Monthly archive

June 2020

June 2020 SDR – Voice for the Defense Vol. 49, No. 5

Voice for the Defense Volume 49, No. 5 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

Kansas v. Glover, No. 18–556, 2020 U.S. LEXIS 2178  (U.S. April 6, 2020) [Investigative traffic stop after learning that the registered owner has a revoked license]

  • An officer does not violate the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s plate and learning that the registered owner has a revoked driver’s license. When the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.
  • Under United States v. Cortez, 449 U.S. 411, 417-418 (1981) and Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the Fourth Amendment permits an officer to initiate a brief investigative traffic stop if has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts must permit officers to make commonsense judgments and inferences about human behavior.
  • Under Delaware v. Prouse, 440 U.S. 648, 658 (1979), States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles and that licensing, registration, and vehicle inspection requirements are being observed.

Facts:

  • Deputy Mehrer was on routine patrol when he observed a 1995 truck with KS plate 295ATJ. He ran it and discovered that it was registered to Glover, who had a revoked DL.
  • Mehrer assumed the registered owner Glover was also the driver.
  • Mehrer did not observe any traffic infractions. Nor did he attempt to identify the driver. Based solely on the information that the registered owner’s DL was revoked, Mehrer initiated a traffic stop.
  • The driver of the truck was Glover.
  • Kansas charged Glover with driving as a habitual violator.
  • Glover filed a motion MTS, arguing that the officer lacked reasonable suspicion. The District Court granted the MTS.
  • The Court of Appeals reversed, holding that it was reasonable for Mehrer to infer that the driver was the owner of the vehicle because “there were specific and articulable facts from which the officer’s common-sense inference gave rise to a reasonable suspicion.”
  • The Kansas Supreme Court reversed, holding that Mehrer did not have reasonable suspicion because his inference that Glover was driving was “only a hunch” that Glover was committing a crime.

An officer does not violate the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s plate and learning that the registered owner has a revoked driver’s license. When the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.

  • Under United States v. Cortez, 449 U.S. 411, 417-418 (1981) and Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the Fourth Amendment permits an officer to initiate a brief investigative traffic stop if has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Although a mere
  • hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts must permit officers to make commonsense judgments and inferences about human behavior.
  • Under Delaware v. Prouse, 440 U.S. 648, 658 (1979), States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles and that licensing, registration, and vehicle inspection requirements are being observed.
  • The fact that the 1995 Chevrolet truck with Kansas plate 295ATJ was registered to Glover allowed Mehrer to draw the “commonsense inference” that Glover was likely the driver of the vehicle and provided “more than reasonable suspicion” to initiate the stop. The fact that the registered owner is not always the driver does not negate the reasonableness of this inference.
  • Under Heien v. North Carolina, 574 U.S. 54, 60 (2014), the reasonable suspicion inquiry “falls considerably short” of 51% accuracy since “to be reasonable is not to be perfect.” 
  • The judgment below is reversed, and the case is remanded.

Editor’s note: this opinion allows officers to make stops with impunity based solely on information they receive from databases, which are only as reliable as the information inputted into them. This greatly expands the definition of a Terry-stop.                                                        

Ramos v. Louisiana, No. 18–5924, 2020 U.S. LEXIS 2407 (U.S. April 20, 2020) [Right to unanimous jury verdicts; stare decisis]

  • Under the Sixth Amendment, defendants charged with felonies are entitled to trial by a unanimous, impartial jury. 
  • Stare decisis is not “an inexorable command.” The doctrine is at its weakest when the Constitution is interpreted because a mistaken judicial interpretation is practically impossible to correct through other means. When the SCOTUS revisits a precedent, it considers the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision; and reliance on the decision.

Facts:

  • In a 10-2 verdict, Ramos was convicted of murder committed during a rape. He was sentenced to life without parole.

Defendants charged with felonies are entitled to trial by a unanimous, impartial jury

  • Under the Sixth Amendment, defendants charged with felonies are entitled to trial by a unanimous, impartial jury. 
  • Stare decisis is not “an inexorable command.” The doctrine is at its weakest when the Constitution is interpreted because a mistaken judicial interpretation is practically impossible to correct through other means. When the SCOTUS revisits a precedent, it considers the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision; and reliance on the decision.

Editor’s note: the jury problem fixed by the SCOTUS:

United States Court  of Appeals for the Fifth Circuit

United States v.  Alvarado-Palacio, 951 F.3d 337  (5th Cir. March 2, 2020) [Waiver of Miranda and waiver forms]

  • In reviewing a ruling on a MTS, the 5th Circuit defers to factfinding by the district court unless clearly erroneous—definite and firm conviction that a mistake was made. The ultimate issue of voluntariness is a legal question reviewed de novo. The evidence is viewed in the light most favorable to the prevailing party.
  • Under Moran v. Burbine, 475 U.S. 412 (1986), Miranda, 384 U.S. at 444, 475, and United States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005), a suspect can waive Miranda rights if it is voluntarily, knowingly, and intelligently. A voluntary waiver is the product of a free and deliberate choice rather than intimidation, coercion, or deception. Trickery or deceit is prohibited only to the extent that it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. The voluntariness determination is made case-by-case and is viewed under the totality of the circumstances surrounding the interrogation.
  • Under North Carolina v. Butler, 441 U.S. 369, 373 (1979), though not conclusive, a signed waiver form is strong proof of a knowing and voluntary waiver.
  • Waivers may be direct or may be inferred from the actions and words of the person interrogated. A failure to pay attention to the waiver form a suspect signed is insufficient to show that a waiver was made involuntarily or unknowingly. 

Facts:

  • In March 2017, Alvarado-Palacio—a Mexican citizen—attempted to drive a vehicle containing 9.98 kilograms of meth into the United States. He was detained at a port of entry in El Paso, where CBP found the meth following a secondary inspection of the car. He was arrested for questioning.
  • Homeland Security Investigations (HSI) Agents Hernandez and Flores interrogated him. Hernandez read him his Miranda rights in Spanish. Hernandez asked Alvarado-Palacio in Spanish if he understood his rights, and Alvarado-Palacio said yes.
  • Hernandez informed Alvarado-Palacio that the interrogation was being recorded as “protection for everyone” and Alvarado-Palacio needed to include his name, signature, and date on a Spanish version of a DHS form including a “Declaration of [Miranda] Rights” and “Waiver.” While Alvarado-Palacio picked up the pen to sign, Flores informed him that he can read the rights again if he wants. Alvarado-Palacio filled out the form. Alvarado-Palacio looked at the form again for about 15 seconds, appearing to read its contents and repeat some of it under his breath.
  • Alvarado-Palacio handed the form to Hernandez and said, “…I may have an attorney, it says?” Hernandez answered while holding the signed rights and waiver form, “Yes, you may have an attorney, but right now is when we can speak with you.” Alvarado-Palacio responded, “Ah, ok.”
  • Alvarado-Palacio gave a confession admitting that he knew the drugs were in the car even though he did not know what kind. Alvarado-Palacio admitted he was offered $800 to take the drugs to a delivery point in the United States.
  • Alvarado-Palacio was indicted for importing and possessing with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of meth per 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and 21 U.S.C. § 952(a), and 21 U.S.C. § 960(a)(1), (b)(1)(H).
  • Alvarado-Palacio filed a MTS his confession, arguing that he did not voluntarily and knowingly waive Miranda  because Hernandez mischaracterized his right to an attorney.
  • The district court denied the MTS, finding that Alvarado-Palacio was subject to a custodial interrogation but knowingly, intelligently and voluntarily waived those rights. The court also found that Alvarado-Palacio stated rather than asked for clarification when he said, “…I may have an attorney, it says?”
  • The district court found Alvarado-Palacio guilty after a bench trial based on stipulated facts and sentenced him to 46 months in BOP.

The trial court did not err by denying the MTS

  • In reviewing a ruling on a MTS, the 5th Circuit defers to factfinding by the district court unless clearly erroneous—definite and firm conviction that a mistake was made. The ultimate issue of voluntariness is a legal question reviewed de novo. The evidence is viewed in the light most favorable to the prevailing party.
  • Under Moran v. Burbine, 475 U.S. 412 (1986), Miranda, 384 U.S. at 444, 475, and United States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005), a suspect can waive Miranda rights if it is voluntarily, knowingly, and intelligently. A voluntary waiver is the product of a free and deliberate choice rather than intimidation, coercion, or deception. Trickery or deceit is prohibited only to the extent that it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. The voluntariness determination is made case-by-case and is viewed under the totality of the circumstances surrounding the interrogation.
  • Under North Carolina v. Butler, 441 U.S. 369, 373 (1979), though not conclusive, a signed waiver form is strong proof of a knowing and voluntary waiver.
  • Waivers may be direct or may be inferred from the actions and words of the person interrogated. A failure to pay attention to the waiver form a suspect signed is insufficient to show that a waiver was made involuntarily or unknowingly. 
  • After Alvarado-Palacio reviewed the form, the agents asked him if he understood it and he responded, “Yes, that I may have an attorney, it says?”
  • Nothing indicates that Alvarado-Palacio did not make a free and deliberate choice to waive his right to counsel. The totality of circumstances shows that the district court’s finding that he knew and understood his rights is not clearly erroneous.                          

United States v. Moton, 951 F.3d 639 (5th Cir. March 2, 2020) [Base offense level; conversion rate for a synthetic cannabinoid]

  • The Controlled Substances Act (CSA) makes it unlawful to knowingly manufacture, distribute, or possess with the intent to distribute controlled substances. The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially like those listed on the federal controlled substance schedules and instructs courts to treat those analogues—if intended for human consumption—as controlled substances listed on schedule I.
  • The Government must establish that the defendant knew he was dealing with a controlled substance. When the substance is an analogue, knowledge is proven if the defendant knew that the substance was controlled under the CSA or Analogue Act even if he did not know its identity. Knowledge can be established by evidence that a defendant knew: (1) that the substance is a listed controlled substance—regardless of whether he knew the identity of the substance—and circumstantial evidence may suffice showing concealment of activities, evasive behavior with law enforcement, knowledge that a substance produces a “high” like that produced by controlled substances, and knowledge that a substance is subject to seizure at customs; or (2) the analogue he was dealing with, even if he did not know its legal status as an analogue.
  • When a defendant preserved sentencing error, review of the factual findings is for clear error and its application of the U.S.S.G. is de novo. Even if error is established, it must be disregarded if it is harmless—does not affect substantial rights. On clear error review, the Government has the burden to prove the error is harmless.
  • The base offense level reflects the offense of conviction and relevant conduct, which includes acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. Only criminal conduct is relevant, but the conduct need not have resulted in a conviction. Relevant conduct must be proven by a preponderance of the relevant and sufficiently reliable evidence. The district court may consider any relevant information—without regard to admissibility under the rules of evidence—provided the information has sufficient indicia of reliability to support its probable accuracy. A PSR generally has sufficient indicia of reliability. A defendant’s objections do not cast doubt on the PSR. The defendant must demonstrate its inaccuracy through rebuttal evidence.
  • For a drug offense, the base offense level reflects the amounts of drugs with quantities from multiple transactions added. Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the district court shall approximate the quantity of the controlled substance.
  • To determine the appropriate conversion rate for a synthetic cannabinoid, the equivalency of THC is used—the most closely related controlled substance: 167 grams marijuana per one-gram substance.

Facts:

  • In 2016, Houston PD received a tip regarding narcotics activity at a storage facility. They observed Moton unloading boxes from a minivan into a unit flagged by the facility’s manager. Moton drove to a gas station a few miles away where he deposited a box and two black trash bags into a dumpster. Police recovered the box and trash bags, which contained materials used to produce and tested positive for synthetic cannabinoid: baggies, receipts for acetone, a box for a digital scale, a package for a respirator, bottles of Tasty Puff flavoring, and labels of various “herbal incense.”
  • The police surveilled Moton as he visited other storage facilities and a house on Mulholland Drive in Houston (“House”). Moton was the only person seen visiting the House, regularly dropping off trash bags at storage units for pickup by codefendant Malik. Moton put trash bags in the trunk of Malik’s car. Malik transferred the bags to another vehicle, which was stopped for a traffic violation, and contained 800 baggies of synthetic cannabinoids.
  • Officers arrested Moton at the House, which was not used as a home. It had unfurnished rooms and empty kitchen cabinets. It was a manufacturing lab, with chemical flavoring in a bedroom, acetone in the garage, tubs filled with packaged synthetic cannabinoids, fans blowing chemical odors out of the chimney, and a machine used to seal the drugs. 580 pounds of synthetic cannabinoids were found, along with Moton’s utility bill for the House.
  • Police advised Moton of his rights and interrogated him. Moton described the process for delivering synthetic cannabinoids. He was paid by cash left for him in the units. Police searched the units, including one listed in Moton’s name, and found materials used to produce synthetic cannabinoids.
  • Moton claimed at trial that although he mixed artificial flavoring with dry green leaves, having packaged up to 200,000 bags, he had no idea any aspect of the business was illegal, saying that his difficulty with English left him unaware.
  • The jury found Moton guilty of two counts of possession with intent to distribute synthetic cannabinoids and not guilty on the remaining conspiracy charge.
  • The PSR attributed to him $107,940 in drug proceeds discovered in Malik’s safety deposit box and 434,319 grams of cannabinoids seized at different locations. The drug proceeds and seized cannabinoid totaled 2,593,119 grams. Using an unstated multiplier, the PSR converted this figure to 409,274 kg marijuana, base offense level of 38. The PSR added a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining premises for manufacturing or distributing a controlled substance analogue. With a total offense level of 40 and a criminal history category of I, the advisory range was 292-365 months, capped by statute at 240 months. Varying downward, the district court sentenced Moton to 186 months in BOP.

There was sufficient evidence to sustain the jury’s finding that Moton acted with the requisite mens rea

  • The Controlled Substances Act (CSA) makes it unlawful to knowingly manufacture, distribute, or possess with the intent to distribute controlled substances. The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially like those listed on the federal controlled substance schedules and instructs courts to treat those analogues—if intended for human consumption—as controlled substances listed on schedule I.
  • The Government must establish that the defendant knew he was dealing with a controlled substance. When the substance is an analogue, knowledge is proven if the defendant knew that the substance was controlled under the CSA or Analogue Act even if he did not know its identity. Knowledge can be established by evidence that a defendant knew: (1) that the substance is a listed controlled substance—regardless of whether he knew the identity of the substance—and circumstantial evidence may suffice showing concealment of activities, evasive behavior with law enforcement, knowledge that a substance produces a “high” like that produced by controlled substances, and knowledge that a substance is subject to seizure at customs; or (2) the analogue he was dealing with, even if he did not know its legal status as an analogue.
  • The jury had enough circumstantial evidence to convict Moton.

Any sentencing error was harmless

  • When a defendant preserved sentencing error, review of the factual findings is for clear error and its application of the U.S.S.G. is de novo. Even if error is established, it must be disregarded if it is harmless—does not affect substantial rights. On clear error review, the Government has the burden to prove the error is harmless.
  • The base offense level reflects the offense of conviction and relevant conduct, which includes acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. Only criminal conduct is relevant, but the conduct need not have resulted in a conviction. Relevant conduct must be proven by a preponderance of the relevant and sufficiently reliable evidence. The district court may consider any relevant information—without regard to admissibility under the rules of evidence—provided the information has sufficient indicia of reliability to support its probable accuracy. A PSR generally has sufficient indicia of reliability. A defendant’s objections do not cast doubt on the PSR. The defendant must demonstrate its inaccuracy by introducing rebuttal evidence.
  • For a drug offense, the base offense level reflects the amount of drugs involved with quantities of drugs from multiple transactions added together. Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the district court shall approximate the quantity of the controlled substance.
  • Because Moton admitted to packaging 750,000-2,000,000 grams of synthetic cannabinoid, which exceeds the minimum weight for a base offense level of 38, any sentencing error was harmless.
  • To determine the appropriate conversion rate for a synthetic cannabinoid, the equivalency of THC is used—the most closely related controlled substance: 167 grams marijuana per one-gram substance.
  • Applying the conversion rate—167 grams marijuana per one-gram substance—to the 2,000,000 grams of synthetic cannabinoid packed by Moton—yields 334,000 kg marijuana. This far exceeds the 90,000 kg of marijuana needed for a base offense level of 38. Thus, errors in the PSR did not affect Moton’s sentence and are harmless.
  • The district court’s judgment is affirmed.

Editor’s note: herbal incense is not “good” for you. Pumping chemicals or smoke into your lungs is not “good” for you. But the similar-harm-comparisons between herbal incense versus meth, cocaine, and pharmaceutical drugs that killed 70,000 Americans in 2017 alone (68% of which by pharmaceuticals) are nonsense.

https://www.cdc.gov/injury/features/prescription-drug-overdose/index.html

United States v. Phea, No. 17-50671, 2020 U.S.App.LEXIS 10101 (5th Cir. March 31, 2020) (designated for publication) [IAC for failing to object to a constructive amendment]

  • When evaluating the denial of a motion under 28 U.S.C. § 2255, the 5th Circuit reviews factual findings for clear error and conclusions of law de novo. A claim of IAC is a mixed question of law and fact that is reviewed de novo. The court independently applies the law to the facts found by the district court provided the factual determinations are not clearly erroneous.
  • Under Strickland v. Washington, 466 U.S. 668, 686 (1984), a defendant claiming IAC must prove: (1) representation that fell below an objective standard of reasonableness; and (2) prejudice to the defense: but-for the errors, the result of the proceeding would have been different. The defendant need only show a probability sufficient to undermine confidence in the outcome. The objective standard of reasonableness is viewed considering the circumstances as they appeared at the time of the conduct and is measured by prevailing professional norms. A strong presumption is made that counsel’s conduct falls within the wide range of reasonable professional assistance. While counsel need not anticipate changes in the law, the absence of directly controlling precedent does not preclude a finding of deficient performance.
  • A constructive amendment of the indictment occurs when the trial court—through its instructions and facts allowed into evidence—allows proof of an essential element of the crime on an alternative basis provided by statute but not charged in the indictment.

