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), the purpose of the privilege is to encourage full and frank communication between attorneys and their clients and promote broader public interests in the observance of law and administration of justice.
  • Under In re Bexar Co. Crim. Dist. Attorney’s Office, 224 S.W.3d 182, 186 (Tex. 2007) (orig. proceeding), the primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his case. The work-product privilege is broader than the attorney-client privilege because it includes all communications made in preparation for trial, including an attorney’s interviews with witnesses. 
  • Cook has the right to assert the work-product privilege to prevent discovery of it. But Cook’s right must be balanced against the DA’s Office’s interest in conducting a criminal investigation. The use of taint teams has been authorized by courts based on the expectation and presumption that the team and prosecutors will conduct themselves with integrity.
  • When Cook sought mandamus relief, the parties and the taint team had not started reviewing Cook’s files. Thus, the parties have not decided what materials are privileged, not privileged, or disputed and require an in-camera review. Thus, Cook’s request for relief as to privileged documents is premature.
  • The trial court abused its discretion by not including work product materials as part of the taint team procedures. The petition for writ of mandamus was conditionally granted in part, and the trial court is directed to modify the order so that the review also applies to work product. After the review process, the DA’s Office: (1) must expeditiously return to Cook documents the parties agree are covered by the attorney-client and work-product privileges; (2) may retain copies of documents necessary to prosecute the alleged offenses committed by Woodfill that the parties agree are not privileged but must promptly return the original nonprivileged documents to Cook; and (3) must return all disputed documents on which the trial court rules in Cook’s favor.

Editor’s note: members of a “taint team” answer to the same DA or U.S. Attorney who supervise the case prosecutors. Should we be skeptical?

 

Fernandez v. State, No. 08-17-00217-CR, 2020 Tex.App.-LEXIS 1482 (Tex.App.-El Paso Feb. 20, 2020) (designated for publication) (Aggravated Assault and Assault family violence, El Paso Co.) [Ex parte communications; writ of attachment; lack of notice of extraneous offenses; less than 12 jurors under Art. 36.29]

  • To determine whether a violation of the Code of Judicial Conduct is reversible error, a court examines the entire record to determine whether the trial judge engaged in impropriety that was harmful. Under Tex. Code Jud. Conduct Canon 3(B)(8), a judge “shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex partecommunications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney…or any…court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance by court personnel subject to the judge’s direction and control. This does not prohibit communications concerning uncontested procedural matters. The purpose of prohibiting ex partecommunications is to ensure all legally interested parties are given their full right to be heard under the law and to ensure equal treatment of all parties. 
  • Under Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App. 2000), mere violations of the Code of Judicial Conduct alone are not reversible error, and even unethical conduct is not necessarily grounds for reversal. The Code is designed to provide guidance to judges and a structure for regulating conduct through the State Commission on Judicial Conduct. For reversal, there must be judicial impropriety plus probable prejudice to the complaining party plus rendition of an improper verdict. For complaints regarding ex partecommunications, no prejudice is shown if the appellant fails to point to record support showing that the communications influenced the court’s decision-making. 
  • Under Tex. Code Crim. Proc. Arts. 24.11 & 24.12, an attachment is a writ issued by the clerk in a criminal action commanding a peace officer to bring the witness to court to testify for either the State or the defendant. When a witness  resides in the county of prosecution has been duly served with a subpoena to appear and testify in any criminal action or proceeding fails to appear, the requesting party may request that the court issue an attachment for the witness. The request must be filed with the clerk and must include an affidavit of the requesting party stating that the affiant has good reason to believe and does believe that the witness is a material witness.
  • Under Tex. Code Crim. Proc. Art. 24.011(a), (b-1), if issuance of an attachment is requested for a witness younger than 18, the request must include the applicable affidavit from the requesting party described by Art. 24.12. 
  • The court shall appoint an attorney to represent the witness at the hearing under subsection (b), to include representing the witness at a hearing conducted outside the presence of the witness. Tex. Code Crim. Proc. Art. 24.111(d).
  • Under Chavez v. State, 9 S.W.3d 817, 819 (Tex.Crim.App. 2000), the right to complain about an illegal search and seizure is a privilege personal to the injured party and is not available to others. This includes complaints about Tex. Code Crim. Proc. Art. 38.23(a).
  • Under Tex. Rule Evid. 404(b) and Hernandez v. State, 176 S.W.3d 821, 822 (Tex.Crim.App. 2005), extraneous-offense evidence may be admissible for limited, noncharacter conformity purposes provided that upon timely request by the defendant, the State gives reasonable notice before trial of its intent to use such evidence during its case-in-chief. The admission of extraneous offenses when the State failed to provide reasonable notice is nonconstitutional error, reversable only if it affected the defendant’s substantial rights per Tex. Rule App. Proc. 44.2(b). To determine harm, a court must analyze whether and how the notice deficiency affected the defendant’s ability to prepare for the evidence. To determine this, a court looks at whether the defendant was surprised by the substance of the testimony and if it affected his ability to prepare cross-examination or to mitigate against the evidence. A defendant may demonstrate surprise by showing how his defense strategy might have been different had the State notified him that it intended to offer the extraneous-offense evidence. Error in admitting the evidence does not have an injurious effect on the verdict if the defendant was not surprised by its admission. If the trial court allows a continuance or recess to mitigate unreasonable notice, it can be harmless where the defendant fails to request additional time to address it or object based on having a potentially different strategy foreclosed by an already undertaken one. 
  • Under Tex. Code Crim. Proc. Art. 36.29(a), and Scales v. State, 380 S.W.3d 780, 784 (Tex.Crim.App. 2012), not less than 12 jurors can render a verdict in a felony case. However, 11 jurors may render the verdict where—after the trial of any felony case begins and before the charge of the court is read to the jury—the trial court determines that a juror has become disabled from sitting—and in such case, the verdict shall be signed by every member of the jury. A disabled juror is one who suffers from a physical illness, mental condition, or emotional state that would hinder the juror from performing duties as a juror or the juror was suffering from a condition that inhibited him from fully and fairly performing the functions of a juror. The determination of a juror’s disability is reviewed for an abuse of discretion.  The trial court is the sole factfinder and judge of the credibility of the evidence. Although the record must show the basis of the trial court’s reason, there is no requirement that the disabled juror testify regarding the disability. The burden is on the complaining party to develop a sufficient record to show the nature of the error on appeal regarding a ruling on juror disability. 

