Monthly archive

October 2020

November 2020 SDR – Voice for the Defense Vol. 49, No. 9

Voice for the Defense Volume 49, No. 9 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Big opinions on the way. The Court of Criminal Appeals is back from break. The Supreme Court 2020-21 session is now under way. I hope the new format is an easy read; let me know what you think!

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.

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

This publication is intended as a resource for the membership, and I welcome feedback, comments, or suggestions: (972) 369-0577.

United States Supreme Court

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

United States v. Lima-Rivero, 971 F.3d 518 (5th Cir. 2020)

Issue. Is a trial court bound by the government’s conclusion that the defendant did not provide truthful information when deciding whether to give a reduced sentence under the Federal Sentencing Guidelines’ safety valve provision—a provision which requires a defendant to provide the government with truthful information? Does throwing drugs out of a window during a police chase constitute reckless endangerment under the Sentencing Guidelines?

Facts. The defendant was involved in a drug transaction which resulted in a police chase where he was a passenger in the chased vehicle. During the chase, the defendant threw a bag of methamphetamine out of the passenger window. The defendant also apparently gave a debrief with agents which left agents dissatisfied.

Holding. No. A district court has discretion to apply the safety valve provision and is not bound by the government’s determination of whether a defendant provided truthful information. Yes. Throwing drugs out of a window is reckless endangerment.

Dissent (Haynes, J.) The trial court erred in its deference to the Government’s opinion on safety valve eligibility. However, the agent testified that that it was his opinion that the defendant did not provide truthful information which is sufficient evidence. 

Comment. The Court found that the DEA agent’s conclusory statement was not an adequate substitute for the prosecutor’s conclusory statement. The DEA’s statement was that the defendant was “less than forthcoming regarding many things.”

United States v. Valdez, 973 F.3d 396 (5th Cir. 2020)

Issue. Is counsel ineffective when his Sentencing Guideline estimation is wrong by more than 300 months and the defendant is sentenced to a statutory maximum sentence of ten years?

Facts. Defendant pleaded guilty—without agreement—to possessing a firearm as a convicted felon. Because he used the firearm to commit murder, the guideline range was 324 to 405 months. His attorney estimated a range of 24-36 months. The trial court sentenced the defendant to the statutory maximum of 120 months. Defendant filed a motion under 28 U.S.C. § 2255 claiming his counsel was ineffective and had he known he would be subjected to the statutory maximum punishment under the guidelines, he would have proceeded to trial.

Holding. Counsel’s estimation was not unreasonable and there was no reasonable probability that but for the erroneous guideline calculation the defendant would have insisted on going to trial. He changed his plea the morning of trial after it became clear that the Government had secured a witness damning to his defense.

Dissent (Wiener, J.) “The Sentencing Guidelines play such an important role in federal criminal defense that it is unreasonable for counsel to make a grossly inaccurate estimate of the applicable range . . .”

Comment. Who wouldn’t go to trial if their Guideline calculation was triple the statutory maximum of 10 years? The dissent’s criticism that the majority opinion renders counsel’s familiarity with the Sentencing Guidelines optional is persuasive.

United States v. Beaulieu, 973 F.3d 354 (5th Cir. 2020)

Issue. When a prosecutor who granted testimonial immunity to a witness subsequently prosecutes that witness for contempt upon his refusal to testify, is it prosecutorial misconduct for that prosecutor to inject his personal knowledge in closing and cross examination?

Facts. In an interview with FBI agents, defendant identified suspects involved in carjackings and bank robberies. At trial on these offenses, the defendant refused to testify and invoked Fifth Amendment privilege. The district court appoints Attorney 1 after the invocation. The Department of Justice granted the defendant immunity from prosecution. After he was ordered by the trial court to testify, the defendant still refused. The trial court appointed the same prosecutor to prosecute contempt proceedings against the defendant. Attorney 2 is appointed to represent the defendant in contempt proceedings. Attorney 2 moves to disqualify the prosecutor as a material witness for the defense. Attorney 1 testified at the contempt trial and indicated that the prosecutor had withdrawn a “complete immunity agreement.” The prosecutor advanced his own recollection of what had occurred in cross-examination. In closing argument, the prosecutor disclosed even more facts within his personal knowledge but outside of the record.

Holding. Yes. “There is no gray zone here.” The prosecutor repeatedly expressed personal opinions on the merits of the case, credibility of witnesses, and made arguments not based on evidence presented. The misconduct was prejudicial—the trial was three hours long and filled with misconduct. There were no cautionary instructions to counteract the misconduct. “The proceeding below was obviously contentious, with numerous accusations of dishonesty and bad faith.” This resulted in the prosecutor abdicating his role to see that justice is done.

Comment. It is not often that a trial court cites a prosecutor’s special role and duty in the context of the justice system and then reverses a conviction as it did here. The trial court should have granted the disqualification, or the prosecutor should have withdrawn.

United States v. Soriano, —F.3d—, No. 19-50832 (5th Cir. Sept. 18, 2020)

Issue. Was consent to search given voluntary when given in the context of a traffic stop involving numerous probing questions about unrelated criminal activity?

Facts. Defendant indicated he was travelling from El Paso to Odessa for a short stay with family. Officer testified that travelling between those two cities on Sunday is rare. Officer found it suspicious when defendant asked officer to repeat herself after she asked if defendant had ever been arrested. Defendant ultimately responded that he had been previously arrested for tickets. Officer eventually saw a large duffle bag in the back seat inconsistent with a short stay. Defendant changed his answer on how long he intended to stay in Odessa. The defendant appeared nervous. The defendant showed the officer the top layer of clothes in the suitcase as well as his trunk. Inside the trunk were several cans of gasoline. Officer informs defendant that he was going to receive a ticket for speeding. When she ran his criminal history, she found an undisclosed arrest for Theft. When the officer returned to the vehicle, she asked the defendant whether there was anything illegal in the vehicle, requested consent to search, and asked if a drug dog would discover illegal substances. The defendant said she could check the car and that she was welcome to bring the drug dog. Officer discovers cocaine in the duffel bag.

Holding. Yes. Evaluating voluntariness of consent requires consideration of six factors: (1) voluntariness of defendant’s custodial status, (2) presence of coercive police procedures, (3) extent and level of defendant’s cooperation with police, (4) the defendant’s awareness of his right to refuse consent, (5) defendant’s education and intelligence, (6) defendant’s belief that no incriminating evidence will be found. Although the defendant was not free to leave, there were no coercive procedures, defendant remained cooperative during the encounter, he was imputed with knowledge of a right to refuse based on his experience with criminal justice system, nothing about his intelligence indicated he was susceptible to coercion, and the defendant indicated that there would be no incriminating evidence in the vehicle.

Comment. The defendant raised in the trial court an argument that officers unjustifiably prolonged the detention beyond the amount of time needed to complete the purpose of the traffic stop. It appears this issue was abandoned on appeal. The Fifth Circuit has issued a few recent opinions defining certain activity as consistent with drug couriers, for instance: being on certain highways, telling confusing stories, and responding to the question “are there drugs in the car” with anything more than a simple “no.”

Texas Court of Criminal Appeals

Crider v. State, No. PD-1070-19 (Tex. Crim. App. 2020)

Issue. Must a DWI blood warrant specifically authorize both the blood draw and the blood testing?

Facts. Officer obtains a blood search warrant authorizing the drawing of blood but not the subsequent chemical testing.

Holding. No. While in State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019) the Court held that chemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purposes, a magistrate who has found probable cause to extract blood from a DWI suspect has necessarily found probable cause to conduct a chemical test on that blood. Martinez is distinguishable on this basis. In Martinez, the State did not extract the blood in the first instance. In Martinez the State obtained the blood from the already-extracted blood sample at the hospital, without a finding of probable cause. Then the State tested that blood, also without a finding of probable cause. Under the Martinez circumstances the testing of blood was unconstitutional. Here the blood was taken by a warrant issued upon a probable cause determination that the blood constitutes evidence to prove the offense of driving while intoxicated. This holding does not authorize “general” search warrants for “general exploratory rummaging in a person’s belongings” prohibited by Walthall v. State, 594 S.W.2d 74 (Tex. Crim. App. 1980)(i.e. the State is not authorized to conduct genetic or other biological analysis, only a BAC analysis).

Concurrence (Newell, J.) (Joined by Hervey, Richardson, Slaughter) Appellant raises persuasive concerns about implying authorization for a second search from a warrant that only authorizes seizure. This could lead to general rummaging warrants. This could lead to forensic searches of computers where a warrant only authorizes seizure. When the search warrant incorporates the probable cause affidavit by reference, the scope of the warrant should be judged against both the warrant and the probable cause affidavit. Here the warrant affidavit is requesting the blood draw to prove the offense of DWI which necessarily implies testing.

Dissent (Walker, J.) The court reads “testing” into the warrant where the magistrate did not explicitly permit testing. The question is not whether there is probable cause to test the blood, it is whether the test was authorized. A magistrate can incorporate the probable cause affidavit in its command: “you are commanded to enter the suspected place described in said affidavit and to seize the same and bring it before me,” or it can incorporate generally and in a manner which explains the finding of probable cause: “the officer swore an affidavit establishing probable cause and it is incorporated by reference.” The latter scenario, which occurred here, does not make for an implication that what the officer wanted to do with the blood after the blood draw was authorized by the magistrate.

Comment. Those judges necessary to form a majority opinion also joined in Judge Newell’s concurrence. Do not let the State use this case to get away with more than what Judges Newell, Hervey, Richardson, and Slaughter and Walker would permit in other contexts.

State v. Castanedanieto, No. PD-1154-19 (Tex. Crim. App. Sept. 16, 2020)

Issue. When a trial court suppresses a confession on the basis of noncompliance with the requirements of Miranda and Article 38.23 of the Code of Criminal Procedure, may the Court of Appeals uphold the suppression on a theory of coercive police interrogation instead?