Facts:

  • Phea located K.R. (14-year-old girl) on Tagged.com. where her profile stated that she was 18.  K.R. testified Phea thought she was 18, and she told him she was under 18 only after the crime.
  • The indictment alleged: (Count 1) that per 18 U.S.C. § 1591(a), Phea knowingly recruited, enticed, harbored, transported, provided, obtained, and maintained by any means in and affecting interstate commerce K.R.—knowing that K.R. was not 18 and would be caused to engage in a commercial sex act; and (Count 2) per 18 U.S.C. § 1952(a)(3), aiding and abetting the promotion of a business enterprise involving prostitution.
  • The jury instructions for Count 2 did not contain “knowing”: “if the Government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person… then the Government does not have to prove that the defendant knew that the person had not attained the age of 18 years.” This language tracks § 1591(c): (if) the defendant had a reasonable opportunity to observe the person recruited… transported…the Government need not prove that the defendant knew that the person had not attained…18 years.
  • For Count 1, the district court instructed the jury using language that did not appear in the indictment: “If the Government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person recruited… transported…the Government does not have to prove that the defendant knew the person (was not 18).
  • Trial counsel did not object to the instruction, which was a constructive amendment to the indictment
  • The jury convicted Phea on both counts.
  • The district court sentenced Phea to 312 months for Count 2 and 60 months for Count 1.
  • On appeal, the 5th Circuit rejected the plain-error argument on the constructive indictment because the court had not yet addressed whether § 1591 permits a conviction based solely on a finding that the defendant had a reasonable opportunity to observe the victim.
  • Phea filed a motion under 28 U.S.C. § 2255, arguing IAC by failing to argue the indictment was constructively amended. The district court denied the motion.

Phea received IAC

  • When evaluating the denial of a motion under 28 U.S.C. § 2255, the 5th Circuit reviews factual findings for clear error and conclusions of law de novo. A claim of IAC is a mixed question of law and fact that is reviewed de novo. The court independently applies the law to the facts found by the district court provided the factual determinations are not clearly erroneous.
  • Under Strickland v. Washington, 466 U.S. 668, 686 (1984), a defendant claiming IAC must prove: (1) representation that fell below an objective standard of reasonableness; and (2) prejudice to the defense: but-for the errors, the result of the proceeding would have been different. The defendant need only show a probability sufficient to undermine confidence in the outcome. The objective standard of reasonableness is viewed considering the circumstances as they appeared at the time of the conduct and is measured by prevailing professional norms. A strong presumption is made that counsel’s conduct falls within the wide range of reasonable professional assistance. While counsel need not anticipate changes in the law, the absence of directly controlling precedent does not preclude a finding of deficient performance.
  • A constructive amendment of the indictment occurs when the trial court—through its instructions and facts allowed into evidence—allows proof of an essential element of the crime on an alternative basis provided by statute but not charged in the indictment.
  • Count 1 of the indictment charged under 18 U.S.C. § 1591(a) and alleged Phea knew K.R. was under 18. But the indictment made no reference to § 1591(c) or its “reasonable opportunity to observe” language. The district court instructed the jury on both the actual-knowledge theory alleged in the indictment and the “reasonable opportunity to observe” language in § 1591(c). The trial court eliminated the scienter requirement of actual knowledge—the element Phea was indicted under—but lowered the factual basis required to prove this essential element from what Phea knew to what he had the reasonable opportunity to observe. 
  • Because no objection was made, trial counsel’s performance was deficient. Phea was also prejudiced since even K.R. believed that Phea thought she was 18, and she was willing to engage in “adult” activities. There is a reasonable probability a jury would have had reasonable doubt that Phea knew K.R. was under 18.
  • The judgment is REVERSED, the conviction under § 1591(a) is VACATED, and the case remanded for further proceedings.

Editor’s note: this clearly was a constructive amendment that should have been objected to.  It is also critical that Phea pleaded not guilty to knowingly trafficking a 14-year-old girl. Had he pleaded guilty, Phea could have still filed a § 2255 motion arguing IAC. But when a defendant pleads guilty, generally the only viable claim of IAC is that counsel was so deficient that the plea was “involuntary and uninformed.” This is a claim under Hill v. Lockhart, 474 U.S. 52, 59 (1985): counsel’s deficient performance “led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” 

When a defendant alleges that IAC led him to accept a guilty plea rather than go to trial, the question is not if he had gone to trial that the result would have been different from the result of the plea, but although a strong presumption of reliability is given to judicial proceedings, the presumption cannot apply to judicial proceedings that never took place. However, a Lockhart claim generally works only if counsel misinformed on a material issue of law or counsel’s failure to investigate caused a critical fact to not be discovered. 

In Lockhart, counsel told Hill that if he pleaded guilty, he would become eligible after serving 1/3 of his sentence, but in fact he was required to serve 1/2. This was bad advice on a material issue of law that prejudiced Hill. See also Lee v. United States, 137 S.Ct. 1958, 1966-1967 (2017): if a noncitizen proves defective advice regarding the risk of deportation if the noncitizen pleads guilty to an offense for which deportation is presumably mandatory, he need not prove that he would have likely prevailed at trial, but only that he would have gone to trial.

Thus, had Phea admitted to knowingly trafficking a 14-year-old girl, to prevail on a Lockhart claim, he must prove far more than a variation of “I didn’t really know that she was only 14 years old.”  That the girl was 14 is a fact that may not implicate trial counsel’s advice since Phea either knew or did not know her real age. Phea would have to show that counsel misled him on a material issue of law or that counsel’s failure to investigate caused a critical fact to not be discovered.  

In re Ray, 951 F.3d 650 (5th Cir. March 3, 2020) [Sanctions against an attorney for bad faith or fraud]

  • Sanctions imposed against an attorney by a district court are reviewed for abuse of discretion. The district court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Disbarment of an attorney by a federal court is proper only upon presentation of clear and convincing evidence sufficient to support the finding of one or more violations warranting the sanction.
  • When acting under an inherent power to disbar an attorney, a district court must make a specific finding that an attorney’s conduct constituted or was tantamount to bad faith. When bad faith is patent from the record and specific findings are unnecessary to understand the misconduct giving rise to the sanction, the necessary finding of bad faith may be inferred.

Facts:

  • Hernandez (Army reservist) worked for RSI. He failed to report to work because he went to the ER, complaining of a headache and back pain. RSI fired Hernandez for violating a policy of failing to report four hours prior to a shift if he is unable to appear. 
  • Hernandez hired Ray to file suit against RSI alleging violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Hernandez alleged that his ER-visit was for treatment of an aggravation of a back condition he suffered while on military duty the preceding weekend. Under USERRA’s convalescence provision, his reporting period was extended because he sustained injury during military service.
  • During discovery, RSI served Hernandez with requests for production of medical records since the injury, including those from the ER trip. In response, Hernandez turned over a doctor’s note stating that Hernandez was under his care that day and could return to work the next day. RSI obtained Hernandez’s signature on an authorization to obtain relevant medical records but did nothing with the document. 
  • At some point, Ray received copies of records from the ER trip and claimed to have faxed them to opposing counsel. Ray later discovered that the fax failed to transmit. Ray never revealed prior to trial that he had the records.
  • After a bench trial, the district court denied Hernandez’s claims and rendered judgment for RSI. Hernandez appealed, and the 5th Circuit reversed and rendered judgment in his favor, remanding for a calculation of damages. 
  • While the case was pending on remand, RSI learned that Ray had Hernandez’s ER records in his possession prior to trial but failed to disclose them. RSI also contended that Hernandez gave false testimony at trial about the true reason for the ER trip. 
  • RSI filed a motion for relief from judgment under Fed. Rule Civ. Proc. 60(b), attaching the ER records, which revealed that Hernandez visited the ER complaining of a migraine-type headache, with back pain an associated symptom from a chronic nondisabling condition. RSI argued that the records proved that the ER trip was not for treatment of an aggravation of a back condition suffered while on military duty the previous weekend as he had testified at trial and argued on appeal. 
  • The district court granted the Rule 60(b) motion, determined that Hernandez intentionally gave false testimony to mislead RSI in its trial preparation, and this testimony misled the Fifth Circuit. 
  • The district court also concluded that Ray failed to take appropriate steps to supplement an incomplete discovery response by providing the ER records to opposing counsel once he received them.
  • The district court ordered Ray to file a response about his conduct and the possibility that the court might issue an order imposing discipline, directing the clerk to remove Ray’s name from the role of attorneys authorized to practice law before the court (disbarment). Ray filed a response arguing against the imposition of sanctions but declined the court’s offer of a hearing.
  • The district court filed a memorandum opinion and order directing the clerk to remove Ray’s name from the list of attorneys authorized to practice law in the N.D. Tex., finding that his conduct unnecessarily cost RSI $340,000 in litigation. Ray’s behavior was of a pattern that tended to be destructive of the administration of justice. He engaged in fraud, misrepresentation, and misconduct that created a false record and provided fodder for false arguments by Hernandez. Ray sat silently when at oral argument in the Fifth Circuit, the court asked the attorney for RSI if there was any evidence in rebuttal to Hernandez’s claim that his trip to the ER was to receive medical attention for a back injury sustained during military duty, to which the RSI attorney responded “there is no other real evidence one way or the other.” Only an attorney completely devoid of an ethical or moral sense of right and wrong would have sat quietly by as the RSI attorney said that, bearing in mind that Ray had in his possession documents showing the real reason Hernandez went to the ER.

The district court did not abuse its discretion by sanctioning Ray

  • Sanctions imposed against an attorney by a district court are reviewed for abuse of discretion. The district court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Disbarment of an attorney by a federal court is proper only upon presentation of clear and convincing evidence sufficient to support the finding of one or more violations warranting the sanction.
  • On appeal, Ray argued that he withheld “significant evidence” from opposing counsel prior to trial because he was “an inexperienced attorney, and not due to fraud.”
  • When acting under an inherent power to disbar an attorney, a district court must make a specific finding that an attorney’s conduct constituted or was tantamount to bad faith. When bad faith is patent from the record and specific findings are unnecessary to understand the misconduct giving rise to the sanction, the necessary finding of bad faith may be inferred.
  • The order imposing disbarment from the N.D. Tex. is affirmed.

Editor’s note: although this proceeding arose from a civil case on the issue of disclosure of discovery, I summarized it to address the importance of candor the court. But it is interesting that an attorney can be disbarred if he fails to abide by civil discovery rules under Fed. Rule Civ. Proc. 26, while prosecutors who violate criminal discovery rules under Fed. Rule Crim. Proc. 16, Tex. Code Crim. Proc. Art. 39.14, and Brady suffer few—if any—consequences. If courts were as hard on prosecutors who fail to disclose material evidence as these courts were on Mr. Ray, prosecutors who cheat or think about cheating may have a whole new attitude towards their duty of candor to the court.

United States v. Rodriguez-Leos, 953 F.3d 320 (5th Cir. March 16, 2020) [Review of the district court’s interpretation of the U.S.S.G.; how an issue is preserved for appeal; U.S.S.G. § 2X1.1(b)(1) (attempt-offenses)]

  • Review of the district court’s interpretation of the U.S.S.G. is de novo and its factual findings is clear error. If an objection is raised for the first time on appeal or raises an objection that is different from what he raised in district court, review is for plain error. 
  • There is no bright-line rule for determining whether an issue is preserved for appeal. A party must press the issue and not merely intimate it in the district court. The objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. Key is whether the objection is specific enough to allow the court to take evidence and receive argument on the issue. The objection and argument on appeal need not be identical; the objection must merely give the district court the opportunity to address the gravamen of the argument presented on appeal. Once a party raises an objection in writing and receives a ruling, if he subsequently fails to make an oral objection, the error is still preserved because it is about the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief.
  • An objection is preserved if the defendant made a written objection and did not specifically cite the U.S.S.G.-section to which the PSR applied but used terminology identical to that used in the part the defendant was challenging. 
  • Under U.S.S.G. § 2X1.1(b)(1), for an attempt-offense, the  offense level should be decreased by 3 unless the defendant completed all the acts he believed necessary for successful completion of the substantive offense or the circumstances show that he was about to complete all acts but-for apprehension or interruption by some event beyond his control. Whether a reduction is warranted considers these factors: (1) focus on the substantive offense and the defendant’s conduct in relation to it; (2) no reduction required for a conspirator who has made substantial progress in his criminal endeavor simply because a significant step remains before commission of the substantive offense; (3) a defendant is entitled to the reduction unless the circumstances demonstrate that the balance of the significant acts completed and those remaining tips toward completion of the substantive offense, considering the quality—not just the quantity—of the completed and remaining acts; and (4) the temporal frame of the scheme and the time the defendant would have needed to finish his plan had he not been interrupted because as completion of the offense becomes imminent, the reduction is less appropriate.

Facts:

  • Rodriguez-Leos pleaded guilty to unlawful possession of ammunition by a person admitted to the U.S. under a nonimmigrant visa.
  • Per the PSR, federal agents conducting surveillance operations at an Academy Sports in McAllen observed Rodriguez-Leos purchase 520 rounds of 7.62 x 39mm caliber ammunition. A record-check of the vehicle driven by Rodriguez-Leos revealed that he entered the country at the Hidalgo Port of Entry earlier that day. Agents followed him to a residence in McAllen. Rodriguez-Leos got out of his vehicle with the box of ammunition, walked toward the front of the home out of sight of the agents, and returned to his vehicle without the box. The homeowner consented to a search, which revealed the ammunition concealed underneath a bush near the front entrance of the home.
  • Agents followed Rodriguez-Leos to a store in Hidalgo where they questioned him about the ammunition. After waiving Miranda, he admitted that he purchased the ammunition for one “El Chivo” (“the goat”) and left it at the McAllen home because he did not want it in his vehicle. He also admitted he purchased ammunition for El Chivo twice recently and received $50 each time. He met El Chivo at the port of entry and  received money to purchase ammunition. El Chivo would call him and tell him to meet an unknown male at a Whataburger in Hidalgo, where he delivered the ammunition to the unknown male. Later he understood that the male would smuggle the ammunition into Mexico.
  • The PSR assigned a base offense level of 14 and a 4-level enhancement because he possessed the ammunition with knowledge, intent, or reason to believe that it would be transported out of the U.S., making the offense level 18. Because he possessed it in connection with another offense—exportation of ammunition without a valid export license—the PSR applied the cross reference in § 2K2.1(c)(1), which directs the use of § 2X1.1 if the resulting offense level is greater than previously determined. This made the base offense level 26. 
  • A 3-level reduction is allowed under § 2X1.1(b)(1) if the defendant attempted but did not complete the substantive offense unless he completed all acts he believed necessary for successful completion of it or the circumstances demonstrate he was about to complete all acts but-for apprehension or interruption by some event beyond his control. The PSR stated the decrease was not warranted because he completed all acts necessary but-for the apprehension.
  • Rodriguez-Leos objected in writing to the PSR, arguing that he did not know that El Chivo was involved in organized crime or that the ammunition would be smuggled into Mexico.
  • The district court applied a 3-level reduction for acceptance of responsibility for a total offense level of 23, making the range 46-57 months. The court overruled Rodriguez’s objection, stating it was clear that he knew the ammunition was going to be smuggled to Mexico. The district court did not address Rodriguez’s objections to the application of the cross-reference, the minor participant objection; or the 3-level decrease, and instead implicitly overruled them by adopting the PSR.
  • The court sentenced Rodriguez-Leos to 50 months.

