Monthly archive

September 2020

October 2020 SDR – Voice for the Defense Vol. 49, No. 8

Voice for the Defense Volume 49, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

The Supreme Court of the United States did not hand down any published criminal cases since the last Significant Decisions Report. The court will meet at the end of September to determine the granting of cert in cases for the 2020-21 term.

Fifth Circuit

United States v. Gallegos-Espinal, No. 19-20427 (5th Cir. Aug. 17, 2020)

Issue. Does a cell phone data extraction and analysis exceed the scope of consent to search when: (1) the consent was given only to obtain custody of children of a recently arrested person, (2) the scope was stated as “a complete search of the phone” and taking “any letters, papers, materials, or other property they may desire to examine,” (3) the extraction took place outside the defendant’s presence and without his knowledge, (4) the defendant ultimate would not be taking custody of the children, and (5) the analysis of data occurred three days after extraction?

Facts. A woman was arrested in an alien-smuggling investigation and requested her children be left in custody of the defendant, her adult son, who was a secondary target of the investigation. Agents seized on this opportunity to locate evidence pertaining to defendant’s mother. Agents informed defendant that it would be necessary to search his phones before handing over custody. The written consent permitted agents to take letters, papers materials, or other property they desire to examine. Agents used software to conduct an extraction. Three days later, agents find child pornography. The District Court granted suppression on the basis that the review of extracted data occurred well after defendant’s consent and because the defendant was no longer taking custody of his siblings.

Holding. Under the standard of “objective reasonableness” for determining the scope of consent, the terms of the written consent were broad. A typical reasonable owner of a cell phone would know the extensive personal information contained therein and the use of the term “complete” means everything.

Dissenting (Graves, J.). “Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person.” Riley v. California, 573 U.S. 373, 393 (2014). Sophisticated use of technology to extract exact duplicate of all data on the phone for later review was not envisioned by the agreement to search. Conducting the extraction secretly did not allow for the defendant clarify the scope.

Comment. The scope was broadly stated in outdated terms for the concept of data contained on a phone. Consent shouldn’t be sneakily obtained, but that’s how it appears to have been obtained in this case.

1st District Houston

Ex parte Edwards, No. 01-19-00100-CR (Tex. App. Houston [1st Dist.], Aug. 4, 2020)

Issue. Can the State satisfy its evidentiary burden under Article 12.01(1)(C) (elimination of the statute of limitations in a sexual assault cases) by showing that biological material was collected, sent for analysis, and 10 years later investigators took a buccal swab from the defendant?

Facts. To eliminate the statute of limitations in a sexual assault case, the State’s Article 12.01(1)(C) burden requires a showing that: (1) biological matter was collected, (2) it was tested,  and (3) testing results show the matter did not match the victim or any other person whose identity was readily ascertained. Tex. Code Crim. Proc. art. 12.01(1)(C). At the hearing on applicant’s writ of habeas corpus the parties stipulated to an offense report detailing an investigation beginning with the collection of biological material in 2003, a request for CODIS analysis, and an ultimate buccal swab of applicant in 2017. 

Holding. The implications arising from a buccal swab conducted more than 10 years after biological material was collected and sent for analysis neither satisfies the State’s burden of showing that a test was conducted on biological material, nor the State’s burden of showing that the analysis failed to produce a match to the victim or a readily ascertained person.

Comment. This is nothing ground-breaking—mostly a lesson in living by your stipulations and a good refresher on Article 12.01(1)(C).

State v. Peterson, No. 01-19-00137-CR (Tex. App. Houston [1st Dist.], Aug 25, 2020)

Issue. Does the failure to allege manner and means in a compelling prostitution case violate the due process requirement of adequately informing the defendant of the charge? Does it subject the defendant to double jeopardy?

Facts. The State tracked the language of the Statute: “did then and there unlawfully and knowingly cause by any means, K.O., a person younger than eighteen years of age, to commit prostitution.” The defendant argued that conduct constituting “any means” ranges from neglect to exploitation, and that an acquittal would ultimately attach to an indictment of unknown conduct permitting re-prosecution for the same transaction. The State pointed to subsequent briefing and discovery which narrowed the scope of the prosecution, and to the fact that the statute literally makes manner and means irrelevant.

Holding. The indictment, together with pretrial filings, provided adequate notice of the State’s theory of criminal liability so that the defendant could prepare a defense. A claim of double jeopardy without evidence of a subsequent prosecution initiated is premature.

Comment. The State does not have to prove means to obtain a conviction here. But, in a case like this the State probably must provide more information somewhere. Notice by discovery or other means is a slippery slope toward making the due process requirement of pleading a perfunctory exercise.

3rd District Austin

Ruffins v. State, No. 03-18-00540-CR (Tex. Crim. App.—Austin, Aug. 14, 2020)

Issue. Does egregious jury charge harm result from an accomplice witness instruction creating a presumption that corroboration was not required unless it was proven beyond a reasonable doubt that the witness was an accomplice.

Facts. In an aggravated robbery prosecution, the evidence presented at trial consisted of testimony from an accomplice witness, testimony from a witness who was arguably an accomplice, some arguably corroborating evidence, and an alibi witness. The jury was instructed that corroborating evidence was required only upon a finding beyond a reasonable doubt that a witness was in fact an accomplice to the commission of the offense.

Holding. The legislature has codified a predetermination that accomplice testimony alone does not satisfy a standard of proof beyond reasonable doubt. Tex. Code Crim. Proc. art. 38.14. The Article 38.14 jury instruction in this case was inverted. It should have required corroborating evidence unless the State proved beyond a reasonable doubt that the witness was not an accomplice. Because the presentation and argument of facts focused so heavily on accomplice witness testimony, the error rose to the level of egregious harm applicable to unobjected-to jury charge error.

Concurring (Baker, J.). Justice Baker would also reverse based on the lack of any requirement that the jury believe the testimony of accomplice witnesses. 

Dissenting (Goodwin, J.). Justice Goodwin would interpret trial counsel’s statements during the charge conference as invited error and disagreed with most points of analysis in the majority opinion.

Comment. A significant secondary rule of law in this case is that some corroborating evidence in the record does not cure the unobjected-to egregious jury charge harm. The Court pointed to several districts which hold this to be true – even one which would require countervailing overwhelming corroborating evidence.

4th District San Antonio

Ex parte Metzger, No. 04-19-00438-CR (Tex. App.—San Antonio, Aug 26, 2020)

Issue. Do the 2015 amended provisions of the invasive visual recording statute still violate the First Amendment as their predecessors did? The provisions at issue from Section 21.15 of the Penal Code read:

(b) A person commits an offense if, without the other person’s consent and with intent to invade the privacy of the other person, the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view;

(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room;

Facts. The defendant challenged the statute by writs of habeas corpus and motions to quash. He challenged the provisions as facially overbroad in violation of the First Amendment.

Holding. Section 21.15 is a content-based restriction because it targets speech based on its communicative content (sexually-related nature and subject matter of images). As such, the restrictions are subject to strict-scrutiny (narrowly tailored to serve compelling state interests). And, in such circumstances, the statute is overbroad only when if it continues to reach far more protected speech than the State has a compelling interest restricting. Here, the State has a compelling interest in protecting personal privacy and security in the seclusion of a home and in places where a person has a legitimate right to expect to be free from visual intrusion. These interests are invaded by unconsented visual images in changing rooms, bathrooms, by taking upskirt or down-blouse photographs, by sneaking video equipment into a person’s home, etc. The statute narrowly addresses the problem by restricting only expressive activity which invades bodily integrity and sexual privacy, which intrudes into the seclusion of a home, and which surreptitiously photographs or transmits through cracks in curtains, holes in walls, or from the ground looking up a person’s skirt. By requiring an intent to invade privacy, the statute is limited to only intolerable invasions. It is no broader than necessary to prevent substantial harms.

Comment. No party was spared from the thorough analysis of this opinion. The Court also rejected the State’s contention that “speech intended to invade substantial privacy rights should be categorically unprotected by the First Amendment.” The same result was reached in a similar challenge this month in Ex parte Ellis, No. 10-17-0047-CR (Tex. App.—Waco, Aug. 31, 2020).

5th District Dallas

Thedford v. State, No. 05-18-00884-CR (Tex. App.—Dallas, Aug. 28, 2020)(not designated for publication).

Issue. When grogginess, the mindless performance of a routine, and taking a prescribed medication all culminate in the inadvertent leaving of a child in the car, does it rise to the level of egregiousness required for negligent homicide?

Facts. Defendant, a teacher home for summer, was responsible for getting his children to daycare and preschool. After dropping his two older children off, he returned home and accidentally left his six-month-old in the back seat of the car, then he went inside, and fell asleep for a few hours. The child died of hyperthermia. Defendant misled emergency responders by telling them he had placed the child in a bassinet beside his bed while he slept. He also ultimately admitted to trying to cool the child down in the refrigerator (with door open) and taking a prescribed Seroquel the night before. At trial, the defendant presented a memory expert to show how such a tragic oversight could occur to someone of normal caution. The defendant was convicted of negligent homicide and acquitted of tampering with evidence.

Holding. Criminal negligence is not simply the criminalization of ordinary civil negligence—the required level of carelessness is significantly higher. The conduct must be egregious and with serious blameworthiness. The defendant’s failure to perceive the risk must be a gross deviation from reasonable care. Here, the routine of returning home still with a child in his vehicle after morning daycare drop-off was a new one. Absent of any significant and ignored warning signs, his conduct failed to rise above inadvertence and non-criminal negligence.

Dissent (Evans, J.). Would not impose a higher standard of serious blameworthiness nor a requirement that a defendant disregard significant warning signs. Mercy should be given in the form of probation, not acquittal.

Comment. Both the majority and the dissent seem to acknowledge that this was a terrible and tragic accident. If criminal laws are intended to conform behavior, then the majority opinion is sound. If criminal laws are intended to punish results, then so is the dissent. There have been several reverse and render opinions in negligent homicide cases in the past few years. 

6th District Texarkana

Sharpe v. State, No. 06-20-00019-CR (Tex. App—Texarkana, Aug 5, 2020)

Issue. Can an appellate court reform a probation order erroneously requiring repayment of court-appointed attorney; is the issue waived by non-objection?

Facts. On a jury verdict the trial court ordered the sentence suspended and ordered the defendant to reimburse the county for the expense of his court-appointed attorney. The defendant did not object at the time of the trial court’s order.

Holding. Appellate courts have authority to reform a probation order requiring repayment of court-appointed attorney.

Comment. The Texarkana Court indicates this would not be true when court-appointed attorney costs are assessed outside the contractual relationship of probation. When assessed merely as part of the judgment, the defendant must object at the time judgment is imposed. See Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013).

7th District Amarillo

Estrada v. State, No. 07-17-00245 (Tex. App.—Amarillo, Aug 26, 2020)

Issue. Where possession with intent to deliver is an invalid predicate offense to engaging in organized criminal activity (“EOCA”), can the judgment be reformed? If so, to what?

Facts. The state’s evidence was limited to admissions by the defendant and co-conspirators that they were involved in the distribution of methamphetamine. Only one co-conspirator was discovered in possession of methamphetamine during a traffic stop. The defendant was convicted of EOCA with the predicate of offense of possession with intent to deliver – an invalid predicate. This was the second instance of the 7th Court considering this case. The State filed PDR, and the Court of Criminal Appeals remanded with instructions to consider the possibility of reformation.

Holding. Criminal conspiracy to commit possession of controlled substance with intent to deliver is a lesser included offense of EOCA with the same predicate offense. The judgment can be reformed accordingly on appeal.

Comment. Conspiracy is probably a correct offense for prosecution. It is unclear from the Court’s opinion whether the jury considered and acquitted the defendant for the actual act of possessing with intent to deliver or why the predicate itself is not the appropriate crime for prosecution. Under the strict analysis of McKithan v. State (holding offensive contact assault is not a lesser included offense of bodily injury assault), this lesser included analysis may present issues. EOCA requires collaboration by three or more people. Criminal conspiracy requires an overt act by two or more people. Arguably, criminal conspiracy requires the State to prove something more than it would have to in an EOCA prosecution.

8th District El Paso

In re State of Texas, No. 08-19-00151-CR (Tex. App.—El Paso, Aug. 31, 2020)

Issue. Under Article 39.14, Code of Criminal Procedure, can a trial court compel discovery of (1) prior instances of expert testimony, (2) prior transcripts of expert testimony, (3) materials relied on by experts (“gang files”), and (4) disclosure of the substance of proposed testimony which varies from written report?

Facts. This case is a prosecution for engaging in organized criminal activity arising from alleged activities of the Bandidos Outlaw Motorcycle Gang and Traviezos Motorcycle Club. The Defendant anticipated the State’s presentation of expert testimony regarding motorcycle gangs. The trial court granted some, but not all, of defendant’s discovery requests. The State resisted disclosure of all items listed above and sought mandamus relief.

Holding. The State did not meet the mandamus burden (ministerial act + no other adequate remedy). Much of the information sought by the defendant falls expressly under Article 39.14. Article 67 (pertaining to street gang database) also contemplates disclosure under Article 39.14. Facts and data underlying the expert’s opinion are as material as the opinion itself.

Comment. The 6th Court of Appeals, in a case pre-dating the Michael Morton Act, had found that Article 39.14 or Texas Rules of Evidence 104, 702, 703, or 705 of the Code of Criminal Procedure does not require disclosure of expert opinions or the bases for those opinions. The Court was unwilling to surgically address aspects of this case, specifically with regard to the potential overbreadth of the order and the possibility it could require the State to create new documents (an act not contemplated by Article 39.14). Instead the Court cautioned the trial court with regard to the State’s complaint.

10th District Waco

In re Keeling, No. 10-20-00199-CR (Tex. App.—Waco, Aug. 21, 2020)

Issue. Does the trial court have a ministerial duty to consider and rule upon a pro se request for a free record?

Facts. TDCJ inmate wants a free record for habeas purposes. He filed a motion and purportedly sent a certified letter requesting a ruling.

Holding. Yes. The trial court has a duty to rule upon a pro se request for free record.