Facts. Defendant was suspected of committing aggravated robbery. Detective 1 begins the first interrogation by reading the defendant Miranda and Article 38.22 rights. The defendant indicated he did not understand. The detective proceeds with the interrogation anyway, and the defendant confesses. Defendant is later taken before a magistrate where he requests appointed counsel. Following arraignment, detective 2 reinterrogates the defendant “suggesting he may have more to tell the second time around.” During both interrogations, detectives spoke to the defendant using declarative statements or commands indicating that an interrogation would take place. In the trial court, after the State abandoned any attempt to defend the first interrogation, the defendant advanced two legal theories for suppressing the second interrogation: (1) his lack of understanding of his Miranda/Article 38.22 warnings in the first interview which carried forward into the second interview, and (2) the State violated the Sixth Amendment by reinitiating questioning after the defendant requested appointed counsel. The Court of Appeals upheld the trial court suppression on a “coercion theory”—that the detectives use of commands and directives regarding the interrogation amounted to coercive police interrogation.

Holding. No. The Court of Appeals erred by upholding the suppression on a theory not litigated below. Not all un-mirandized statements are coerced statements. While coercion has a presumptive taint which carries forth into subsequent interrogations un-Mirandized statements do not (unless part of a strategy to circumvent Miranda). The State was not on notice in the trial court that it needed to defend against a theory that the second interrogation was presumptively tainted by the first interrogation. The Calloway rule (a claim of reversible error on appeal should be rejected if the ruling is correct on any theory of law applicable to the case) should be resisted when it would work a manifest injustice to the party appealing. Here, affirming on a coercion theory would work a manifest injustice to the State.

Comment. The Court’s analysis makes sense. Miranda is a prophylactic against police interrogation, not a barometer for determining when it occurs. However, coercion and Miranda are in the same constitutional wheelhouse (as demonstrated by intuition of the prosecutor to ask the “you weren’t being coercive” questions of the detective). Will this opinion cut both ways? Will it curtail the State raising new theories on appeal? The use of the Calloway rule seems inconsistent across the State. Compare Scott v. State, 572 S.W.3d 755 (Tex. App.—Houston, [14th Dist.] 2019)(trial court is correct that officer did not have probable cause of intoxication to arrest, but he could have arrested for the Class C traffic violations) with State v. Varley, 501 S.W.3d 273 (Tex. App.—Ft. Worth, 2016)(On appeal the State can’t rely on federal three-brake-light rule adopted by the Transportation Code when litigation in trial court focused on the Transportation Code’s two-brake-light rule).

Price v. State, No. PD-0722-19 (Tex. Crim. App. 2020)

Issue. May officers conduct a search incident to arrest (“SITA”) of a person’s luggage after they had already separated the luggage from the defendant and while the defendant was handcuffed and surrounded by officers?

Facts. Police receive a tip that defendant would be arriving at the airport with marijuana purchased out of state. Police detain defendant, handcuff him behind his back, and transported both him and his suitcases to a “secure office” where he is formally arrested. Officers then conduct a SITA of defendant’s suitcases and discover marijuana. The Court of Appeals found that the luggage was not subject to a SITA (defendant separated from luggage, luggage therefore not immediately associated with defendant, police had eliminated threat of defendant gaining access), and that the search could not survive under an inevitable inventory search theory because the doctrine of inevitable discovery is inapplicable to Texas exclusionary rule—Article 38.23 Code of Criminal Procedure.

Holding. Yes. Whether a receptacle is immediately associated with an arrestee should not be defined by the nature or character of the receptacle, but rather in terms of the arrestee’s connection to the receptacle. When an arrestee is in actual possession of a receptacle immediately preceding arrest, and the receptacle must accompany the arrestee to jail, officers are justified in a SITA of that receptacle. The contents of the receptacle would ultimately be inventoried at the jail or police station for the protection of the police, the arrestee, and the public. Lalande v. State, 676 S.W.2d 115 (Tex. Crim. App. 1984). But Lalande is not the application the inevitable discovery rule—it merely stands for the proposition that inevitable discovery by way of inventory is baked into the standard for SITA. Thus, the inapplicability of the inevitable discovery under Texas’ exclusionary rule is irrelevant here.

Dissent (Keller, J.). Inventory searches are not baked into searches incident to arrest. Lalande is an extension of the inventory exception to the Fourth Amendment which permits some inventorying to occur at the scene of arrest. An inventory search must be conducted pursuant to an existing inventory policy. There was none here.

Dissent (Newell, J.) (joined by Hervey, J.). Lalande is the application of the inevitable discovery rule which this Court subsequently found inapplicable to statutory suppressions under Article 38.23. The U.S. Supreme Court has declared that luggage separated from an arrestee is not subject to SITA. United States v. Chadwick, 433 U.S. 1 (1977). But subsequent opinions create numerous distinctions making SITA confusing. The US Supreme Court should fix this. Even if this were justifiable as an inventory, an inventory search must be conducted pursuant to an existing inventory policy. Here there was none.

Dissent (Walker, J.). The purpose of SITA is officer safety and evidence preservation, and neither were threatened here. SITA also requires exigency. Even if the majority were correct in finding that inventories are baked into the SITA exception, there was no chance the luggage was going to the jail with the defendant. They were the physical evidence which provided probable cause for the arrest. Defendants get to walk away from the jail with the property they bring, this doesn’t include big bags of marijuana.

Comment. In the context of inventory searches, the rationale for requiring adherence to an inventory policy is to separate the good faith from the bad faith use of the inventory exception. Neither the State nor the defendant litigated issues pertaining to inventories. With four judges dissenting, this opinion may be ripe for future discussion.

1st District Houston

Malbrough v. State, No. 01-18-00941-CR (Tex. App.—Houston [1st Dist.], Sep. 1, 2020)

Issue. Is evidence sufficient to convict for “directing activities of a criminal street gang” (“DACSG”) when the defendant assisted the leader of a group committing many robberies, but only on an ad-hoc basis? Is it error to instruct the jury that they may convict a person for DACSG under the law of parties? Can the trial court make a deadly weapon finding when a jury sits as trier of fact?

Facts. This case involved a series of aggravated robberies with similar characteristics (firearms, cell phone stores, sophisticated knowledge of cell phone stores, removal of tracker phones, etc.). Robberies were committed by groups of people with significant overlap in participation. Eventually those involved implicated the defendant as a person who vetted individuals for participation, detailed plans, and supervised the robberies. It appeared from the evidence that a separate individual had a superior role in managing the conspiracy.

Holding. A DACSG conviction requires proof that the defendant was: (1) part of identifiable leadership of a criminal street gang, (2) finances, directs, or supervises, (3) the commission or conspiracy to commit an offense in Article 42A.054(a). A criminal street gang is three or more persons having common identifying sign or symbol or identifiable leadership who continuously or regularly associate in the commission of criminal activities. When aggravated robberies are committed pursuant to a similar scheme and significant overlap in participants and a defendant chooses locations, assigns tasks, gives instructions, and acts as a lookout, that conduct is sufficient to sustain a verdict for DACSG. The court assumes without deciding whether it is appropriate to charge the jury in a DACSG case under the law of parties. The Court of Criminal Appeals has indicated “where the evidence clearly supports a defendant’s guilt as a principal actor, any error in the trial court in charging [the jury] on the law of parties is harmless.” The trial court did err by making a deadly weapon finding when a jury sat as trier of fact. When jury sits as trier of fact, trial court may not properly enter an affirmative finding unless: (1) indictment alleges a deadly weapon was used and defendant was found guilty as charged, (2) indictment alleges a deadly weapon per se (such as firearm), or (3) jury finds true a special issue of fact during punishment phase.

Concurrence (Countiss, J.) writes separately in addition to her authorship of the majority opinion to discuss the revitalization of the doctrine of factual sufficiency under the Texas Constitution. In a factual sufficiency analysis, evidence is reviewed in a neutral light, rather in favor of the verdict, and the Court considers whether the evidence is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Under this theory, the Texas constitution provides more sufficiency of evidence protection than Jackson v. Virginia. This is an interesting read if you have time.

Comment.  This is a 60-page opinion plus a concurring opinion, thus the long summary. The law of parties issue here is intriguing, and I wish there were more discussion. The defendant’s “absurd result” argument seems to be correct. If all parties who assist the manager can be prosecuted as the manager, then the distinction of being a manager is eviscerated. Justice Countiss’ opinion on reviving factual sufficiency under the Texas Constitution is equally intriguing. There are many states which rely primarily on the superior protections of their own constitutions. In those states, case law cites rarely to the federal constitution. Could the future behold this trend in Texas?

Pacas v. State, No. 01-18-01016-CR (Tex. App.—Houston [1st Dist.] Sep. 22, 2020)

Issue. Does the Texas Constitution prohibit plea bargaining?

Facts. Article I Section 10 provides: “[i]n all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury.” Article I Section 15 provides: “[t]he right of trial by jury shall remain inviolate” but authorizes the legislature to “pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.” 

Holding. Article I Sections 10 and 15 are in pari materia—when two or more statutes that deal with same general subject, have the same general purpose, or relate to the same person or thing the specific statute prevails. Here Article I Section 15’s delegation to the legislature to regulate jury trials and maintain their efficiency is an acknowledgment that jury trial may be waived, and a defendant sentenced by way of plea bargaining. The history of the Texas Constitution and Code of Criminal Procedure support this conclusion.

Dissent (Goodman, J.). Article I Section 10 creates an absolute requirement that all prosecutions of felony offenses be tried by a jury. The majority’s opinion exacerbates the “the proliferation of the plea bargain and the resultant scourge of mass incarceration.”

Comment. I like this case. It’s got trial by combat, the Constitution of Coahuila & Texas, and it gets real on criminal justice reform.

2nd District Fort Worth

The Second District Court of Appeals in Fort Worth did not hand down any significant or published opinions since the last Significant Decisions Report.

3rd District Austin

The Third District Court of Appeals in Austin did not hand down any significant or published opinions since the last Significant Decisions Report.

4th District San Antonio

The Fourth District Court of Appeals in San Antonio did not hand down any significant or published opinions since the last Significant Decisions Report.

5th District Dallas

The Fifth District Court of Appeals in Dallas did not hand down any significant or published opinions since the last Significant Decisions Report.