The district court erred by failing to assign him a three-level reduction for attempt under § 2X1.1(b)(1) because there was no evidence that before his arrest, he completed or was about to complete all acts he believed were necessary for the successful completion of the substantive exportation-of-ammunition offense

  • Review of the district court’s interpretation of the U.S.S.G. is de novo and its factual findings is clear error. If an objection is raised for the first time on appeal or raises an objection that is different from what he raised in district court, review is for plain error. 
  • There is no bright-line rule for determining whether an issue is preserved for appeal. A party must press the issue and not merely intimate it in the district court. The objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. Key is whether the objection is specific enough to allow the court to take evidence and receive argument on the issue. The objection and argument on appeal need not be identical; the objection must merely give the district court the opportunity to address the gravamen of the argument presented on appeal. Once a party raises an objection in writing and receives a ruling, if he subsequently fails to make an oral objection, the error is still preserved because it is about the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief.
  • An objection is preserved if the defendant made a written objection and did not specifically cite the U.S.S.G.-section to which the PSR applied but used terminology identical to that used in the part the defendant was challenging. 
  • Rodriguez-Leos properly cited U.S.S.G. § 2X1.1 even though he cited subsection (a) when (b) was the subsection that is central to his argument. His written objection that “it can’t be said that defendant completed all necessary acts under [§] 2X1.1(a)” was sufficiently specific to alert the court to the nature of the alleged error and to provide an opportunity for correction.
  • Under U.S.S.G. § 2X1.1(b)(1), for an attempt-offense, the  offense level should be decreased by 3 unless the defendant completed all the acts he believed necessary for successful completion of the substantive offense or the circumstances show that he was about to complete all acts but-for apprehension or interruption by some event beyond his control. Whether a reduction is warranted considers these factors: (1) focus on the substantive offense and the defendant’s conduct in relation to it; (2) no reduction required for a conspirator who has made substantial progress in his criminal endeavor simply because a significant step remains before commission of the substantive offense; (3) a defendant is entitled to the reduction unless the circumstances demonstrate that the balance of the significant acts completed and those remaining tips toward completion of the substantive offense, considering the quality—not just the quantity—of the completed and remaining acts; and (4) the temporal frame of the scheme and the time the defendant would have needed to finish his plan had he not been interrupted because as completion of the offense becomes imminent, the reduction is less appropriate.
  • At the time of his arrest, Rodriguez-Leos was not on his way to deliver the ammo. He was shopping and did not have possession of the ammunition. There is no definitive evidence of a temporal timeframe because it is unclear when El Chivo would have called Rodriguez-Leos or when the crime would have been completed had the officers not seized the ammunition and arrested him.
  • The district court clearly erred in finding that Rodriguez-Leos completed all acts necessary and but-for the apprehension, was able to complete all the acts necessary for completion of the substantive offense of the exportation of ammunition. He did not have possession of the ammunition, nor was on his way to deliver it. The agents apprehended Rodriguez-Leos well before he or any co-conspirator had completed the acts necessary for the substantive offense, so the offense was not on the verge of completion. In both quantity and quality, the balance of the significant acts completed and those remaining does not tip toward completion of the substantive offense. 
  • The sentence is vacated and remanded for resentencing.

Editor’s note: the mystery of “El Chivo” remains. Hopefully Mr. Rodriguez-Leos learned his lesson and will never again traffic with a person known only as “The Goat.”

Texas Court of Criminal Appeals

Metcalf v. State, No. PD-1246-18, 2020 Tex.Crim.App. LEXIS 277 (Tex.Crim.App. April 1, 2020) (designated for publication)  (Sexual Assault of a child) [Party liability under Tex. Penal Code § 7.02(a)(3)]

  • Under Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997), the sufficiency of the evidence is measured by comparing the evidence produced at trial to the essential elements of the offense as defined by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict theories of liability, and adequately describes the offense for which the defendant was tried. The law authorized by the indictment are the statutory elements as modified by indictment allegations. 
  • Under Tex. Penal Code § 7.02(a)(3), a person is criminally responsible for an offense committed by the conduct of another if…having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. To prove the intent-to-promote-or-assist element, the State must show that it was the defendant’s conscious objective or desire for the primary actor to commit the crime. For evidence of intent, a court looks to events before, during and after the commission. Although a court may look to events after its commission, the intent to promote or assist must have been formed contemporaneously with—or before—the alleged crime was committed.  Circumstantial evidence is as probative as direct evidence when determining whether a person was a party to an offense. Party liability is as much an element of an offense as the enumerated elements prescribed in a statute that defines a crime.
  • Under Gonzales v. State, 304 S.W.3d 838 (Tex.Crim.App. 2010), “penetration of the anus or sexual organ” in the aggravated-sexual-assault statute defined two offenses because Aggravated Sexual Assault is a nature-of-conduct offense, penetration of the anus and penetration of the sexual organ are distinct acts, and “anus” and “sexual organ” are written in the disjunctive. The analysis is the same for Sexual Assault under Tex. Penal Code § 22.011(a)(1)(A), and “penetration of the anus or sexual organ” are different offenses and not merely two ways of committing the same offense.
  • A conviction must be reformed if: (1) in finding a defendant guilty of the greater offense, the jury necessarily found that the defendant committed the lesser offense, and (2) the evidence is legally sufficient to support the defendant’s conviction for the lesser offense. 

Facts:

  • Metcalf’s husband Allen began sexually abusing their daughter Amber when she was 13. In a voluntary statement, Metcalf said that once she woke at 2:30 a.m. when Allen came back to bed, claiming to be “checking on the kids,” which Metcalf found strange.
  • Amber did not tell anyone about the abuse at the time because Allen threatened to hurt her young siblings, and she believed him since he was already sexually abusing her.
  • Amber said that sometimes when she cried out at night, Metcalf would stand by her bedroom door and ask, “What’s going on?” When Allen left Amber’s room, he would tell Metcalf that Amber was having a nightmare. Amber stopped crying out because she thought that Metcalf was “letting it happen.”
  • When she was 15, Amber told Metcalf that Allen was a “monster” who was doing “bad things,” but she gave no details, and Metcalf did not ask what she meant.
  • When Amber was 16, she came home from jogging with Allen and was crying. Amber told Metcalf that Allen had slapped her and tried to pull down her shorts. Allen admitted to slapping Amber and trying to pull down her shorts but denied that it was sexual. He said that Amber started “whining about having to use the bathroom” a few minutes after they left the house, “so he took her behind a tree and pulled at her shorts.” Metcalf did not believe Allen that it was not sexual and kicked him out of the house, but she let him return later that day. She told police that even though she did not believe Allen, she had no proof. Metcalf gave Amber a cellphone and a whistle “in case Allen did something.” Metcalf told Amber to call her—not the police—if something happened. Metcalf also put up a beaded curtain on Amber’s bedroom door.
  • Once Metcalf left the house to stay at a motel for a night. Amber asked to go with her, but Metcalf would not let her. Amber did not know why, but it was suggested that it was because Metcalf had a migraine that day. Allen raped Amber that night.
  • A year later, Metcalf walked into Amber’s room and saw Allen on top of her, touching her vagina. Metcalf kicked him out of the house again. Allen repeatedly called Metcalf, begging to return. Metcalf called Amber and asked if Allen could return. She told her that she should think about the kids because they “need their dad.” Amber finally relented and agreed to let him return. Amber and Metcalf slept in the master bedroom while Allen slept on the couch. Allen never sexually assaulted her again.
  • When Amber was 19, she moved into her great aunt Emma’s house to work towards earning her GED. Blakeman learned of Allen’s sexual abuse a couple of years later when Amber was 22. Emma contacted Metcalf, and this was the first time Amber told Metcalf that Allen began sexually abusing her when she was 13. Emma and Amber went to the Sheriff’s Office and reported the abuse.
  • Allen pled guilty to 12 counts of second-degree Sexual Assault and three counts of Indecency with a Child.
  • Metcalf was indicted for Sexual Assault of a child for a 2010 alleged assault. She was charged as the primary actor, but the jury was instructed that it could convict her as a party.
  • The jury convicted Metcalf as a party, and she was sentenced to three years in prison.
  • The court of appeals reversed based on legal insufficiency, finding that to prove intent to promote or assist, the evidence must show that the parties were acting together, each doing some part of the execution of the common purpose, and the agreement to act must be made before or contemporaneous with the criminal event.
  • The court of appeals also found that the conviction cannot be reformed to Indecency with a Child because the evidence was insufficient to show that Metcalf had the intent to promote or assist the commission  of Indecency with a Child.

The Evidence was insufficient to prove that Metcalf had intent to promote or assist

  • Under Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997), the sufficiency of the evidence is measured by comparing the evidence produced at trial to the essential elements of the offense as defined by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict theories of liability, and adequately describes the offense for which the defendant was tried. The law authorized by the indictment are the statutory elements as modified by indictment allegations. 
  • Under Tex. Penal Code § 7.02(a)(3), a person is criminally responsible for an offense committed by the conduct of another if…having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. To prove the intent-to-promote-or-assist element, the State must show that it was the defendant’s conscious objective or desire for the primary actor to commit the crime. For evidence of intent, a court looks to events before, during and after the commission. Although a court may look to events after its commission, the intent to promote or assist must have been formed contemporaneously with—or before—the alleged crime was committed.  Circumstantial evidence is as probative as direct evidence when determining whether a person was a party to an offense. Party liability is as much an element of an offense as the enumerated elements prescribed in a statute that defines a crime.
  • Under Gonzales v. State, 304 S.W.3d 838 (Tex.Crim.App. 2010), “penetration of the anus or sexual organ” in the aggravated-sexual-assault statute defined two offenses because Aggravated Sexual Assault is a nature-of-conduct offense, penetration of the anus and penetration of the sexual organ are distinct acts, and “anus” and “sexual organ” are written in the disjunctive. The analysis is the same for Sexual Assault under Tex. Penal Code § 22.011(a)(1)(A), and “penetration of the anus or sexual organ” are different offenses and not merely two ways of committing the same offense.
  • A rational jury could have believed or disbelieved Amber’s testimony that she heard Allen tell Metcalf that Amber was just having nightmares, but there is no evidence from which a rational jury could have reasonably inferred that Metcalf did not believe Allen and that she knew he was sexually assaulting Amber.
  • While Amber’s statements to Metcalf that Allen was a “monster” and was doing “bad things” are incredibly troubling, they were too ambiguous to support a reasonable inference that Metcalf knew that Allen was sexually assaulting Amber. Amber never told Metcalf what she meant, and Metcalf never asked.
  • With respect to the jogging incident, the evidence was sufficient to show that Metcalf thought that Allen was sexually interested in Amber, but Metcalf’s belief does not support a reasonable inference that because Metcalf thought that it was sexual for Allen, she must have known that Allen had been sexually assaulting Amber or that he would in the future.
  • Although the whistle, cellphone, and beaded curtain that Metcalf gave to Amber were woefully inadequate, it tends to show that it was not Metcalf’s intent to promote or assist Allen in sexually assaulting Amber.  While a rational jury did not have to believe that Metcalf gave Amber the cellphone and whistle and put up the beaded curtain to protect her, there is no other evidence showing why Metcalf gave Amber those items and put the curtain up. Even if the jury disbelieved Metcalf, it could not have reasonably inferred from the disbelief that Metcalf gave Amber the cellphone and whistle because it was her intention to promote or assist in the commission of sexual assaults.
  • It is clear that Metcalf knew that Allen was sexually assaulting Amber when she walked into Amber’s room and saw Allen with his hand on Amber’s vagina a year after the charged offense, but it does not prove that Metcalf knew Allen was sexually assaulting Amber at the time of the charged offense, and there is no other evidence showing that it was Metcalf’s conscious objective or desire for Allen to sexually assault Amber, so she could not have intended to promote or assist the commission of that offense.
  • A conviction must be reformed if: (1) in finding a defendant guilty of the greater offense, the jury necessarily found that the defendant committed the lesser offense, and (2) the evidence is legally sufficient to support the defendant’s conviction for the lesser offense. 
  • The court of appeals was correct that the evidence did not show that Metcalf intended to promote or assist in the commission of Indecency with a Child. 
  • The evidence is insufficient to sustain Metcalf’s conviction for Sexual Assault of a child and the conviction cannot be reformed to reflect a lesser-included offense. The judgment of the court of appeals is affirmed, rendering an acquittal.

Ex parte Rodgers, No. WR-89,477-01, 2020 Tex.Crim.App.LEXIS 286 (Tex.Crim.App. April 8, 2020) (designated for publication) (Art. 11.07-proceeding) [Illegal sentence claim raised for the first time on habeas corpus; waiver by not objecting to a defective indictment; Parrott harmless error]

  • A defendant may raise an illegal sentence claim at any time, including for the first time in an initial application for writ of habeas corpus.
  • A defective indictment that purports to charge an offense and is facially an indictment, per Tex. Const. Art. V, § 12(b) is a valid indictment that is sufficient to vest the district court with subject-matter jurisdiction. 
  • When a defendant does not object to even a defective indictment that is facially an indictment, the defendant cannot later challenge its efficacy to invoke the jurisdiction of the district court. This follows Tex. Code Crim. Proc. Art. 1.14(b), which provides that if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives the right to object to the defect, error, or irregularity and may not raise the objection on appeal or in any other postconviction proceeding.
  • Under Ex parte Parrott, 396 S.W.3d 531 (Tex.Crim.App. 2013), even errors that might affect jurisdiction are not automatically insulated from a harm analysis. Generally, an applicant must show harm to obtain habeas relief for an illegal sentence-claim based on the improper use of a prior conviction to enhance punishment. 
  • Under Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007), to prove up a prior conviction, the State must prove beyond a reasonable doubt: (1) its existence; and (2) that the defendant is linked to the conviction. Evidence linking a defendant to a prior conviction may be circumstantial and may be proved in different ways, including by the defendant’s admission.

Facts:

  • Applicant was indicted for DWI per Tex. Penal Code § 49.04, enhanced to an F-3 per Tex. Penal Code § 49.09(b)(2) because of two prior alleged DWI convictions, enhanced to habitual-offender status under Tex. Penal Code § 12.42(d) to 25-99 years because of two additional DWI convictions, both of which were felonies.
  • Under a plea-agreement in which the State abandoned one of the alleged convictions to obtain habitual-offender status, Applicant pleaded guilty to an F-2. He was admonished about the range of punishment for an F-2 and was sentenced to 15 years TDCJ. Applicant did not appeal.
  • Applicant filed an application for writ of habeas corpus under Tex. Code Crim. Proc. Art. 11.07, arguing that the indictment authorized only a misdemeanor DWI because the State made a mistake in its allegation of the second jurisdictional prior DWI by alleging the same prior conviction twice with a slight variation in the cause numbers: F-9652378-IW, which was genuine, and F-9652378-HW, which did not exist.
  • Applicant’s trial counsel provided an affidavit—found credible by the trial court—explaining that his pretrial investigation revealed that the State had indeed used the nonexistent cause number, but Applicant had two other DWI convictions not alleged in the indictment: F-9949146 and F-9553407. Applicant was on probation in F-9553407 when on November 10, 1999, he was convicted in F-9949146, and his probation in F-9553407 was revoked. Trial counsel believed that either unpled priors would have been available for use as jurisdictional enhancements and could have been alleged in place of the nonexistent F-9652378-HW to raise Applicant’s present offense to an F-3. Thus, filing a motion to quash the indictment would have been poor strategy because the unpled priors would have been available to be substituted as jurisdictional-enhancement allegations and Applicant had the plea-offer in which the State agreed to abandon one of the enhancement-paragraphs and seek only 15 years. Ultimately, despite knowing about the flaw in the indictment, Applicant accepted the State’s offer.

Applicant failed to show harm in the defective indictment

  • A defendant may raise an illegal sentence claim at any time, including for the first time in an initial application for writ of habeas corpus.
  • A defective indictment that purports to charge an offense and is facially an indictment, per Tex. Const. Art. V, § 12(b) it is a valid indictment that is sufficient to vest the district court with subject-matter jurisdiction. 
  • When a defendant does not object to even a defective indictment that is facially an indictment, the defendant cannot later challenge its efficacy to invoke the jurisdiction of the district court. This follows Tex. Code Crim. Proc. Art. 1.14(b), which provides that if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives the right to object to the defect, error, or irregularity and may not raise the objection on appeal or in any other postconviction proceeding.
  • Under Ex parte Parrott, 396 S.W.3d 531 (Tex.Crim.App. 2013), even errors that might affect jurisdiction are not automatically insulated from a harm analysis. Generally, an applicant must show harm to obtain habeas relief for an illegal sentence-claim based on the improper use of a prior conviction to enhance punishment. 
  • Under Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007), to prove up a prior conviction, the State must prove beyond a reasonable doubt: (1) its existence; and (2) that the defendant is linked to the conviction. Evidence linking a defendant to a prior conviction may be circumstantial and may be proved in different ways, including by the defendant’s admission.
  • The circumstantial evidence supports the convicting court’s finding that the State could have used F-9949146 or F-9553407 in place of the nonexistent F-9652378-HW to cross the jurisdictional divide from misdemeanor DWI to F-3 DWI.
  • Despite having knowledge of the problems with the indictment, Applicant accepted the State’s plea-offer and did not challenge the prior convictions pretrial.
  • The Parrott harmless-error analysis applies, and Applicant failed to meet his burden to show that he was harmed by the invalid enhancement. Relief is denied.

Tracy v. State, No. AP-77,076, 2020 Tex.Crim.App. LEXIS 276 (Tex.Crim.App. April 1, 2020) (designated for publication) (Capital Murder) [No hybrid representation under the Texas Const.; change of venue]

  • Under Tex. Const. Art. I, § 10, the constitutional right of a defendant to be “heard” is to assure the right to testify, not to engage in hybrid representation, and was not intended to encompass the right to self-representation as held in Faretta v. California, 422 U.S. 806 (1975).
  • A change of venue may be granted if the defendant establishes that there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial. A change of venue based on media attention requires a showing that the publicity was “pervasive, prejudicial, and inflammatory.” Widespread publicity by itself is not inherently prejudicial. A defendant must demonstrate an actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come. A ruling on a motion for change of venue is for an abuse of discretion and will be upheld if it falls within the zone of reasonable disagreement. The primary means of discerning whether publicity is pervasive are a hearing on the motion to change venue and testimony during voir dire.