Ragan v. State, No. 10-20-00199-CR (Tex. App.—Waco, Aug. 21, 2020)

Issue. When a defendant voluntarily waives jury trial, must the trial court ask verbatim whether the defendant’s decision is made knowingly and intelligently?

Facts. During voir dire, the defendant passed a note to his counsel that he wanted to waive a jury trial and proceed with a trial before the court. Counsel presented his client’s wish to the court. Counsel explained on the record the defendant’s right to a jury trial and the role the judge would play if the trial proceeded without a jury. The trial court inquired, and the defendant confirmed his decision to proceed was made voluntarily and with advice of counsel. Defendant signed a jury trial waiver. During the colloquy the trial court did not specifically inquire whether his decision was also intelligent and knowing.

Holding. The trial court must not ask verbatim whether the defendant’s decision is made knowingly and intelligently where the defendant admitted his waiver was voluntary, the procedure complied with Article 1.13 of the Code of Criminal Procedure, and caselaw indicates compliance with 1.13 shows the waiver was intelligently made as well.

Comment. Federal courts expressing guarantees of the federal constitution probably require more, including: an assessment of the defendant’s ability to make an intelligent decision, the awareness of risks and benefits of foregoing a jury trial, and some knowledge of the right to a jury trial.

Reed v. State, No. 10-19-00363-CR (Tex. App.—Waco, Aug. 26, 2020)

Issue. Must a trial court limit a lesser-included offense instruction in the same manner the greater-included offense is limited—by specific manner and means? Does the failure to do so constitute egregious jury charge harm?

Facts. A college student becomes highly intoxicated at a bar, returns to her condo, awakens with the defendant on top of her and no pants on. She believed she was raped. Defendant was charged under a theory of sexual assault by penetrating the victim’s sexual organ with his sexual organ. Some of the witnesses advanced a theory that the defendant used his sexual organ for penetration while others advanced a theory that he used his mouth. The jury convicted of a lesser-included offense of attempted sexual assault.

Holding. The State is bound to prove the manner of penetration it alleges. Here, it alleged penetration of sexual organ using a sexual organ. The jury charge permitted conviction on the lesser included offense of attempt, but under any form of penetration in the law. This improperly broadened the indictment by adding manner and means not plead. The error constituted egregious harm because it affected the very basis of the case by allowing jurors to convict the defendant on the belief that he penetrated the victim by means other than that alleged in the indictment. 

Comment. Surely, had the parties caught this error, the trial court would have corrected it. This is a rare case of not objecting working to the favor of the defendant.

11th District Eastland

Williams v. State, No. 11-18-00171-CR (Tex. App.—Eastland, Aug. 13, 2020)

Issue. When a jury returns an ambiguous verdict resulting from the trial court’s erroneous crafting of the jury verdict form must the trial court grant a motion for mistrial?

Facts. The defendant was charged with two counts of injury to child by omission. The jury was instructed to complete “Verdict Form C” if they find the defendant guilty as charged in Count II. That form erroneously stated a conviction for a lesser included offense. This was discovered by the trial court after the jury read its verdict. While the parties considered remedies outside the presence of the jury, they received a jury note indicating intent to convict the defendant on both counts as charged. Defendant requested the jury polled and then requested a mistrial. The trial court denied the mistrial, prepared proper verdict forms, and sent the jury back to deliberate. The jury returned verdicts on the two charged offenses, and the trial court confirmed the jury’s verdict by a poll.

Holding. “A mistrial is a device used to halt trial proceedings when an error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” It is the duty of the trial court to reject insufficient verdicts and either correct with the jury’s consent or send the jury out to reconsider. The trial court did not err in refusing a mistrial and sending the jury back to correct the error.

14th District Houston

State v. Baldwin, No. 14-19-00154-CR (Tex. App. –Houston, Aug. 6, 2020)

Issue. By discussing generally how bad guys use phones, did a search warrant allege sufficient facts linking a cell phone found in a suspect’s car to the commission of a capital murder by co-conspirators?

Facts. Two masked gunmen killed a homeowner during the course of a robbery. Investigators acquire suspect description, a vehicle, a license plate, and the identity of the most recent vehicle purchaser. As a result, the defendant was arrested during a traffic stop four days later, and his vehicle was impounded. Officers apply for and obtain a search warrant for a cell phone found in the vehicle. The trial court grants a motion to suppress. The warrant affidavit at issue did not contain any particularized facts that directly connected the cellphone to the capital murder, rather, it contained boilerplate recitations about the abstract use of cellphones, training, and experience.

Holding. Despite the lack of direct evidence linking cell phone usage to the alleged crime, the common usage of cellphones among co-conspirators gives rise to a legitimate assumption that evidence of the crime would be found on the cell phone linked to one of the co-conspirators.

Dissent (Burliot, J.). Vague boilerplate accusations that people generally use cell phones when they commit crimes is not a formula for probable cause. Cell phones are unique under Fourth Amendment analysis, they contain the “most intimate details of a person’s individual life.” State v. Granville, 423 S.W.3d 399, 408 (Tex. Crim. App. 2014).

Comment. It is hard to imagine what, if any, circumstances a cell phone would not be subject to search under this rationale. A distinguishing feature of this case is the existence of co-conspirators, however. This elevates the assumption of cell phone coordination somewhat. Appellate litigation appears ongoing in this matter as of the date of this summary.

In re Pete, No. 14-20-00456-CR (Tex. App.—Houston [14th Dist.], Aug. 13, 2020)

Issue. Does the trial court have a ministerial duty to reduce oral rulings to writing?

Facts. A pro se defendant obtained oral rulings on discovery motions but refused to sign written orders reflecting its oral rulings.

Holding. Yes, rulings must be written if requested.

Stredic v. State, No. 14-18-00162-CR (Tex. App.—Houston [14th Dist.], Aug. 13, 2020)

Issue. Does Article 36.28 of the Code of Criminal Procedure allow for a written transcript of disputed testimony to be provided to the jury during deliberations?

Facts. In a murder prosecution, the defendant’s theory was that he was only guilty of manslaughter or negligent homicide. The jury requested a transcript of the defendant’s testimony which the State presented as inconsistent with his video statement. The trial court provided the jury with four pages of the defendant’s testimony over the defendant’s objection.

Holding. Article 36.28 only permits the oral readback of the court’s reporter’s notes. It was a clear abuse of discretion to supply the jury with transcription of testimony over a defendant’s objection. This error affected the defendant’s substantial rights. A trial court furnishing the jury with testimony in the form of an exhibit amounts to an impermissible comment on that testimony’s importance.

Concurring (Zimmerer, J.). Writes separately to stress the harmful nature of the error.

Dissenting (Wise, J.). Writes in dissent and would find error but no harm.

Comment. A long line of cases hold that reading and not supplying testimony strikes a balance between judicial comment on evidence and the jury’s need to resolve conflict. Judicial comments on the weight of the evidence are more harmful than those which merely affect a defendant’s substantial rights; they rise to the level of fundamental error, reviewable even without objection. Instead of providing the jury a single oral readback, it provided them with an exhibit available to be passed among the jury and to be read, considered, and scrutinized without restraint.

Fury v. State, No. 14-18-00935-CR (Tex. App.—Houston [14th Dist.], Aug. 25, 2020)

Issue. Was it improper for the trial court to permit mid-trial abandonment of language from an assault on public servant indictment which incorrectly described the reason a police officer was escorting a defendant through the jail when the assault occurred?

Facts. The indictment described a police officer as transporting the defendant-inmate in the jail “to be magistrate[d].” The testimony showed that the alleged assault occurred after the defendant had been magistrated. During a break in the State’s case-in-chief, the State moved to abandon the surplus language from the indictment: “to be magistrate[d].” The defendant objected and argued on appeal that the alteration constituted an amendment and not a mere abandonment.

Holding. While Article 28.10 of the Code of Criminal Procedure prohibits the State from amending an indictment during trial over the objection of the Defendant, an abandonment of surplusage is not an amendment. In some circumstances extra language which describes a necessary person, place or thing, with particularity is substantive and may not be abandoned, but here the reason why the officer was escorting the defendant was irrelevant.

Comment. Is it? The indictment after alteration described the officer’s performance of a duty as “escorting the defendant at the La Marque Jail.” Defendant testified at trial that jailers were physically assaulting him for attempting to raise alarm with the magistrate over jail conditions, the defense theory follows that not all “escorting” constitutes performance of an official duty.

A Primer on the Texas EOCA Statute

Many in law enforcement have started more aggressively using the Engaging in Organized Criminal Activity (“EOCA”) statute to prosecute cases where groups of individuals are alleged to have worked together in some way to commit criminal activity. Under the EOCA statute, people can be prosecuted as being part of a “combination” or as part of a “criminal street gang.” The purpose of this article is to outline and survey the law as it pertains to cases filed where the accused is charged as a member of a “combination.”

The EOCA statute, as codified in Chapter 71 of the Texas Penal Code, was created as Texas’ answer to the Federal Racketeer Influenced and Corrupt Organizations (“RICO”) statute. The legislative history suggests that the bill creating the EOCA statute was intended to make it less difficult for law enforcement officials and criminal justice agencies to obtain convictions for participation in organized crime.1 The EOCA statute allows for joinder of offenses and offenders in a single criminal case. It allows for prosecution in any county in which any activity occurred in furtherance of EOCA activities. Alleging that a person is part of a “combination” works similarly to a criminal conspiracy, except that it involves more people and they need not be as directly involved with one another.

Tex. Pen. Code §71.02(a) says that “[a] person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit” one of the predicate offenses. The laundry list of offenses is too numerous to list here but it can be found in the statute and includes offenses as diverse as murder, aggravated robbery, various sex offenses, various fraud offenses, certain gambling offenses, money laundering, and many others.2 Texas Penal Code § 71.01(a) defines the term “combination” as “three or more persons who collaborate in carrying on criminal activities, although: (1) participants may not know each other’s identity; (2) membership in the combination may change from time to time, and (3) participants may stand in a wholesaler-retailer or other arm’s length relationship in illicit distribution operations.”

It is important to remember that not all offenses are predicate offenses for an EOCA charge. Therefore, a practitioner should start by referring to the statute and ask the most basic question – does the indictment allege that the defendant committed one of the predicate offenses listed in the statute? If the predicate crime is not one that is listed in the EOCA statute, then it is not a proper EOCA charge.


There are two overarching elements that are necessary to establish guilt in an EOCA charge: (1) that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination3; and (2) that the defendant committed or conspired to commit one of the enumerated predicate offenses found in Tex.Pen.Code § 71.02(a), which also needs to be listed in the indictment.4 Simply put, the defendant must both agree to participate in the “combination” and “must himself perform an overt act in pursuance of that agreement.”5 The EOCA statute does not treat each predicate offense as an element for purposes of jury unanimity, regardless of whether the state alleges alternate predicate offenses with different degrees.6


There are two parts to the mental state required for an EOCA charge. First, the defendant must have the mental state that is required for the predicate crime.7 For example, if the defendant is charged with EOCA with theft as the predicate offense, the state must prove that the defendant intended to deprive the complainant of the property. Second, the state must prove that the defendant intended to establish, participate in, or participate in the profits of a combination.8 In other words, the defendant must possess more than just the intent to commit the enumerated predicate offense; he must also intend to commit the predicate offense as part of the combination. Also, the proof must consist of more than evidence that a combination existed and that the defendant committed one of the enumerated offenses.9 Thus, in our theft example, not only does the prosecutor have to prove that the defendant intended to steal, but also that he intended to steal as part of this crime ring, which is known as the “combination.” A jury may infer from any facts which tend to prove the combination’s existence, including the acts, words, conduct of the defendant, method of committing the crime, etc.10

To prove that the defendant intended to participate in the combination, the state must prove that the defendant intended to establish, maintain, or participate in a group of three or more in which the members work together in a continuing course of criminal activities.11 The defendant falls into the category of being part of the combination if the defendant, or one of his or her accomplices, engaged in ongoing criminal activities, and the defendant agrees to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities.12

In O’Brien v. State, the Texas Court of Criminal Appeals explained that for an adequate showing of “intent to establish, maintain, or participate in a combination or the profits of a combination,” the “State must show that the predicate offense was committed as part of a collaboration of three or more people working together in a continuing course of criminal activities.13


“Conspiracy” as used in the EOCA statute differs from criminal conspiracy under Tex. Pen. Code § 15.02. A person “conspires to commit” for purposes of the EOCA statute when that “person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement.”14 Criminal conspiracy, on the other hand, requires the prosecutor to prove that the defendant intended to commit a felony, agreed with one or more people to commit that felony, and that one of the people who formed this agreement committed an overt act in furtherance of that agreement. Criminal conspiracy does not require the defendant to have committed the overt act himself.15 EOCA “conspiracy” requires that the actor himself must commit an overt act in furtherance of the combination.16

A person may be guilty of criminal conspiracy by doing nothing more than agreeing to participate in the conspiracy, as long as another conspirator commits some overt act in furtherance of the conspiracy.17 For criminal conspiracy, if two people are charged and one is acquitted, the other must also be acquitted.18

EOCA conspiracy operates differently. To be guilty of conspiring to commit an offense as a member of a combination, a defendant (1) must agree to participate in the combination, and (2) must himself perform some overt act in furtherance of that agreement.19 That “overt act” need not in itself be criminal.20 A key difference between EOCA conspiracy and traditional criminal conspiracy is that when multiple people are charged in the combination, the acquittal of one of those people does not mean that a conviction on other defendants cannot stand.21


EOCA by “commission requires a showing of a collaboration in carrying on criminal activities in addition to the commission of one or more predicate offenses. [EOCA] by commission simply punishes a conspiracy involving three or more people that results in the completion of at least one of the conspired crimes.”22 EOCA by conspiracy does not require the state to show a completed offense.23 “When the state charges a defendant with [EOCA] by commission, it must show at least one completed offense. But in both types of offenses, the state still must prove the existence of a criminal combination.”24


One of the most often misunderstood requirements of the EOCA statute is the requirement that the state prove the intention of the members of the combination to carry out multiple criminal acts. Police officers and prosecutors often believe that a defendant may be charged with EOCA if that defendant were part of a group of three or more people who commit one of the crimes enumerated in the EOCA laundry list. While multiple people working together to commit a single crime may be guilty of that crime under a “law of parties” theory, those people cannot be found guilty of EOCA.