6th District Texarkana

The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

7th District Amarillo

Martin v. State, No. 07-19-00082-CR (Tex. App.—Amarillo, Sep. 28, 2020)(not designated for publication)

Issue. Is wearing the insignia of a group labeled as a street gang by the Texas Antigang Center sufficient evidence to establish that an individual is a member of a criminal street gang for purposes of “unlawfully carrying a weapon while a member of a criminal street gang?” (“UCW-CSG”).

Facts. Defendant was stopped for speeding on his motorcycle. The officer noticed that the defendant had a vest which read “Cossacks MC.” During a pat-down the officer discovered a firearm and arrests him for the UCW-CSG. At trial it was shown that the defendant had no prior criminal history, was present at the Waco Twin Peaks during the Cossack-v-Bandido shootout, and had charges arising from that ordeal which were ultimately dismissed.

Holding. No. For purposes of the statute an individual must not only be a member of a three-plus person group with a symbol or sign or identifiable leadership, but also must continuously associate in the commission of criminal activities. Here there was no evidence that the defendant associated in any criminal activities.

Comment. “The only thing I have is just intelligence” was the gang specialist’s reply when asked whether he was aware of any Cossack-related criminal activity in the area. I’m sure it sounded different in person, but it might also be my new favorite phrase.

8th District El Paso

Boltos v. State, No. 08-19-00020-CR (Tex. App.—El Paso, Sep. 11, 2020)

Issue. Can conduct occurring in another state contribute to the basis of an aggregated theft conviction? Does double jeopardy require reversal when conduct forming basis of aggregated theft conviction potentially overlap with conduct forming basis of several individual theft convictions? Does the Miller third-party doctrine (no expectation of privacy in subpoena for bank records) remain good law after recent opinions declining to apply Miller to cell tower location data? 

Facts. A woman in her 30s used fictitious personas and engaged in fake romantic relationships with senior citizens and exploited these relationships to obtain over $1.6 million. Depending on the victim, she presented as a widow, ill with various conditions, a cancer patient, or a homeless mother. The jury convicted her of: (1) an aggregated theft charge for conduct occurring over six years, (2) five individual thefts falling within the same six-year period, and (3) exploitation of elderly.

Holding. Yes—conduct occurring in another state may contribute to an aggregated theft conviction. Aggregation creates a single offense for purposes of jurisdiction and venue. If Texas has jurisdiction over a part of the aggregated theft claim, it has jurisdiction over the entire claim. No—double jeopardy does not require reversal. Unobjected-to double jeopardy claims are reversible only when: (1) undisputed facts show the violation is clearly apparent, and (2) enforcement of waiver would serve no legitimate interest. Here neither prong is met. In theory the jury could have used ABC conduct to convict under the aggregated theft charge, and XYZ conduct to convict under the individual theft charges. Also, the promotion of correcting errors at the trial court level presents a legitimate state interest. Yes—the Miller third party doctrine remains good law until overruled by a higher court. The current state of law provides that there is no expectation of privacy in bank records as they have been turned over to the bank—a third party. United States v. Miller, 425 U.S. 435 (1976). The Court acknowledges recent opinions call this doctrine into question. Carpenter v. U.S., 138 S.Ct. 2206 (2018)(third-party doctrine does not overcome Fourth Amendment in cell tower location data); Holder v. State, 595 S.W.3d 691 (Tex. Crim. App. 2020) (third-party doctrine does not overcome Texas Constitution in cell tower location data).

Comment. The double jeopardy issue here is interesting. While a theoretical jury may have applied a different set of facts to each of their convictions, it’s highly unlikely that someone in the jury room spoke up and said, “for the sake of double jeopardy concerns, let us compartmentalize.” This is a problem with the standard, not the opinion.

Black v. State, No. 08-19-00259-CR (Tex. App.—El Paso, Sep. 15, 2020)

Issue. Does an indictment for aggravated assault by threat fail to provide adequate notice when it does not describe the threatening conduct but does allege that the defendant exhibited a deadly weapon? Did harmful error result by the admission of extraneous offenses without instructing the jury to limit their consideration of such offenses to their probative value in rebutting the defendant’s claim of self-defense?

Facts. Defendant went to Hooters, made inappropriate comments to the hostess and was escorted out of the restaurant by the manager. Defendant pulled out a knife. According to the manager, Defendant was yelling, was waving the knife around, and advanced toward him. According to the defendant, he pulled the knife because the manager was pursuing him, and he felt threatened. Defendant filed a motion to quash the indictment and argued that using a knife (indictments sole allegation) is not inherently criminal and without a description of the threat, he was without sufficient notice and unable to adequately prepare his defense. The trial court denied the motion to quash. At trial the State questioned the defendant about four prior misdemeanor assaults to rebut his claim of self-defense.

Holding. No, the indictment was sufficient. While there is no statutory definition for “threat” and some case law would tend to suggest a threat should be described, here the allegation that a knife was used or displayed provides sufficient description of what the threatening conduct entails. No, the admission of prior offenses to rebut self-defense without a limiting instruction was error, but not harmful error. There were two eyewitnesses to the offense, the defendant admits to being angry and pulling a knife. On direct examination the defendant also admitted to having “quite a bit” of trouble with the law.

Comment. The Court declines to specifically state whether an indictment alleging assault by threat must describe the threat. It discusses a case from the Court of Criminal Appeals which requires a description of the threat in the context of a Retaliation charge. Doyle v. State, 661 S.W.2d 726 (Tex. Crim. App. 1983). The distinction of significance here is the allegation of a deadly weapon, it would seem in the absence of a deadly weapon allegation, the indictment would fail for lack of specificity.

9th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report.

10th District Waco

Jones v. State, No. 10-19-00307-CR (Tex. App.—Waco, Sep. 9, 2020)(not designated for publication)

Issue. Does an officer’s potentially mistaken belief about the number of license plate lights required on a vehicle lend itself to an objectively reasonable mistake of law (“not the result of a sloppy study of laws he is duty-bound to enforce”)?

Facts. An officer stops a vehicle equipped with two license plate lights because one license plate light is not emitting light.

Holding. Yes. It is reasonable for an officer to not know whether the Transportation Code requires two illuminated taillights or one. The Court assumes without deciding that the Transportation Code only requires one.

Comment. This is an unpublished opinion, but it is rare for Courts to invoke Heien v. North Carolina. Generally, most courts require officers to have a reasonably strong grasp on the Transportation Code—or as Heien put it not be “sloppy” in the study of laws. The statute here clearly speaks of a license plate “taillamp” in the singular. The court analogized an officer’s mistake about whether a taillight mounted on the cab constituted one of the two lamps required at the “rear of the vehicle” to the instant case. See State v. Varley, 501 S.W.3d 273 (Tex. App.—Ft. Worth, 2016)(caution, all three lamps are indeed required when the State properly argues the correct statute). The issue of whether “rear” means “utmost rear” is of quite a different nature than the issue of whether there is an “s” on the end of the word “taillamp.”

King v. State, No. 10-19-00354-CR (Tex. App.—Waco, Sep. 23, 2020)

Issue. Is a defendant denied a just hearing and reasonable opportunity to defend himself when the trial court resolves an uncontested motion in limine and inquires as to how the defendant intends to plead in his absence?

Facts. The following transpired without the defendant present in the courtroom: (1) trial court granted an uncontested motion in limine, (2) an inquiry and response as to the defendant’s plea and intent to stipulate to indictment paragraphs, (3) an inquiry and response as to whether the defendant intended to be disruptive during trial, (4) a discussion on how voir dire would proceed under an assumption the defendant would plead guilty. The following day the court asked the defendant how he intended to plead and the defendant responded that he wished to plead guilty and have a trial before the jury on punishment.

Holding. No. While both Article 28.01 of the Code of Criminal Procedure and the Sixth Amendment provide that a defendant’s presence at pretrial hearings is required, this error is reversible only when the defendants presence bears a reasonably substantial relationship to the opportunity to defend or when his absence would thwart a fair and just hearing. When the defendant’s insight is not needed for the trial court to rule on an issue or where the defendant does not have any information which varies from that possessed by his attorney, the error is harmless beyond a reasonable doubt (standard of review applicable to constitutional error).

Dissent (Gray, C.J.) When the trial court inquired whether the defendant intended to be disruptive, trial counsel responded that his client believed he could fire counsel and delay trial. Then an unknown conversation took place off the record. This could have impacted the trial court’s attitude toward the defendant. There is insufficient information to find this constitutional error harmless.

Comment. Chief Justice Gray’s argument becomes stronger if the sentencing had been before the trial court. We have all been in the situation where our relationship with a client creates feelings of empathy with those who are responsible for seeking or imposing punishment. While the colloquy outside the presence of the defendant here does not seem particularly damning, it’s always important to remember when you become the subjection of your client’s animosity, he or she may soon be a person with nothing but time and appeals.

11th District Eastland

State v. Whitman, No. 11-18-00001-CR (Tex. App.—Eastland, Sep. 11, 2020)

Issue. Does placing merchandise in a bag of unknown ownership and concealing it inside a store constitute a completed offense sufficient to give rise to probable cause for an arrest? If the offense is completed inside the store (by concealment or staging), does the description of the offense by a loss prevention officer (“LPO”) constitute an offense committed within the view of an officer sufficient to meet the arrest-without-warrant requirement of Article 14.01 of the Code of Criminal Procedure?

Facts. This is a published opinion on denial of rehearing and a case previously summarized in the June SDR. A short recitation facts: LPO observes defendant conceal property in a bag and place under a chair inside the store, LPO tells the reporting officer about it, reporting officer arrests based on LPO’s summary. The trial court suppressed evidence based primarily on the argument that the defendant’s conduct did not give rise to a sufficiently clear intent to appropriate property and distinguished cases where a theft can be completed without exiting the store with property. On the State’s appeal, the defendant presented the additional theory that no offense occurred in the presence of an officer and thus violated Article 14.01 (warrantless arrest requires probable cause + an explicit statutory exemption such as an offense occurring in presence of an officer).