Facts:

  • Appellant was in prison because in 1998, he entered the home of 16-year-old Kasey Kuhn through an open window and demanded sex. Biting and hitting him, Kuhn refused. Appellant covered her face with a pillow and choked her until he thought she was dead. Appellant dropped her out of her window, put her in his car, and drove around. When Kuhn regained consciousness, Appellant beat her until she lost consciousness. He pulled her out of the car and dragged her into the woods.
  • Officer Britt noticed Appellant’s car on the side of the road, found the situation suspicious, got out of his car, and heard “help me help me.” He saw Appellant on the ground by the car with blood on his hands and believed that he was drunk. Britt pulled his weapon and approached Appellant. Appellant ran away and broke into and hid in several homes, stealing cash and jewelry.
  • Britt noticed Kuhn, covered in blood with her throat slit. Kuhn was transported to the hospital where she was treated for a broken orbital bone, broken nose, and lost teeth. She underwent surgery to have a plate inserted in her face to hold the bones together. She suffered debilitating migraines and permanent injury to her vision.
  • While awaiting trial, Appellant was involved in numerous incidents at Rockwall County Jail, including throwing feces and urine at officers, threatening inmates and officers, attacking inmates, and possessing contraband. One officer described him as “the most difficult inmate he ever had to deal with.” Appellant also attempted to escape by slipping his handcuffs off, taking an officer’s gun, firing, and missing.
  • Appellant was convicted of Aggravated Assault, Assault on a public servant, and Burglary of a habitation. He was sentenced to life.
  • At the Allred Unit, Appellant committed 27 assaults on officers, threatened to kill them, threw darts at them, and was caught in possession of contraband so often that his cell was searched every 4 hours. Chemical agents were used many times to subdue him. Appellant converted a welding rod into a shank and stabbed an officer in the shoulder, causing his transfer to the Clements Unit.
  • At the Clements Unit, Appellant attacked Officer Katie Stanley with a metal shank, kicked her in the head, and unsuccessfully tried to throw her over the railing of the 3rd floor. A video of this assault was created to show new officers during training. Appellant pleaded guilty to Aggravated Assault with a deadly weapon on a public servant, Aggravated Assault causing SBI on a public servant, and Possession of a Deadly Weapon in a Penal Institution. He received 45 years and was transferred to the Robertson Unit.
  • At the Robertson Unit, Appellant was found in possession of contraband like needles, screwdrivers, protractors, sandpaper, razor blades, and sharpened metal. He tampered with a lock and threatened officers. He slashed the face of Officer Lomas with a weapon made from razor blades, requiring 200 stitches. Appellant received a 10-year sentence for Assault on a public servant and was transferred to the Hughes Unit.
  • At the Hughes Unit, Appellant was found in possession of contraband, defeated the facility’s x-ray machine, planned an escape, was found in possession of escape-tools like sandpaper, saw blades, and a homemade Dremel tool. Appellant was transferred to the Telford Unit.
  • At the Telford Unit, Appellant was in administrative segregation. He was escorted by an officer to recreation, where he stretched to prepare his assault on Officer Davison, an officer in segregation. Appellant was escorted back to his cell by Davison, who had chemical spray and a metal slot bar used to open cell doors and food tray slots. As Appellant was escorted, he manipulated his hand restraints and placed them both on his right wrist. When Davison opened Appellant’s cell door, Appellant struck him with his fists until Davison was knocked to the floor. Appellant grabbed the metal slot bar and struck him in the head until he became incapacitated. Appellant continued to strike Davison with the metal bar after he lost consciousness. Appellant  removed the chemical spray from Davison’s belt, grabbed him by his legs, and threw him down the staircase. Appellant threw the slot bar down the stairs and sprayed the spray towards Davison before walking back to his cell and closing the door behind him. Davidson died shortly later at a hospital. DNA-analysis of the slot bar and Appellant’s shoes show a mixture profile that was 3.24 sextillion times more likely to be DNA from Davison and Appellant than two unrelated, unknown individuals. The assault was on video.
  • An extraction team removed Appellant from his cell, and he was placed in a separate holding cell. Appellant made numerous comments to officers about how the staff were “stupid” for not having a lieutenant guard his cell and that this is “just what [he] does.” He told one officer, “yeah I beat [Davison’s] ass why do you care it’s not like y’all are friends,” and said “maybe next time” it would be another officer. Appellant claimed that he could hurt anyone in prison any time he wanted. Officers described Appellant as extremely violent, unpredictable, manipulative, problematic, and resistant to authority.
  • Before trial, Appellant filed a motion to transfer venue from Bowie County, arguing that the Telford Unit is an important economic entity in the county, creating a likelihood that a fair and impartial trial would be impossible.
  • At the hearing, the defense investigator testified to media coverage by print and digital newspapers and social media, including online comments made by correctional employees and other county residents. He acknowledged that he could not estimate how many people saw or read these articles and comments. He also agreed that the facts reported accurately depicted the incident between Appellant and Davison.
  • The Bowie County Judge testified that there are nearly 100,000 residents in Bowie County, and none had contacted him about the case. He also believed Appellant could receive a fair and impartial trial in Bowie County, that there was not excessive prejudicial opinion among county citizens, and the news coverage was not prejudicial or inflammatory.
  • The motion to transfer venue was denied.
  • Appellant filed numerous pro se pretrial motions. At a hearing, the trial court said that Appellant was not entitled to hybrid representation and refused to rule on any of the pro se motions that appointed counsel had not reviewed.
  • The jury found Appellant guilty of Capital Murder, then returned the special verdict answering “yes” to special issue 1 and “no” to special issue 2. The judge sentenced Appellant to death.

The trial court did not commit structural error by denying Appellant’s request for hybrid representation in violation of the Texas Constitution

  • Under Tex. Const. Art. I, § 10, the constitutional right of a defendant to be “heard” is to assure the right to testify, not to engage in hybrid representation, and was not intended to encompass the right to self-representation as held in Faretta v. California, 422 U.S. 806 (1975).
  • There was no structural error in the trial court denying Appellant’s request for hybrid representation.

The trial court did not err in denying the motion to change venue

  • A change of venue may be granted if the defendant establishes that there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial. A change of venue based on media attention requires a showing that the publicity was “pervasive, prejudicial, and inflammatory.” Widespread publicity by itself is not inherently prejudicial. A defendant must demonstrate an actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come. A ruling on a motion for change of venue is for an abuse of discretion and will be upheld if it falls within the zone of reasonable disagreement. The primary means of discerning whether publicity is pervasive are a hearing on the motion to change venue and testimony during voir dire.
  • Evidence supports the conclusion that the media coverage was not extensive, inflammatory, or prejudicial to such an extent that a fair and impartial trial would be impossible. Although there were print and digital newspaper articles and social media posts relating to the case, there was no estimate of how many people in Bowie County received or read those articles. Testimony showed that many commenting, posting, and responding to the articles were not county residents and would not be in the jury pool. Furthermore, news stories that are accurate and objective in their coverage are generally considered not to be prejudicial or inflammatory.
  • A large part of the jury pool lives in the Texarkana area, so those summoned would not necessarily live near the prison.
  • The trial judge acted within the zone of reasonable disagreement in denying the motion to change venue.
  • The judgment of the trial court is affirmed.

Editor’s note: not included are several death-penalty-specific issues regarding voir dire and punishment that may be of interest to death-penalty practitioners.

Texas Courts of Appeals

Ex parte Moon, No. 01-18-01014-CR, 2020 Tex.App.-LEXIS 1397 (Tex.App.-Houston [1st Dist.] Feb. 20, 2020) (designated for publication) (Pretrial habeas corpus) [Juvenile discretionary transfers; sufficiency of the evidence in habeas cases; double jeopardy]

  • Under Tex. Fam. Code §§ 51.02(2)(A) & 51.04(a), juvenile courts have exclusive original jurisdiction over cases involving delinquent conduct by children ages 10-17 under the Juvenile Justice Code (Tex. Fam. Code §§ 51.01-61.107).
  • Under Tex. Fam. Code  § 54.02(a), a juvenile court may waive its exclusive original jurisdiction and allow transfer of the proceeding to a district court. 
  • If the juvenile is under 18, the court must find: (1) a felony was committed; (2) the child was: (A) 14 or older when the offense was committed if it is a capital, aggravated controlled substance, or F-1, and no adjudication hearing was conducted; or (B) 15 or older when the offense was committed if it is an F-2, F-3, or SJF, and no adjudication hearing was conducted; and (3) after investigation and hearing, the court determines there is probable cause to believe that the child committed the offense and because of its seriousness or his background, the welfare of the community requires transfer, which requires consideration of:
  • (i) whether the offense was against person or property, with greater weight given to offenses against the person;
  • (ii) sophistication and maturity of the child;
  • (iii) previous history of the child; and
  • (iv) prospects of adequate protection of the public and the likelihood of rehabilitation by use of procedures, services, and facilities available to the juvenile court.
  • If he is 18 or older, the court may waive jurisdiction if it finds:
  • (1) he 18 or older;
  • (2) he was: (A) 10 or older and under 17 when a capital felony or Murder was committed; (B) 14 or older and under 17 when an aggravated controlled substance or F-1 other than Murder was committed; or (C) 15 or older and under 17 when an F-2, F-3, or SJF was committed;
  • (3) no adjudication was made, and no hearing was conducted;
  • (4) the court finds from a preponderance of the evidence that: (A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before his 18th birthday; or (B) after due diligence of the state it was not practicable to proceed in juvenile court before his 18th birthday because: (i) the state did not have probable cause to proceed in juvenile court and new evidence was found after he turned 18; (ii) he could not be found; or (iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and (5) the court determines there is probable cause to believe that the child committed the offense alleged.
  • An attack on the sufficiency of the evidence to support transfer under Tex. Fam. Code  § § 54.02(j) is not cognizable on pretrial writ of habeas corpus because there is an adequate remedy by appeal if the transfer order was entered on or after September 1, 2015, so Tex. Code Crim. Proc. Art. 44.47 applies, which requires the transfer-decision to be reviewed on direct appeal. 
  • Under the Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, protects an accused from being placed twice in jeopardy for the same offense. Under Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988), the Double Jeopardy Clause protects defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Although the Double Jeopardy Clause precludes retrial of a defendant whose conviction is reversed on appeal because of insufficient evidence, it does not preclude retrial when the conviction is reversed on appeal for trial error. 

Facts:

  • On November 19, 2008 when Moon was 16, the State filed a petition alleging that Moon engaged in delinquent conduct by committing Murder. The State also filed a motion under Tex. Fam. Code § 54.02(a) and (f) asking the juvenile court to waive its exclusive original jurisdiction and transfer Moon to the district court, alleging that because of the seriousness of the offense, the welfare of the community required waiver of juvenile jurisdiction.
  • On December 17, 2008, the juvenile court held a certification hearing and granted the State’s motion to waive jurisdiction.
  • On December 18, 2008, the juvenile court signed an order waiving jurisdiction and transferring the case to the District Court. The order stated that the court determined that there is probable cause to believe that the child committed Murder and because of the seriousness of it, the welfare of the community requires it. The order also found that the offense was against a person, the sophistication and maturity of Moon, his record and previous history, and prospects of adequate protection of the public and likelihood of reasonable rehabilitation.
  • On April 19, 2010, the jury convicted Moon of Murder and assessed punishment at 30 years.
  • On direct appeal, the court of appeals held that the juvenile court abused its discretion in waiving jurisdiction and certifying Moon, vacated the judgment, and dismissed the criminal proceedings. 
  • The TCCA affirmed, holding that to waive original jurisdiction, a juvenile court must state the reasons for waiving and the findings of fact that support the reasons. Failure to do so may result in a finding of insufficient evidence to support the waiver. The only reason stated in the juvenile court’s order to justify waiver was that the offense alleged was serious, and the only fact supporting it was that the offense alleged was committed against a person. 
  • Upon remand to the juvenile court, the State filed a second motion to waive jurisdiction, this time per Tex. Fam. Code § 54.02(j), which applies to those who are 18 or older at the time of the certification hearing. Moon moved to dismiss the juvenile proceeding.
  • At the certification hearing on April 9, 2015, Moon argued that the State could not prove the elements of § 54.02(j) and it violated his constitutional rights to due process, equal protection, and double jeopardy. The juvenile court granted the State’s second motion, recertified Moon, and denied Moon’s motion to dismiss. 
  • On May 7, 2015, the juvenile court signed an order waiving jurisdiction, transferring the case to district court, and found: (1) Moon is 18 years or older; (2) Moon was 10 or older and under 17 when he allegedly committed Murder; (3) no adjudication has been made and no hearing has been conducted; (4) by a preponderance of the evidence after due diligence of the State, it was not practicable to proceed in juvenile court before his 18th birthday because a previous transfer order was reversed; and (5) that there is probable cause to believe that Moon committed Murder.
  • On September 23, 2015, a grand jury indicted Moon for Murder.
  • On June 7, 2018, Moon filed an application for a pretrial writ of habeas corpus challenging the constitutionality of Tex. Fam. Code § 54.02(j) and Tex. Code Crim. Proc. Art. 44.47.
  • On October 24, 2018, the district court denied the application.

Law on discretionary transfers

  • Under Tex. Fam. Code §§ 51.02(2)(A) & 51.04(a), juvenile courts have exclusive original jurisdiction over cases involving delinquent conduct by children ages 10-17 under the Juvenile Justice Code (Tex. Fam. Code §§ 51.01-61.107).
  • Under Tex. Fam. Code  § 54.02(a), a juvenile court may waive its exclusive original jurisdiction and allow transfer of the proceeding to a district court. 
  • If the juvenile is under 18, the court must find: (1) a felony was committed; (2) the child was: (A) 14 or older when the offense was committed if it is a capital, aggravated controlled substance, or F-1, and no adjudication hearing was conducted; or (B) 15 or older when the offense was committed if it is an F-2, F-3, or SJF, and no adjudication hearing was conducted; and (3) after investigation and hearing, the court determines there is probable cause to believe that the child committed the offense and because of its seriousness or his background, the welfare of the community requires transfer, which requires consideration of:
  • (i) whether the offense was against person or property, with greater weight given to offenses against the person;
  • (ii) sophistication and maturity of the child;
  • (iii) previous history of the child; and
  • (iv) prospects of adequate protection of the public and the likelihood of rehabilitation by use of procedures, services, and facilities available to the juvenile court.
  • If he is 18 or older, the court may waive jurisdiction if it finds:
  • (1) he 18 or older;
  • (2) he was: (A) 10 or older and under 17 when a capital felony or Murder was committed; (B) 14 or older and under 17 when an aggravated controlled substance or F-1 other than Murder was committed; or (C) 15 or older and under 17 when an F-2, F-3, or SJF was committed;
  • (3) no adjudication was made, and no hearing was conducted;
  • (4) the court finds from a preponderance of the evidence that: (A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before his 18th birthday; or (B) after due diligence of the state it was not practicable to proceed in juvenile court before his 18th birthday because: (i) the state did not have probable cause to proceed in juvenile court and new evidence was found after he turned 18; (ii) he could not be found; or (iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and (5) the court determines there is probable cause to believe that the child committed the offense alleged.
  • Under Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006), review a trial court’s ruling on a pretrial writ of habeas corpus is for an abuse of discretion. Facts are viewed in the light most favorable to the trial court’s ruling. 

An attack on the sufficiency of a discretionary transfer is not cognizable on habeas corpus

  • An attack on the sufficiency of the evidence to support transfer under Tex. Fam. Code  § § 54.02(j) is not cognizable on pretrial writ of habeas corpus because there is an adequate remedy by appeal if the transfer order was entered on or after September 1, 2015, so Tex. Code Crim. Proc. Art. 44.47 applies, which requires the transfer-decision to be reviewed on direct appeal. 
  • Because Moon has an adequate remedy by direct appeal of the discretionary transfer decision under Art. 44.47, he may not use a pretrial writ of habeas corpus to appeal prematurely sufficiency challenges.

Double jeopardy was not violated

  • Under the Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, protects an accused from being placed twice in jeopardy for the same offense. Under Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988), the Double Jeopardy Clause protects defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Although the Double Jeopardy Clause precludes retrial of a defendant whose conviction is reversed on appeal because of insufficient evidence, it does not preclude retrial when the conviction is reversed on appeal for trial error. 
  • Here, the first order certifying Moon was reversed because the transfer order itself was defective and not because the evidence against him was insufficient. Because Moon’s prior conviction for Murder was reversed due to trial error and not insufficient evidence, double jeopardy does not preclude the juvenile court from waiving jurisdiction and recertifying Moon as an adult. 
  • The denial of Moon’s pretrial writ of habeas corpus is affirmed.