Facts:

  • Fernandez was indicted for Aggravated Assault with a deadly weapon and felony Assault family-violence after a previous conviction for allegedly striking Cynthia Flores with a clothing iron.
  • The trial court entered a pretrial discovery order requiring the State to give written notice 7 days before trial of extraneous acts it intended to introduce in its case-in-chief. Fernandez also filed a request for the same be given not later than 7 days before trial.
  • Prior to trial, the State filed a series of notices to the defense that detailed extraneous acts it would potentially use during its case-in-chief, alleging a dozen unreported bad acts committed against Flores characterized as demonstrating “continuous physical, verbal and emotional abuse.”
  • After the jury and an alternate were empaneled and sworn, the jurors received preliminary instructions and departed for lunch.
  • Outside the jury’s presence, the State requested a forfeiture-by-wrongdoing hearing under Tex. Code Crim. Proc. Art. 38.49, informing that Flores failed to appear for trial despite having being served with a subpoena compelling her attendance, which included a duces tecum to bring her daughter A.F. The State asserted it could establish through witnesses that wrongdoing by Fernandez led to Flores’s nonappearance. The State argued that Fernandez should forfeit his right to object to the admissibility of prior statements by Flores so he could not benefit from his alleged wrongdoing.
  • Defense counsel suggested that the State could request a writ of attachment to address Flores’s absence. The trial court acknowledged having earlier signed a writ of attachment as requested by the State. Defense counsel objected to the prolonged delay caused by the proposed hearing given that the State had earlier announced ready for trial. The trial court asked whether defense counsel thought that the State had witnesses ready for trial. Counsel responded that he knew there was a possibility that Flores would not cooperate because she had expressed to him her not wanting to go through with the case and was afraid to appear because she had given a false statement to the police about the events in question.
  • At the hearing, the State called a DA employee assigned to victims’ assistance and others to establish that Fernandez engaged in conduct designed to cause Flores to not be present for trial. The victim assistance witness testified that Flores had 5-10 contacts with her over many months and had described ongoing incidents of abuse against her, but at times recanted allegations of abuse. The witness described that she received an email purportedly from Flores but with Fernandez’s email stating that she wanted the charges dropped since she was back with Fernandez and they were doing great. Later, when Flores came into her office, she denied sending the email and said it had been sent by Fernandez. The witness testified that Flores signed an affidavit attesting that she had not sent the email. The last contact with Flores 11 months prior.
  • During the hearing, when the trial court asked defense counsel if he objected to admitting the copy of the writ of attachment that had been issued (State’s Exhibit 2), counsel expressed his concern at how the writ had been signed by the court without counsel’s knowledge and outside his presence, but he sought no ruling from the court nor lodged an objection for the hearing but stated he will have an objection later.
  • The trial court denied the State’s request for forfeiture based on insufficient evidence to show conduct by defendant designed to keep the complainant from appearing, but recessed the case until the next morning to give the State time to attach Flores per the writ.
  • The next morning, the defense announced ready but the State did not, requesting a 3-day continuance to locate Flores and A.F. Defense counsel objected, but the trial court, noting concern about jeopardy attaching if it declared a mistrial, granted the recess.
  • 3 days later, the defense announced ready for trial, but the State announced it would again need a continuance for more time to locate Flores and A.F. A detective appeared to inform the court that El Paso PD had just then found Flores and A.F. at a hotel. The court excused the detective to allow him to proceed with the writ of attachment. Defense counsel renewed his concern about the trial court’s issuance of the writ of attachment and objected that proper procedures under Art. 24.12 were not followed because the State should have articulated on the record grounds for its motion for writ of attachment and sufficient information about the expected testimony to show materiality. The State asserted that Fernandez had no standing to contest or question any subpoena issued by the State for its witnesses or for a writ of attachment. The trial court overruled defense counsel’s objection to the issuance of the writ.
  • The State informed the court that Flores expressed anger at being brought to court and claimed that the allegations against Fernandez were based on lies she had made up.