Holding. No—without evidence that an individual placed property into an article or enclosure used to store personal possessions (purse, pockets, etc.), the placing of items in a bag of unknown ownership underneath a chair inside the store does not constitute theft. No—where the theory of theft is concealment of merchandise inside the store, the theft, if any, is complete after items are concealed. Receiving a description of the defendant’s conduct from an LPO does not constitute an offense occurring in the presence of an officer and arrest under these circumstances, without more violates Article 14.01. The 11th Court of Appeals denies rehearing in a written opinion whereby the State proposes Article 14.01 does not require an officer to personally observe any portion of an offense. The Court notes that some intermediate appellate courts take the position that “committed in his presence or within his view” does not mean personal observation. The State cites State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011) for the proposition that the Court of Criminal Appeals impliedly eliminated the requirement of personal observation. But the Court cited a more recent opinion, State v. Martinez, 569 S.W.3d 621 (Tex. Crim. App. 2019) for the proposition that it did not.

Comment. It will be interesting to see whether the State takes this case further. On one hand, there seems to be disagreement among the Courts what Article 14.01 means. On the other hand, the State lost this case both on probable cause and Article 14.01.

Engel v. State, No. 11-18-00225-CR (Tex. App.—Eastland, Sep. 11, 2020)

Issue. Where a victim flaunts that he stole the defendant’s property, and was the first to draw a firearm, is it proper to charge the jury on “provoking the difficulty” (a circumstance barring self-defense) when a defendant, knowing that the victim was carrying a pistol and behaving erratically, threatens to kick the victim’s ass, and racks his shotgun.

Facts. A neighbor observes a verbal altercation, observed the defendant retrieve something from his truck, and later heard a blast sounding like a gun. Officers later respond to the residence where the altercation took place and discover a sawed-off shotgun inside and a pistol concealed inside a toboggan outside on the porch. Defendant tells police he shot the victim when the victim pulled the pistol from the toboggan and that he did not retrieve a gun from the truck—that it was always inside the house. Defendant testified that they had been in two physical altercations, one earlier in the day, one where the victim pulled a gun on him. The owner of the home testified that the victim had been there and was acting crazy and recklessly with the pistol and took a video camera from the home belonging to the defendant. The owner testified that the victim wanted the defendant to know he was taking the camera. The two ultimately ended up in an argument at the home about the video camera.

Holding. Yes—an instruction on instigating the provocation requires three elements: (1) the defendant did some act or used some words which provoked the attack, (2) such act or words were reasonably calculated to provoke the attack, and (3) the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. The focus here is on the third prong. The Court notes that improper provocation instructions usually involve a defendant and victim who are strangers. The victim and defendant were not strangers—they had an ongoing turmoil. A rational jury could have found beyond a reasonable doubt that the defendant’s acts and words were calculated to provoke the victim to pull a pistol the defendant knew the victim was carrying.

Comment. A very fact specific case. It seems like a toss-up whether the defendant’s aggressive acts and words were meant to scare off the victim who was looking for an altercation or calculated to create a pretext for killing the victim.

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Torres v. State, No. 14-19-00286-CR (Tex. App.—Houston [14th Dist], Sep. 3, 2020)

Issue. Was trial counsel ineffective for failing to tie his objection to the Sixth Amendment when complaining that a reviewing analyst was testifying to the results of a test which incorporate work performed by a different testing analyst?

Facts. Forensic examiner takes a buccal swab and a fingernail swab. Testing analyst tested the DNA extracted from the fingernails. Reporting analyst prepares report, testifies to lab procedures, and concludes that defendant could not be excluded as a DNA contributor. Trial counsel’s objection was imprecise but generally communicated a concern that the reporting analyst cannot testify to the results of an analysis she did not perform.

Holding. No—to prevail on a claim of ineffective assistance, a defendant must show that the trial court’s overruling of an imprecise objection would have been in error had a more precise objection been articulated properly. Here the testimony of the reviewing expert did not violate the Confrontation Clause. The important inquiry in determining whether an analysts’ testimony is indispensable under the Confrontation Clause is whether the analyst performed a crucial analysis or merely reported raw data. The Court distinguished Bullcoming v. New Mexico, 564 U.S. 647 (2011)(Analyst who tested blood and prepared report must testify in DWI trial), and Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013) (testimony from a reviewing analyst who double checked everything is not an adequate substitute for cross examination of a testing analyst). The Court found Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015) controlling. In Paredes, the Court of Criminal Appeals determined that a reviewing expert can offer testimony based on a forensic analysis performed by a testing analyst if the reviewing expert is presenting his or her own opinions and conclusions and not acting as a surrogate for the testing results, and that raw computer-generated data produced by a testing analyst in a DNA case is not testimonial.

Concurrence (Spain, J.) Questions whether the record is sufficient to decide one way or another the issue of ineffective assistance. More detail is needed to determine who the testing analyst was and whether their report was authentic. Points out that the rule from Paredes may be in jeopardy as it has been challenged in a case now before the Court of Criminal Appeals.

Comment. A reviewing expert has no opinion but for the analysis of a testing analyst. So, how one might give an opinion as a non-surrogate is difficult to grasp. If we are to truly compare and distinguish Bullcoming (blood analyst indispensable), the question arises whether the a blood alcohol analyst is looking at the results of a mass spectrometer and giving an opinion as to what they mean, or merely reporting the raw data reported by the machine. If the latter, then the Paredes raw-data-or-crucial-analysis distinction does not seem to hold up.

Macedo v. State, No. 14-19-00386 (Tex. App.—Houston [14th Dist.] Sep. 15, 2020)

Issue. Does Article 37.07 of the Code of Criminal Procedure permit the introduction of a prior criminal offense report into evidence during the punishment phase of trial over a defendant’s hearsay objection?

Facts. The trial court admitted an offense report detailing a previous assault by the defendant committed upon the victim of a murder during the punishment phase of trial.

Holding. No—despite the broad language of Article 37.07 (“evidence may be offered . . . as to any matter the court deems relevant to sentencing”), the Court of Criminal Appeals has at least implied that a trial court may not completely disregard the rules of evidence at the punishment phase of a non-capital case tried to a jury.

Comment. This may not be the case under Section 3(d) which permits the court to consider a PSI which may include prior offenses in the form of hearsay.

Igboji v. State, No. 14-17-00838-CR (Tex. App.—Houston [14th Dist.] Sep. 22, 2020)

Issue. When an investigator tells a suspect he must seize their phone, does an act of compliance (handing the phone over) constitute consent? Is an unarticulated fear of Snapchat’s automatic deletion feature sufficient to justify exigent circumstances?

Facts. KFC is robbed. Several employees including the defendant were present. Investigators interview employees who “seem suspicious” of the defendant. One employee shows an investigator a Snapchat video posted by the defendant showing officers investigating the scene after the robbery. Defendant meets with an investigator who asks the defendant to share his Snapchat videos. Defendant declines. Investigator informs the defendant that he “had no other option but to seize his cell phone” and the defendant “complied” and handed the phone over. Two days later the investigator obtains a warrant by affidavit alleging as probable cause that the defendant is a lazy employee who left the back door unlocked and who didn’t want to share his Snapchat video. In the trial defendant alleges that the seizure of the phone was unconstitutional. On appeal the defendant alleges the seizure was unconstitutional and it was searched without a warrant.

Holding. No—submission to authority of police after declining consent is not consent. The exigent circumstances presented by the auto-deletion feature of Snapchat is undecided here. No—there are not exigent circumstances. The State failed to prove up any facts which would show that defendant’s videos were subject to automatic deletion.

Dissent (Christopher, J.) Believes exigent circumstances were present and that individuals have less privacy interests in a seizure than they do a search. Would find probable cause based on possibility the defendant was involved in a robbery and the possibility that there is evidence on his phone.

Comment. A confusing series of arguments. The issues presented in the fact pattern are: (1) seizure without warrant, and (2) warrant issuance without probable cause. Neither the arguments in the trial court nor the arguments on appeal appear to raise the second issue. The court interpreted the defendant’s brief to raise issue with a warrantless seizure and a warrantless search. Clearly there was a warrant. It was just based on really bad probable cause. Remember, the existence of exigent circumstances alone is not sufficient to conduct a warrantless search, there must also be probable cause. Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007).

Hernandez v. State, No. 14-19-00254-CR (Tex. App.—Houston [14th Dist.] Sep. 22, 2020)

Issue. When a detective misplaces material evidence and later finds it in the middle of trial, is the trial court obligated to grant a mistrial?

Facts. Defendant and complainant were coworkers who carpool. On the date of the incident they both left work early to drink, smoke and hang out. Defendant explained the details of the day which lead to an altercation. Defendant believed he shot the complainant in self-defense. One significant piece of contested testimony was whether the complainant was receiving calls from dangerous people attempting to collect money. The complainant denied this fact and stated it was impossible due to the lack of minutes on his phone. A detective extracted the data from the complainant’s phone near the date of the altercation. This data was placed on a CD which the detective lost before trial. But, during trial she found it. The trial court prohibited the State from using the contents of the disc, but not before the detective testified that nothing useful was found. The trial court gave defense counsel an opportunity in the middle of trial to attempt to analyze 7,098 pages of extracted data on the CD and denied defendant’s motions for mistrial and new trial.

Holding. No—there was no bad faith on the part of the prosecutor or detective thus the extreme remedy of mistrial was not warranted. “Because a mistrial is a serious remedy, it should be reserved for only extreme situations of highly prejudicial and incurable misconduct.” After the defense had an opportunity to review the disc post-verdict and file a motion for new trial, said motion failed to articulate any prejudice in the State’s failure to disclose, i.e. what materially helpful information was contained on the disc. On appeal the information on the disc cited to by the defendant is too hypertechnical for the Court to conclude that it undermines the complainant’s story, nor were they brought to the attention of the trial court (imagine how trial counsel felt).

Dissent (Hassan, J.). A thorough discussion of a defendant’s right to discovery and remedies for violations. “This case represents and abject failure to protect that which due process, Brady, and the Michael Morton Act purport to safeguard in our criminal justice system.” Neither the Michael Morton Act nor Brady require consideration of good faith v. bad faith of the prosecutor.

Comment. “A mistrial is an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). In the context of prosecutorial misconduct, some courts add an additional element of “bad faith” on the part of the prosecutor. But what about accidents which rise to the level of highly prejudicial?