The Texas Court of Criminal Appeals has held that the phrase “collaborate in carrying on criminal activities” does not mean an agreement to jointly commit a single crime.25 The state must prove more than the defendant and some combination of his accomplices intended to act together toward a criminal objective of committing one of the enumerated crimes.26 The prosecutor must prove beyond a reasonable doubt that a defendant’s accomplices had engaged in ongoing multiple criminal activities, and a defendant agreed to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities, and that defendant committed an overt act, even if only one, in furtherance of that crime.27


The EOCA statute expressly excludes certain defenses. For example, it is not a defense that “one or more members of the combination are not criminally responsible for the object offense.”28 Remember, in EOCA cases your client is being prosecuted for belonging to this group that does bad things. He does not have to do the actual bad thing, so long as he does some “overt act” to help others do the bad thing. Also, as stated earlier, the fact that one member of the combination was acquitted does not mean that the other members of the combination are immune from prosecution.29 Finally, the fact that members of the combination change, and that the total number of people in the combination change is not a defense so long as the defendant and at least two other individuals remain in the combination.


Unfortunately, the law allows prosecutors wide latitude in creating complicated indictments with nightmare jury charges in EOCA cases. The Texas Court of Criminal Appeals has said that “[t]he jury must be unanimous that a defendant committed at least one of the enumerated offenses as a part of a collaboration to carry on criminal activities.”30 The court has made it clear, however, that the “jury does not have to agree on which specific offense was committed in an engaging case so long as everyone agrees that at least one of the listed offenses was committed as part of a collaboration in carrying out criminal activities.”31

For EOCA cases, the commission of each predicate crime constitutes a different manner and means of committing the single offense of EOCA.32 “An indictment may allege different methods of committing the same offense.”33 Therefore, a single EOCA indictment may list completely different predicate crimes as a “manner and means” of committing EOCA. For example, an indictment may charge an individual with committing EOCA by being part of a combination and then allege criminal activities as diverse as theft, money laundering, fraudulent use of identifying information, and murder. Although a single count can’t charge people with multiple crimes,34 courts have held that EOCA is one charge and can be pleaded with different predicate crimes as different “manner and means,” and each “manner and means” may be submitted to the jury.35 Further, verdict forms must be general so a properly written jury charge will not require the jury to make any determination as to which specific individuals in the combination committed which predicate crimes.36


Generally, the punishment range for EOCA is one degree higher than the most serious offense that was committed.37 If the predicate offense is first degree offense, then the minimum sentence is 15 years in the Texas Department of Corrections.38 There are provisions that make the range more aggressive when certain sex offenses are the predicate charge.39 Conspiring to commit an offense under the EOCA statute is the same degree as the most serious offense “that the person conspired to commit.” 40

At the punishment state of a trial, the defendant may raise the issue as to whether he completely withdrew from the combination before the commission of the offense, and “made substantial effort to prevent the commission of the offense.”41 If the defendant proves this by a preponderance of the evidence then the punishment range becomes the same as the most serious offense listed in the indictment, or a degree lower if the defendant is convicted of conspiring to commit the offense.42

Importantly, a defendant convicted of EOCA is “not eligible for release on parole until [the defendant’s] actual calendar time served, without consideration for good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is [the defendant] eligible for release on parole in less than two calendar years.”43


The EOCA statute can be tricky and confusing to the untrained eye. Many police officers and prosecutors wrongly believe that if a person commits a crime with at least two other people, then that person is guilty of EOCA. As shown above, this is not the case. When attacking the State’s case pay close attention to the pleadings. Consider filing motions to quash when the state’s indictment does not identify an “overt act” and have the statute and supporting case law ready to cite when it comes time to move for a directed verdict when the state fails to present evidence of the defendant’s intent to be part of a collaboration of three or more people working together in a continuing course of criminal activities. While the complexities of the EOCA statute aid the state in some respects, those same complexities create many opportunities for the state to make mistakes. This, in turn, creates opportunities to “recover a fumble” when the defense lawyer pays close attention to the statute’s details.

Zoom Trials: The Idea Exceeds the Technology

Courts are struggling to find a way to hold proceedings in the safest way possible while still maintaining justice. Many courts have turned to Zoom and other video conferencing services to conduct hearings and other legal proceedings in an attempt to prevent the system from coming to a complete standstill. While bench trials, hearings, and even depositions have been conducted successfully via Zoom, the first binding criminal jury trial was held entirely via Zoom on August 11, 2020. We have now participated in two Zoom jury trials that went from jury selection through verdict. One was a mock trial in a civil case for the American Bar Association’s False Claims Act Virtual Trial seminar. The other was the aforementioned binding criminal trial, which was for a Class C misdemeanor charge. We wanted to embrace this technology as the future route for jury trials, but after participating in both groundbreaking trials, we simply cannot endorse it. Perhaps it can be used for small claims and Class C misdemeanors, but any trial of substance, whether the stakes are substantial damages or the potential for incarceration, it is simply not the vehicle to use to assure litigants of their Sixth and Seventh Amendment rights to a fair trial. We will leave it to the pundits, professors, and scholars to debate the constitutional implications of jury trials via Zoom.  This article is going to address the practical and technological challenges associated with Zoom jury trials, and why it’s not only a bad idea, but a very bad idea.

Inequality of Access to Required Technology

Our first concern is the access, or lack thereof, of all jury-qualified individuals to the technology required to participate in a jury trial via Zoom. Although many knew this technology gap existed, it came to the forefront of everyone’s attention once schools closed and remote learning began. Dallas County, Texas is a prime example: Through a survey conducted by the Dallas Independent School District, it was discovered that 30% of families did not have access to high-speed internet service (Smith, 2020). These households were in the same areas that experience high crime rates, food deserts, and poverty levels. When the adults in these same households receive a jury summons and are asked to report via Zoom, they will experience the same lack of access as their children. When nearly a third of households do not have the same access to reliable internet service as other jury-qualified individuals, it creates a massive participation disparity. Now your jury panel is no longer representative of your jurisdiction. This was never more apparent than at the Travis County criminal jury trial held via Zoom. The table below compares the racial and education demographics of Travis County, Texas with that of the panel of prospective jurors for the Zoom criminal trial:

The divergence in both education and race demographics is substantial. 83% of the Zoom jury panel self-reported having a college or post-graduate degree when U.S. Census data reports only 48.6% of individuals in Travis County have the same. People of color were also underrepresented in this jury pool: 73% of the Zoom jury panel self-reported their race as White when the data shows this percentage as less than 50% for the county. While some differences can certainly be accounted for by the necessity of ensuring individuals are jury-qualified (over 18 years of age, eligible to be registered voter, etc.) as well as the randomness of the jury wheel, the demographics of this Zoom jury panel was just not representative of a traditional Travis County jury pool.

Access, or lack thereof, to the appropriate hardware needed to participate in video conferencing is another facet of the technology gap. Survey results from the Pew Research Center show that 26% of adults in the United States do not own a laptop or desktop computer (Mobile Fact Sheet, 2019). That effectively means a quarter of our jury pool does not own the necessary hardware required to participate in a Zoom jury trial. While some of this is likely due to economic constraints, the technological sophistication of smartphones today means there are also many people who just do not have use for a separate computer. While it is conceivable a juror can participate in a Zoom meeting by smartphone, it is impractical. Because the screen is so small compared to a tablet, laptop, or desktop computer, it decreases the user’s view of the lawyers, witnesses, and the judge, the ability to view evidence is incredibly difficult, and interaction with their fellow jurors is severely limited. Either individuals without access to the appropriate hardware are excluded, or the counties are going to have to send out Sheriffs to hand out tablets, computers, and/or Wi-Fi hotspots if a prospective juror has neither the appropriate hardware nor access to reliable internet service. That is simply not a practical solution to this problem. By contrast, approximately 91% of U.S. households have access to a vehicle (Peterson, 2020), which they can presumably use to report to the courthouse. Simply put, access to the required technology in order to participate in video conferencing should not be a prerequisite of jury service.

Inability to Use the Technology

Access to appropriate technology is still only half of this problem. Jurors (and attorneys, witnesses, court staff, etc.) have to know how to use Zoom. Although a learning curve was expected, the ability of everyone to effectively use the technology was underwhelming. In the criminal Zoom trial, the attorneys had clearly practiced and had a good handle on how to use Zoom, but they even had hiccups along the way, from forgetting they were muted to issues with using Screen Share. For jurors, Zoom lingo cannot be assumed, must be taught prior to the beginning of jury selection, and even then, there is no guarantee the prospective jurors will be able to use Zoom without a hitch. Multiple jurors were unsure how to mute and unmute themselves, turn their video feed on or off, or move to their breakout room when instructed by the court. During jury selection in the criminal Zoom trial, several jurors could not see the defense attorney when he first began his voir dire, so the proceedings had to stop in order for the court to teach the jurors how to switch from Gallery View to Active Speaker. Lots of questions had to be repeated because of bad connections or an audio lag. Poor connectivity caused visual and audio problems multiple times throughout voir dire, which led to people talking over one another. One juror had to move locations during jury selection (for reasons unknown), which was very awkward and caused yet another delay. Some have argued that the solution is simple: Teach prospective jurors how to use Zoom prior to trial. This is much easier said than done. Who will be tasked with this project? Court staff are already being asked to be de facto IT professionals in addition to their existing duties. Offering Zoom training is also not a guarantee. At the 2020 ABA False Claims Act Virtual Trial seminar, the mock jurors received over an hour of Zoom training apiece, and during the seminar experienced many of the same problems as the criminal Zoom trial.

Technology Failures

In the criminal Zoom trial, the court did try to address the technology disparity. Four prospective jurors were given court-issued technology in order to report for jury duty, and two of those individuals were seated as jurors. Out of those two, one was excused during the oath due to connectivity and technology problems with the court-issued device. It began with a frozen screen, and despite the court’s attempts to remedy the situation, the judge eventually decided to excuse the juror. It is worth noting that, at this point, the trial was already grossly behind schedule. This individual was not the only one who was excused due to technical difficulties. A total of five jurors, over 15% of the panel, were excused due to various technology problems. These ranged from computer viruses to an outdated operating system that did not permit one juror to access Zoom at all. While we understand the court’s reasoning, we disagree with it in practice. An inability to use technology, whether caused by user error or equipment failure, should not be a legal reason to excuse any juror.

The juror whose screen froze presents another technology-related problem: What if no one had noticed when his screen froze?  Meaning, someone can look like they are listening intently when their screen is frozen, while in reality they are scrambling to address their connectivity or equipment problems. What if the juror’s audio connection fails, preventing the juror from hearing testimony? How do we ensure that juror saw and heard other evidence? Simple: You cannot. And if the jurors cannot hear and see the evidence, they cannot evaluate the evidence, which means they cannot discharge their duties as jurors.

Right to a Public Trial by Live Stream

Another concern is the Sixth Amendment right to have a public trial. All courts, consistent with Presley (Presley v. Georgia, 558 US 209, 2010), are making reasonable accommodations, which consist of either live streams on the court’s or county’s website, on a public platform such as YouTube, or, in some instances, arranging for a live video feed to an overflow courtroom. Our concern is not the method but the technology: As long as the video feed or stream works, it’s fine, but what happens if the stream or feed fails? This is not a hypothetical scenario, as the live stream went dark during the Zoom criminal trial. An additional concern with live-streaming trial proceedings is there is no guarantee that someone is not recording the trial. Somebody cannot walk into a courtroom and videotape the trial without the court’s authorization. The court does not have that kind of control over the internet. If the case is about a parking ticket or small claims, admittedly this is not much of a concern, but if you have a high-profile case, are discussing a client’s medical condition or injuries, or submitting intellectual property evidence, the concern becomes very real. The difference between public in-person trials and live streams is the court can govern the dissemination of information. Presley says that reasonable measures must be taken to accommodate public attendance at trials, but the presumption is that the courts can maintain some control over that environment.

Another logistical concern with live-streaming is broadcasting prospective jurors’ names and other personal identifying information. In the criminal Zoom trial, the judge asked each prospective juror to rename themselves as, “Juror #[Number]”, prior to voir dire so that their names were not visible. However, most of the juror check-in process was live-streamed, so anyone who logged on potentially saw the jurors’ names before that process was completed. Even if the court chooses to disseminate identifying information of the jury panel to the parties before the stream goes live, the jurors are still potentially answering very personal questions on a very public platform. Any trial lawyer will tell you it is oftentimes difficult to get a jury panel to talk, which is compounded when the lawyer must question prospective jurors on sensitive or hot-button issues. To satisfy Presley, let’s assume a Zoom jury trial in a DWI case is being live-streamed on YouTube. Both the prosecutor and the defense attorney will likely want to question prospective jurors on alcohol use and abuse. Now imagine there’s a prospective juror whose family member was recently killed by a drunk driver. This prospective juror is still grieving their loss, and is now not only on camera, but on YouTube. Yes, there is a way for this person to speak to court privately via a breakout room that is not being live streamed. But this person and their grief, which they may or may not be ready to discuss with strangers, has now been placed on a very public stage. Perhaps this is more an ethical or moral question, but our point is this: If you ask prospective jurors to answer personal questions and actually want answers, you have to make it as safe and comfortable a process as possible, which is difficult enough in open court, and essentially impossible when the trial is being live-streamed.

Evaluation of Evidence by a Zoom Jury

Evaluation of evidence is another consideration. There is plenty of evidence that is not a document or otherwise cannot be shared via a file share program such as Box. Consider a defective product, medical device, or a patent case, where it is typical to allow the jury to hold, touch, and see the product or device. Jurors are sometimes taken to the scene of the crime or the location where the injury occurred – that’s now completely eliminated. Granted, this doesn’t happen often, but it happens at least frequently enough to be a concern if you lose that ability. Photographs are only two dimensional. Video still doesn’t replace the senses that are engaged by holding and interacting with the object yourself. How can we expect the jury to truly and fully evaluate such evidence if they are not in the courtroom?