  • The State indicated that A.F.—who was 13—had divulged that her mother and Fernandez had been trying to keep her and her mother hidden so that they would not be available to testify and her mother asked her to lie if called as a witness. The State also disclosed that A.F. described a series of bad acts committed by Fernandez against her and her mother. The State acknowledged that neither side was previously aware of the alleged incidents. Defense counsel responded that the timing of any disclosures would be “unbelievably disadvantageous” because it caught him by “utter surprise” and would not give him opportunity to prepare a defense.
  • Defense counsel requested a continuance, which the trial court denied based on the impact of the continuance on the “victims.”
  • The trial court brought A.F. to the witness stand to give both sides an opportunity to determine how she might testify by examining her outside the presence of the jury.
  • A.F. testified about how Flores, Fernandez, and two of Fernandez’s children, conspired to keep A.F. and Flores hidden so they could not be brought to court, believing that “if they don’t find us until Friday, this case is going to be dropped.” Flores told A.F. to lie and not say anything about the allegations against Fernandez. After testifying about her knowledge of Fernandez’s charged offenses, A.F. testified about numerous bad acts committed by Fernandez against her mother, and defense counsel cross-examined her.
  • The trial court recessed for the weekend, but excused a juror for medical reasons without objections, and replaced that juror with the alternate who was sworn with the other jurors.
  • Pending the resumption of trial, the trial court detained Flores in the County Jail per the writ of attachment and allowed A.F. to leave with Flores’s sister.
  • When trial began, Juror Garcia expressed that he was feeling a “little sick.” The trial court retired the jury. The trial court stated on the record that Garcia said he had gotten lightheaded and felt like he was going to faint. When the trial court asked Garcia if he wanted to go home, Garcia said that he did not. After another recess, the trial court stated that the court staff made a call to EMS to check on Garcia’s vitals because he was not feeling better. After yet another recess, the trial court stated that Garcia felt “shaky, nervousness and wanting to faint.” The trial court informed Garcia would be excused as disabled. Garcia could not drive himself from the courthouse.
  • Defense counsel objected to only 11 jurors and requested a mistrial because he believed that not less than 12 jurors can render and return a verdict in a felony case, citing Art. 36.29. The trial court overruled the objection.
  • Flores testified that she and Fernandez had “ups and downs” and that her history of mental health issues of bipolar and had post-traumatic stress disorder, anxiety, and depression caused the problems. Flores claimed that she made a false police report after getting drunk, and lied about Fernandez hitting her with an iron, which led to Fernandez’s arrest. Flores claimed that she did not come to court because A.F. was sick and had cramps and that she and A.F. got a hotel room “because I wanted to.”
  • A.F. testified that they stayed in the hotel because her mother was trying to avoid being tracked down and brought to court. Fernandez initially treated her mother well, but Fernandez changed and became abusive to her mother. A.F. also heard Fernandez threaten to kill her mother multiple times during fights. A.F. said that on the day the alleged offense occurred, her mother called her and said, “[Fernandez] beat me and he hit me with an iron. I’m at my friend’s house and I need someone to come pick me up right now.”
  • A.F. hung up and told her grandmother about the call. Later that same evening, A.F. testified that her uncle Pat came to her grandmother’s home, but she was excluded from their conversation and had no further contact that day from her mother.
  • Patrick, Flores’s brother, also testified that Flores told him, “He beat me. He hit me with an iron.”
  • Fernandez admitted a copy of a 911 call he made that day in which he claimed that Flores had stolen his vehicle and phone about 40 minutes prior to him calling 911. The two had gotten into an argument he reported that neither had struck the other.
  • The jury convicted Fernandez of both counts as charged.
  • Fernandez pleaded true to felony enhancements alleged in the indictment, so he was subject to first-degree felony punishment range for the aggravated-assault count and to second-degree felony punishment range for the family-violence count per Tex. Penal Code §§ 12.42(a), (b); 22.01(a)(1), (b)(2)(A); 22.02(a)(2), (b).
  • A.F. and Flores’s sister testified about how Fernandez threatened to rape and kill A.F., kept A.F. in fear, and kept Flores in an isolated, abusive situation.
  • Flores acknowledged that she should have protected A.F., but always put Fernandez first. While she did not acknowledge having lied in the guilt phase, Flores testified that though she loved Fernandez, she was tired of hiding and going through pain caused by his abusive conduct.
  • The jury sentenced Fernandez to 40 years for Aggravated Assault and 20 years for Assault family violence. The trial court sentenced and ordered the sentences to run concurrently.