Ithalangsy v. State, No. 14-18-00205 (Tex. App. Houston [14th Dist.] Sep. 24, 2020)

Issue. When Victim 1 and Victim 2 are both killed in the course of kidnapping of Victim 2, is the ultimate murder of Victim 2 relevant evidence in the prosecution for capital murder of Victim 1? Does the unfair prejudice substantially outweigh probative value?

Facts. Victim 1’s girlfriend owed money on a drug deal gone bad. Defendant is alleged to have twice kidnapped Victim 1’s girlfriend (Victim 2). At trial, Defendant is alleged to have shot and killed both Victim 1 and Victim 2. The trial court allows the State to introduce evidence of both murders over defendant’s relevance objection.

Holding. No—the State was required to prove that the defendant killed Victim 1 in the course of kidnapping Victim 2. Defendant’s connection to the murder of Victim 2 was insufficiently established, nor did the murder of Victim 2 did help prove that she was kidnapped. Yes—because there was no probative value, the unfair prejudice substantially outweighed the prejudice.

Dissent (Christopher, J.). Rule 404(b) permits the proof of interconnected crimes. Victim 2’s ultimate murder showed that the defendant intended to prevent her liberation by using deadly force—an element of kidnapping and thus an element of Victim 1’s capital murder committed in the course of kidnapping. This probative value is not substantially outweighed by prejudice.

Comment. A capital murder reversal. A 403 reversal. A relevance reversal. These are rare occurrences.

Smith v. Texas, No. 14-19-00097 (Tex. Crim. App.—Houston [14th Dist.] Sep. 29, 2020)

Issue. Prior to sentencing, may a defendant with intellectual disability withdraw his guilty plea by claiming he did not understand the trial court would sentence him as a habitual offender?

Facts. Appellant was charged with Theft Less Than $2,500 enhanced with prior thefts, and enhanced again with previous convictions as a habitual offender. Before his plea, a psychiatrist evaluated the defendant and found he suffered from “Unspecified Intellectual Disability” and “Schizophreniform Disorder” and possessed a “low average IQ.” At the plea, defendant signed paperwork indicating he was aware of the habitual offender punishment range. The trial court admonished the defendant, received the defendant’s plea, found defendant guilty, and set the cause for a punishment hearing. Prior to the punishment hearing, defendant moved to withdraw the guilty plea on the basis of not having understood the enhanced habitual offender punishment range.

Holding. No—a defendant has a right to withdraw a guilty plea only until judgment has been pronounced or the case taken under advisement. Here the case was passed for a presentence investigation which constitutes taking the case under advisement. The trial court’s rejection of defendant’s claim of involuntariness was not an abuse of discretion. Defendant signed and verbalized his acknowledgment of the punishment range.

Concurrence (Frost, C.J.). The arguments on appeal—diminished mental capacity—do not comport with the arguments in the trial court.

Comment. The defendant stole lingerie from Walmart. He was sentenced to 60 years. I sympathize with the defendant’s confusion (with my average mental capacity).

Report from the Reapportionment/Redistricting Committee

Friends, as you may know, TCDLA has a Reapportionment/Redistricting Committee chaired by Carmen Roe and myself. President Kerri Donica created the Committee and her successor Grant M. Scheiner kept it in business. We have been working and want to report our progress to the full membership.

Our mission was to determine if, after 50 years, TCDLA districts could benefit from rearranging. Of course, the first thing we did was to consult the bylaws. As it turns out, there is no mention of districts. In fact, they aren’t even called “districts”; they are “membership areas” (MA). See Article III, Sec. 11.  So, while we tend to refer to “districts,” formally there is no such thing.

As we thought through how to proceed, we came to the realization that TCDLA was NOT set up like a House of Representatives or like a Senate. Instead, it originated as a hybrid of both and for good reason. Texas is so vast with large areas sparsely populated, and at the same time, some population centers hold large concentrations of lawyers. Thus, a true House or a true Senate just would not make sense.  We concluded that the House of Representatives model worked well east of and in the neighborhood of I-35, while a Senate model worked well in the more rural and spread out parts of the state.  For that reason, trying to equal the number of TCDLA members in each MA was deemed impractical. 

From the beginning, we had the feeling that some members thought their county was assigned to the wrong MA in 1971 and that they would prefer to be moved. Even if “wrong” is not the correct characterization, have circumstances changed with the passage of almost 50 years was the question we asked ourselves.  The Abilene area and the Valley were our initial focus. We decided to test the Abilene area first. We did an informal survey and followed it up with a formal one. With Melissa’s help, we asked the TCDLA members in Taylor, Fisher, and Nolan counties if they would prefer to be in MA 2 – San Angelo/Midland/Odessa rather than MA 4 – Denton (where they are currently assigned). The answer was 94 percent yes to move to MA 2.  An important aside is that those members have nothing against the fine folks in the Denton area. They just never appear in court there, are far away, and do not know the lawyers there well,  while they are constantly in court in San Angelo/Midland/Odessa. The respondents also felt more attached to West Texas.

So, what is the goal, and what is best to do? We recommended moving those three counties.  Our hope was that members will feel they know their local representatives better, that they will be happier, and that membership in, and satisfaction with, TCDLA will increase as a result. We were of the opinion that a bylaws change is not necessary. We consulted Adam Kobs, Bylaws Chair, who agreed. No counties are listed by name in the bylaws as being in a particular MA. Perhaps a Charter Member can remember how the 254 counties were assigned to the MA’s. Most likely, a few of them sat at a table, pulled out a map and a magic marker, and just drew lines. This is step one, for we have not yet tackled the Valley or other areas of the state. We ask you for suggestions if you see a possible change for the better in your MA.

Based on the above, the Reapportionment/Redistricting Committee made a motion to the Board as follows: that Taylor, Fisher, and Nolan counties be reassigned to Membership Area 2 known in the bylaws as Permian Basin. The board approved the move on 26 Sept. 2020.   This rearrangement should have no adverse impact on MA4/Denton. MA 4 has hundreds more TCDLA members than MA 2, and only about 70 members are “on the move.”

We on the Committee appreciate the help we received from TCDLA staff and the confidence the board placed in us. The Valley is our likely next focus, so more to follow!  As we mentioned earlier, if you feel other similar changes can improve the way we deliver services to you, please contact any member of our committee. In addition to Carmen and myself, the members are: David Hardaway, Donald L. Wilson, and Adam Kobs.

Blue Matters Matter

By now, we all should know that the Texas Code of Criminal Procedure Article 39.14 requires the prosecutor to disclose to the defense the criminal histories of its witnesses. This disclosure often matters to defense counsel if the alleged victim is a “no-good SOB” who might have had coming what our client allegedly gave. However, what about those police officers that the prosecutor will parade into the courtroom wearing “just-so” pressed uniforms, pistols, and shiny badges? These officers would not have criminal histories, would they? Are there no skeletons in their closets? If they did, then they would not have those “Batman” utility belts, precise creased polyester pants, fresh “high-and-tight” haircuts, nor take on “Napoleonic” temperaments, now would they?

Well, that police officer might not have a criminal history (because he would never think of driving drunk), but if he has been a cop for any appreciable amount of time, you could bet that house your ex-wife lives in that he has been “in the barrel” with internal affairs or has received the Garrity Warning 1 2at least once in his career. Many criminal defense attorneys who represent police officers find that cops get into trouble about as often as other clients. They just get into a different kind of trouble. At trial, their trouble is potentially as useful to the defendant as impeachment evidence as are the prior convictions of the prosecutor’s testifying “snitch.”

A Brief History of Police Union Lobbying

In the mid-70s, a group of police officers bolted from the Texas Municipal Police Association (“TMPA”) to form the Combined Law Enforcement Associations of Texas (whose acronym is “CLEAT”).  CLEAT members believed that the TMPA was not aggressive enough in protecting cops from “management,” i.e., government and civilian oversight. CLEAT membership was concerned with matters regarding the discipline of law enforcement officers.

CLEAT soon got busy lobbying, and in 1987, Chapter 143 of the Texas Local Government Code as it exists became the law in Texas. Chapter 143 is essentially “legislated unionization” for municipal police and fire departments in municipalities where the electorate has voted to enact it. Those municipalities that enact it are called 143 Civil Service Municipalities (“143 Municipalities”) in the context of police and fire departments. Dallas, Fort Worth, Houston, San Antonio, Austin, Beaumont, Port Arthur, Orange, El Paso, Lubbock, Amarillo, and Tyler are 143 Municipalities. Chapter 143 can apply to any municipality with a population of 10,000 or more, which votes to enact it for their departments.

CLEAT still lobbies and negotiates generous collective bargaining agreements for its membership. CLEAT takes pride in being much more radical and aggressive than TMPA.3

Discipline That Is Not Discipline4

What, you may ask, does Chapter 143 do, exactly? It imposes rules and regulations upon the operation, maintenance, and management of a municipality’s police and fire departments, including classification and appointment (Subchapter B), compensation (Subchapter C), disciplinary actions (Subchapter D), leaves (Subchapter E), and several other administrative “odds and ends.”

Included in “odds and ends,” found in Subchapter F, is §143.089, which governs the maintenance of personnel files. Section 143.089(a) states that officer personnel files are subject to public disclosure. It describes what a personnel file must contain, including any record of the past discipline of an officer. Section 143.089(g) provides for a separate personnel file that a department chief may maintain, which, according to the statute, is not subject to disclosure to the public. This file is euphemistically called the “G-file.” The contents of a G-file must include, inter alia, any records of verbal and written reprimands, i.e., discipline for policy violations.

So, let us consider Subchapter D and see how it defines discipline. Section 143.051 begins by defining discipline within the context of “[r]emoval or [s]uspension.” Section 143.052 describes the manner and method by which a department head (chief of police) may suspend without pay (including an indefinite suspension, which is the same as a termination) an officer for disciplinary reasons. Section 143.054 describes the manner and method by which a department head may demote, for disciplinary purposes, an officer. Note a similarity here? Hint: each involves a financial penalty to the officer in question.