Judging the Credibility of Witnesses via Zoom

This problem with evaluating evidence also extends to testimony. What happens in the courtroom is not just judging documents, but judging the credibility of the witnesses. In fact, the jury is instructed that they are the SOLE judges of the credibility of the witnesses. What if one or more jurors does not hear a portion of the testimony due to technical problems? Even worse, what if they are not even aware that they missed something? Now there is a portion of testimony that those jurors are not considering, not because they are not giving weight to the testimony, but because they never heard it. We need these protections even more in criminal cases, where the stakes are not a damages amount, but someone’s liberty, or even life.

Body language plays an important part in judging the credibility of the witnesses as well, but nonverbal communication is almost entirely lost on Zoom. For decades, Robert has been saying in his speeches that 80% of communication is nonverbal. Tone of voice, what someone is doing with their hands or legs, at whom or where that person is looking during their testimony – all of that factors into nonverbal communication. In the courtroom, jurors are not only watching the person speaking or testifying. They are watching the parties’ reactions to the testimony and evidence. In focus groups and post-verdict interviews, the authors routinely hear jurors tell them that nonverbal cues were just as important as testimony. In Zoom, the jury can hear the witness, but they only get the benefit of tone of voice, facial expressions, or if the witness is looking down or off camera. But from the neck down the jury has no concept of what the witness is doing. Zoom takes the ability to see nonverbal communication away from the jury.

There are legal implications with regards to witness testimony as well. We mentioned earlier that the jury can see if a witness is looking down or off camera during their testimony. If there is someone off site or off camera feeding the witness information, that is no different than cheating on a test. What if it’s clear the witness is alone, but is obviously looking at notes or other documents? In a courtroom, the first thing the lawyer will ask the witness is, “What are you looking at?” Next, the lawyer asks if they can approach the witness. Then, the lawyer will ask the court reporter to mark the notes as an exhibit. And then, the witness gets cross examined viciously by those notes. And all this plays out in real time in front of the jury. Not so with Zoom jury trials. For example, during the criminal Zoom trial, the prosecution’s witness, the police officer, said at one point he was looking at his notes because he was unable to remember the defendant’s name. While this would have had a huge impact in a courtroom, the significance was entirely lost via Zoom. Even if the witness describes the document or otherwise explains what they are looking at, how is it confirmed by the court? Is the court going to send a Sheriff to each witness’ location? The fact of the matter is that there is no way to police this when a witness testifies via Zoom.

Another consideration for virtual witness testimony is the enforcement of the “Rule”, if invoked. During an in-person trial, the witness is simply asked to remove themselves from the courtroom. If the trial is being broadcast or live streamed, there is no way for the court and the parties to ensure that a witness is not watching the presentation of evidence on a streaming platform. In other words, when a trial is being conducted remotely, there is no guarantee that the witness is honoring the Rule.

Identification of the Accused

In criminal cases, the identification of the accused can be very important. Procedurally it is necessary, and it is often seen as a big moment by the jury. At one point during the criminal Zoom trial, the prosecutor asked their sole witness, the police officer, to identify the defendant. In a courtroom, the officer would have likely gestured towards the defense table and identified the defendant sitting next to her lawyers. In the criminal Zoom trial, however, the court had inadvertently helped the State by requiring that the citizen accused rename herself in Zoom, so the label directly underneath her video window read, “Defendant – [NAME]”. No one had considered that by doing so, the court unintentionally communicated to the jury that the State had the “right” person. While not terribly damaging in a Class C misdemeanor, this could be catastrophic for a criminal defendant in another case. Our point is that necessary legal procedures do not always translate to Zoom, and can be damaging to the parties involved.

Privileged Communication Constraints

Communication, or lack thereof, is an important concern with many legal implications. Not only was it difficult for the court to communicate instructions to jurors, it was almost impossible for the lawyers to communicate with within their own teams. Under regular circumstances, you can pass notes or discreetly whisper to one another. In Zoom, even if you know how to send a message privately using the Chat function, can the Host/Co-Host/etc. see those messages? Are they no longer privileged? You can send each other text messages or set up a separate chat room, but that is an imperfect solution. Not only can the jurors see you using other electronic devices when they have presumably been told not to by the court, but as any trial lawyer knows, trials move quickly, and by the time you text or type a question or recommendation, the moment has passed. In the criminal Zoom trial, this was particularly worrisome when trying to communicate to the lawyer to make an objection. Then, making the objection itself was awkward and caused the lawyers to unintentionally speak over each other, the jurors, and the judge. What if technical problems cause a lawyer’s objection to not be heard by the court at all? Also, in the criminal Zoom trial, the trial teams were not permitted any time to confer in between voir dire panels. Normally, this can be accomplished as the jurors file into the courtroom or during a break, but because the trial teams were required to stay on camera, conferring with one another was impossible.

Even more troublesome was the inability for the client to communicate with her own lawyers. During a regular trial, a client can ask questions, pass notes during prosecution witness testimony, or otherwise communicate with counsel. You absolutely cannot use texting or a chat room: The communications may be privileged, but the jurors will see your client on their phone or similar and punish them for it, as it will be perceived as the client not taking the proceedings seriously. It is too early to know the exact legal implications of this, but no one will deny that clients have the right to speak with their own lawyers during trial proceedings. Zoom makes this impossible.         

Potential for Improper Communication

Another communication-related problem that reared its head during the criminal Zoom trial was the jurors communicating with each other. A few jurors who clearly did know how to use Zoom used the Chat feature to ask other jurors if their screen was blurry or if it was just their connection. Other jurors started responding until the judge intervened. Yes, the Chat function can be disabled, but that is not the point. An honest mistake can create a whole host of problems. If the judge had not addressed the problem as quickly as he did, it would have likely devolved into the jurors commenting on the case itself. This raises other issues as well: While a breakout room can be used as a substitute for a jury room, what happens if whomever is hosting the Zoom meeting lets the jury back into the Zoom courtroom when the parties are addressing something to be handled outside their presence? What if the Chat feature is not disabled in the breakout room, and the jurors start privately discussing the case before jury deliberations? What if, while in the breakout room, one or more jurors looks at the live stream while the judge is handling an issue specifically outside the presence of the jury? The bailiff’s job is already difficult, made more so on Zoom. There is no way for the bailiff to adequately supervise or effectively assist the jury via the Zoom platform in the way they are able during in-person jury trials.

Jury Deliberations

Jury deliberations via Zoom are a huge concern. First off, all the technology-related problems discussed within this article also apply to jury deliberations. The biggest difference between presentation of evidence and jury deliberations is that jury deliberations are supposed to take place privately and confidentially. How do we ensure all of the jurors are able to participate in the deliberations without monitoring their deliberations? If one of the other jurors can’t hear or see their fellow jurors, is it another juror who fixes the problem or do they call someone? Who exactly do they call? Presumably the Zoom Host, but who is the Host? Now the court must arrange for additional training and the associated expense of either training court staff or hiring additional IT professionals to serve as Zoom Hosts.

Here’s the biggest concern: How do we know the jury is not subject to outside influences? They’re already permitted the use of a computer in order to participate in the trial, so what prevents them from searching the internet for answers or additional information? And if they do so, how will we ever know? Back in an in-person jury deliberation room, if someone gets on their phone, one of the other jurors is likely to say something to them. In Zoom, you cannot really tell if someone is looking at their notes or their phone. There is also the very real possibility of family members or others in their homes communicating to the jurors during deliberations, the so-called 13th juror. Of course there’s a problem with this during in-person trials, people talk to their spouse or partners. There’s a number of jurors who do it despite the admonishment not to. The difference is they might bring that person’s view into the jury room during in-person trials, but that person is not actually there. In Zoom, the person might in the same room, out of frame, giving feedback on what they like and dislike. If a juror is muted, they could be having whole discussions and conversations about the evidence with that person. When it comes to jury deliberations, the potential for abuse is profound, with virtually (pun intended) no checks and balances. While we are not suggesting that we be allowed a window into the quality or content of Zoom deliberations, how can the court ensure against these types of outside influence without violating the sanctity of jury deliberations in Zoom? The fact is jurors tend to listen a lot more to a judge when instructions are given in a courtroom setting and are far more likely to heed those instructions. Part of the magic happens when you go through the effort of going to the courthouse, through security, escorted to a courtroom where a judge sits on a bench, and you are told you are the sole judges of the credibility of the evidence. Without this process, the magic is gone. Now you’re just watching a screen.

Distractions at Home

Even if jurors are doing everything as instructed, the reality is they also have distractions at home that would not exist in a courtroom. One seated juror in the criminal Zoom trial had pets running around and jumping on the couch where she was seated, all of which occurred during testimony. Another juror was clearly responding to an email or text on his cell phone during voir dire. This prospective juror was asked to stop and the court again reminded everyone that their full attention should be on the trial, but it begs the question of how many other jurors were doing the same and just didn’t get caught? How do you prevent jurors from passing time on their phones, watching TV, etc., when they are supposed to be giving the court their full attention? The reality is that the court’s reach doesn’t extend into the juror’s homes. There’s no dress code, no assurance electronic devices aren’t being used, and the distractions of other family members, phone calls, pets, packages being delivered, etc., are problems with Zoom that are lessened or eliminated by holding jury trials in-person.

Limitations of Video Conferencing

There are many other limitations of Zoom when you try to use the platform to conduct jury trials. Gallery view can be distracting and even overwhelming, but if you switch to Active Speaker, you are no longer able to see the jury or anyone else. In Gallery View, there is no way to display the jurors in any type of sequential order. In a regular jury selection, there is typically a seating chart to which the lawyers can refer. In Zoom, the order changes as people speak and as people join and leave the meeting, making it very difficult to know who is speaking, especially when a lawyer is asking Yes/No questions or when jurors otherwise answered with a single word. During the criminal Zoom trial, the jury was never “seated” together, and instead the members of the jury were interspersed among the lawyers, defendant, witnesses, and the judge. Not being able to order the meeting attendees also made for some truly awkward visuals. Sometimes the prosecutor was next to the defense attorney, which is not a good look. The optics were even worse was when, at one point, the defendant was next to the prosecutor. For lawyers, you must have two screens at a minimum: One to see the jury (or as much of the jury as possible in one screen) and another to see PowerPoint slides, exhibits, witnesses, etc. Zoom backgrounds need to be equalized. It is unfair for the prosecutors to have an official seal in their background while defense counsel has their office, as this could reduce the defense’s credibility in the jury’s eyes. The backgrounds for the attorneys should be the same, and all the backgrounds for the witnesses should be the same, even if that background is a solid color. Even when they are working perfectly, not all audio devices are created equal. Wearing headphones helps, but that’s a distracting visual for the trial lawyer and witnesses, not to mention yet another device to ensure is working as it should.

We anticipated mental fatigue caused by watching a screen all day long, and the criminal Zoom trial did not disappoint in this respect. While you can have an eight-hour trial day, it is not reasonable or effective for jurors to watch a screen for eight hours. We have all heard stories of jurors falling asleep during voir dire or even in the jury box. If we are being truly honest with ourselves, falling asleep is much more likely if the jurors are comfortably at home, and it will be much harder to wake them virtually. The jurors must be attentive if they are to justly review and judge the evidence presented, and the inherent mental fatigue of watching a screen for several hours prevents this attentiveness.

Practical Problems Unrelated to Video Conferencing

There are practical problems with holding a virtual jury trial that have nothing to do with Zoom or any other video conferencing software. Take the presentation of evidence: A file share program can be set up for the jury, but there is nothing to prevent a juror from downloading that evidence to a personal device or saving a print view. If the jury is permitted to take notes during the trial, how is the bailiff supposed to collect and destroy those notes at the trial’s conclusion? Conversely, what if the jury is instructed not to take any notes and they do? These are issues with any virtual trial setting that do not exist in an in-person jury trial.

Zoom Trials Will Take Longer

Conducting jury trials via Zoom will inevitably prolong trials rather than move them along. In the criminal Zoom trial, the judge estimated that the whole trial, from jury selection to verdict, would be completed by 1:00PM. Instead, the juror check-in process lasted an hour and a half, jury selection was not complete until almost 2:00PM, and it was after 5:30PM before the jury was excused. Most of this was due to the significant technology problems experienced, but it was also much more difficult to ensure the jurors were present and ready to proceed at the beginning, as well as, pausing for and returning from breaks. Remember, this criminal Zoom trial was for a Class C misdemeanor. There were no hot-button issues to tackle during voir dire, each side called one witness each, and the jury was asked to return a verdict on two questions. Now, imagine a catastrophic injury case or a sexual assault trial. Those jury selections oftentimes took all day due to the issues both sides had to cover during voir dire, trials were a week or longer, and the jury is asked to return a verdict on multiple questions or, in some jurisdictions, to determine sentencing in the event of a guilty verdict. The goal might be to get jury trials back up and running, but the result using Zoom is every step taking twice as long.


The biggest legal concern about Zoom trials is that it becomes a slippery slope to eventually losing the right to an in-person jury trial altogether. If Zoom or other video conferencing satisfies the right to a jury trial, what prevents a judge in the future, after we have a vaccine and the worst of the COVID-19 pandemic is over, from deciding against holding an in-person jury trial and announcing all proceedings will be conducted via Zoom? Absent clear and specific laws in place to prevent it, this potentially jeopardizes the right to what is known as a jury trial. This is why you should never agree to a Zoom jury trial – this could spell the end of traditional jury trials forever.