The ex parte communication did not violate due process

  • To determine whether a violation of the Code of Judicial Conduct is reversible error, a court examines the entire record to determine whether the trial judge engaged in impropriety that was harmful. 
  • Under Tex. Code Jud. Conduct Canon 3(B)(8), a judge “shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex partecommunications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney…or any…court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance by court personnel subject to the judge’s direction and control. This does not prohibit communications concerning uncontested procedural matters.
  • The purpose of prohibiting ex partecommunications is to ensure all legally interested parties are given their full right to be heard under the law and to ensure equal treatment of all parties. 
  • Under Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App. 2000), mere violations of the Code of Judicial Conduct alone are not reversible error, and even unethical conduct is not necessarily grounds for reversal. The Code is designed to provide guidance to judges and a structure for regulating conduct through the State Commission on Judicial Conduct. For reversal, there must be judicial impropriety plus probable prejudice to the complaining party plus rendition of an improper verdict. For complaints regarding ex partecommunications, no prejudice is shown if the appellant fails to point to record support showing that the communications influenced the court’s decision-making. 
  • Even if an improper ex partecommunication occurred, Fernandez cannot show judicial impropriety plus probable prejudice to the complaining party plus rendition of an improper verdict.  Fernandez did not show how his lack of presence at the time of the alleged communication regarding the noncompliance of a complaining witness in responding to a subpoena had caused prejudicial harm or how his presence would have made a difference in the trial court’s ruling. 

The trial court did not err in granting the writ of attachment, and Fernandez has no standing to complain

  • Under Tex. Code Crim. Proc. Arts. 24.11 & 24.12, an attachment is a writ issued by the clerk in a criminal action commanding a peace officer to bring the witness to court to testify for either the State or the defendant. When a witness resides in the county of prosecution has been duly served with a subpoena to appear and testify in any criminal action or proceeding fails to appear, the requesting party may request that the court issue an attachment for the witness. The request must be filed with the clerk and must include an affidavit of the requesting party stating that the affiant has good reason to believe and does believe that the witness is a material witness.
  • Under Tex. Code Crim. Proc. Art. 24.011(a), (b-1), if issuance of an attachment is requested for a witness younger than 18, the request must include the applicable affidavit from the requesting party described by Art. 24.12. 
  • The court shall appoint an attorney to represent the witness at the hearing under subsection (b), to include representing the witness at a hearing conducted outside the presence of the witness. Tex. Code Crim. Proc. Art. 24.111(d).
  • Under Tex. Code Crim. Proc. Art. 38.23(a) and Wilson v. State, 311 S.W.3d 452, 459 (Tex.Crim.App. 2010), no evidence obtained by an officer or other person in violation of the laws or Constitutions of Texas or the United States shall be admitted in evidence against the accused. This protects a person’s privacy, property, and liberty rights against overzealous law enforcement. 
  • Under Chavez v. State, 9 S.W.3d 817, 819 (Tex.Crim.App. 2000), the right to complain about an illegal search and seizure is a privilege personal to the injured party and is not available to others. This includes complaints about Tex. Code Crim. Proc. Art. 38.23(a).