Underlying the legal bases for a suspension without pay or a demotion assumes that the officer in question has been found culpable for transgressing one of the 12 enumerated “no-noes’” in §143.051. Section 143.051 includes such things as convictions for felonies and misdemeanors, incompetency, neglect of duty, discourtesy to the public (seriously!), acts showing a lack of good moral character (we’re not making that one up), off-duty intoxication, neglecting to pay one’s debts, being AWOL, shirking duty and cowardice. The “term of art” in most departments is a finding of “Sustained” for an alleged violation found to be “True.” It is possible, legally, theoretically, and practically speaking, for the charge against an officer of §143.051 to be Sustained without that finding leading to a suspension without pay or a demotion. Because of the progressive (not liberal but incremental) disciplinary policies that most police departments use, it is likely that an officer’s first time “in the barrel” for a Sustained violation will result in some disciplinary action that falls short of a suspension without pay or a demotion. By operation of §143.089, the paper trail that leads from an allegation of an officer’s violation of some part of §143.051, and to a finding of “Sustained” that does not involve a suspension without pay or a demotion will be nowhere in the officer’s personnel file maintained under §143.089(a), which is subject to public disclosure. Instead, these little gems end up in the officer’s G-file, and out of sight from the meddlesome public eye.

Put succinctly, how discipline is treated by Subchapter D is that it excludes disciplinary actions that do not involve an adverse financial impact on a police officer. An officer can be found to have violated a policy, rule, or statute that does not qualify as a discipline under Subchapter D of Chapter 143 because the action does not result in the officer losing pay, an unpaid suspension, or a demotion. Furthermore, records for these incidents are kept from the public by operation of the language of a statute that the legislature enacted because of the lobbying efforts of CLEAT. The upshot is that the form of discipline, whether written or oral reprimand, for a Sustained rule/policy/statutory violation does not count unless a portion of the officer’s pay leaves the public fisc by way of forfeiture of pay or demotion.

Case Law on Our Side

There should be no question but that these records ought to be available to the defense in a Motion for Discovery or by the invocation of the Michael Morton Act. However, prosecutors and attorneys representing Civil Service municipalities routinely get up in arms when a defense attorney files a Motion for Discovery or a Morton Demand seeking these records. Cops and their chiefs are very jealous of the contents of their G-files, and to some degree are so are municipal civil service directors. Thus, even a request for an in-camera inspection of the G-file is met with the rending of clothes and gnashing of teeth along with the filing of a fierce Motion to Quash.

But guess what? Besides Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667 (1985), there actually exists state case law that supports at least an in-camera review of G-files in criminal cases. Back in the ’70s and ’80s, when Scooby Doo was still a common staple of Saturday morning TV programming, Tex. Code Crim. Proc. Art. 42.12 contained §27, which protected from disclosure any and all records maintained by the Texas Department of Corrections on inmates subject to “parole, release to mandatory supervision, or executive clemency.” In Texas Department of Corrections v. Dalehite, 623 S.W.2d 420 (Tex.Crim.App. 1981), the Texas Court of Criminal Appeals addressed the issue of whether those records covered by §27 were discoverable by the defense in a criminal proceeding. It turns out that they were. Citing Texas Board of Pardons and Paroles v. Miller, 590 S.W.2d 142 (Tex.Crim.App. 1979), the Court reasoned that, while some confidentiality was necessary in order for the Board of Pardons and Paroles to function effectively, the statutory privilege of Tex. Code Crim. Proc. Art. 42.12 §27 had to give way where it stood in the way of the exercise of a constitutional right. 623 S.W.2d at 432. The Court went on to cite United States v. Nixon, 418 U.S. 683 (1974), wherein the United States Supreme Court held that: “The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” Thus, did the Supreme Court, as put by the Texas Court of Criminal Appeals, conclude: “that the President’s broad interest in confidentiality would not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases, especially since the production of the materials was for in camera [sic] inspection with all the protection that a district court would be obliged to provide. The assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 623 S.W.2d at 423. Who knew that “Tricky Dick” would be useful to the Texas criminal defense bar in the Year of our Lord 2020?

Defense Lawyers Need to Seek the G-File

The writers suggest that where police officers have been listed as witnesses in a criminal trial, which is practically in every trial, that a Morton Demand, a Motion for Discovery of State Witnesses Personnel Files and/or a Subpoena Duces Tecum seeking the G-File should be considered by counsel. The G-File will probably contain information beneficial to defense counsel in trial preparation and cross-examination. The attitude of virtually all Judges is probably that the G-File is exempt from disclosure. However, if the criminal defense bar moves forward in this area to educate the Judges of the relevance of this material, that they should assume their duties to provide a fair trial under the law and the Constitution, then we may see the dam break and at least have the files more often reviewed in camera. If so, then we could expect that the salutary effect would be that officers would be more careful in their actions, the public might become more trusting of the system when bad officers are exposed. The benefit gained by exposing bad officers who shuttle around to various police departments might be realized.

Legislature Needs to Act

The national social conversation and political movements are likely to result in some remedial legislation. Considering the recent events in our country that highlight the need for police reform and more oversight of how law enforcement conducts and polices itself, it is time that the veil of secrecy that shrouds the contents of G-files to be reviewed in Austin by the legislature. Amending §143.089 mandating that any record in a G-file that could impeach a testifying police officer in a criminal trial be turned over to defense counsel is a step in the right direction.

So, it seems, that blue matters really do matter!

Motion and Brief for Discovery of State’s Witnesses’ Personnel Files

Veterans and Violence Part 2: Forensic Psychological and Neuropsychological Evaluations of Veterans with PTSD and TBI

Legal applications and implications

Part I of this article was run in the October 2020 issue. Part II of this article focuses on the application of forensic psychological and neuropsychological evaluation to veterans with PTSD and TBI. 

Forensic neuropsychology is defined as the application of neuropsychological assessment and the examination of brain behavior relationships to criminal or civil litigants. Forensic neuropsychologist experts provide reliable valid assessment and data about the relationship between neurocognitive dysfunction and neuropathology and the behavioral and/or cognitive issues related to legal questions in court proceedings.  

Neuropsychological assessment is very sensitive to brain function and dysfunction and can be helpful in determining forensic/legal issues. Similarly, the forensic psychologist examines psychological and psychiatric functioning of an individual and applies this clinical assessment to forensic and legal issues. The forensic neuropsychologist who also practices as a forensic psychologist will often integrate a nexus between psychological and neuropsychological brain function/dysfunction, psychiatric diagnosis, and specific symptoms to the violent act.

In addition to the forensic neuropsychological assessment of veterans to examine brain function and dysfunction, the forensic neuropsychologist will often assist in integrating their brain behavior data with neuroimaging. Structural and function neuroimaging is useful in further assessing the specific locations of the brain that may be low in volume and density. In these cases, the PTSD and TBI conditions and their effects on an individual’s neuropathology are often cited in the limbic system and amygdala and hippocampus as well as the prefrontal cortex. Ideally, the neuropsychological assessment will be correlated with the neuroimaging findings (executive functioning deficits in the prefrontal cortex and attention, memory, and behavioral dysregulation, attention, and paranoia in the limbic system). 

The forensic neuropsychological assessment in veterans in criminal cases may include the following legal referral questions:

  1. Competency to stand trial
  2. Not guilty by reason of insanity
  3. Diminished capacity
  4. Voluntary intoxication and diminished capacity
  5. Self-defense
  6. Mitigation for plea negotiation and/or sentencing
  7. Issues relating to future dangerousness, lack thereof, and violence and sexual violence risk assessment and risk management

I will address some of these forensic legal issues concerning veterans, PTSD, and TBI below. 

The forensic neuropsychological assessment of veterans may ultimately focus on the prevalence and cumulative impact of co-occurring neuropsychological and psychiatric conditions including PTSD, TBI, depression, and substance intoxication/addiction on the veteran’s mental state at the time of the violent act(s). The forensic neuropsychologist may also offer valuable insight into the complex emotional, behavioral, and neuropsychological effects and function of brain injury and PTSD in relation to a veteran’s propensity for violence.

Issues related to behavioral dyscontrol, impulsivity, dissociation, paranoia, suicidality, and intoxication are germane to both TBI, PTSD, and other comorbid conditions that are prevalent with intense combat related military service.

Three major areas of forensic assessment with TBI and PTSD in military related criminal justice cases include diminished capacity, self-defense, insanity, and mitigation. Essentially, all these forensic referral questions address the defendant’s mental state at the time of the offense. 

Diminished Capacity

In military cases, the effects of TBI and or PTSD on one’s emotional, behavioral, and cognitive functioning can be applied to the mens rea elements of a violent crime.

Diminished capacity in criminal cases is typically recognized as whether the defendant, due to mental disease and/or defect, had the capacity to form the requisite mental state constituting a crime. This proposition is supported by opinions issued from the Courts of Appeal.

In Jackson v. State,1 diminished capacity was presented as a failure-of-proof claim. The prosecution failed to prove that the defendant had the required state of mind at the time of the offense. To counter the prosecution’s evidence of the defendant’s culpable state of mind, the defense may present evidence that the defendant has mental or physical impairments or abnormalities and that some of his abilities are lessened in comparison to someone without such problems.

Evidence of mental disease or defect that directly rebuts a particular mens rea necessary for the charged offense can be presented by either lay or expert witnesses. In Lizcano v. State,2 the Court recognized diminished capacity with mental health testimony only if it negates any mens rea element. The defense must make a showing of a connection between the defendant’s psychological and neuropsychological functioning and how impairments could negate a mens rea element. 

In Lizcano, the defendant was charged with the offense of capital murder in the shooting death of a police officer. During trial, the trial court excluded evidence related to the defendant’s mental health. On appeal, the defendant argued that the excluded mental health testimony was relevant as to whether, because of mental disease or delusion, the defendant believed he was not shooting at a uniformed police officer. He  further argued that evidence of how paranoid delusions may distort a person’s auditory and visual perceptions is admissible as it relates to the defendant’s intent to shoot a police officer. The Court found there was no suggestion in the trial record that the excluded testimony had anything to do with delusions. Instead, the court concluded the excluded testimony suggested general limitations in cognitive ability and intoxication at the time of the offense as well as general deficits in adaptive functioning. The excluded testimony had relevance only as to whether the defendant’s mental functioning was below normal to some degree. There was no evidence showing a connection between the defendant’s generally low level of mental functioning and his knowledge during the commission of the offense that the victim was a police officer. 