The best argument of all against conducting jury trials via Zoom is that there are some jurisdictions who have already successfully returned to conducting jury trials in-person. There may come a day where holding jury trials by Zoom is the answer, but that day is not today. It probably is not in the near future. Instead, in order to address the backlog of cases rapidly piling up, courts need to take steps to keep jurors, attorneys, judges, and court staff safe. We believe there is no such thing as overcompensating on safety, and that courts are far better off adopting a better-safe-than-sorry approach. It is not only jurors who have underlying medical issues, are pregnant, have partners who are pregnant or have small children at home who are concerned. A recent study discovered that 64 million people, or 20% of the population, lived with multiple generations under one roof (Cohn & Passell, 2018). While most seem receptive to a vaccine, very few individuals want to be the guinea pigs. It is going to take time before most jurors feel safe in public spaces. We can help them feel safe by taking every precaution. 

So what can the courts do to get jury trials back up and running sooner rather than later? First, require everyone, including attorneys and judges, to wear appropriate face masks at all times, and to require they are worn appropriately over the nose and mouth. If someone arrives without a face covering or an inappropriate face covering, the court should be able to provide a suitable face mask. It is worth noting that the CDC does not currently recommend the use of face shields as a substitute for masks (Considerations for Wearing Masks, 2020). Since face coverings do muffle voices, this also means setting up microphones to capture everyone’s voices. In Texas, Harris County has arranged for grand jury proceedings and voir dire to take place at NRG Stadium, where they have installed staggered microphones in-between the socially distanced seats for the jurors. This allows the court to hear everyone without passing around a wireless microphone for everyone to touch. Social distancing must be observed by everyone. It is important to note that face masks and social distancing is not an either/or scenario. The CDC has been very clear that, in public indoor settings, it is highly recommended to wear face coverings as well as observe social distancing whenever possible. This requires everyone’s participation and the court’s enforcement. Additionally, have hand sanitizer readily available and Plexiglas shields should be installed around the bench, witness stand, and jury box, especially in smaller courtrooms where social distancing is difficult or impossible to observe. There are some low-cost to free things than can be done as well, such as limit the number of people in a given area by staggering trials, restricting the number of people can be in the elevator at one time, and setting up socially-distanced lines for the restroom during breaks. It is very troubling to hear of some courts that are not enforcing, or not allowing, the proper safeguards such as masks and social distancing. In order to get trials back on track, we all have a responsibility to be part of the solution, not the problem.

We have truly struggled with deciding whether we oppose or condone virtual jury trials via video conferencing platforms. We believe a line must be drawn. In municipal court cases, small claims, Class C misdemeanors, and similar, it can be a tool in the toolbox. Any case with higher stakes, it’s not only a bad idea, but a very bad idea. Even without the significant technological and practical problems with conducting jury trials by Zoom, you lose the gravity and importance of jury duty when jurors are reporting from their living room instead of to the courtroom.

Veterans and Violence Part 1: Psychological and Neuropsychological Evaluations of Veterans with Posttraumatic Stress Disorder and Traumatic Brain Injury


As a result of the pervasiveness of polytrauma experienced in soldiers serving in Operation Enduring Freedom (OEF-Afghanistan) and Operation Iraqi Freedom (OIF), and the recent homicides and violent offenses committed by returning veterans from the Middle East that have gained national attention, there is growing concern of their adjustment to civilian life. Of concern is their risk of future mental health problems, substance abuse, psychosocial adjustment, and risk for suicide, violence, and homicide.

The objective of this two-part article is to discuss the nature and prevalence of traumatic brain injury (TBI) and posttraumatic stress disorder (PTSD) in active military and veterans as well as the forensic psychological and neuropsychological assessment of these conditions in legal matters.

In Part I, the author will highlight the cumulative effects of traumatic brain injury and PTSD on the brain and their relationship to substance abuse and addiction, violence, and ultimately homicidal behavior.

In Part II, the author will apply the forensic assessment of military servicemen/women with TBI and PTSD to legal issues in criminal cases in both Texas and federal courts. The reader should also appreciate that the information in this article also is relevant to civilian PTSD, TBI, and violent offenses.

Nature and Prevalence of TBI in Iraq and Afghanistan Veterans

There is a growing concern regarding combat-related traumatic brain injury in the current conflicts of OEF and OIF. Traumatic brain injury is a common consequence of modern warfare. In these Middle Eastern conflicts, the blast injury has arisen as a new mechanism of brain injury. Blast induced brain injury can cause high rates of sensory impairment, pain issues, and polytrauma including serious brain and medical injuries as well as PTSD.

Recently, the Joint Theater Trauma Registry analyzed wounding patterns and mechanisms of combat wounds from the current conflicts and found an increase in numbers of injuries to the

head and neck region in the current OEF and OIF conflicts.1

A recent study found that 88% of combat-related traumatic brain injuries involved exposure to explosions (improvised explosive devices – IED’s, mortar, mine, and rocket-propelled grenades).2

A study from the Defense and Veterans Brain Injury Center of returning soldiers treated at Walter Reed Army Medical Center indicated that about 60% of those injured by explosion while deployed had a TBI (44% mild TBI, 56% moderate to severe TBI).3 Most of these TBIs occurred when an external force significantly disrupted brain function often with evidence of a period of loss of consciousness (LOC) or alteration in consciousness, including possible confusion and disorientation, as well as loss of memory (amnesia) for events immediately before, during, or after the injury.

When considering combat specific traumatic brain injuries, data from the Navy-Marine Corps Combat Trauma Registry for OIF revealed that being wounded in action was associated with more severe traumatic brain injury (skull fracture in 26% of cases), injury to more areas of the body (polytrauma), and a higher rate of evacuation. 4A recent set of studies of combat injured service members receiving inpatient care at VA polytrauma rehabilitation centers indicated that 97% had a TBI, more than half experienced mental health symptoms including depression and PTSD, as well as issues related to pain.5

Studies have shown that the overall rate of deployment related TBI is more significant and about twice as frequent than non-deployed personnel. TBI screening of specific military populations soon after return from deployment have found rates between 15% and 23% for TBI’s.6 The majority of deployed head injuries are mild in nature related to concussions including alteration of consciousness rather than a complete loss of consciousness or posttraumatic amnesia, yet many veterans returning to the U.S. continue to experience persistent post concussive symptoms.7

The Neuropsychology TBI

Traumatic brain injuries vary between mild, moderate, and severe and about 80% of all TBIs are mild in severity. Mild concussive injuries are the most common type of TBI, and repetitive concussive injuries are a major focus of military medicine due to their prevalence. While moderate and severe TBI’s often have structural injury which can be seen in neuroimaging (MRI, CT scan), complicated mild TBI’s often have structural injury and abnormal neuroimaging while uncomplicated and mild TBI’s such as concussions often do not have structural injuries revealed on imaging.

Those at risk for mild TBI include the following:

  1. Young men ages 15 to 24 years of age.
  2. Individuals of low socioeconomic status.
  3. Individuals who have reckless lifestyles including substance abusers.
  4. African/American and minority status individuals.
  5. Individuals living in high crime areas.
  6. Individuals with a history of ADHD, low IQ, and/or substance abuse.

Many veterans qualify for a number of these demographic risk factors prior to their admission to the military. The factors most significant in differentiating severities of traumatic brain injury include acute injury characteristics such as duration of unconsciousness and amnesia as well as neurological status in areas of motor function, verbal responding, and response to external commands and stimuli.8

Neuropsychological and emotional sequelae or effects after TBI germane to post-concussive syndrome include the following:

  1. Disorientation and confusion.
  2. Attention, concentration, and processing speed deficits.
  3. Short-term memory deficits.
  4. Executive functioning deficits.
  5. Fatigue and lethargy, lack of motivation.
  6. Sleep disturbance.
  7. Delayed motor/verbal responses.
  8. Language/communication deficits.
  9. Substance abuse.
  10. Depression.
  11. Irritability and aggression.
  12. Impulsivity.
  13. Problems with balance
  14. Headaches and chronic pain.
  15. Impaired hearing and vision
  16. Sensitivity to light and noise
  17. Difficulties in word finding
  18. Personality changes
  19. Social isolation

Recent studies of Army soldiers specify that most brain injuries are mild in severity and blasts were by far the most common mechanism of injury (88%).9 Researchers concluded that TBI may result from primary, secondary or tertiary effects of blast exposure which refer to the direct effects and injuries of the blasts.10

Chronic traumatic encephalopathy (CTE) has become popular in the literature of athletic concussions, and this type of brain injury may also be related to veterans with a history of multiple concussions or subconcussive blows to the head.

Importantly, blast exposed veterans report higher levels of PTSD than those with non-blast mild traumatic brain injuries, and therefore a history of polytrauma is common in many veterans exposed to Middle East war related combat.11

DSM-5 and TBI

The DSM-512 added a mild neurocognitive disorder associated with traumatic brain injury diagnosis which is caused by an impact to the head or other mechanisms of rapid movement or displacement of the brain in the skull as can happen with blast injuries. The mild neurocognitive disorder diagnosis includes primarily evidence of modest cognitive decline from a previous level of performance in one or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual-motor, or social cognition) based on concern of the individual, a knowledgeable informant, or the clinician that there has been a mild decline in cognitive function; and a modest impairment in cognitive performance, preferably documented by standardized neuropsychological testing or, in its absence, another quantified clinical assessment. The cognitive deficits do not interfere with capacity for independence in everyday activities (i.e., complex instrumental activities of daily living such as paying bills or managing medications are preserved, but greater effort, compensatory strategies, or accommodation may be required).

In contrast, major neurocognitive disorder is characterized by a significant decline from a previous level of performance and the cognitive deficits must result in a need for assistance with complex instrumental activities of daily life, such as paying bills or managing medications, or otherwise interfere with independence.

Prevalence of PTSD in Veteran Populations

The psychiatric condition of PTSD has long been a significant hallmark of the psychological effects of war. War related PTSD includes a history of witnessing and/or experiencing traumatic events that led to several cognitive, emotional, and behavioral effects at the time of and following the traumatic event(s).

For decades, PTSD was considered more of a psychiatric rather than a neuropsychiatric disorder. Not until recently has there been more of a focus on the structural and functional brain effects of PTSD. In fact, PTSD is associated with regional alterations in brain structure and function that contribute to symptoms of neurocognitive deficits associated with the disorder. A recent meta-analytic study found significant neurocognitive effects associated with PTSD with the largest in verbal learning, followed by speed of information processing, then attention/working memory, followed by verbal memory.13

Researchers estimate the prevalence of PTSD to be about 9% at pre-deployment with post-deployment rates of 12% and 18% for OEF and OIF troops.xii Reservists and National Guard members have often been found to have a higher probable PTSD prevalence than active duty soldiers. The following risk factors place individuals including military personnel at risk for PTSD:

  1. History of childhood trauma and adversity.
  2. Witnessing others wounded or killed.
  3. Lower IQ.
  4. Low socioeconomic status.
  5. Family history of psychiatric illness.

Number one is a notable risk factor, as early trauma is predictive of later trauma.

DSM-5 and PTSD

The DSM-5 made thoughtful revisions for the assessment of veterans, especially those who commit violent offenses. The diagnosis continues to include exposure to actual or threatened trauma, presence of intrusive symptoms, persistent avoidance of stimuli associated with the traumatic event, negative alterations in cognitions and mood associated with the traumatic event, and marked alterations in arousal and reactivity associated with the traumatic event. The changes in arousal and reactivity include irritable or aggressive behavior and reckless self-destructive behavior that are significant alterations and are related to physiological reactions and potential aggression and violent acts by veterans.

The DSM-5 PTSD diagnostic criteria are below:

A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

  1. Directly experiencing the traumatic event(s).
  2. Witnessing, in person, the event(s) as it occurred to others.
  3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
  4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
    • Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.

B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:

  1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
    • Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.
  1. Recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s).
    • Note: In children, there may be frightening dreams without recognizable content.
  1. Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)
    • Note: In children, trauma-specific reenactment may occur in play.
  1. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
  2. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:

  1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
  2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning, or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

  1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).
  2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
  3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
  4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
  5. Markedly diminished interest or participation in significant activities.
  6. Feelings of detachment or estrangement from others.
  7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).

E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning, or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

  1. Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
  2. Reckless or self-destructive behavior.
  3. Hypervigilance.
  4. Exaggerated startle response.
  5. Problems with concentration.
  6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).

F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.

G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.

Specify whether:

With dissociative symptoms: The individual’s symptoms meet the criteria for posttraumatic stress disorder, and in addition, in response to the stressor, the individual experiences persistent or recurrent symptoms of either of the following:

  1. Depersonalization: Persistent or recurrent experiences of feeling detached from, and as if one were an outside observer of, one’s mental processes or body (e.g., feeling as though one were in a dream; feeling a sense of unreality of self or body or of time moving slowly).
  2. Derealization: Persistent or recurrent experiences of unreality of surroundings (e.g., the world around the individual is experienced as unreal, dreamlike, distant, or distorted).
    • Note: To use this subtype, the dissociative symptoms must not be attributable to the physiological effects of a substance (e.g., blackouts, behavior during alcohol intoxication) or another medical condition (e.g., complex partial seizures).

Specify if:

With delayed expression: If the full diagnostic criteria are not met until at least 6 months after the event (although the onset and expression of some symptoms may be immediate).

As can be seen, the PTSD diagnosis reflects the DSM’s emphasis with veterans, and highlights autonomic arousal symptoms that may be related to aggression to people, irritability, recklessness, self-destructive behavior, hypervigilance, and paranoia. Further, the issue of dissociation explained below is important to consider and analyze, as many offenders have out of mind/body states that occur during their aggressive acts.

Polytrauma/Complex Trauma

Critical to examinations of military defendants is the issue of polytrauma. Many servicemen experienced numerous (poly) life-threatening traumatic events which have adversely affected their physical, psychological, emotional, behavioral, and cognitive functioning and well-being. Many military defendants possess a history of risk factors before military service, including a history of trauma, and specifically polytrauma and complex trauma. The cumulative effects of multiple traumatic events take a toll on an individual who may return to a high stress environment when they return to civilian life.