Fernandez received reasonable notice of the extraneous offenses

  • Under Tex. Rule Evid. 404(b) and Hernandez v. State, 176 S.W.3d 821, 822 (Tex.Crim.App. 2005), extraneous-offense evidence may be admissible for limited, noncharacter conformity purposes provided that upon timely request by the defendant, the State gives reasonable notice before trial of its intent to use such evidence during its case-in-chief. The admission of extraneous offenses when the State failed to provide reasonable notice is nonconstitutional error, reversable only if it affected the defendant’s substantial rights per Tex. Rule App. Proc.44.2(b). To determine harm, a court must analyze whether and how the notice deficiency affected the defendant’s ability to prepare for the evidence. To determine this, a court looks at whether the defendant was surprised by the substance of the testimony and if it affected his ability to prepare cross-examination or to mitigate against the evidence. A defendant may demonstrate surprise by showing how his defense strategy might have been different had the State notified him that it intended to offer the extraneous-offense evidence. Error in admitting the evidence does not have an injurious effect on the verdict if the defendant was not surprised by its admission. If the trial court allows a continuance or recess to mitigate unreasonable notice, it can be harmless where the defendant fails to request additional time to address it or object based on having a potentially different strategy foreclosed by an already undertaken one. 
  • Even assuming that the State’s notice of intent was unreasonable, its admission was harmless because once the State informed Fernandez of its intent to introduce extraneous-offense evidence that it had newly gained knowledge from A.F., Fernandez objected because the timing of the disclosure was disadvantageous, caught him by surprise, and would not give him adequate opportunity to prepare a defense against the evidence. The trial court brought A.F. into the courtroom so that both sides had the opportunity to explore the content of her potential testimony. The court afforded Fernandez recess until Monday. When trial resumed and A.F. took the stand, Fernandez neither requested additional time to prepare a defense to the extraneous offenses nor made an objection that his defensive theory was hamstrung.

The trial court did not abuse his discretion in finding that Juror Garcia was disabled under Art. 36.29

  • Under Tex. Code Crim. Proc. Art. 36.29(a), and Scales v. State, 380 S.W.3d 780, 784 (Tex.Crim.App. 2012), not less than 12 jurors can render a verdict in a felony case. However, 11 jurors may render the verdict where—after the trial of any felony case begins and before the charge of the court is read to the jury—the trial court determines that a juror has become disabled from sitting—and in such case, the verdict shall be signed by every member of the jury. A disabled juror is one who suffers from a physical illness, mental condition, or emotional state that would hinder the juror from performing duties as a juror or the juror was suffering from a condition that inhibited him from fully and fairly performing the functions of a juror. The determination of a juror’s disability is reviewed for an abuse of discretion.  The trial court is the sole factfinder and judge of the credibility of the evidence. Although the record must show the basis of the trial court’s reason, there is no requirement that the disabled juror testify regarding the disability. The burden is on the complaining party to develop a sufficient record to show the nature of the error on appeal regarding a ruling on juror disability. 
  • Fernandez did not ask for a hearing to elicit live testimony from any witnesses and did not object on that basis even when given the opportunity to do so after he was interrupted by the court.
  • Before excusing Juror Garcia for being disabled, the trial court informed the parties of Garcia’s condition: (1) Garcia said he was lightheaded and felt like he was going to faint; (2) EMS was called upon to check his vitals; (3) although he did not want to leave, he felt shaky and faint; (4) he did not feel better after eating and having his vitals checked; and (5) he was in such an ill state that he did not feel he could drive himself from the courthouse. The trial court acted within its discretion to determine that Garcia was disabled due to a physical illness that would inhibit him from fully and fairly performing the functions of a juror. 
  • The conviction and sentence are affirmed.