In re M.T.R., No. 01-18-00938-CV, 2020 Tex.App.-LEXIS 1649 (Tex.App.-Houston [1st Dist.] Feb. 27, 2020) (designated for publication) (Expunction proceedings) [Same criminal episode in expunction proceedings]

  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), a ruling on a petition for expunction is reviewed for an abuse of discretion. A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law. Legal determinations are reviewed de novo. Deference is afforded to factual issues resolved by the trial court.
  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), statutes are analyzed as a cohesive, contextual whole with the goal of effectuating Legislative intent and employing the presumption that the Legislature intended a just and reasonable result. Appellate analysis is limited to application of the plain meaning of the statutory language unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.
  • Under Tex. Code Crim. Proc. Art. 55.01(c), a court may not order the expunction of records relating to an arrest for an offense for which a person is subsequently acquitted—whether by the trial court appellate court—if the offense arose out of a criminal episode per Tex. Penal Code § 3.01, and was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.  Under Tex. Penal Code § 3.01, criminal episode means the commission of two or more offenses—regardless of whether the harm is directed toward or inflicted upon more than one person or property—if they are: (1) committed in the same transaction that are connected or constitute a common scheme or plan; or (2) the repeated commission of the same or similar offenses.
  • Tex. Penal Code § 3.01(2) does not impose a time frame within which the same or similar offenses must be repeated. A criminal episode may include multiple arrests or transactions. Nor does it require that the offenses be committed within a geographic location or jurisdiction or that they be committed in the same or similar fashion. It requires only that they are repeated commission of the same or similar offense. The court presumes that the Legislature chose this language “with care” and its decision to omit language imposing a time frame or other limitations on the definition of a criminal episode was purposeful. 

Facts:

  • In 2012, M.T.R. was arrested for BWI. He pleaded guilty, was convicted, and served 3 days in jail.
  • In 2015, M.T.R. was arrested and charged with DWI-2nd. A jury found M.T.R. not guilty.
  • In 2018, M.T.R. filed a petition for expunction seeking to have records of the 2015 DWI-arrest expunged.
  • DPS answered that M.T.R. is barred from expunging those records because M.T.R. was convicted of an offense arising out of the “same criminal episode.”
  • The trial court granted M.T.R.’s petition and DPS appealed.

M.T.R. is not entitled to expunge his 2015 DWI arrest

  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), a ruling on a petition for expunction is reviewed for an abuse of discretion. A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law. Legal determinations are reviewed de novo. Deference is afforded to factual issues resolved by the trial court.
  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), statutes are analyzed as a cohesive, contextual whole with the goal of effectuating Legislative intent and employing the presumption that the Legislature intended a just and reasonable result. Appellate analysis is limited to application of the plain meaning of the statutory language unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.
  • Under Tex. Code Crim. Proc. Art. 55.01(c), a court may not order the expunction of records relating to an arrest for an offense for which a person is subsequently acquitted—whether by the trial court appellate court—if the offense for which the person was acquitted arose out of a criminal episode per Tex. Penal Code § 3.01, and was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.  Under Tex. Penal Code § 3.01, criminal episode means the commission of two or more offenses—regardless of whether the harm is directed toward or inflicted upon more than one person or property—if they are: (1) committed in the same transaction that are connected or constitute a common scheme or plan; or (2) the repeated commission of the same or similar offenses.
  • Tex. Penal Code § 3.01(2)’s plain language does not impose a time frame within which the same or similar offenses must be repeated. A criminal episode may include multiple arrests or transactions. Nor does it require that the offenses be committed within a geographic location or jurisdiction or that they be committed in the same or similar fashion. It requires only that they are repeated commission of the same or similar offense. The court presumes that the Legislature chose this language “with care” and its decision to omit language imposing a time frame or other limitations on the definition of a criminal episode was purposeful. 
  • M.T.R.’s 2015 DWI arrest is the repeated commission of the same or similar offense as his 2012 BWI conviction. 
  • M.T.R. is not entitled to an expunction. The trial court’s expunction order is reversed, and judgment is rendered denying M.T.R.’s petition for expunction related to his 2015 DWI arrest.

Editor’s note: opinions like this ensure continued employment in DPS’s expunction-opposition division.

Spielbauer v. State, No. 07-18-00028-CR, 2020 Tex.App.-LEXIS 591 (Tex.App.-Amarillo Jan. 22, 2020) (Murder) [Preservation of challenges for cause]

  • Under Thomas v. State, 408 S.W.3d 877, 884 (Tex.Crim.App. 2013) and Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992), preservation of error is not an inflexible concept and should not be mechanically applied. The standards of procedural default are not to be implemented by splitting hairs. All a party must do to avoid forfeiture of a complaint is to let the trial judge know what he wants and why he thinks he is entitled to it clearly enough for the judge to understand him at a time when the trial court is in a position to do something about it.
  • Under Tex. Code Crim. Proc. Art. 35.16(a), a prospective juror may be challenged for cause by making an objection alleging some fact that renders the juror incapable or unfit to serve on the jury. Per Art. 35.16(a)(10), a challenge for cause may be made by either party alleging that from hearsay or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant that influences the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror must first be asked whether in his opinion the conclusion influences his verdict. If the juror answers yes, he shall be discharged without further interrogation by either party or the court. If the juror answers no, he shall be further examined as to how his conclusion was formed and the extent to which it will affect his action.
  • Under Johnson v. State, 43 S.W.3d 1, 5 (Tex.Crim.App. 2001), failure to discharge a venire member subject to a proper challenge for cause results in error as a matter of law.  
  • Under Tex. Code Crim. Proc. Art. 35.14, a peremptory challenge is a challenge to a member of the jury panel without assigning a reason. It may be made for any reason or for no reason at all. In a noncapital felony case or in a capital case that the State does not seek death, the parties are each entitled to 10 peremptory challenges. After voir dire is complete, the parties shall strike the name of such juror from the list. Each party’s list is delivered to the clerk who calls off the first 12 names not stricken. 
  • Under Buntion v. State, 482 S.W.3d 58, 83 (Tex.Crim.App. 2016), if the trial court errs in overruling a challenge for cause, the appellant must show that he was harmed because he was forced to use a peremptory challenge to remove that member and he suffered a detriment from the loss of that peremptory challenge. To preserve the issue and show harm, the defendant must: (1) make challenges for cause, (2) use peremptory strikes on the complained-of venire members, (3) exhaust all peremptory strikes, (4) request and be denied additional peremptory strikes, and (5) identify the objectionable jurors who sat  on the jury. 

Facts

  • Appellant and Robin were married in 2005. Years later they befriended Katie with whom Appellant began having an affair.
  • In 2012, Robin divorced Appellant. A year later, he married Katie.
  • In 2014, Katie suspected that Appellant and Robin were having an affair. Robin and Katie’s relationship was acrimonious.
  • On April 8, 2014, Robin’s body was discovered by passers-by near her Tahoe on a dirt road.
  • Robin suffered blunt-force trauma and was shot in the back of the head. Pink plastic pieces found at the scene and pink smears transferred onto the window of the Tahoe matched a pink gun owned by Katie.
  • Forensics confirmed that Katie’s pink gun was the murder weapon.
  • Katie was charged with the murder.
  • Before Appellant became a suspect, he retained attorneys to enter into a Use Immunity Agreement with the DA’s Office regarding the case against Katie. Under it, if Appellant gave truthful and complete information about Robin’s death, the information would not be used against him in a prosecution. Otherwise, the agreement would be void. Based on this Agreement, Appellant cooperated.
  • More than a year after Katie was arrested, she was ruled out as a suspect by cellphone forensics, which determined that Katie could not have been where Robin was killed.
  • Appellant became the suspect when experts placed his cellphone near the scene at about the time of Robin’s death, and they located an image of Appellant’s vehicle on a bank’s security camera near the scene and close to the time of death.
  • This evidence contradicted statements Appellant made and showed that he had the opportunity to commit the murder and return home even though he claimed he never left home that night.
  • Authorities theorized Appellant killed Robin with Katie’s pink gun to frame her. Investigators obtained text messages suggesting that Appellant and Robin had planned to meet that night where her body was discovered. When the investigators confronted Appellant, his stories and timelines varied from earlier statements.
  • The grand jury indicted Appellant for capital murder with an underlying felony of Robbery.
  • Venire members were given a questionnaire containing 32 questions that began with a section captioned “AWARENESS OF CASE” with this agreed summary: “It is alleged that…Robin…was shot to death by (Appellant). Robin… was found the next day lying next to an SUV…”  The questionnaire then asked: “(1) Do you think you heard about this case? If yes, give details; and (2) If you heard about this case, based upon what you heard, have you formed an opinion as to (Appellant’s) guilt or innocence that would influence you in finding a verdict?”
  • Six members answered “yes” in response to question 2. Trial counsel argued they were “automatically disqualified” from serving and no further questioning is to be had. The State was not opposed to excusing members who held the position but argued that they could not tell from a simple “yes or no” answer.
  • The trial court requested the clerk to summon the 6 venire members, including Freethy and Havlik. 4 of them were excused by agreement.
  • Freethy said he watches news every day and heard about it but doesn’t remember much. He was not sure why he answered “yes” to question 2. Appellant made an Art. 35.16(a)(10) objection, but the trial court did not provide a ruling.
  • Havlik answered “No” when asked if he had already “formed an opinion. No further questions were permitted to be asked and Havlik was excused from the courtroom. Appellant made an Art. 35.16(a)(10) objection but was overruled. At this point, the trial court also overruled the objection as to Freethy.
  • Appellant renewed his challenge to Freethy and Havlik, which were overruled. He asked for two additional peremptory challenges for the overruled objections, which was denied. Appellant was forced to use two peremptory challenges to strike Freethy and Havlik.
  • Stoffle and Cooper were also objectionable to Appellant, but he was unable to strike them because he did not receive the two additional peremptory challenges.
  • Appellant was convicted and sentenced to life.

Appellant preserved the issue for appeal

  • Under Thomas v. State, 408 S.W.3d 877, 884 (Tex.Crim.App. 2013) and Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992), preservation of error is not an inflexible concept and should not be mechanically applied. The standards of procedural default are not to be implemented by splitting hairs. All a party must do to avoid forfeiture of a complaint is to let the trial judge know what he wants and why he thinks he is entitled to it clearly enough for the judge to understand him at a time when the trial court is in a position to do something about it.
  • When the objections were made, the members selected had not been sworn and empaneled and the pool was not released. Additional jurors were available, and the trial court could have avoided reversible error by granting the two additional peremptory challenges.
  • Requiring a defendant to identify the venire members he would strike through the use of additional peremptory challenges prior to the exercise of peremptory challenges places him at a disadvantage to the State by requiring that he “tip his hand” as to which members he might find objectionable.
  • Appellant was not attempting to exercise peremptory challenges against Stoffle and Cooper after the clerk called the names of the seated members. He was merely advising the trial court of the objectionable jurors he was forced to accept because he was required to use two peremptory challenges to strike jurors who should have excused for cause. The trial court was aware of the objection at a time and in a manner when it could have been corrected. Appellant preserved the complaint. 

The trial court abused its discretion in denying his challenges for cause as to Freethy and Havlik

  • Under Tex. Code Crim. Proc. Art. 35.16(a), a prospective juror may be challenged for cause by making an objection alleging some fact that renders the juror incapable or unfit to serve on the jury. Per Art. 35.16(a)(10), a challenge for cause may be made by either party alleging that from hearsay or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant that influences the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror must first be asked whether in his opinion the conclusion influences his verdict. If the juror answers yes, he shall be discharged without further interrogation by either party or the court. If the juror answers no, he shall be further examined as to how his conclusion was formed and the extent to which it will affect his action.
  • Under Johnson v. State, 43 S.W.3d 1, 5 (Tex.Crim.App. 2001), failure to discharge a venire member subject to a proper challenge for cause results in error as a matter of law.  
  • Under Tex. Code Crim. Proc. Art. 35.14, a peremptory challenge is a challenge to a member of the jury panel without assigning a reason. It may be made for any reason or for no reason at all. In a noncapital felony case or in a capital case in which the State does not seek the death, the parties are each entitled to 10 peremptory challenges. After voir dire is complete, the parties shall strike the name of such juror from the list. Each party’s list is delivered to the clerk who calls off the first 12 names not stricken. 
  • Under Buntion v. State, 482 S.W.3d 58, 83 (Tex.Crim.App. 2016), if the trial court errs in overruling a challenge for cause, the appellant must show that he was harmed because he was forced to use a peremptory challenge to remove that member and he suffered a detriment from the loss of that peremptory challenge. To preserve the issue and show harm, the defendant must: (1) make challenges for cause, (2) use peremptory strikes on the complained-of venire members, (3) exhaust all peremptory strikes, (4) request and be denied additional peremptory strikes, and (5) identify the objectionable jurors who sat  on the jury. 
  • The record shows that prior to the petit jury being seated and sworn, Appellant: (1) requested two additional peremptory challenges for the peremptory challenges he was forced to use on Freethy and Havlik, (2) was denied any peremptory challenges, (3) used peremptory challenges on Freethy and Havlik, (4) exhausted his remaining 8 peremptory challenges, and (5) was forced to accept Stoffle and Cooper whom he would have otherwise struck had he been given the 2 additional peremptory challenges.
  • Appellant was harmed by the trial court’s error.

The trial court’s judgment is reversed, and the case is remanded to the trial court for further proceedings.

Competency Hearings

Overview

            Hearings on the competency of a defendant are rare creatures – in part, because a finding of incompetency is not one where either party suffers some loss of position or defeat. If a defendant is found incompetent there is a mandatory commitment for restoration, unless the examiner has opined, and the court found, that the person is unlikely to be restored in the foreseeable future. Such commitments do add some delay to the proceedings which are stayed until the person is restored or, if not restored, is subject to the options of Tex. Code Crim. Proc art. 46B.084(e) or (f), i.e. civil commitment by the criminal court or dismissal. But in the vast number of cases (75%+) a competency evaluation results in a finding of competency. And, if found incompetent, some 84% (in Texas) are restored after commitment for restoration treatment services. Further, a significant number are restored after a period of intensive psychiatric services.

            However, occasionally – and even then more often, in a high-profile case – a finding of incompetency is opposed, by one party or the other, and a hearing ensues. In the following we will explore this issue in greater detail.

Issue:  Basics

            It is fundamental that a person is incompetent to stand trial if they lack either sufficient present ability to consult with their attorney with a reasonable degree of rational understanding; or a rational and factual knowledge of the proceedings against them. Tex. Code Crim. Proc. art. 46B.003(a) (hereinafter, CCP art.xx).

            Competency is presumed until proved incompetent by a preponderance of the evidence. CCP art. 46B.003(b).

            The two-prong competency standard was established by Dusky v. United States, 362 US 402 (1960) and codified in the CCP. Further, Godinez v. Moran, 509 US 389 (1993) holds that the standard for competency is the same at all stages of the proceedings and applies at all stages of the proceedings.

            The issue of competency may be raised by either party or the court on its own motion. CCP art. 46B.004. No longer is a “bona fide doubt” about the competency of the defendant required as a predicate to raise the issue (CCP, art. 46B.004(c-1)); rather, some evidence from any source is sufficient to raise the issue.

            Court-ordered examiners in competency matters may either be psychiatric physicians or psychologists, qualified by board certification, training, and experience.

Procedure:  Obtain an Examiner

            If there is a suggestion of incompetency from any credible source, and the court agrees after an informal inquiry (note that the court may not weigh the evidence, e.g. some evidence of competency vs. some evidence of incompetency, but must order an examination if  there is more than a scintilla of evidence suggestive of incompetency. See Boyett v. State, 545 S.W.3rd 556, 563-64 (Tex. Crim. App. 2018)), the first issue that arises is the choice of an examiner. And by “choice” I do not mean whether to choose a psychiatrist or psychologist since either may statutorily conduct such evaluations. There are occasions when a psychiatric physician, carefully selected, is a helpful choice. I have in mind a case wherein a demented man had murdered his brother and I recommended a psychiatric physician who is nationally known in traumatic brain injury. He conducted the examination and appended a copy of the radiographic image of a large tumor about the size of a ping-pong ball which was clearly visible even to any non-physician viewing the image. As well, he opined that the defendant likely had but a relatively short period in which to live. Both sides agreed upon a dismissal.

            But barring such phenomena, either a psychologist or psychiatric physician can conduct the examination. More important, is the examiner’s knowledge of forensic examinations, and history of having conducted the same, as well as the capacity to handle himself or herself as an expert witness.

            Relatedly, is issue of whether to request an ex parte examination or move for an examiner who is also court-appointed but who would supply the same information to the court and both parties. In Harris County we have a county unit, under the aegis of the courts, that conducts such examinations – at far less expense that would be incurred should the court authorize an ex parte examiner.  To be sure, in an extremely high-profile case, it may be desirable to seek or retain an outside examiner, with national prominence, though this is more relevant to sanity than competency.

Procedure:  Obtain an Order for Competency Evaluation

            The court likely has preferred forms; if not, appended is a generic order for obtaining a competency evaluation. Note that a court’s refusal to grant such a motion is reviewed under an abuse of discretion standard. Timmons v. State, 510 S.W.3d 713, 718 (Tex. App. – El Paso 2016 no pet.). Further, the issue of competency can be raised at any point in the proceedings.  CCP, art. 46B.005.

            Important, however, is that appeals from competency proceedings, and orders issuing therefrom, are interlocutory. “The trial court’s order of competency to stand trial is not a final, appealable judgment.” Lowe v. State, 999 S.W.2d 537, 537 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Neither the state nor the defense is entitled to appeal the decision of the trial court viz. competency. CCP, art. 46B.011.