In State v. Ruffin,3 Ruffin was charged with aggravated assault after shooting at police officers. At the time of the shooting, he believed the officers were trespassers and Muslims rather than police officers. At trial, the psychologist for the defense testified that Ruffin suffered from delusions and opined that he was suffering from psychotic symptoms such as auditory and visual hallucinations at the time of the offense. The trial court found the testimony of the psychologist was relevant and admissible to rebut the mens rea element of the offense. In essence, the Court emphasized that any expert testimony regarding diminished capacity and mens rea issues during the guilt and innocence phase of the trial must not only focus on mental illness, psychiatric symptoms, level of functioning, and possible brain damage and dysfunction, but there must also be a showing of how those symptoms and impairments specifically negate the defendant’s mens rea. 

Similarly, in Nikmanesh v. State,4 the Court of Appeals found the trial court did not err in excluding psychiatric evidence where expert testimony concerning the defendant’s behavior, depressive disorder, and obsessive-compulsive disorder could only offer an explanation or motive for his actions but could not negate intent for an offense of murder. 

Ultimately, diminished capacity mental health testimony not directly rebutting intent will not be admitted in Texas courts.5 An expert witness in a case where PTSD and TBI are present must not only present testimony on symptoms of psychiatric disorder and neurocognitive impairments of brain disorder but apply this information to the defendant’s incapability of forming intent to commit the act or incapability of acting with knowledge of their conduct and its consequences.6 Presenting expert testimony only on symptoms, conditions, diagnoses, and impairments without applying this data to the defendant’s mental state at the time of the offense(s), and specifically to their intent, will not be permitted.

Information as to mitigating mental state evidence of PTSD and/or TBI in military and civilian cases can assist the trier of fact in appreciating the defendant’s mental state and history. In many violent murder and assault cases defendants have a profound history of abuse, neglect, early trauma, and complex trauma suffered through childhood, histories of psychiatric disorders, and dual-diagnostic disorders with chemical dependency and addiction. The military servicemen and women who commit violent crimes often have these same traumatic and dysfunctional histories, but they also may have military trauma histories related to PTSD and brain injury. 

Additionally, in cases with genuine military-based trauma often suffered and acquired through combat, the trier of fact may recognize mitigating factors regarding service to country. Reporting this trauma through presentation of forensic expert reports is also bolstered by providing the trier of fact with VA and military records which may provide even more legitimacy of the trauma. 

Case Studies

In a case of diminished capacity, this author examined a 22-year-old non-military defendant charged with two counts of aggravated assault of a public servant with a deadly weapon and evading arrest/detention in a motor vehicle. The defendant’s father had a traumatic brain injury causing him severe anger problems, and he physically abused the defendant. The defendant also had prior acts of violence towards family members. The defendant suffered from a childhood history of ADHD and early behavioral problems, and there were early concerns about autism spectrum disorder. Once he reached adulthood, he was more floridly psychotic with a schizophrenia diagnosis and experienced auditory hallucinations and paranoid delusions. 

The evening of the offense, the defendant was paranoid and psychotic and was audio and video recording family members due to his paranoia. Arguing ensued between the defendant and his father and grandfather, and the defendant yelled out that he had to leave because of the demons. He ran out of the house, got into a car, and started driving in an acute psychotic state. The family had called 911, and the police responded immediately. The defendant was driving erratically, and the officer perceived the defendant driving toward him and felt threatened, attempted to stop the car by moving to the other lane, and utlimately steered his vehicle toward the defendant’s car, ramming it to its halt. The officer got out of the car and grabbed the defendant’s passenger door handle when the defendant failed to follow the officer’s commands. The officer fired his weapon twice as the defendant’s vehicle approached him.

During a 7027 hearing at the guilt/innocence phase of the trial, the author’s testimony addressed the defendant’s mental state at the time of the alleged offense. The defendant was significantly compromised by his mental conditions related to schizoaffective disorder bipolar type, active paranoid delusions, auditory hallucinations, PTSD, and ADHD. Also present was the hyperarousal and fight/flight phenomenon. These disorders would impair an individual’s cognitive functioning, ultimate problem solving, and decision-making skills in a time of heightened stress, extreme paranoia, and perceived threat. The testimony was admitted by the court to inform the jury as to how these psychiatric symptoms collectively negated the defendant’s mental state to commit aggravated assault against a police officer. 

In another Texas case, this author examined a 61-year-old Vietnam veteran charged with online solicitation of a minor under age 14. He served one tour in Vietnam where he witnessed and experienced significant war-related trauma, and as a result, there was evidence of PTSD and severe alcoholism, depression, and anxiety. The was also evidence of childhood neurodevelopmental disorder. He had treatment and disability through the VA for mental health conditions. He suffered one traumatic brain injury after the war from an assault and another when he was hit by a car. The trial court judge held a 702 hearing and allowed mental health testimony regarding the defendant’s mental state and intent as to following through with solicitation type text messages to a minor girl. Essentially, the author examined and testified to significant brain dysfunction, neurocognitive and neurodevelopmental disorders, coupled with his mental illness and how these disorders in collection compromised his mental state and negated his intent regarding solicitation, as well as testimony regarding his intent in carrying out any type of sexual acts with the victim. 

Sudden Passion, Manslaughter, and Criminal Homicide

Another area of criminal law where PTSD and TBI evidence may apply is in the defense of criminal homicide (Texas Penal Code §19.01).8 “Criminal Homicide” covers the offenses of Murder (§19.02), Capital Murder (§19.03), Manslaughter (§19.04), and Criminally Negligent Homicide (§19.05). 

Pursuant to §19.02, a person commits the offense of murder if he: 

  1. Intentionally or knowingly causes the death of an individual;
  2. Intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes death of an individual; or
  3. Commits or attempts to commit a felony, other than manslaughter, and in the course of an in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. 

Murder is a first-degree felony with a range of punishment of 5-99 years or Life in the Texas Department of Corrections (TDC). Should the defense prove the defendant acted with “sudden passion” the jury may sentence the defendant as if it were a second-degree felony, which has a range of punishment of 2-20 years in TDC. “Sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed, which passion arises at the time of the offense and is not solely the result of former provocation. 

Critical to murder cases is an instruction for manslaughter. Under §19.04, a person commits the offense of manslaughter if he recklessly causes the death of an individual. Mental health and brain behavior-based PTSD and TBI evidence may apply to negate a defendant’s intentionally or knowingly causing the death of an individual. The conditions, symptoms, and impairments of PTSD and TBI apply well with reckless behavior. Per §6.03(c), a person is reckless when they are aware of the risks surrounding their conduct and of the results that could occur but consciously disregard that awareness. Importantly, the risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. The crime does not require an element of premeditation, intent, or knowledge, only that a person is reckless. 

PTSD and TBI can affect several critical domains of functioning at or around the time of violent acts leaving an individual vulnerable to misperceiving provocation, overreacting, and becoming impulsive and reckless in their reactions and behavior. Some of these domains include cognition, emotion, behavior, and physiological arousal. PTSD and TBI can also dramatically affect the way an individual perceives, processes, and responds to people and situations. These conditions place individuals at risk for paranoia, impulsivity, deficient problem solving, and deficits in cool reflection with poor appreciation of consequences. 

Critical neural circuitry areas of the brain and in particular, the areas regarding impulse control, learning from experience, problem solving, and decision making are especially susceptible to PTSD and TBI. An individual with PTSD and/or TBI, but especially both together, can misperceive threat and provocation due to a number of issues including paranoia, deficient emotional processing, and behavioral regulation.


Another area of mental state evidence and the law in which psychological and neuropsychological evidence can be considered is self-defense.9 Under Texas Penal Code 9.31, self-defense can be invoked when “a person is justified in using force against another when he believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.”  Self-defense is an affirmative defense, and the defendant bears the burden of production. He must present some evidence of a specific apparent danger and that the use of force or deadly force was reasonable and necessary to avoid the danger.10 The reasonableness of the actor’s belief that force or deadly force is immediately necessary is judged from the standpoint of an ordinary person under the same circumstances as the actor. A person “has a right to defend from apparent danger to the same extent as he would had the danger been real; provided that he acted upon a reasonable apprehension of danger as it appeared to him at the time.”11 The defense attorney may argue that their client’s PTSD, complex trauma, or TBI related brain damage/dysfunction are circumstances that must be considered by the trier of fact in a self-defense case.

A veteran suffering from PTSD/TBI is at particular risk to have a compromised fight/flight system. Evidence of complex trauma and PTSD place a veteran at risk to misperceive threat, to be constantly on edge, hypervigilant, and in an overstimulated and impulsive state. Those with TBI often have faulty brakes to balance the impulsive threat response system. 

Case Study

In a self-defense trial, this author examined a 74-year-old Vietnam veteran charged with murder. The defendant was accused of murdering his neighbor who was also a Vietnam veteran, and with whom for several years, he shared a chronic tumultuous history. The defendant perceived death threats from the neighbor, and on the day of the shooting, he said the victim assaulted him on his own property by punching and striking him multiple times. He also perceived the victim pulling out a weapon (an aluminum cane) and threatening the defendant and yelling that he wished the defendant would die. While the defendant was trying to retreat, the victim continued punching him, which led to a mutual fight. There was a verbal and physical argument over the weapon. While the victim was beating him with the cane, the defendant pulled out a gun and shot and killed the victim. During my examination the defendant said, “When I pulled the trigger I was in fear for my life.” 

The defendant had a history of trauma prior to his war experiences which led to his PTSD symptoms. His biological father had a history of alcohol use and abuse and died of cirrhosis of the liver when the defendant was age 6. The defendant then lived in an extremely dysfunctional household with his mother, who had evidence of mental illness, and his grandparents. The defendant only completed ninth grade, and he had problems with school achievement. The defendant served as a combat infantry soldier in both the Korean and Vietnam wars. He completed one tour in Korea and three tours in Vietnam, where he earned a Bronze Star and Purple Heart. During his tours of duty, he suffered severe traumatic stress including being shot at, witnessing people getting killed, killing others in the line of duty, and experiencing traumatic brain injury. The veteran did not receive any assessment or treatment for his PTSD during either war.