Editor’s note: A judge should not issue a writ of attachment without defense counsel knowing about it. What’s next, rulings on the State’s motion in limine without defense counsel present? Still, I save complaints about judicial misconduct for when it may make a difference. I decide whether my presence would have made a difference. Here, the writ of attachment would have issued even if trial counsel was given notice. If a witness disobeys a subpoena, a writ of attachment should issue once it is determined that the testimony is material, and this witness’s testimony was material. It does not make such behavior less irritating, and fortunately, most judges do not allow ex parte communications like this. Pick your battles carefully.

Harrison v. State, No. 14-18-00372-CR, 2020 Tex.App.-LEXIS 728 (Tex.App.-Houston [14th Dist.] Jan. 28, 2020) (designated for publication) (Injury to a Child, Williamson Co.) [Standard of review for MNT; McCoy v. Louisiana and requirement to inform the defendant of facts that go to the decision to plead or withdraw a guilty plea]

  • If an attorney withholds information from the client relevant to the client’s decision to withdraw her plea and maintain her innocence, the attorney is ineffective. The likelihood of a better outcome from a waived or forfeited proceeding is not the correct prejudice standard because one cannot accord any presumption of reliability on judicial proceedings that never took place. The proper remedy is to give the defendant an opportunity to reject her plea agreement and opt for a jury trial.
  • Under Burch v. State, 541 S.W.3d 816, 820 (Tex.Crim.App. 2017), review of the denial of a MNT is for an abuse of discretion and is reversed only if no reasonable view of the record could support the trial court’s ruling.  Evidence is viewed in the light most favorable to the trial court’s ruling and the trial court’s ruling must be upheld if it is within the zone of reasonable disagreement, which occurs when there are two reasonable views of the evidence. 
  • Under Strickland v. Washington, 466 U.S. 668, 684-686 (1984), the Sixth Amendment guarantees a defendant the right to effective assistance of counsel. A defendant must prove by a preponderance of an evidence that: (1) trial counsel’s representation fell below an objective standard of reasonableness; and (2) prejudice. Trial counsel’s actions are presumed to have fallen within the wide range of reasonable and professional assistance. A defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. 
  • Under McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018) and Turner v. State, 570 S.W.3d 250, 274 (Tex.Crim.App. 2018), some decisions belong to the defendant and are not a matter of trial strategy, including to plead guilty or waive the right to a jury trial. These are not strategic choices about how best to achieve a client’s objectives but are choices about what the client’s objectives are. The Sixth Amendment guarantees that a defendant has the right to insist that counsel refrain from admitting guilt even when counsel’s experienced-based view is that confessing guilt is in the defendant’s best interest.

Facts:

  • While Appellant was working in her in-home daycare, a five-month-old baby stopped breathing. Appellant did not immediately call 911 and instead called an employee, who told her to call 911. Appellant called the other parents and asked them to pick up their children.
  • When the employee arrived 10-15 minutes later, appellant still had not called 911. The employee insisted and appellant finally did. Appellant destroyed phone logs showing calls made and text messages sent before she called 911.
  • Appellant pleaded no contest to injury to a child by omission and guilty to tampering with evidence. The trial judge initially said he would find appellant guilty of injury to a child. Defense counsel replied that deferred adjudication was available, so the judge did not make a finding of guilt and reset the case for sentencing.
  • After appellant made her plea, Defense Counsel went to the judge’s chambers where the judge was with the court coordinator and asked the judge whether he wanted her to provide caselaw show that deferred adjudication was allowed. The judge replied, “A deferred on an injury to a child case where there’s a dead baby? I don’t think so.” Defense Counsel consulted with Cocounsel and they decided not to tell appellant about the comment.
  • After sentencing, appellant retained new counsel and filed a MNT with a supporting affidavit stating that the possibility of deferred adjudication was the only she went to the judge for punishment.
  • At the MNT-hearing presided over by a different judge, it was established that the comment was made. The trial judge admitted that his comment was “absolutely not appropriate” yet claimed it to be a “smart-aleck comment,” and that he did consider the full range of punishment. Cocounsel testified that Defense Counsel texted him after she heard the comment, “We’re fucked,” yet they did not tell appellant since the same judge “was still the best option” and it was better to go with “the devil you know than the devil you don’t.”
  • The judge found the trial judge to be credible, believed that he considered the full range of punishment, and denied the MNT, finding that there was no IAC since the appellant failed to show that a favorable ruling on the MNT would have changed the outcome of the case.