            Failure to raise the issue of competency could result in an ineffective assistance claim. For example, in Burt v. Uchtman,  422 F.3d 557, 568 (7th Cir. 2005), the Seventh Circuit Court of Appeals found that counsel was ineffective in assisting a defendant in a capital murder case for failing to raise the issue of the defendant’s mental health status by requesting a competency evaluation. At his trial, Burt  originally plead “not guilty” but then changed his plea to “guilty” despite the advice of his attorneys. His attorneys stated that they spoke with him and advised him against pleading guilty but that he insisted on doing it anyway. The defendant, Burt, was subsequently sentenced to death for the murders of two men. The court found that defense counsel’s action in allowing their defendant to plead guilty without first requesting a competency hearing made counsel ineffective because counsel had notice of the defendant’s mental health status. See lengthy discussion in Covarrubias, Rebecca J. Comment: Lives In Defense Counsel’s Hands: The Problems And Responsibilities Of Defense Counsel Representing Mentally Ill Or Mentally Retarded Capital Defendants, 11 Scholar 413.

            Finally, on the topic of the order, ensure that the order is filed and that the court renders a finding thereupon – as Harris County has discovered cases wherein a case was dismissed and the dismissal states that the defendant was found incompetent with no trial record or note, nor report documenting such!

Contesting a Finding of Incompetency:  Request a Hearing

            There are two circumstances wherein competency findings are contested: (a) When the defendant is found incompetent and the state believes the person is competent; and (b) When the defendant is found competent and the defense believes the person is incompetent. Unless it does not matter to the defense, the better procedure is one wherein the state seeks an opinion, which gives the defense the option of either agreeing or disagreeing. It is a little more difficult when the opinion arises from one’s own witness!

            Note that no hearing is required unless you so request one. CCP, art. 46B.005(c).  As well, you are entitled to jury trial upon request. See CCP, art. 46B.051, see also, Thornhill v. State, 910 S.W.2d 653 (Tex. App—Fort Worth 1995 no pet.).  And while the decision of the jury must be unanimous (CCP, art. 46B.052), the standard of evidence to prove incompetence is a preponderance of the evidence. CCP, art. 46B.003(b). Note, however, that should the defendant be found incompetent, he remains in a state exhibiting an unvacated adjudication of competency, until found competent by a court of competent jurisdiction (or allowed to plead on a subsequent matter, which, as a matter of law effectuates restoration). See Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987).

            Though perhaps more appropriate under the topic of witness testimony, it is important that the examiner not comment upon the weight of the evidence. For example, if asked, “Doctor, do you have an opinion as to whether the defendant is incompetent to a preponderance of the evidence?”, the examiner should respond:  “I have an opinion as to the defendant’s competency, but it is the task of the trier of fact to a determine whether the weight of the evidence meets a preponderance standard.” Then, when asked, the examiner may continue to list the statutory elements in support of his/her opinion.

Issue of Presumption of Competency

            Ordinarily, the defendant is presumed to be competent until proven incompetent by a preponderance of the evidence. CCP art. 46B.103. However, the foregoing presumption is not true when a defendant was previously found incompetent and not restored or opined unlikely to be restored in the foreseeable future. In this circumstance, the defendant is in the state of what has been determined to be an “unvacated state of incompetence.” The controlling case which describes in great detail this circumstance and consequences related thereunto, is Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987). Manning holds that when a defendant is in an unvacated state of incompetence – and there has been no intervening plea in a subsequent matter which would restore the person as a matter of law – then there is a presumption shift, and equally important, a burden shift. That is, the person is presumed to be incompetent in all subsequent matters, unless or until, restored. And, in such a circumstance, the State has the burden to prove that the defendant is now competent – to a beyond a reasonable doubt standard.

            The foregoing would also necessitate a rather different competency examination; for the defendant is presumed incompetent so that the examiner, therefore, is not looking for evidence of incompetency – as is most commonly the starting point. Rather, the examiner is seeking to marshal as much evidence as may exist which would tend to support competency. And because any credible information of incompetency, more than a scintilla, would but establish the defendant’s continued incompetency, a conclusion that the defendant is competent is a difficult standard to meet.

            The implication of the foregoing is that a specially crafted motion/order for evaluation of competency in Manning cases is necessary.

Pre-trial Motions

            Because the court and the State may not be aware of CCP art. 46B.007, it may be helpful simply to file a notice to the State that the defense intends to proceed pursuant to the requirements of CCP art. 46B.007. Namely, that neither a statement made by the defendant during examination or at trial – nor testimony by an expert on that statement or evidence resulting from that statement – may be used in any subsequent criminal proceeding, other than at the competency trial, or unless the defendant has first introduced any evidence, statement, or testimony into evidence at the proceeding. As well, because a competency hearing is separate and apart from the trial on the crime with which the defendant is charged, “the purpose of a separate hearing is to allow a determination uncluttered by evidence of the offense itself.” Basham v. State, 608 S.W.2d 677, 679 (Tex. Crim. App. 1980). And because the guilt of the defendant is not at issue, introducing evidence as to the nature and details of the alleged offense is improper. Lasiter v. State, 283 S.W.3d (Tex. App. – Beaumont, 2009, pet. ref’d In re Lasiter, 2009 Tex. Crim. App. LEXIS 1154 (Tex. Crim. App., Aug. 19, 2009).

            Given the foregoing, a Motion in Limine should be filed prohibiting introduction of, or reference to, information concerning the underlying charge. Because not every reference to the underlying offense is prejudicial, it must be argued in the motion that “the evidence of the offense presented to the competency jury must be of such a nature as to deny the accused a fair and impartial determination of his competency.” Brandon v. State, 599 S.W.2d 547, 580 (Tex. Crim. App. 1979), vacated on other grounds, 453 U.S. 902 (1981). And, to preserve error, objection must be timely made should the State violate the motion/order.

Voir Dire

            There are three issues – requiring some exploration with veniremen – which need to be communicated to a jury.  The first issue is eliminating any misconception that a determination of competency or incompetence has any relation to exculpating the defendant. The average person would not distinguish between insanity and incompetency and likely entertain the false belief that should the defendant be found incompetent the person may be exculpated.  The second issue is with the period of time the person will be in restoration treatment and the likelihood of restoration, e.g., in Texas, approximately 84% of all defendants sent for restoration are restored within the time frame available to the court. The third issue is to ensure that veniremen are aware of the purpose of restoration, especially the necessity to ensure that a defendant has both a rational and factual knowledge of the proceedings against them. It is an issue of fundamental rights afforded defendants in the American judicial system.

            The foregoing issues can be raised in conversation with the members of the jury panel, but any violations must be met with strenuous objection during the hearing itself. For example, Brandon v. State, 599 S.W.2d 567 (Tex. Crim. App. 1979) was reversed because the prosecutor was found by the court to have repeatedly uttered erroneous and prejudicial comments (which) have no place in a dispassionate resolution of the question (of competency). The prosecutor had stated that incompetency was a way of securing release without court action and the court found his statements to be an “irrelevant diatribe.”

Qualifying the Expert Witness

            While lay witnesses can comment about a defendant’s behavior, it is an inappropriate reliance upon lay testimony when opposing counsel suggests that a defendant is competent because the person has been observed to engage in any specific behaviors, e.g., read a newspaper, fill out a commissary request (or grievance), etc.  Moreover, it would be equally inappropriate, were the suggestion made that because a defendant has been adjudicated incapacitated (i.e. has a guardian), the person is not competent. See discussion in Koehler v. State, 830 S.W.2d 665 (Tex. App. – San Antonio 1992). I recall many years ago when an ADA asked a jailer if the defendant read a newspaper, and the answer was “yes.” However, I had observed the same event and noted that the defendant (an elderly man) held the paper upside down, and could not reasonably be said to be “reading” the newspaper but merely engaging in a task familiar to him and in which he had engaged every morning! The upshot is that the weight of the testimony will fall on the examiner (or examiners if there is more than one). The Rules of Evidence apply. CCP art. 46B.008.

            While it may be simple to qualify the expert solely on the basis of CCP art. 46B.022, i.e., qualified to conduct evaluations by board certification or training, and continuing education, it may be necessary to be more specific, cf. the following:

**************

  1. In cause number ____________, the State of Texas v. ________________, we call Dr. ________________.
  2. Dr. please state your name and occupation for the court.
  3. In what state or states are you licensed to practice (medicine or psychology)?
  4. Are you board eligible or board certified? In what specialty, and by which board? (The American Board of Psychiatry and Neurology, the American Board of Professional Psychology)
  5. Your honor, the Defense is requesting that the State stipulate as to the qualifications of this physician as a specialist in the field of medicine and psychiatry, (or psychology).
  6. (If counsel for the State does not stipulate, qualify the witness.)
    1. Doctor, where did you attend medical school (or graduate school)?
    2. Did you graduate?
    3. What degrees do you possess?
    4. Describe the area of post-graduate education?
    5. What was the duration of your residency or other post-graduate training?
    6. In the years subsequent to completing your post-graduate training or residency, have you held any medical school or other faculty appointments?  At what faculty rank?
    7. Are you board eligible or board certified?
    8. What are the requirements for board certification by the American Board of Psychiatry and Neurology (or by the American Board of Professional Psychology)? 
    9. Describe any publications if you have any.
    10. How long have you been in practice?
    11. Have you examined defendants similar to xxxxx in the past?
    12. Have you testified in proceedings similar to this in the past? On a few, or many, occasions?
    13. Your honor, the Defense offers Dr. xxxxx as an expert in the field of medicine and psychiatry (or psychology).
  1. Dr., tell the court if you are acquainted with the defendant here today.
  2. What is your relationship with _____________________?
  3. When did you examine ____________?
  4. How much time did you spend face-to-face with the defendant?
  5. How much time did you spend in review of records, or conversations with other sources of information?
  6. To a reasonable degree of medical (or psychological) probability, have you arrived at a diagnosis concerning the patient’s  current medical or mental health condition?
  7. What is that diagnosis? 
  8. Dr., please explain in laymen’s terms the diagnosis of _____________________.
  9. Dr. what does it mean to say that a person is not competent to stand trial?
  10. And do you have an opinion as to whether the defendant is incompetent to stand trial in this case?
  11. Dr., is the mere fact that a defendant has a mental condition, in and of itself, sufficient for you to opine that the person is not competent to stand trial?
  12. Are you aware that there are statutory issues which must be addressed in any evaluation of competency?
  13. What are those issues? (CCP art. 46B.024 and .025)
    1. Has a rational understanding of charges and potential consequences
    2. Capacity to disclose to counsel pertinent facts, events and state of mind
    3. Capacity to engage in reasoned choice of legal strategies and options
    4. Understands adversarial nature of criminal proceedings
    5. Has ability to exhibit appropriate courtroom behavior
    6. There is evidence to support that the defendant is a person with mental illness or an intellectual disability
    7. The identified condition has lasted, or is expected to last, continuously for at least one year
    8. The identified condition has impaired, or is impairing, the defendant’s capacity to engage counsel in a reasonable and rational manner
    9. Whether the defendant has been taking psychoactive or other medication, and whether the medication is necessary to effectuate or maintain the defendant’s competency
    10. The effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.
  1. Did you explain to the defendant the purpose of the examination and the limitation on the rules of confidentiality as appertaining to the examination, as well as who would receive your report?
  2. What treatment alternatives are you recommending for this defendant and why?
  3. Could this defendant be safely treated on an outpatient basis? Why or why not?
  4. Is the defendant medication compliant? If not, has an application for forced medications been filed?
  5. Describe the facts upon which you based your opinion.   
  6. In your medical opinion, based upon your observations and your medical training, what medications, if any, constitute the proper course of treatment and are indicated for this defendant?
  7. To what facility are you recommending the patient be committed?
  8. Your honor, I would like to pass this witness subject to possible recall if I may…

****************

                The foregoing should not be construed as an exhaustive list of queries for direct examination of an expert in a competency hearing; however, it may provide some directions for further inquiry, if needed.

Special Populations

                Two populations deserve specific attention in any anticipated competency hearing: (1) persons with an intellectual developmental disorder (IDD), and pro se defendants. The American Association on Intellectual and Developmental Disabilities defines an IDD as a disability arising before the age of eighteen (18), characterized by significant limitations both in intellectual functioning and adaptive behavior. The former term was “mental retardation.” See The Diagnostic and Statistical Manual of Mental Disorders – 5 (DSM-5), published by the American Psychiatric Association.

                Covarrubias, supra, argues, however, that IDD clients often conceal their deficits by a “cloak of competency.” They may not mention that they are unable to read or handle simple calculations and often work in menial jobs that do not require higher level cognitive skills. Moreover, many are not so obviously impaired that counsel – or a jury – would readily identify them as exhibiting a significant deficit in adaptive functioning. The author cites a 2007 Texas case, Hunter v. State, Hunter v. State, 243 S.W.3d 664 (Tex. Crim. App. 2007) where  the testifying psychologist explained how the defendant wore a cloak of competency to mask his symptoms of mental retardation and hide his deficits in adaptive and intellectual functioning. The psychologist pointed out that as part of the defendant’s cloak of competency, the defendant denied ever attending special education classes. The defendant also told the psychologist that “he had learned to use a computer in prison, but he actually had taken only a basic keyboarding class,” and had stated that he could “fix things at home” when in reality all he would do is tighten a loose doorknob!

            The moral is that any evidence from any credible source that the defendant might be incompetent should trigger an evaluation.

            The second special category are pro se defendants, who – in Texas – are often “sovereign citizens”, and whose preoccupations conceal highly crystallized and fixed delusions, such that representation is quite difficult. Such cases should also trigger a Faretta hearing (Faretta v. California, 422 U.S. 806 (1977)) so that the court may determine if the defendant is capable of defending himself.

Restoration Commitments

            In the event the trier of fact concludes that the defendant is incompetent, restoration commitments are mandatory unless the defendant is opined, and found, not likely to be restored in the “foreseeable future.”  Note that although there is no statutory definition of “foreseeable future”, in practical terms this means the period of time available to the court in these matters, i.e., a restoration commitment of sixty days plus a possible sixty-day extension for misdemeanants; or one hundred twenty days with a possible sixty-day extension for felony cases. A review of all the options, inpatient, jail-based and outpatient restoration are beyond the scope of this brief article, though each has statutory requisites, cf. Art. 46B.

            One may remember, as well, that the court is statutorily required to present to the restoration facility or program a host of materials, including a copy of the defendant’s criminal history.  See CCP Art. 46B.076(a)(5).

            In addition, because defendants often wait for extended periods on restoration beds, it is important to be aware of the forced medication statutes which apply to persons during the pendency of a finding of incompetency and transfer to a restoration program or facility.

Summary

            In the foregoing brief article, we have reviewed many – but by no means all – of the issues which arise in competency hearings, as well as tips for representation in these cases, e.g., Motions in Limine, direct or cross examination of experts, the standard of evidence, and the fact that restoration commitments are mandatory. Should further questions arise, please feel free to contact the author.

An Artifact of Times Long Gone

Sometimes when you look through a pile of old papers, you find a jewel hidden under them. COVID-19 boredom put me on a spring-cleaning spree at the office, and what turned up but the “MINIMUM FEE SCHEDULE-CRIMINAL CASES” for Travis County dated October 17, 1969. A fine old lawyer gave it to me back in 1978. The contents of this pamphlet are both hilarious and hard to believe. Can you imagine, in today’s world, a county bar association publishing a minimum fee schedule?

I am not a Travis County lawyer, but Betty Blackwell, our beloved past president, is. Betty has written a short summary of the characters involved in the production of the pamphlet back in 1969. Two of them are our own Frank Maloney and Robert Jones, the first and 14th presidents of TCDLA, respectively. In this difficult time for our country and our profession, we hope you enjoy what follows.

The MINIMUM FEE SCHEDULE put out by the Travis County Bar Association was sold for the exorbitant sum of $1. It was intended to let the local bar know what to charge, and it also included an interesting list of offenses. Back then TCDLA didn’t exist to publish code books, so local groups had to assume that role. How far we have come in providing access to resources for lawyers is astounding.

Take a look at the minimums for retained cases and prepare to be amazed: A jury trial for murder with “m” – meaning malice – was $1,500. Hourly rate was $40. And apparently Travis County was the sex-crime center of the world. Of the 11 felonies listed with suggested fees, six of them were sex related. Shame, Travis County, shame! And look at the difference in the fee for rape at $1,000 and sodomy at $1,250. I don’t have the nerve to attempt to explain that.

Appellate specialists, be prepared to go broke. A brief and argument before the CCA was $1,000. You could expect to get the lavish sum of $1,500 if it was a capital case. If Mowla wasn’t already bald, he surely would get that way with these fees!

Now to pleas: A felony plea fee was $250. Considering what some counties have paid in very recent years for court appointments, that is not bad. Obviously, some counties have come a long way to go in regard to fees, while others apparently are currently using a copy of the pamphlet for a guide.

The Penal Code has never been a great source of pleasure for us, but let’s have some fun using what is in the pamphlet. Some of the offenses listed and the punishments associated with them will definitely make you scratch your head: Fornication was a misdemeanor with $50 the minimum fine – no jail time. On the other hand, running a bawdy house would get you a $200 fine and 20 days in jail for each day the bawdy house was open. I suppose wise advice was not to fornicate in a bawdy house. There was no harassment statute but sending an anonymous letter could get you a $25-$1,000 fine and one to 12 months in the county pokey.