Complex trauma is the exposure to traumatic stressors including poly-victimization, life-threatening accidents or disasters, and interpersonal losses. Complex trauma often is related to deficits in attachment/bonding to parent(s), abuse and/or neglect, and adversely affects early childhood biopsychosocial development placing the youth at risk for a range of serious problems (e.g., depression, anxiety, oppositional defiance, risk taking, substance abuse) and may lead to aggression. It is also associated with an extremely problematic combination of persistently diminished adaptive arousal reactions; episodic maladaptive hyperarousal; impaired information processing and impulse control; self-critical and aggression-endorsing cognitive schemas; and peer relationships that model and reinforce disinhibited reactions, maladaptive ways of thinking, and aggressive, antisocial, and delinquent behaviors.14

It is imperative to appreciate the military veteran and the pride of the profession and impact of peer influence. Many veterans returning from foreign wars tend to be loyal to their country and their service and desire to return to action. Subsequently, they often minimize and or completely deny any symptoms of PTSD and TBI, as they do not want to put their service and chance to return to war in jeopardy. Further, they often have never been examined for TBI and PTSD issues while in theatre and emphasize loyalty and duty rather than self-care.

Similarly, while the government offers TBI and PTSD screening upon return from war, many serviceman refuse such assessments and there is a peer influence quality to this refusal of assessment and treatment as they do not want to be perceived as emotionally or physically weak. Many also want to pursue other positions, posts, or governmental agency duties and positions and do not want to have any mental health assessment records following them. Unfortunately, instead of being on the road to healing through proper assessment and treatment, they tend to turn to alcohol and drugs as a numbing coping and self-medication effect.

The returning veteran with a history of polytrauma/complex trauma often will ignore, minimize, and/or lack insight into their affected emotional, cognitive, and behavioral functioning and unfortunately will not be identified and/or seek appropriate treatment and rehabilitation.

Comorbidity of TBI and PTSD

The term comorbidity relates to the simultaneous presence of two chronic diseases, conditions, or illnesses in a patient, meaning that the individual is experiencing more than one condition at the same time.

The Rand study of post Iraqi military deployment (OIF) reported a high rate of co-occurrence between a history of mild TBI, PTSD, and depression. Of those experiencing a mild TBI, about 33-44% had overlapping PTSD or depression. On examination of multiple potential predictors of PTSD, researchers found only combat intensity and mild TBI with loss of consciousness were associated with PTSD.15 The authors found that PTSD is strongly associated with mild traumatic brain injury in that 43.9% of soldiers reporting loss of consciousness from TBI met the criteria for PTSD.

Mild TBI may diminish the capacity to employ cognitive resources that would normally be engaged in problem-solving and regulating emotions after trauma, thereby leaving an individual more susceptible to PTSD and related problems.16

Ultimately, mild TBI likely increases the chance of developing PTSD. Critical to the issue of comorbidity and the co-occurrence of mild TBI and PTSD in veteran populations, is the additional prevalence of major depression and substance abuse and addiction. PTSD and depression are related to violence towards self, including suicide, and violence towards others.

Substance Use and PTSD/TBI

Unfortunately, many veterans have both PTSD and TBI and are at more significant risk for using and abusing substances due to the aggregate effect of having both disorders. Critical to the mental health assessment of the veteran, is a dual-diagnostic consideration with emphasis not only on chronic history of substance use but also of PTSD and trauma. Anger, hostility, and violence have cognitive, affective, and behavioral components which are related to the effects of PTSD, TBI, depression, and substance use. The use of substances is a coping mechanism to curb the negative emotional states that veterans often suffer. Substances, especially depressants such as alcohol, are often utilized to self-medicate the often hyperaroused emotional and cognitive state that is related to PTSD.

Combat exposure and history of childhood abuse appear to manifest their influence on criminal and aggressive behavior through increase in substance use and mental health problems.17 It is critical for the mental health examiner to assess not only the PTSD but the prevalence and severity of depression and addiction.

Research has documented a strong relationship between co-occident PTSD and substance use problems in civilian and military populations of both genders.18 Similarly, there are high rates of PTSD among veterans seeking substance use treatment because those with PTSD are likely to use and abuse substances to cope with her emotional and psychological trauma. In fact, men with PTSD are five times more likely to have a substance use disorder compared to the general population. Patients with substance use disorders and PTSD may be at high risk for relapse, and their relapses may be triggered, in part, due to the trauma reminders and cues.

Similarly, traumatic brain injury is also common among those who misuse substances.19 Alcohol and drug abuse are major risk factors for those with TBI. A recent summary of studies of those with non-penetrating TBIs with and without substance use disorders revealed that those with both TBI and substance use disorder had poor neuroradiological outcomes, including reduced hippocampal and gray matter volumes, and enlarged cerebral ventricles. Executive function and memory were moderately affected, but attention and reasoning were not. Emotional functioning was worse in those with both TBI and substance use versus TBI only.20

Unfortunately, the neurobiology of substance use and misuse also affects critical frontolimbic brain systems involved that are some of the same brain areas affected by traumatic brain injury and PTSD. 21

Neuropsychological Assessment of Veterans

When considering neuropsychological assessment of veterans, the neuropsychologist will evaluate relevant areas:

  1. Auditory and visual attention.
  2. Processing speed and working memory.
  3. Auditory/verbal memory and visual memory.
  4. Executive functioning (planning, reasoning, mental set shifting, problem solving, mental flexibility, disinhibtion, and impulse control)
  5. Visuospatial constructional abilities and sensory perception.
  6. Language abilities.
  7. Intelligence.
  8. Emotional intelligence.
  9. PTSD and psychological functioning.
  10. Cognitive effort.

The brain behavior functions that are affected in PTSD and TBI are often very similar. When considering neuropsychological testing of TBI, obviously the specific area injured in the brain impacts the area of functional deficit. Severe TBI’s involve considerable forces, often through blasts in war producing widespread cellular death and dysfunction with clear global neurocognitive functional consequences. Traumatic brain injury affects the cognitive, emotional, psychological, and physical functioning of an individual.

Of particular interest is the observation that the orbital prefrontal cortex and related circuitry are vulnerable to damage associated with TBI which likely account for the prevalence of executive deficits after TBI and contributes to the high rates of behavioral and emotional dysregulation.22

Neuropsychological testing of TBI often indicates deficits in attention, processing speed, executive functioning, and memory loss.

Similarly, there is a growing body of evidence that suggests that neurocognitive alterations occur in PTSD patients.23 Individuals with PTSD often perform less proficiently on learning and memory tasks with impairments more frequently found in the verbal memory domain.24Attention and executive functioning impairments are often indicated in those with PTSD.25 PTSD is also characterized by impaired executive dyscontrol including increased perseveration and poor inhibition of inappropriate responses. Veterans often perform more poorly on continuous performance tasks that measure sustained visual attention as well as on tasks of working memory.

When considering brain structure, the hippocampus and the medial prefrontal cortex are often less responsive in those with PTSD leading to decreased inhibition of the amygdala. Amygdala hyper-reactivity is thought to account for heightened behavioral arousal and exaggerated responses to stimuli that are perceived to be associated with danger or threat which can often lead to aggressive or violent acts.

Violence in Veterans

Veterans returning from deployment are at risk to have a number of risk factors related to psychosocial adjustment and potential future violence:

  1. Histories of childhood abuse and neglect.
  2. Lower socioeconomic status.
  3. Potential lower levels of intelligence.
  4. Lower rank.
  5. Histories and current status of substance abuse and dependence.
  6. Prevalence of mental health issues including PTSD, depression, suicidal, and paranoid thinking.
  7. History of TBI and other medical problems.
  8. Frequent history of exposure to and proficiency in weapons.
  9. Prevalence of social isolation and interpersonal/marital dysfunction when returning from war.
  10. Unemployment and homelessness.

These risk factors can act in a cumulative manner in that the more risk factors that one is exposed to, the more likely a negative outcome.

Arrests in veterans are found to be significantly related to younger age, male gender, having witnessed family violence, prior history of arrests, alcohol and/or drug misuse, and PTSD with high anger/irritability more so than even the presence of combat exposure or TBI.26

Critically to this population, a polytrauma clinical triad (PTSD, TBI, and chronic pain) can be linked to suicidal ideation and violent impulses.27 In fact, suicidal ideation and violent impulses are correlated with PTSD, as well as the combination of TBI and PTSD, pain intensity and interference, drug abuse, and major depressive disorder.

Aggressive behaviors are common amongst veterans with PTSD, and within the first year after deployment, 48% of returning veterans with PTSD reported engaging in physical aggression and 20% reported in engaging in severe violence.28

Factors associated with physical aggression among U.S. Army Soldiers studied from surveys collected six months post-deployment measuring overt aggressive behavior found that aggressive behavior was associated with:29

  1. Highest level of combat intensity
  2. Misuse of alcohol
  3. Diagnosis of PTSD
  4. TBI
  5. Depression
  6. Prior altercation with significant other
  7. Lowest rank (E1-E4)

There were a relatively higher number of minor and severe physical overt aggressive actions reported among soldiers who were previously deployed, notably highest among deployed soldiers reporting the highest levels of combat intensity. Soldiers screening positive for the misuse of alcohol were also significantly more likely to report relatively higher levels of physical aggression.

In a recent study, a large percentage of previously deployed soldiers reported aggressive behaviors after returning home, for example, they: “get angry with someone and kick, smash, or punch something” (43%), “threaten someone with physical violence” (38%), or “get into a fight with someone and hit the person” (18%). 30Studies have focused on spousal aggression which found the prevalence to be significantly higher among soldiers than their civilian counterparts.31 The leading reason is the prevalence of the condition of PTSD. The condition of PTSD is related to not only aggression, but violent thoughts, ownership of a deadly weapon, paranoia, and tendency to have intoxicated states.

Research has revealed heightened aggressive behavior among veterans with PTSD.32 There are higher rates of aggressive behaviors seen in those with PTSD compared to those without PTSD (13.3 violent acts in the prior year compared to 3.54 acts for the prior year).33

Studies of veterans demonstrate a positive relationship between combat exposure and measures of aggression as combat may model and reinforce violence. Combat exposure, PTSD symptoms, and participation in killing have significant effects on aggressive behavior in veterans, especially violence to self, spouse, and others. PTSD is correlated with an onset of destruction of property, violence to persons, violent threats, ownership of multiple firearms, knives, aiming guns at family members, considering suicide with firearms, and loading guns with the purpose of suicide in mind.34 These facts suggest a tendency for veterans to be at risk to be violent towards self and others.

A recent study examined the risk of recidivism among justice-involved veterans.35 They found substance abuse and indicators of antisociality were linked to justice involvement in veterans, yet the evidence for negative family/marital circumstances and lack of positive school and work involvement as risk factors was mixed. PTSD and traumatic brain injury, particularly when combined with anger and irritability issues, may be veteran-specific risk factors for violent offending. Other violence risk factors include combat exposure and PTSD, TBI, and homelessness/poverty.

The authors emphasized that combat exposure PTSD is particularly relevant with a history of violent offending among veterans, especially if they are exacerbated by other factors such as substance abuse and anger. They noted that traumatic brain injury is often associated with problematic behavioral and personality changes including impulsivity, aggression, low frustration tolerance, and problem-solving deficits.

The authors cited the most recent estimates indicate that ten percent of those incarcerated in federal prison have a history of U.S. military service.36

Another study examined PTSD symptoms in family versus stranger violence in Iraq and Afghanistan veterans.37 Of those veterans studied, 13% reported aggression toward a family member and 9% toward a stranger during the one-year study period.

PTSD and Violence

Three domains of functioning are influenced by PTSD symptoms including cognition, physiological arousal, and emotions. Changes in cognition include flashbacks such as altered consciousness. Traumatized individuals tend to misperceive threat towards themselves or others in their environment. They often hold extreme beliefs about justice based on their traumatic experiences. They may believe in a need for retribution to remedy perceived wrongdoings and disregard authority or display an indifference in the law because of prior perceived and actual abuse by authority figures.

Heightened psychophysiological arousal includes evidence of anger and irritability such as hyperarousal symptoms producing the survival response of fight or flight when faced with situations perceived to be dangerous. Hypervigilance includes the person always being on guard and suspicious of their environment even to the point of having paranoid thoughts. Exaggerated startle response may include the person reacting instinctively or impulsively to threatening stimuli. Emotional reactions include psychological distress in which individuals with PTSD have heightened stress influencing their mental ability to make well-reasoned responses. Heightened emotions are often common with those with PTSD including elements of anxiety, fear, anger, shame, and depression and ultimately substance abuse to deal with these emotions.

Emotional numbing symptoms of PTSD may include diminished empathy for the victim, lack of remorse, and difficulties appreciating the severity and consequences of one’s behaviors. Furthermore, while many veterans attempt to escape and avoid distressing and trauma related thoughts, images, and negative emotions, this suppression increases sympathetic activation, ultimately making it more difficult for veterans to regulate and control emotions when they are triggered.38

It is imperative for the forensic expert and attorney to appreciate how PTSD is specifically related to emotional and behavioral dysregulation as an underlying mechanism of impulsive aggression.39

Veterans with PTSD have heightened neural and physiological responses to both trauma-related and neutral stimuli, indicating they have difficulties distinguishing between safe and potentially unsafe (trauma-related) people and places.40 Unfortunately, many veterans return from deployment and continue to interpret environmental events and people as dangerous, unsafe, and threatening, and their emotional regulation resources are overtaxed, and emotions may be difficult to control.41 The condition of PTSD places a veteran at risk to be in a state of hyper-aroused activation and to misperceive an environmental event as stressful and threatening leading them to react in an impulsive and aggressive manner.

PTSD symptoms are particularly relevant for understanding violence risk.42 Re-experiencing symptoms such as flashbacks have some connection with aggression. They stress the dissociative nature and detachment from reality that may be involved with violence as a sufferer of PTSD may commit an act of aggression while re-experiencing the trauma. In fact, re-experiencing and flashback-type symptoms recently have been reported to be positively related to aggressive or impulsive behavior.43 Numbing symptoms and avoidance may also be strong predictors of violence.44 Escape avoidance and emotionally distancing from others have been shown to be positively related to aggression and hostility. Excitation and hyperarousal response-like symptoms are also related to violence.45

Those with PTSD are typically physiologically aroused and will have an intensified state of anger and aggression. Physical reactions to triggers from the trauma including elevated heart rate, sweating, and physical tension are related to a high rate of aggression. Hypervigilance and paranoia, even to a level of psychosis, are not uncommon. Hyperarousal and dissociation type psychotic symptoms may place an individual at risk for aggression due to the connection of paranoia and threat/control override symptoms that appear in psychotic disorders. Misperceived threats and paranoia are significant to a risk of violence.