The trial court abused its discretion in denying the MNT because her attorneys failed to advise her of the judge’s comment, thus depriving her of the right to ask to withdraw her plea, ask for a jury trial, or move to recuse the sentencing judge

  • Under Burch v. State, 541 S.W.3d 816, 820 (Tex.Crim.App. 2017), review of the denial of a MNT is for an abuse of discretion and is reversed only if no reasonable view of the record could support the trial court’s ruling.  Evidence is viewed in the light most favorable to the trial court’s ruling and the trial court’s ruling must be upheld if it is within the zone of reasonable disagreement, which occurs when there are two reasonable views of the evidence. 
  • Under Strickland v. Washington, 466 U.S. 668, 684-686 (1984), the Sixth Amendment guarantees a defendant the right to effective assistance of counsel. A defendant must prove by a preponderance of an evidence that: (1) trial counsel’s representation fell below an objective standard of reasonableness; and (2) prejudice. Trial counsel’s actions are presumed to have fallen within the wide range of reasonable and professional assistance. A defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. 
  • Under McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018) and Turner v. State, 570 S.W.3d 250, 274 (Tex.Crim.App. 2018), some decisions belong to the defendant and are not a matter of trial strategy, including to plead guilty or waive the right to a jury trial. These are not strategic choices about how best to achieve a client’s objectives but are choices about what the client’s objectives are. The Sixth Amendment guarantees that a defendant has the right to insist that counsel refrain from admitting guilt even when counsel’s experienced-based view is that confessing guilt is in the defendant’s best interest.
  • The record shows that counsel understood the seriousness of the judge’s comment and the impact that learning this information would have had on their client (telling cocounsel, “We’re fucked”). Counsel was aware that appellant likely would have changed her position had she known about the comment. The decision not to tell appellant about the judge’s statement was not a strategic choice.
  • Appellant adequately preserved her IAC claim and defense counsel were deficient when they failed to tell appellant of the judge’s statement implicating his ability to consider the full range of punishment, thus depriving appellant of the opportunity to maintain her innocence.
  • If an attorney withholds information from the client relevant to the client’s decision to withdraw her plea and maintain her innocence, the attorney is ineffective. The likelihood of a better outcome from a waived or forfeited proceeding is not the correct prejudice standard because one cannot accord any presumption of reliability on judicial proceedings that never took place. The proper remedy is to give the defendant an opportunity to reject her plea agreement and opt for a jury trial.
  • The trial court abused its discretion in denying the MNT.

Editor’s note: How did the judge of the 368th Dist. Ct., Williamson Co. REALLY feel about this defendant?

President’s Message: A Change for the Better

On March 27, 2020, my life was forever changed with the birth – in the midst of COVID-19 – of Brooks Alan Donica.  Of course, he is the most beautiful, perfect child God ever placed on the earth.  It was a dazzling spot during one of the most frightening, crazy periods in history.  I’ve included a FEW pictures because I want you to just see that I am not making this up – he is truly perfect!

Speaking of COVID-19 (must I????) – There are so many people who have stepped up for TCDLA to make a real difference for our members.  The foremost, of course, is our COVID-19 Task Force Chair Clay Steadman.  Clay is organized, smart, creative, tenacious, loyal and just quite simply amazing.  Our organizational approach to this virus has been brilliant because of Clay’s leadership.  We formed a task force with vice chairs Jeep Darnell, Nicole DeBorde Hochglaube, and John Hunter Smith, that had a team member in every TCDLA district ready to handle any issue that needed to be addressed.

And let’s talk about three individuals who stepped up under the leadership of the indomitable Betty Blackwell (GA-13 chair): Allison Clayton, Jeep Darnell, and Kyle Therrian.  They drafted responses regarding our GA-13 efforts that were simply intellectually over the head of almost anybody.  Truly three brilliant legal minds who have spent hundreds of hours making sure the rights of our neediest clients were being addressed. They continue to find ways to help our members meet the needs of our clients AND our members.

Take a look at the list of folks who stepped up to serve on our COVID-19 Task Force and ALL the resources available on the TCDLA website.  Each of these individuals is a HERO.  They have given when it was hard and they’ve cared about others when we were all really afraid for ourselves personally.  I’ve never been prouder of TCDLA.