Today we deal with gang violence all the time. It was better for the client back then. The fine for firing into a car was a minimum of $5. But the gang members had better not throw a stench bomb because that was a felony punished by $25-$5,000 and/or one to 25 years in the pen! And then there was castration at five to 25 years in the big house. Disfiguring was only two to five years. I guess you had to think twice about what body part to disfigure.

For those inclined to be a Casanova, beware: Seduction was a two-to-10-year felony. But then wife desertion was only a misdemeanor with up to two years in the county jail. The smart move was to marry anyone you seduced. How that conflicts with fornication was probably a bar exam question. If it wasn’t, it should have been. And finally, in this day of deadly viruses and social distancing, we close with a crime that we are all told to commit every day–wearing a mask in public would get you up to a $500 fine and 12 months in jail.

Tip Hargrove, San Angelo

The producers of the pamphlet included Robert Jones, Dain Whitworth, Paul T. Holt, Wallace Shropshire, Herman Gotcher, Jr., Frank Maloney, Forrest Troutman, and Jon Coffee.

Robert Jones, the chair of the committee, is a past president of TCDLA. He brought John Boston on as executive director of TCDLA. Robert personally went around to every criminal defense office in Austin asking that we all join TCDLA. In 1984 he was elected, with no opposition, to a criminal district court bench in Travis County and eight years later he was defeated for re-election and then served as a visiting judge for some time.

Dain Whitworth had been in the district attorney’s office before leaving to join the staff of the Texas District and County Attorney’s association. He and John Boston were great friends and for many years, they were the lobbying team at the legislature on all criminal law matters.  They usually agreed on more issues than they disagreed upon. He moved to the coast of Texas and has a small practice there.

Paul T. Holt was a legend in Austin. He has the largest criminal defense practice here for many, many years.  He never hired more attorneys, only more secretaries, at one time carrying three full-time secretaries on his staff.  He would open his office on Saturday morning to do free wills for any police officer. He was the great advertizer before it was legal, handing out glow-in-the-dark key chains with his name and phone number and always the phrase “To a good friend from Paul T. Holt”. My favorite story of Mr. Holt is that during his prime trial years, he had a card file on every person who ever served on a jury in Travis County and how they voted. It gave him an incredible advantage when it came to trials and every opponent knew it.

Wallace Shrosphire had been the county attorney of Travis County and then went into private civil practice as his wife Doris Shrosphire became the long-serving county clerk of Travis County.

Herman Gotcher, Jr., had been a legal aid lawyer before being hired as an assitant district attorney where he made his name as “Maddog Gotcher.” He was vicious in the courtroom and tried a string of drug cases, winning many long prison sentences in the early 1960s, until the criminal defense firm of Minton and Burton came into existance. Charlie Burton was the brillant mind behind that lawfirm with Roy being the  flamboyant one. But it took the two of them to finally start getting some acquittals in drugs cases in the late ‘60s and early ‘70s, to change the DA’s view of those cases.

Frank Maloney was the first president of TCDLA.  He practiced law for many, many years in Austin. The saying in Austin during that time was, “If you are innocent, hire Maloney; if you are guilty, hire Minton and Burton.”  Those offices were the two most prominent criminal defense firms in the state at the time. Frank went onto the Court of Criminal Appeals and upon forced retirement, he taught law at the University of Texas law school before finally completely retiring.

Betty Blackwell, Austin

Many thanks to those wise souls who, in 1969, gave us something we can laugh at in 2020. Keep safe and certainly hope to see you IN PERSON soon.

Memories of TCDLA’s 1st President (Part II)

This is a continuation of “Memories of TCDLA’s 1st President” published in the May 2020 issue of Voice for the Defense. Click here to read the first installment.

April 15, 2020

Knox Jones of the McAllen-Brownsville, Texas, area was not a nationally known lawyer in the ‘70s , but he was famous here in Texas because, first, a very famous case bears his name; In re Knox Jones ex rel grand jury v. U.S.; secondly, he was a past president of TCDLA; and lastly, he was a very good lawyer. Like Racehorse Haynes, he knew how to put things into perspective and had a sense of humor that kept you laughing. But what happened was no laughing matter. This story is about Knox and the other four lawyers colorfully called the “Laredo Five”– five lawyers who went to jail rather than name their clients.

The United States Attorney for the Southern District of Texas was seeking to stem the transportation of marijuana from Mexico and decided that instead of prosecuting the transporters (“mules”) who were being represented by Knox and the other four lawyers individually, he would go after the people who were sending the transporters across the border, collectively known as “Mr. Big,” an idea supported by Judge Connolly and the federal grand jury. But how would they do it? The mules were under indictment and individually represented by the five lawyers. Because of the complexity of the operation, the mules had no knowledge of who was or how many were “Mr. Big.”

Subpoenas were issued for the five lawyers. They each appeared before the grand jury and were asked who “Mr. Big” was and who was paying their legal fees They each refused to answer. They were threatened with contempt. They refused to answer. They were threatened with conspiracy indictments and they refused on Fifth Amendment grounds. Subsequently, they were cited for contempt and ordered to appear before Judge Connolly. Enter me. Representing all of them, I argued that the subject was protected under the Professional Proscription Rule and the Evidence Privileged Rule. Judge Connolly held them in contempt and ordered them jailed. I moved that they be released on their own recognizance, but that request was refused. I moved for an expedited appeal. That was also refused. I asked if we could repair to his Chambers to call Judge Brown, the chief justice of the 5th Circuit in New Orleans. This we did and after a short heated phone conversation, Judge Brown ordered my clients’ immediate release.

The 5th Circuit arguments were not easy, but in a unanimous opinion authored by Judge Homer Thornberry, the court held that the identity of a client paying a legal fee even for others was privileged. Unfortunately, several years later this rule was qualified in the case of Pavlick, in an opinion written by Judge Reavley. When hearing of this, Knox commented: “Does this mean we don’t get to go to Paris?”

PS: Of the four lawyers, one became US attorney for the Southern District of Texas, one became a very famous international lawyer, one became a state district judge, and another became a multi-millionaire personal-injury lawyer. Over the years, I tried several federal jury cases in the valley, including a federal conspiracy-to-commit-kidnappings-with-intent-to-murder case charging a district attorney, and, as always, I utilized my friend Knox Jones as co-counsel. Knox passed away several years ago at a very young age.

April 16, 2020

To conservatively describe Austin as it was in the ‘60s, it was a mess. The Civil Rights Movement, the Vietnam War, racism, drugs, all produced a war-like attitude, particularly in the University of Texas area. The collective attitude among the students was almost like it was them against the rest of the city, while the police, who were not yet trained to handle it, were caught in the middle.

Chief Beverly Laws and Assistant Chief George Phiffer, both reasonable men, were faced with daily demonstrations by students, which, in some instances, amounted to riots. The drug arrests by the APD, DEA, and DPS added to the turmoil. Property damage was extensive; all of which cast a black shadow over tranquil Austin and brought suffering to the families of those involved and to the participants. It also brought about a new and better-trained criminal defense bar. Faced with numerous arrests of participants engaged in all kinds of crimes that were not the usual street crimes that they were used to defending, the lawyers were forced to rise to the occasion. Fortunately, the Supreme Court had handed down numerous Bill of Rights decisions in the early ‘60s which helped protect errant students from being convicted of crimes that were sometimes overcharged by police and prosecutors.

The police, in thwarting what they believed to be unlawful behavior which sometimes got out of hand, used force resulting in severe injury to the participants and even the occasional police officer. The law at that time provided that force against an officer engaged in lawful conduct constituted aggravated assault punishable as a misdemeanor up to one year in the county jail, a fine, or both. Needless to say, there were a lot of aggravated assault cases filed. Which brings us to the Weedon Gasoline Station demonstration on the “drag” in front of the university.

Don Weedon was denounced as a racist by a group of students because he refused to sell gasoline to blacks, refused to hire them, and in fact was accused of mistreating them when they were on his property. These sentiments produced a demonstration of several students, which escalated into more than a hundred students moving onto the station property, resulting in police activity and multiple aggravated-assault charges. GC, a young black girl, a straight-A student, and a member of several honor societies, who happened to be among the demonstrators, was manhandled by a police officer who ended up with a scratch on his arm and who, based on department policy, filed an aggravated-assault complaint against her. At her trial, the state asked for jail time to make an example of her for the edification of the university. With several university professors testifying as to her character, the jury rejected the aggravated-assault charge, settled on disturbance of the peace, and fined her $25.

That same year in a march against the Vietnam War, a severe confrontation occurred with more than a hundred police officers lined up on the north side of East 19th Street (now Martin Luther King Boulevard) and what seemed like the entire student body on the other side. Jeff Friedman, student body president and who would later become mayor of Austin, ran to the center, conversed with Chief Phiffer, and together caused the crowd to disperse. The students, prior to dispersing, had marched up Congress Avenue, through the capitol, and forced the police to back all the way to East 19th Street. Had the confrontation unfolded as everyone expected, there was no question that the police would have used force to prevent further progress. In addition to the above activities, drug use and the resulting arrests, peaceful Austin was not the same. This, however, would pass.

April 16, 2020

It is a compliment to the bar that there are so many women engaged in the practice of law today. Just a few short years ago, if you ran into a woman lawyer, it was an untold experience and hard for some lawyers to accept. Even today it is an experience that some have difficulty accepting. Travis County, for instance, has more women judges than male judges. The district attorney is a woman. One highly successful lawyer told me he was happier in a male-dominated federal practice, and felt Travis County was averse to him because woman lawyers had taken over.

When I was in law school in the ‘50s, there were three women students. One of them, Pat Hines, was a member of the Order of the Coif, the highest honor a person could receive as a student of law. In the ‘60s, I knew of only two women judges in Texas: Mary Lou Robinson, a state district judge who became the first woman federal judge in Texas, and Sarah Hughes, who also became a federal judge. Both women served as district judges in the Northern District of Texas. In the ‘60s, ‘70s, and ‘80s, women became more active in the fields of law and politics, resulting in more women becoming lawyers and Judges.

My law firm had grown and in the ‘70s had one woman lawyer in the civil division and two women law students as research assistants. I had two lawyers, both men, working for me in the criminal division, but we needed an additional lawyer. A good number of law-school students who were about to graduate applied for the position, mostly men and a few women, and after interviewing them, I hired the one I considered the most qualified, Mary Noel Golder. She was perfect for the job, she was a fighter, a brilliant student, and became an excellent trial lawyer. So much so that it was difficult to keep her at the firm. She assisted me in several cases around the state and I relied on her. Unfortunately for me, she was too good to remain my associate. I wanted to make her a partner, but it would have disrupted the order of promotion in the civil divisions, so I lost her to a firm in San Angelo, where she became a very rich and outstanding partner.

Her replacement was Mrs. Belinda Wright, who was also a fighter and brilliant lawyer. I relied heavily on her for her appellate work both in state and in and federal courts. In a murder case out of Perryton, Belinda handled an appeal before the Amarillo Court of Appeals. This Court had the reputation of regularly ruling for the state. The district attorney himself handled the appeal for the state. At oral arguments, the court concluded the arguments and invited Belinda and the district attorney into chambers for coffee to continue discussion and argument about the case, which she won. At a much later time, when I was on the Court of Criminal Appeals, one of the judges who had heard Belinda argue told me the justices had found it necessary for them to hear additional argument by the state because they were so impressed with Belinda’s brief and argument and were ready to rule for her, thus the invitation for coffee.

At another time, in a case in federal court where the jury, after long deliberation, had convicted my client, it became necessary to question the individual jurors and to obtain affidavits from them on jury misconduct, if any there was. Belinda undertook the investigation and the affidavits clearly showed jury misconduct. During arguments on the motion for new trial,  the judge became enraged and accused us of jury tampering. She stood right up to him and, with slight help, he backed down and said that he did not mean to state that. When I was elected to the Court of Criminal Appeals, after much pleading by me, I took Belinda along as my research assistant. I think she was much more influential on the court than I was. 

All of my research assistants and the several briefing assistants over the six-year period were women. One of the best, Valarie Eiben Strauss, was hired by me as a research assistant and is still at the court. My daughter believes that I was rightly prejudiced by each assistant’s abilities and hardworking principles. I think she is right.

PS: All of the men I had working for me were also excellent. They had to be–there was too much feminine competition.

April 19, 2020:

The University of Texas Law School in the ‘50s was perhaps ranked higher among law schools than today, with only about 100 accredited law schools nationwide. Today, there are more than 300 accredited law schools in the nation, with UT ranked 13th. Harvard , Yale, Stanford, NYU, University of Chicago, Northwestern, and Virginia have always been ranked as the highest. The high ranking of Texas in the ‘50s is explainable for the following reasons: It was recognized as the law school to attend in the southwest; there were a declining number of persons studying law in the ‘50s; and, most importantly, its faculty. Dean Page Keaton attracted outstanding people to teach at Texas. He was a nationally recognized authority in tort law, had an unparalleled mind, and held the respect and adoration of the student body and faculty.

Charles T. McCormick was a faculty member at the time and he was also the leading authority in evidence. His books were the primary textbooks on evidence used in every law school in the country and he was cited in most court opinions faced with evidence questions.

Additionally, Dean Leon Green, a past dean of Northwestern Law School, was the national authority on tort law, particularly on proximate cause. George Stumberg, also among the professors, was the leading authority on conflict of laws and criminal law, and just so happened to be my mentor. Judge John Stayton, the leading authority on procedural law, was among those who called UT Law home. Joe Sneed , a leading authority on contract law who later became Dean of Stanford Law School, also taught at UT.

Millard Rudd, Joe Witherspoon, Gus Hodges, and numerous others–too many to name–added to the list of prestigious professors who taught at Texas. There were many applicants to teach there. Some erroneously felt it was a place to start, most correctly felt it was the place to be. The student body numbered about 300. If your grade-point average was in the low 80s or high 70s, you were a star.

Having said all of this, I can truthfully say that because of my antics, I was lucky to graduate. My friends in law school were mostly veterans of the Korean War. We tended to be skeptical, we enjoyed life sometimes too much, particularly so at the Split Rail or Schultz’s Beer Garden. So we were not the best of students, at least in subjects that, although required, we did not enjoy.

Chauncey Depew Leake was the only one of us who successfully raised his average after the first year, the first year being four- or six-hour courses and pretty well setting your average. I think this was Chauncey’s way of pleasing his father, who was the dean of the medical school in Galveston. After we four, by some miracle, passed the bar exam before we graduated, I suffered a detached retina and in the middle of my last semester had to return to Brooke Army Hospital in San Antonio.

Since I was confined to bed, and wanted to graduate from law school, I arranged for readers. Dean Keaton and the professors of four of my classes , in an arrangement with troop information at Brooke, allowed me to take finals courses from the hospital and my answers were returned to the law school for grading. I did well in legal medicine and legislation, but was unable to take the finals in commercial law and Texas land titles. I returned to the law school but did not enroll.

The dean let me sit in in those courses in the summer semester and to take the finals, whereupon I passed, graduated, and went to work for the Travis County District Attorney. But, before that, at the University of Texas Medical Center, during that summer when I was not officially enrolled , an incident occurred that almost caused Jack Proctor, who was associate dean of the law school, to do more than just lecture me. But that is an another almost-lawyer story.

PS: What is even more of a story, I taught at the law school as an adjunct professor teaching the four-hour course in criminal law and a course in federal substantive criminal law from 1962 through the ‘80s and then once again in the 2000s. I even draw a small pension.

President’s Message: New Leadership

On June 22, 2020, I will be sworn in as the 50th President of the Texas Criminal Defense Lawyers Association (TCDLA). Joining me in service to TCDLA will be 59 board members and officers from across the state. This will include 10 newly elected leaders. I am certainly biased, but I believe this is the most talented, eclectic, and motivated group of lawyers we have ever assembled to lead TCDLA. We will need every ounce of their contributions, as this is perhaps the most challenging period in our history.

In order to better serve our members, TCDLA must be unwavering when it comes to the following: When a person in power openly attacks or undermines the Texas or Federal Constitutions, as they relate to the rights of the accused, we must respond quickly and effectively. When one of our members is placed in an untenable situation simply for doing his or her job, we must shield that member with the protection of our Strike Force and 3,300 members in every corner of Texas. We must advocate for laws that will ameliorate the inherent unfairness in our state’s criminal justice system. And we must look for new and creative ways to improve the lives and law practices of our members.

Those who know me, know that I have a strong interest in using technology to enhance the practice of law. I hope that you will see some changes in the coming months that will re-affirm why you became a member of TCDLA. If you like what you see, please let me, your 59 other leaders, and TCDLA staff know. If you have an idea for a new service that you think our fellow members might enjoy, please let us know that, too. I have asked our staff in Austin to provide my cell number and email address to any member, upon request. Text me.

I value your membership and commitment to TCDLA. I ask that you stay a loyal member for at least the next 12 months and see what we can do for you. TCDLA needs you now more than ever. I hope to persuade you that you need us, too. Thank you, dear colleagues.