When considering neuropsychological aspects of the cognition of PTSD and risk for violence, it is noted that the need for physiological arousal and stimulation may lead to reckless and aggressive behavior. Many combat veterans return to the U.S. and have become accustomed to the variability in stress, action, and stimulation that combat brings them. This heightened stimulation changes the structure and function of the brain in areas critical to impulse control. Ultimately, they return to the U.S. with a “need for speed” in that their brain’s structure and functioning has changed, and they crave stimulation and arousal that they have been accustomed to in war and are prone in reacting recklessly and impulsively.

TBI and Violence

Traumatic brain injury is a complex injury resulting from an external force that often results in a change in brain function. Aggression is a common neuropsychiatric sequelae of TBI, and again a relationship between TBI and aggression has been found in veterans.46 A recent neuroimaging study found a difference between men and women with TBI and aggression, such that male veterans with TBI reported significantly more physical aggression, revenge planning, and urges to engage in physical violence.47

Acute post-concussive aggression and violence is often referred to as behavioral dyscontrol (including hesitation, impulsivity, disinhibition, restlessness, irritability, mood lability, and explosive behavior).

Posttraumatic aggression is often reactive in nature pertaining to the organic aggressive syndrome which describes aggressive behavior that is reactive and typically provoked, even by trivial stimuli. Such aggression is non-reflective, unplanned, non-instrumental with no clear objective, and is typically impulsive, explosive, occurring acutely without buildup, and is often egodystonic in nature in that the individual did not intend on the violent act, it was more impulsive, and the offender feels bad about their behavior.48

In contrast, posttraumatic aggression may also be considered as instrumentally objective in motive, being purposeful but unplanned, such as responding to perceived threat or acting in self-defense. Both types of aggression are consistent with TBI and PTSD.

The neuroanatomy of aggression considering traumatic brain injury includes primarily the frontal and temporal lobes, which are susceptible to injury and damage from contact and forces to which the brain is subjected during biochemical trauma.49

Traumatic brain injury is known to tear, shear, and strain brain neurons and injure white matter in a number of important areas that relate to brain behavior function, including potentially most importantly, executive functioning.

The frontal lobes are the last area of the brain to develop and are crucial in higher order cognitive processes pertaining to the regulation of emotion and behavior. Critical areas of the prefrontal cortex are responsible for executive functioning pertaining problem solving, planning, sequencing and processing information, abstraction, considering of consequences, judgment, inhibition, learning from punishment and considering behavioral risk and reward, and empathy for example. Biochemical neurotransmitters of the brain in the frontal lobe areas may be negatively altered and are related to mediation and balance of cognition and emotional behavior.50

Neuropsychological components of violence in veterans, deficits in information processing and the activation of highly arousing emotional memory networks associated with combat trauma leave veterans at risk for aggression. Response information as part of an activated memory structure toward perceived threat can trigger a survival mode of functioning which can include aggressive responding. Many veterans experience an arousal regulation deficit in which they cannot regulate their psychophysiological arousal and are at risk for physical acting out when feeling threatened.51

PTSD, TBI, the Brain, and Violence

When considering both PTSD and TBI and neuropsychological functioning, studies of aggression and violent behavior are focused primarily on the frontal, prefrontal, and temporal brain regions.

Prefrontal regions are involved in modulating and controlling emotional interpersonal behaviors and inhibiting temporal lobe areas especially the amygdala and other limbic regions involved in expression of aggressive drives.52

Research has revealed that PTSD and persistent post-concussive symptoms from TBI are related to most forms of partner and non-partner aggression.53 In another study, veterans with TBI and concurrent anger/irritability were more likely to be arrested than those with TBI but without concurrent anger and irritability.54

Furthermore, veterans with history of PTSD and/or TBI are at risk for volumetric measures of brain magnetic resonance imaging (MRI) with decreased hippocampal and amygdala (limbic system) volumes compared to controls as well as reduced blood flow in the frontal (executive) and temporal areas. All these brain regions are critical in neurocognitive functioning related to memory formation, executive functioning, emotional and behavioral dysregulation, and violence.

A recent study looked at long term associations among PTSD symptoms, traumatic brain injury, and neurocognitive functioning in Army soldiers deployed to the Iraq war.55 They found that increases in PTSD symptom severity at different intervals post-deployment were associated with poor verbal and/or visual recall and memory at the end of each interval and less efficient reaction time at post-deployment. Traumatic brain injury was associated with adverse PTSD symptom outcomes at both post-deployment and long-term follow-up. The authors found that longitudinal and long-term relationships among PTSD symptoms, TBI, and neurocognitive decrements may be due to sustained emotional and neurocognitive symptoms over time.

Importantly, PTSD should be considered as a neurobiopsychosocial disorder involving alterations in neural and brain functioning. PTSD may erode and break down potentially resilient enhancing cognitive resources such as learning and memory as the PTSD symptoms increase in severity. The more severe the PTSD condition is, the more likely it will lead to neurocognitive and emotional impairments. Additionally, having a history of traumatic brain injury also will aggravate PTSD symptomatology.

In another recent study, the author researched variables explaining cognitive complaints among OEF/OIF/OND veterans with a remote history of blast-wave mild traumatic brain injury.56 Despite good prognosis with mild TBI, at least a third of veterans with a history of mild TBI reported post-concussive symptoms inclusive of cognitive complaints. While veterans typically rated executive functioning prior to deployment as intact, over 80% rated their post mild TBI executive function problems as clinically significant. The authors found that current PTSD symptoms were associated with self-reported decline in executive functioning. While veterans often will rate their neurocognitive functioning as significantly impaired post head injury, even with intact neuropsychological testing results, the neurocognitive complaints are often subsumed within the symptoms of PTSD, since PTSD symptoms typically account for most of the perceived and functional neurocognitive decline in veterans.57

The prevalence of traumatic brain injury in offender populations is quite significant and prison studies consistently indicate that approximately 50% of offenders have self-reported histories of traumatic brain injury with evidence of loss of consciousness.58 Similarly, the prevalence of posttraumatic stress disorder is quite high in the offender population, with up to 27% for male and 38% for female prison populations having the disorder.59 It should be noted that many servicemen who experience mild TBI also experience PTSD and neurocognitive deficits may stem from both, but they are more consistently accounted for through the PTSD lens.

Veterans are at risk for a number of mental health problems such as PTSD, alcohol and drug abuse, head injuries, and there is a cumulative risk to violence with the collection of those disorders affecting one’s cognitive, emotional, and behavioral functioning. Imperative to the assessment of active military and veterans in relationship to risk and violence, veterans are at jeopardy for a number of mental health concerns and polytrauma. The polytrauma combination of PTSD, TBI, pain intensity, as well as substance abuse and major depressive disorder leave veterans at serious risk for suicidality, violence, and homicidality.60

While it is vital for the forensic expert to have a good handle on risk factors for violence in veterans, they also must have an appreciation of the protective mechanisms relevant to the prevention of violence and aggression in veterans.61 Many of these factors include steady work, resilience, social support, report of no physical pain, ability for self-care, healthy sleep, perceived self-determination, and having needs met. Therefore, emphasis on VA rehabilitation programs and interventions to reduce homelessness, retrain veterans for civilian work, enhance financial literacy, and improve social supports are likely to reduce violence among veterans. Obviously, many veterans have a multitude of risk factors and therefore require a variety of rehabilitative efforts.


The fight/flight sensory perception>emotional>and behavioral response system is critical to the veteran who has PTSD and or TBI history and their legal defenses.

Humans, like all species, have self-protective mechanisms to help us survive. Our fight/or/flight response system is based on a survival mechanism that allows people to react quickly to acute life-threatening situations and is designed to mobilize our brain and body to fight an enemy, run from an avalanche, or freeze to hide from a predator. There are a host of hormonal and neurophysiological affects and responses that interact to assist someone in fighting the threat or fleeing to safety.

Our brain sometimes misinterprets safe situations as dangerous and can set off false alarms. When the amygdala, our brain’s watch dog, senses danger, our body enters survival mode quicker than our rational mind can react, trying to figure out why we feel in mortal danger.

Individuals with chronic PTSD and/or traumatic brain injuries can misperceive and overreact to stressors that may not be life threatening. The heart of the limbic and emotional system of the brain is the amygdala, which plays significant roles in emotional responses (fear, anxiety, and depression), as well as development of emotional memories and decision making. It is essentially an alarm system that processes threat and danger.62 In distress it sends a message to the hypothalamus, which is a command center of the brain.

When considering the brain structure and function in the fight/flight response system, the hypothalamus of the brain as a command center that communicates with the rest of the body through the automatic nervous system (sympathetic and parasympathetic nervous systems). The sympathetic nervous system functions as if it was a gas pedal in the car triggering the fight or flight response leading to heightened arousal to perceived dangers while the parasympathetic nervous system is the brakes and is described as the “resting and digesting” response system that calms the body down after the danger leaves. There are a number of hormones that are active in this alarm, gas, and brake system.

Many military veterans and criminal defendants in general have evidence of PTSD and traumatic brain injuries, and chronic substance use and intoxicated states at the time of violent offenses that compromise and haywire this fight/flight threat response neuropsychiatric system. There may be a number of symptoms and functional impairments that forensic psychological and neuropsychological examinations can detect regarding the psychiatric diagnoses and brain injuries that must be explored in the context of the situation, environment, and perception of the defendant at the time of their aggressive act.

Both PTSD and TBI symptoms and impairments can lead to a dysfunctional brain. Emotional trauma through PTSD and traumatic brain injuries can place a brain at risk for an overstimulated amygdala and highly alert system perceiving threat everywhere, along with a damaged and dysfunctional frontal lobe system that impedes proper executive functioning regarding problem solving, planning, appreciation of consequences, and impulse control for example. Unfortunately, substances such as methamphetamine, alcohol, and other drugs critically affect brain reward systems that are in part the same areas that are affected and damaged by PTSD and TBI.63 Therefore, there often is a triple threat in violent offense cases regarding PTSD and trauma, brain dysfunction, and the acute and chronic effects of substance use.

Part II of this article in the next edition of the Voice will address forensic psychological and neuropsychological evaluations in military cases with PTSD and TBI. I will examine legal defenses that may be applicable in state and federal cases as well as mitigation and treatment issues with the veteran.

Current Issue: October 2020




17 | A Primer on the Texas EOCA Statute – By Ed McClees
20 | Zoom Jury Trials: The Idea Exceeds the Technology – By Jennifer Lapinski, Robert Hirschhorn, and Lisa Blue
27 | Veterans and Violence Part I: Forensic Psychological and Neuropsychological Evaluations of Veterans with Posttraumatic Stress Disorder and Traumatic Brain Injury – By John Matthew Fabian


6 | President’s Message
7 | Shout Outs
8 | Executive Officer’s Perspective
9 | Editor’s Comment
10 | Ethics and the Law
12 | Chapter and Verse
13 | Federal Corner


5 | CLE Seminars and Meetings
43 | Significant Decisions Report

President’s Message: Let Us In


Tex. Code Crim. Pro. Art. 20.011 permits the following people inside a Texas grand jury room during proceedings: grand jurors, bailiffs, prosecutors, witnesses (while being examined or when their presence is necessary to assist the prosecutor), interpreters, stenographers and videographers.

Defense lawyers are not allowed in the room, even when a grand jury wants to hear from us. It’s time to change that.

The simplest way to do this is to amend the statute regarding persons “Who May Be Present in Grand Jury Room.” Tex. Code Crim. Pro. Art. 20.0111 The amended statute should add to the list of eligible people, an “Attorney for Defendant or Target, when requested by Grand Jury.” Target could be defined as any person or entity the Grand Jury believes may be a subject of a criminal prosecution, relating to the matter(s) of the Grand Jury’s investigation. The amendment would not permit the appearance of attorneys for fact witnesses who are neither under investigation nor threat of indictment.

There is an urgent need for grand jury reform in Texas. TCDLA and supporting groups are at the forefront of this movement. Two years ago during the Texas legislative session of 2019, the House and Senate considered versions of bills that would have required all grand jury testimony to be transcribed or video recorded, prevented repeat grand jury considerations after a case has been no-billed and a prosecutor has no new evidence (a.k.a. “grand jury shopping”), allowed witnesses and the accused to have their attorneys present during grand jury questioning, and required prosecutors to share with the grand jury evidence that is favorable to the accused. These were worthy measures, which, unfortunately, did not clear all the necessary hurdles to become law. I anticipate similar bills will be filed again in 2021.

But a bill allowing defense lawyers into the room upon request of a grand jury should be considered as a separate piece of legislation.

When I spoke on behalf of TCDLA to the Texas Judicial Commission (TJC) in February 2020, we discussed several potential reforms to the grand jury system. TJC considered ideas ranging from those contained in the aforementioned House and Senate bills, to my own suggestion of permitting examining trials at any time prior to trial. Our current system only allows examining trials before indictment,2 which means a prosecutor can sidestep a judicial inquiry into probable cause by (literally, in some instances) running to the grand jury room and securing an indictment. See State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 427 (Tex. Crim. App. 1990) (Magistrate has no authority to block or delay a prosecutor from presenting a case to a grand jury.). Because of their unchecked power to skirt examining trials, prosecutors in many Texas counties have rendered nearly all of Chapter 16 of the Code of Criminal Procedure completely useless.