I hope we are close to being set free to enjoy being back together at Rusty Duncan; I will REJOICE if that happens.  If it does not, we will have live streaming available (even if it does happen, that will be an option), so make sure you are signed up for Rusty Duncan.  I hope it will be our coming out party of the century!

I know it’s been a tough couple of months.  I pray it is almost a memory. I hope you never take one single breath for granted; and when life gives you the choice to sit it out or dance, I hope you’ll dance! 

Finally, thank you for the privilege, the honor, the joy of being your President.  Tears run down my face as I write this.  I love TCDLA – which is all of you.  My life is richer, more fulfilled and forever changed because I received the gift of serving all of you. God IS good!  In the words of Dr. Seuss –  “Don’t cry because it’s over, smile because it happened.”

Chief Executive Officer’s Perspective: Groundhog Day

“Be mindful. Be grateful. Be positive. Be true. Be kind.”

                                                                                        – Roy T. Bennett

 

It’s been almost a month we have been working remotely. At first it felt like time was going by fast, then it turned into Groundhog Day  on repeat – get up, get dressed, coffee, go work on the sofa, fix lunch for the kids, go back to the sofa to work, fix dinner, go to bed. The only thing that changed each day was the food.

After a week of being sore from just sitting on the couch and working, but not working out, I decided I had to force myself to go outside. Then I got sore from playing basketball and volleyball with the kids – sigh. Three weeks later, I need to make myself take a break during the day just to move around. After reorganizing the pantry and storage closet, I have picked up several hobbies, binge-watched way too much Netflix, and started cooking items from scratch.

Most of the staff are working remotely while a few go into the office to cut checks, open mail, and process orders. We are watching our cash flow as I can imagine most of you are. We continue to ensure our expenses are down to the essentials. We are already projecting out various scenarios to prepare the best we can.

The past couple of weeks have been non-stop working on every aspect of criminal defense and the impact of COVID-19. Our Task Force has put in countless hours and continue to be there for our members. If you need any assistance, I encourage you to reach out to your district representative, who is listed on our website. Utilize the resources TCDLA offers during this challenging time. I haven’t had time to work on the items I would normally be working on due to being faced with COVID-19.

On April 10, 2020, the Hon. Lora Livingston of the 261st District Court of Travis County issued a temporary restraining order enjoining enforcement of Executive Order GA-13 in TCDLA et al. v. Abbott. The following day, the Texas Supreme Court stayed that order and has since ruled the individual judges in Harris County don’t have standing to sue for an injunction. However, the Supreme Court made very clear the constitutional arguments put forth in the petition and in TCDLA’s writ of habeas corpus are very strong and should be considered by the Texas Court of Criminal Appeals.

TCDLA President Kerri Anderson Donica, Past President Betty Blackwell, COVID-19 Task Force Chair Clay Steadman, along with along with his Vice-Chairs, John Hunter Smith, Nicole Houchglaube, and Jeep Darnell, and the GA-13 Subcommittee members Allison Clayton, Jeep Darnell, and Kyle Therrian, have been instrumental in assisting attorneys throughout the state fight Governor Abbot’s unconstitutional Executive Order GA-13. Their tireless work and dedication over long hours  has resulted in one of the most vulnerable groups in Texas’ population, the poor, being released from jail pending the resolution of their respective cases.

We are each going through our difficulties of being separated from family and friends: family violence has risen, and anxiety levels and responsibilities have increased tremendously. TCDLA has put on several Mindful Mondays to help deal with stress, partnered with TIDC to prepare you for the new norm for online courtrooms, and Financial Fridays to help you with finances. If you missed any of the events, we have them on our website. If you can’t find the recordings, call us – 512.478.2514 – we will point you in the right direction.

With everything going on, I am frequently reminded to slow down just a bit and force my kids to take a break from their electronics, watch a movie, go outside, or play a game. I have to say I enjoy the time with the kids, but miss my family and friends. I look forward to when I get to see adults in person, not on Zoom or FaceTime. Sometimes we need a gentle reminder to be thankful for what we have and for the people we don’t get to see all the time. I try to reach out and say “Hello” to those I haven’t heard from in a while. Kind words go a long way. Whether you call, text, FaceTime, or Zoom, connect with someone today you have had on your mind or someone you haven’t heard from in a couple of days or weeks. Together we must continue to be positive, kind, and thankful. I am grateful for whoever is reading this article at the moment.