-Grant Scheiner

Chief Executive Officer’s Perspective: Your TCDLA Family

“Call it a clan, call it a network, call it a tribe, call it a family: Whatever you call it, whoever you are, you need one.” 

-Jane Howard

June is always a time of rebirth due to changing of the guards. With these strange and difficult times because of COVID-19, we continue into the unknown. Regardless, TCDLA has become stronger. The membership and local bars and under the leadership of Kerri Anderson Donica have united. It has truly been a pleasure to work with Kerri, not only as president but as a mentor and friend.

The executive committee has met numerous hours to ensure we are supporting all the needs of our membership. A huge thanks goes out to TCDLEI Chair Clay Steadman and the board for providing more than $45,000 in scholarships for attorneys enduring hardships.

The COVID-19 Task Force, led by Clay Steadman, Nicole DeBorde Hochglaube, John Hunter Smith, and Jeep Darnell, works endless hours communicating with members and working with counties to ensure safe conditions. Our GA-13 committee, under the helm of Betty Blackwell, Allison Clayton, Jeep Darnell, and Kyle Therrian, have written numerous writs, worked into the late hours of three a.m. to meet deadlines, and assisted so many of our members.

In addition, the Ethics Hotline, chaired by Robert Pelton, fields numerous calls daily and the response time is remarkable. Our members rave about the service and responses they receive from Robert and his committee.

The Strike Force, under Nicole DeBorde Hochglaube and Reagan Wynn, stands ready to defend our attorneys if the need arises. Robb Fickman has fielded concerns with the court system raised by our members as well.

TCDLA has more than 32 committee each serving a unique purpose. All the committees and chairs this year have worked tirelessly and provided support as needed and requested without any complaints.

Laurie Key as CDLP chair has worked very hard to adapt to the new norm and quickly change live events to webinars. Our committees are composed of volunteers. While trying to practice during this time, each has shown so much dedication, support, and selflessly given time.

Our May DWI Defense Project seminar was very successful. Courser directors Larry Boyd, David Burrows, and Frank Sellers, as well as all the speakers, not only hung in there with TCDLA and tried something new, they did it with ease. Of course, we had some glitches, but they were champs along with all the viewers!

The TCDLA staff are also here to assist you. We will get you the information or service you need. Do not ever hesitate to contact us.

As Grant M. Scheiner takes over the responsibilities of president in June, we will continue to work together, develop and maintain strong bonds, and TCDLA will be stronger than ever and be here for our members and support criminal defense attorneys throughout the state of Texas. Together we are your tribe, clan, and most importantly your TCDLA family!

Editor’s Comment: Times A-Changin’

“Is it over yet?” we keep asking ourselves and each other. “Can’t things just go back to normal?” Not hardly. As the great lyricist Bob Dylan sang in 1963, “The Times They Are A-Changin”. Amid the first (and hopefully only) pandemic that we have all experienced, we are being put to the test every day. We are trying to stay connected in the face of social distancing. We are homeschooling while simultaneously trying to keep the doors to our businesses open and dollars coming in to take care of our employees…even though the majority of the state has been under stay-at-home orders. We have all been adapting and maintaining in the best ways we know… all while trying to keep our families and ourselves healthy.

And as you know, TCDLA has been adapting, maintaining, and retooling, too. There is no better evidence of this than Rusty Duncan. While this wasn’t Rusty as it has been in years past, this year was still a success thanks to our chief executive officer, Melissa Schank, and her staff, our course directors, and our speakers. And I’m sure the same will be said about the Declaration Readings next month. Be sure to start or get involved in your local Declaration reading whether it occurs virtually or in accordance with social distancing recommendations. It is that important. Especially now, as we define for ourselves and for our clients why the work we do is essential.

A final thought. Take time for yourself to be and stay well. In addition to the regular stresses of our daily pre-pandemic practices, this is an emotionally exhausting, stressful, overwhelming time. While the doors are closed and the phones may not be ringing as much lately, the new stresses are unique and very real. So, exercise, meditate, read, knit, watch baseball (when it starts back in July) — do something for you. Self-care is vitally important. We need to take care – both physically and mentally – of ourselves first so that we can take care of our families, friends, and clients. A great place to start is TCDLA’s seminar series Mindful Mondays.

Stay safe and well,

-Sarah

P.S. – And this month, again for the safety of our staff, members, and postal service workers, we are publishing the Voice online. We know the overwhelming majority of our readers prefer to have the hard copy of the Voice and it is our hope to return to that very soon. In the meantime, if you’d still like a hard copy, please let us know so that we can get it to you.

We are all in this pandemic together as humans and as criminal defense lawyers, but we each have our own unique experiences both personally and professionally. As courthouses across the state begin to reopen, please consider sharing your experience – whether uplifting, heart wrenching, or anything in between – with us. We are compiling stories of criminal defense lawyers from around the state to share in the upcoming issue this summer. Send submissions to .

Editor’s Comment: Defending the Indefensible

There’s a lot going on in our world. As an American, I can’t help but think about, worry about, and be saddened by what is going on. What happened to George Floyd is wrong, and the officers should be held accountable for their conduct. But, as a criminal defense lawyer, the idea of circumventing due process to hold those officers accountable, as seems to be the rallying cry of many, is also scary and terribly worrisome.

In the Boston Massacre Trial of 1770, then-future president John Adams defended eight British soldiers who had killed five Bostonians. The killings were publicly and collectively termed the “Boston Massacre” within days after they had occurred. The five Bostonians killed quickly became martyrs for the Patriot cause. To describe Adams’ defense as unpopular would be a massive understatement. That his business would have taken a tremendous hit because of his defense of the eight British soldiers is a given. But he did it. Due to Adams’ defense work, Captain Preston, whom the prosecution argued gave the order to fire, was acquitted. And, when the trials of the remaining British soldiers were finally over, only two were convicted – and of the lesser offense of manslaughter, at that.

How and why did Adams defend the British soldiers? He did it for the same reasons we defend the indefensible case: because we, as criminal defense lawyers, hold an unshakeable belief in our justice system.

Several years later, the Declaration of Independence was adopted by the Continental Congress on July 4, 1776. That was followed by the US Constitution which was ratified on June 21, 1788.

Fast forward nearly 250 years, to the killing of George Floyd. Mr. Floyd’s death has been followed by days (and sure to be weeks) of protest — many peaceful but some riotous. It can be unsettling and uncomfortable, and it should be. Injustices are inhumane.

But, we also realize as criminal defense lawyers who believe in our Constitution, that just as surely as protestors have a right to speak out, so too, do the Minnesota police officers have a right to fair trials with zealous representation unclouded by personal judgment. It doesn’t mean we condone the conduct in any way; quite the opposite. It doesn’t mean we want to see the officers escape accountability for their actions; they should be held accountable for their conduct. It just means to keep the integrity in our justice system – a system designed to protect the innocent – we must have trials where the defense is just as vigorous as the defense mounted on behalf of the British soldiers by John Adams. Our justice system fails when there is a laydown, railroad job – from any side.

It takes a special kind of person – it takes a criminal defense lawyer – to fight for our Constitution, be a zealous advocate, and defend the truly indefensible cases. It takes a special kind of lawyer to be able to not let personal feelings interfere with their representation. There are some cases some of us choose not to take because we recognize our objectivity may be or become compromised, and that’s ok. We are all human.

We will all defend the unpopular, hated client at some point during our careers. We have all been asked (at least a dozen times) “how do you defend someone you know is guilty?” And we all know, and believe to our very core, the answer to that question. We believe in and protect our Constitution. That is just what great defense lawyers like John Adams do. They stare into the abyss and march forward giving it their all to protect our justice system for all of us.

___________________________

Please be a part of the Declaration Readings happening in your area this Independence Day.

Sarah Roland
Editor

Clay Steadman
Associate Editor

Jeep Darnell
Associate Editor

Melissa Schank
Executive Director

Ethics & The Law: The Trains Will Run Again

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When Texas was younger, her pioneers lived in fear of yellow fever, scarlet fever, malarial fever, dengue fever, a handful of generic bilious fevers, and about as many poxes.

Before the first blue norther came in each year, people stayed on edge. It came with the pioneer territory. 

So it’s no surprise that in September 1897, when cases of yellow fever popped up at Ocean Springs, Mississippi, Texans tensed up. Those who had survived the epidemic 30 years before recalled the losses of entire families, and the deaths of thousands. 

But things were different in 1897. Telephones supplemented telegraphs, bringing the news faster, and with the inflection of the human voice. People also traveled more, faster and farther than they had in 1867. A fantastic web of rail connected Texans to Texas and to everywhere else.

The good part about 1897 was that Texas found out about the outbreak in real time. The bad part about 1897 was that people from infected places might be arriving at the train station in your town any minute. What if they were bringing with them a bug that could wipe your community off the map?

The fever moved down the coast. Mobile, Biloxi, Bay St. Louis. Port towns all over the U.S. quarantined against ships from Gulf ports. Texas likewise locked down her ports to ships from any point east of New Orleans. Police inspected inbound trains to make sure passengers weren’t coming from infected towns. The people were cautiously optimistic.

Then news of 12 cases in New Orleans hit the papers, and all hell broke loose. New Orleans health officials swore that it was just some lesser fever, but nobody cared. Towns all along the coast declared absolute quarantines against New Orleans and other infected places. Cotton futures plummeted. Ripples of the news were felt in the great east coast financial kingdoms.

Texas papers daily carried the updated number of cases, deaths and recovered patients in New Orleans. To try to keep her commerce alive, New Orleans declared herself squeaky clean and announced new clean-up measures. It would now clean…wait for it…the asphalt! Just in case yellow fever germs were living on the blacktop, New Orleans was singeing the surface. 

But Texans didn’t care. Towns in East Texas outright refused to allow trains to stop at their stations. Keep it moving at 25 mph…or else. The State Health Officer, Dr. Swearingen, posted armed guards at all dirt roads entering Texas from Louisiana. Quarantine camps, like the one below, sprang up outside of railroad towns.

Travelers who were shut out of their destinations because of quarantines, but couldn’t turn back because trains weren’t running east, were held at these camps for 2 weeks to prove they were disease-free.

Places like Marlin and Georgetown locked themselves down entirely. Nobody could enter. If you lived there and were returning home after lockdown was declared, well that was just too bad. Bryan sent a health official to inspect Houston, on behalf of its citizens, who had heard rumors that the Bayou City was infected. Denton also issued a quarantine against any outside entry.

Big towns and little towns did the only thing they thought might save them – they cleaned. Galveston appropriated $5,000 to clean the city gutters, pull weeds and pick up trash. Houston declared that any structure within 250 feet of a sewer line had to tie into the line. Corpus engaged in a city-wide cleanup effort. In Milam County, a volunteer force in Cameron disinfected the town. As far as I know, nobody scorched the pavement to kill germs in Texas.

By the third week of September 1897, the papers were filled with quarantine notices and rumors of “suspicious cases.” Caldwell, Navasota, Wills Point, Brenham, Tyler, Calvert, La Grange, Huntsville, Brookshire, Hearne, Columbus…even Dallas declared a quarantine against trains and humans from infected or suspicious places.

The holdouts were few. Waxahachie, Palestine and Corsicana said they didn’t believe yellow fever was coming to Texas, so they remained open. Naturally, other towns quarantined against the open towns. Overall, everyone quarantined against each other in the spirit of self-preservation.

Then nothing happened. Texas thought it had dodged a bullet. The Houston Post published this triumphant but creepy victory cartoon to kick off October 1897. 

Orange reported it was resuming business. Hillsboro and Waco lifted their quarantines. Public schools re-opened on October 4 in Richmond. A large crowd at Sabine Pass greeted the first train to arrive there in weeks. Merchants and markets rallied. Everyone was alive again. And that should have been the end of the story.

….but it wasn’t. An October 12, 1897 statement by Dr. Juan Guiteras of the U.S. Marine Hospital, published in the Houston Post, upended Texas in way that made the events of September look like dinner theater.

Dr. G’s report declared that he had inspected Houston and Galveston, and the fever was present in both places. Yellow Jack, Bronze John, the Saffron Scourge –  it had arrived in Texas! About 12 cases, he said, most of them recovered, but definitely yellow fever.

Houston and Galveston doctors moved swiftly to denounce Guiteras’ statement, claiming it was just dengue fever, not yellow fever. City councils passed resolutions declaring that their cities had one malady and not the other. But the damage was done. Texans flew into action.

Now Texas towns declared quarantines against Houston and Galveston, as well as other places down the coast. The old shotgun quarantine method went into effect. Try to enter from Houston and you had to deal with men with guns. The San Francisco Bulletin summed it up well:

The town of Bryan not only tried to prevent trains from stopping there, they barred trains from entering the county entirely. Picture it like a train robbery, but without the theft part. Brazos County was not alone in this tactic. 

Texas A&M entered total isolation and declared it would stay that way until the first frost.

In Fayette County, a Muldoon company loading a huge order of rock bound for the Galveston jetties stopped work…no train would be sent to infected Galveston.

Folks in Wharton and other towns just fled. Trying to avoid contact with other people – even their neighbors – they fled to the interior and North Texas.

At Brenham, there was a run on groceries and supplies (yep….19th century toilet paper pirates). People living outside of town were preparing for “a siege in case this yellow fever business comes to the worst.”

The news from La Grange two days after the cases were announced:

“Our streets have been almost deserted this week, owing to people being afraid to come into town.”

On the day the Associated Press broke the news of cases in Texas, the Western Union office at Houston was flooded with 750 telegrams and had to call in extra hands to deal with the 900 responses to be sent out.

Houston immediately bought from Washington D.C. a new device for mechanical fumigation of mail. The machine, by way of a paddle with thin metal tines, slapped tiny holes in each envelope to allow sulphur or formaldehyde fumes inside to kill germs on the letters.

San Antonio locked down, but the Austin city council couldn’t agree to quarantine or not to quarantine, so they just adjourned without doing anything at all.

Mayor Rice of Houston, at the pleading of the Houston Cotton Exchange, issued an invitation for town representatives from the Texas interior to come to Houston and inspect it for themselves.

He even offered to provide free transportation. Each town decided independently whether or not they wanted to risk sending their most trusted citizens into Houston. In the end, the handful that went were able to convince others that Houston wasn’t a hotbed of yellow fever.

Texas Health Officer Swearingen released the state ordered quarantine of Houston and Galveston when no new cases had appeared for about 10 days.

Less than 2 weeks after the panic began, it subsided. Houston theaters announced they’d resume plays. Public schools re-opened across the state. And the Houston Post trumpeted the news everyone was waiting to hear.

Trains will run again! Texans and commerce began to move. They shopped, sent letters, received newspapers, saw their neighbors. Texas was gonna be okay.

Little did they know, it was those new-fangled window screens they’d installed since the last epidemic that had saved them from heartbreak and death. The discovery that mosquitoes were the cause of the dreaded disease was still a couple years away. Newspaper editors, with a few days’ hindsight under their belts, scoffed at the experts who had raised the alarm of the fever in Texas. Halletsville bragged on itself for knowing all along that the scare was no big deal. Ain’t hindsight grand? 

This thing we’re living through right now is like 1897 in many ways. Every day, we’re bombarded with figures and death tallies. Every day we’re reminded to stay at home. Every day we’re told that the economy is wrecked.

There are pertinent things we don’t understand yet, just like those Texans didn’t know the damn mosquitoes were the cause of yellow fever. We’re leery of the various alarms & predictions of experts, but afraid nonetheless. We’re bringing back shotgun quarantine at the Louisiana border.

But we are adapting and we are pioneering new ways of doing what needs to be done. We are doing as Texans have always done – moving ably through uncharted territory.

And while we don’t yet know how our version of this story ends, we must remember this: the trains will run again. You can count on it. 

When the trains start running again, remember the RULES OF ETHICAL BEHAVIOR. Many of the ethical complaints received by the state bar are for FAILURE TO COMMUNICATE. Even though you may not be in your office, it is vital to be in contact with your clients. If they are in jail, send a letter or put a little money on their books. Talk with their family to reassure them that you are OK and concerned and working on their cases. It is time to COWBOY UP.

Cowboy Up, America.

When a cowboy’s in a pinch, he just tightens up the cinch, spurs his horse, and rides right through it because that’s the way the Duke would do it. He’d “cowboy up.” And with our country now in danger, a cowboy’s like the old Lone Ranger. Ridin’ hard and shootin’ straight, fightin’ those who spread the hate. The original meaning of “cowboy up” was to inform the next bull rider or bucking bronco rider at a rodeo to get ready to ride or “cowboy up.” As lawyers, it is hard to be away from court. Most of us are complaining about having no business and no money. Many of the accused citizens we represent have no jobs and no money. You don’t have to look far to see many who are in much worse shape than we are. Be ready to get back to court when the time comes and be an ethical lawyer. COWBOY UP!  

Thanks to Mark Pusateri with Copano Press in Corpus Christi for allowing me to use some of his historical info. Special thanks to Jim Skelton and my brother Joe. The three of us were cowboys once. Jim lost three fingers when the rope on his saddle horn ripped. My brother almost got blood poisoning when a steer pushed him into a sharp gate post and ripped his leg open. I only got a concussion when a half-broke horse ran me under a tree. Jim was 11, Joe was nine, and I was 12. When we had a problem, Jim always said, “Y’all need to COWBOY UP.”