But unlike our discussion of previous, unsuccessful grand jury reform measures, as well as my own call to expand the use of examining trials, I did not detect any concern in allowing defense lawyers into a grand jury room — when a Texas grand jury specifically asks for us to be there. It makes perfect sense to allow a grand jury an opportunity to hear both sides of a story. Practitioners and citizens should also consider that an indictment often has a profound effect on a person’s life. A “true bill” can destroy someone financially and emotionally. Criminal lawyers often see clients lose their jobs and get separated from their families following an indictment. Many clients are saddled with harsh and restrictive conditions of bail. Some spend months or longer in jail, awaiting trial or disposition after a grand jury returns a true bill. The public and even many in the legal profession would be shocked to learn that not only do prosecutors get to pick and choose which evidence they share with grand juries, but prosecutors are under no legal obligation to present exculpatory evidence! U.S. v. Williams, 504 U.S. 36, 45-55 (1992) (A district court may not dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury “substantial exculpatory evidence” in its possession.).

When it comes to grand jury reform, I am confident of several things: First, TJC and our Texas legislators do not want innocent people to get indicted. Nor do they wish to unnecessarily tie the hands of grand jurors. Further, I am certain that our state’s best prosecutors would feel comfortable permitting defense attorneys to share information — and possibly even their entire defensive strategy — with a grand jury, in those rare cases in which a defense attorney and a grand jury want to do exactly that.3 Finally, I am convinced that a minor alteration of the rule regarding who may be present in a grand jury room will neither slow things down nor lead to injustice. If a grand jury refuses to indict a person after hearing from a defense lawyer that’s exactly the kind of information that a good prosecutor will want to know in advance of trial.

I wish to emphasize that this proposed change would not convey a new right to defendants or their attorneys. It would merely be an additional option for grand juries in rare but appropriate cases.

It is time to let defense attorneys into the grand jury room. Today I am requesting that TCDLA’s Legislative Committee and our excellent lobbyists draft a very short bill to amend the applicable statute in the manner I have suggested. I ask that the proposed bill remain separate from any other bill to avoid getting it dragged into the larger morass of grand jury reform. Finally, I am sending a copy of this column to our friends at the Texas District and County Attorney’s Association (TDCAA), including TDCAA’s President and its Executive Director. They are intelligent and reasonable people. My hope is that TDCAA will join TCDLA and other stakeholders in this narrowly targeted effort to advance the cause of justice.

Executive Officer’s Perspective: Moving Forward


“All you need is the plan, the road map, and the courage to press on to your destination.”

—Earl Nightingale

As we continue through the COVID-19 era, things continue to change. Some days TCDLA moves the defense bar one step forward, then other days, we take two steps backward. There are so many decision-makers determining what is the “safe” route or who should be in-person in courtrooms. There are debates surrounding finances, backlogs, and what is in the best interest of the client.

TCDLA has all hands-on deck working endless hours, talking with and assisting our members, and providing motions, checklists, and other tools. Our ultimate goal is for TCDLA to be a resource to protect our members and ensure their clients’ rights are not abridged during the reopening process.

For the lawyers who are on the frontlines, our leadership, committees, staff, and TCDLA as a whole are doing everything possible.  If you are on the frontlines, you are not alone; you have TCDLA’s group power backing you – whatever the right thing is for each case and attorney. TCDLA supports you .

As we get ready for the 87th Texas Legislative Session, our TCDLA Lobbyists and Legislative Committee will continue to lobby progressive reform for criminal justice. They will keep our members informed of bills filed or any other pertinent information. This will be an unprecedented legislature due to limited access and the ever-changing rules. It is also unknown, other than the budget, what the priorities will be and what will be discussed.

TCDLA would like to thank Michael Mowla for his past years of service for the Significant Decisions Report. He will be missed, and I look forward to seeing him in person again, along with everyone else.

We are missing our face-to-face interactions at seminars and meetings. Till our roads cross again, may your destination be a peaceful one.

Editor’s Comment: A Season of Change


It is with sadness and understanding that I must inform you that TCDLA’s beloved Michael Mowla has resigned his post as SDR contributor and editor after three years of contributions. I originally tapped him for the job knowing that he would raise the level of the Voice. We all know Michael has been and continues to be tireless in his efforts to help us all be a little smarter legally. He was happy to help, answer questions, and point us all in the right direction. He provided stellar (and comical) SDRs. We are grateful for his service.

Please join me in welcoming our new SDR contributor and editor, Kyle Therrian. Kyle has been extremely active – especially lately – in TCDLA. He has been a part of COVID-19 Response Task Force, Amicus, Memo Bank, Strike Force, and Nominations committees and TCDLEI Board. Like me, he must not sleep much. I was thrilled he agreed to step into this very formidable role. You will find the SDR remains very readable and very insightful. Kyle is more than capable of keeping us up to speed on significant decisions.

You will find this edition of the Voice dense with valuable insight and information as we begin to return to “normalish.” There are none better to have tested out the new frontier of Zoom trials than Jennifer Lapinski, Robert Hirschhorn, and Lisa Blue. They participated in the first two Zoom trials from jury selection through verdict. Should there be any tendency to proceed with a Zoom jury trial, this article should cause us all to put on the brakes, and to resist any effort to be put to trial via Zoom or any other electronic means. There is absolutely no benefit that will come to our client with a Zoom trial.

Ed McClees explains the difficult concept of “combinations” as related to engaging in organized criminal activity (EOCA) cases in his article “When it Takes More than Two to Tango.” We all know EOCA can be really tough, but Mr. McClees helps simplify the complexity of one of the main issues in these cases. He also reminds us to be sure to check that the predicate offense alleged in the indictment is one of the enumerated offenses listed in the statute since not every criminal offense is a qualifying predicate offense for EOCA.

Dr. John Fabian, in part one of a two-part article, provides a richly sourced article that suggests our military clients, precisely because of their traumatic experiences serving in the military, may be more predisposed to commit certain violent acts. While these experiences may not be exculpatory in most cases, it is most certainly mitigating in every single case, and now thanks to Dr. Fabian, there is supporting literature on the very topic. Let’s always be sure to fully explore the backgrounds of all of our clients, especially those who have given of themselves at one time in service to us.

Finally, my deepest appreciation and thanks to assistant editors Jeep Darnell and Clay Steadman – especially during this time – for all their work in helping edit the Voice and bring you the best product possible. As always, please let us know if you have any feedback – good, bad, or otherwise – to help improve the quality of the Voice for all our readers.

Be sure to vote, love your families, stay safe, and be well.

As we went to print, news that Justice Ruth Bader Ginsburg had died at the age of 87 filled the media. Quite simply, her legacy is unrivaled, and we would all do to heed her advice: 

“Fight for the things that you care about, but do it in a way that will lead others to join you.”
  And let’s all be sure to vote and encourage others to, as well.

Chapter & Verse: What Does “Speedy Trial” Mean Anyhow?


As I strike out on this venture to read through the TCCP with all of you, my darling colleagues, I realize now, in this second humble installment, what a huge elephant I have promised to eat. For example, the next section I want to dive into is Art. 1.05. “Rights of the Accused.” Oh gosh. That’s a lot. Even in Texas, apparently, the accused have a lot of rights. Even the first sentence has a lot to unpack: “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” We have to pick something to focus on here. I pick the speedy part.

Speedy trials have come to mean something entirely different in Texas than they did when they were first invented. Back in the Day (and by “day” I mean 1166 AD, specifically the Assize of Clarendon), trials had to be held within a few days of the person being arrested. To be totally fair, “trials” were also a bit easier to organize back then, requiring mostly a large vat of boiling water into which the hand of the accused person was plunged, then wrapped in bandages for an additional three days and then examined by a priest who determined if the hand was infected or not. If the wounds were infected, the person was guilty. This is about as fair a system as has ever been invented and, frankly, I’d probably take my chances with the vat of boiling water if I was ever given the option of that or to sit in the county jail for 20 months or so months awaiting trial, but I digress.

Texas actually used to have what most other states have, which is a speedy trial act that required the state to be ready for trial within a set amount of time after “the commencement of a criminal case.” In Texas, this meant that the state had 120 days to get ready for a felony, barring exceptional circumstances. In my humble experience in other jurisdictions with similarly strict day requirements, there are always exceptional circumstances. In Meshell v. State, 739 S.W.2d 246, the CCA declared that the Texas Speedy Trial Act violated the separation of powers doctrine, and that the legislature couldn’t tell the DA how long it would take to get ready for trial. That’s disappointing, especially for Meshell himself, whose lawyers didn’t argue that his case was a federal or state constitutional speedy trial violation. So, when the act was struck down, he hadn’t preserved any error for review and ended up with a conviction (lesson: OMG CONSTITUTIONALIZE YOUR OBJECTIONS).

So now where does that leave us? What do we get when we get a speedy trial? Answer: Not much. We get SCOTUS’s Barker v. Wingo factors for the court to consider once the delay gets long enough to qualify as “presumptively prejudicial” (the length of delay, reason for the delay, assertion of the right, and prejudice to the accused). How long is long enough to be considered “presumptively prejudicial?” Cantu v. State, 253 S.W. 3d 273, tells us that it’s more than four months but definitely 17 months. Everything else is up for interpretation.

So, much like life itself, we are challenged to sift through a morass of meaninglessness and come up with meaning for ourselves. I would contend that it is good practice in appropriate cases to: (1) Demand in writing a speedy trial at the beginning of a case; (2) refuse to agree to resets – make the state request it, write on the reset that you’re signing as to service only, not agreeing, etc; (3) flesh out your prejudice (yeah, it’s prejudicial if a material witness dies, but you can’t show what they would have testified to if you never interviewed them); and (4) move to dismiss for speedy trial violations.

Ethics & The Law: Zoom: The Walking Ethical Violation


Within 30 minutes of counsel’s calling into the TCDLA’s Ethics Hotline, counsel’s problems were solved.

DILEMMA:  Lawyer L represents incarcerated and indicted client C. Mr. C. is adamant that lawyer L immediately gift all discovery already received from the DA under Article 39.14, C.C.P., to Mr. C’s brother-in-law, Mr. B, who is a licensed private investigator in Texas.

Who will be killed, kidnapped or threatened as a result of that “required” release of discovery information?

Should an attorney always follow the dictates of his/her client, even if the client is right or wrong? 


Does Article 39.14, C.C.P., authorize counsel to so release all to Mr. B, who was not appointed or hired as an investigator for Mr. C? 

ANSWER:  No. See Article 39.14.

Do the Texas Rules of Disciplinary Conduct authorize counsel to disclose confidential communication and unprivileged information upon Mr. C’s request? 

ANSWER:  Yes. See Rule 105(c) and (d).

How can lawyer L “avoid or get around” the disclosure prohibition in Article 39.14, C.C.P.?


  1. Only with a “sealed” judicial order authorizing such redacted or unredacted disclosure to Mr. B. 
  2. Without a court order, lawyer L can hire Mr. B as lawyer L’s second investigator in this case and disclose all. Lawyer L should be sure that he can trust Mr. B. 

How many clients can you trust not to get you involved in client’s past, present or future criminal conduct?

How many investigators have you dealt with that you can trust to do it right and keep you out of ethical and professional misconduct due to the actions and omissions of that very investigator whom you hired on a case?

When it comes to prosecutors and judges, how many can you trust to always do the right thing?

When  it  comes to hiring an investigator or working with an appointed investigator, 

who can you trust to always do the right thing so you will not get indicted, convicted or disbarred for that investigator’s conduct on your and Mr. C’s behalf?

Lawyer L may be held liable under tort or criminal law, if Mr. B alone or in conspiracy with Mr. C threatens, kidnaps or kills any State witness, whose name, address or phone number is disclosed in the Article 39.14 discovery.

Common sense dictates what a knowledgeable ethical lawyer should do in this scenario. What would you do?

Joseph A. Connors III

COVID-19 has changed the whole world, not just our part. 

We hear lawyers everyday complain that there is no business, no money to pay rent or mortgage.

The government has established several loan programs at low interest rates since lawyers are making no money. Some of this money has to be paid back. There is no free ride.

Many communities are making deals to conduct trials in coliseums. The powers-that-be insist it will happen. But many older lawyers are advised by doctors to stay away, that this killing pandemic is no joke.

To ethically do your job, warn clients about making phone calls, speaking to anyone, and writing any letter that may contain any information the prosecutor, judge or jury can use against the client. Get  your client to sign an acknowledgment that you have so advised her/him of this problem.

In the opinions of many trusted experienced lawyers, many calls on Zoom are unethical because other people can immediately hear or later listen to the client’s confidential communications with counsel. Knowingly allowing any third party to listen to or later review attorney-client communications waives the confidentiality of that information and the privilege created by the the attorney-client relationship. 

In almost all scenarios, Texas Rule of Disciplinary Conduct 1.05 prohibits counsel from waiving that privilege without her/his client’s informed prior consent. 

Law enforcement make arrests and accused citizens are quickly released since jails are full.

In Harris County, accused citizens appear before a magistrate who reviews the case and sets a bond. Then accused citizens have to appear in court for bond conditions. Contrary to settled law and without presentation of any “change of circumstances” evidence, many presiding judges continue to revoke bonds set by magistrates. 

After great discussions with several excellent lawyers, like Brent Mayr who is on our Ethics Committee, it became necessary to file a judicial complaint. No one took that obligation lightly;  but it was absolutely necessary that it be done.                                                                              

Zoom is a walking ethical violation: i.e. A jailed client is on Zoom and a guard is standing so close and can hear all dialogue between lawyer and client. That is wrong, wrong, wrong.

Yes, COVID-19 has changed our lives, but how many federal and state constitutional rights must be lost?  It is the job of each of us to preserve those constitutions one client in Texas at a time.

We recommend you object every time you are put in any such a situation. Make the judge’s record reflect that the law considers the attorney-client privilege to be sacred but it is being violated and abused each time something like this happens and you are being forced to commit an ethical violation every time this happens on the judge’s Zoom hearing; so i object to the court’s procedural manner of conducting this judicial hearing that is systemically depriving this defendant of each of his/her following rights guaranteed by the state and federal constitutions, namely:  First Amendment freedom of speech about confidential matters with counsel; Fourteenth Amendment due process of law; Fifth Amendment right to confidential communication with counsel during custodial interrogation by police, prosecutor and/or court; and Sixth Amendment right to effective assistance of counsel.