When he returned to the United States, he had florid PTSD symptoms and evidence of domestic violence with his wife and extreme difficulties with chronic intrusive memories, flashbacks, and nightmares. He worked as a security guard in a prison where he experienced further trauma and multiple concussions. He qualified for a dual-diagnosis condition as he became an alcoholic when returning from Korea and was chronically drinking until age 65 when finally, he gained sobriety. He received full disability from the VA for PTSD and other medical conditions.

The neuropsychological assessment conducted indicated mild to moderate neurocognitive deficits in several areas including memory, executive functioning, and attention. He qualified for evidence of PTSD, major depressive disorder, and mild to major neurocognitive disorder due to traumatic brain injury and other vascular medical risk factors, as well as the chronic effects of alcohol use on brain functioning.

The court requested a 702 hearing, and the author testified in this hearing that the defendant was suffering from severe PTSD and a mild to moderate neurocognitive disorder due to traumatic brain injuries and a dementing condition as well as an early neurodevelopmental disorder, and further, that these conditions ultimately affected his mental state at the time of the offense, particularly regarding a self-defense claim.

The trier of fact then must consider evidence relevant to the same circumstances of the actor. Accordingly, the trial court found this author’s testimony admissible as applied  to the defendant and agreed that despite the ordinary person standard, the jury should be allowed to specifically hear testimony as to the same circumstances as the actor (defendant’s mental, psychiatric, and neuropsychiatric conditions, evidence of psychiatric symptoms and brain dysfunction that included executive functioning impairments pertaining to problem solving and impulse control ultimately detrimentally impacting his fight/flight response system). 


Under Texas Penal Code § 8.01, “it is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”12

In Texas, the wrongfulness standard is typically a cognitive knowing standard and does not include the emotional and affective standard used in federal insanity law. Regarding the latter, the Insanity Defense Reform Act (IDRA) of 1984 reads, “at the time of the commission of the acts constituted in the offense, as a result of a severe mental disease or defect, they were unable to appreciate the nature and quality or wrongfulness of their acts.13 This statute does have some potential consideration of affective and emotional states related to mental illness and does remove the volitional component that the American Law Institute (ALI) insanity defense has regarding the defendant lacking the capacity to conform their conduct to the law.14 Both the IDRA and ALI insanity tests open the door to emotional and volitional issues that the typical cognitive “knowing wrongfulness” test lacks.

Due to the narrow cognitive knowing of wrongfulness test, it is difficult to prevail on many insanity defense cases. Typically, an individual who does not know right from wrong will be in a psychotic, manic/psychotic, or demented mental state at the time of the offense. Concerning PTSD, if an individual is in a profound dissociative state with potential evidence of depersonalization and/or derealization, there may be a better chance for an insanity defense. When an individual is dissociating and has recurrent feelings of being detached and dissociated from one’s body mind processes, usually with the feeling of being outside of themselves, including being an observer of one’s life or being detached from one’s body/mind feelings and/or sensations, they may have a compromised capacity in knowing the wrongfulness and illegality of their offenses. 

Depersonalization is when an individual feels detached from one’s body, mind, feelings, and/or sensations, while derealization occurs when an individual feels detached from their surroundings, such as people, objects, events, and they perceive things as being unreal. When these two symptom clusters of depersonalization and derealization occur together the individual may feel detached from their own self and perceive that things are unreal. These severe dissociative traits are close in replica of a psychotic disorder such as schizophrenia in which an individual has hallucinations or delusions and they lack contact from reality. In essence, the symptoms of depersonalization and derealization may lead an individual to not perceive that they are in contact with reality. Further, in many cases of PTSD, the defendant will suffer from other psychiatric disorders and/or TBI which may have a cumulative effect with the PTSD symptoms on their overall functioning and capacity in knowing the wrongfulness of their acts.

In Kemp v. State,15 a Vietnam veteran shot his wife in bed and pled not guilty by reason of insanity. He stated that he was dreaming of being surrounded by Viet Cong, and this dreaming episode certainly would have been an intrusive symptom of PTSD. The defense did not prevail, and the defendant appealed. The Wisconsin Supreme Court ordered a new trial in the interest of justice on the single issue of the defendant’s special plea of not guilty by reason of insanity or lack of mental responsibility at the time of the act. The doctor called by the defendant and two court appointed witnesses all testified that the defendant was legally insane, and two doctors called by the state stated they could not form an opinion, while one doctor called for the state testified that he did not have an opinion but that maybe the defendant did lack mental responsibility. 

In cases like this, the most ideal insanity case with PTSD should include the defendant experiencing a dissociative traumatic type episode that is reminiscent of a prior trauma experience. A defendant who commits a violent act who is dissociating at the time of the offense would have an enhanced defense if he were perceiving a similar trauma that he had experienced before. In essence, the trauma at the time of the instant offense ideally will be reminiscent of the earlier trauma(s). 

In a case closer to home in the Lonestar State, American Sniper Chris Kyle was shot and killed by Eddie Ray Ruth. The defendant was a former Marine who had been given a diagnosis of PTSD and spent time in several hospitals being treated for mental illness and was even prescribed antipsychotic medication. Mr. Ruth also used a not guilty by reason of insanity defense. His defense included his portrayal of being in a psychotic episode when he shot and killed Kyle in Littlefield at a gun range in February of 2013. Ruth’s insanity defense failed, and he was sentenced to life in prison without parole. The failure of the defense was due in part to the defendant’s problems with drugs and alcohol and because the State’s experts opined that he was exaggerating mental illness during the examinations. 

Mitigation of Military and Civilian PTSD and TBI

Perhaps the most common process of utilizing forensic psychological and neuropsychological evidence of PTSD and TBI in military and non-military civilian cases is through mitigation evaluations/packages provided to the prosecution, court, and/or jury through forensic reports and/or testimony. Mitigating evidence about a defendant’s background, character, and characteristics of his offense is relevant because, pursuant to “evolving standards of decency” in our society, such factors speak to one’s moral culpability.16

Mitigation evaluations are utilized by the defense to provide the prosecution information outside of the criminal offenses and can be used to educate them as to the defendant’s background history, ultimately relating to moral culpability. These evaluations often assist the defense in the plea negotiation process. 

In the absence of specific direction and guidance from statutes or sentencing guidelines, numerous federal and state decisions have recognized PTSD as a mitigating factor when the offender is a military veteran. 

In Porter v. McCollum,17 the United States Supreme Court held that the lawyer’s failure to present evidence of PTSD connected to military service during the sentencing phase of a capital case constituted ineffective assistance of counsel. The Court emphasized the importance of recognizing the defendant’s service to his country, “Our nation has a long tradition of affording leniency to veterans and recognition of their service, especially for those who fought on the front lines.” The Court also associated the concepts of PTSD in military service, “the relevance of…combat experience…is that the jury might find mitigating the intense stress and mental and emotional toll that combat took on the offender.” Also emphasized, was the importance of the defendant’s military service as a part of a general policy relevant to leniency to war veterans while recognizing the psychological trauma stemming from combat experience, the latter which could have diminished the offender’s capacity to form the requisite intent in committing the crime. 

In the United States v. Brownfield,18 a federal judge in a non-capital case sentenced the defendant to five years of probation and ordered a psychiatric evaluation for a military-based PTSD condition and explained that the case involved issues the federal sentencing guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq. 

When considering non-capital federal cases, U.S.S.G. § 5K2.0 allows departure from the sentencing minimums for “extraordinary mental condition.” In federal court, diminished capacity is identified pertaining to a reduced sentencing under the federal sentencing guidelines rather than a formal defense during the guilt/innocence phase of a trial. According to the § 5K2.13 diminished capacity policy statement, it provides for a downward departure if: 1) the defendant committed the offense while suffering from a significantly reduced mental capacity; 2) the significantly reduced mental capacity contributed substantially to the commission of the offense.

Further, the advisory guidelines also note downward departure may be warranted based on military service, U.S.S.G. § 5H1.11-Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines. A downward departure may be pursued pertinent to mental and emotional conditions, U.S.S.G. § 5H.13. According to § 5H.13, mental and emotional conditions may be relevant in determining whether a departure is warranted, as such conditions, individually or in combination with other offender characteristics, present to an unusual degree and that distinguish a case from the typical cases covered by the guidelines. In certain cases, downward departure may be appropriate to accomplish a specific treatment purpose (this could be related to a veteran obtaining specialized PTSD and/or TBI veteran-based treatment). Mental and emotional conditions could be relevant in determining the conditions of probation with supervised release; e.g., participation in a mental health program. Therefore, there are different avenues in federal court to argue downward departure pertaining to special veteran circumstances. 

When returning veterans with no prior criminal history run afoul of the law federal judges have the power pursuant to 18 U.S.C. §3553(a) to structure sentences that facilitate rehabilitation and reintegration.

In United States v. Cantu,19 the Ninth Circuit held that combat-related PTSD was the type of “mental condition” that would qualify a defendant for a downward departure for “diminished capacity” under U.S.S.G. §5K2.13. The Ninth Circuit had little difficulty concluding that PTSD is a qualifying disorder for “diminished capacity”:

Cantu’s post-traumatic stress disorder is a grave affliction. Its effect on his mental processes is undisputed. He has flashbacks to scenes of combat. He suffers nightmares, intrusive thoughts[,] and intrusive images. He is anxious, depressed, full of rage, markedly paranoid, and explosive at times.

The psychologist’s report shows that Cantu’s condition interfered substantially with his ability to make reasoned decisions, causing him to fixate on weapons and rely on them for feelings of personal safety and security. Cantu’s impairment is more than sufficient to make him eligible for a reduction in sentence under §5K2.13.20 The Court went on to explain that “the disorder need be only a contributing cause, not a but-for cause or a sole cause of the offense.” This policy statement, since amended, now requires that the disorder “substantially contribute” to defendant’s commission of the offense. If a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.

This author examined a defendant who was charged in federal court with multiple counts of  bank robbery. The defendant graduated from college and served as a front-line medic in the military and experienced/witnessed profound war related trauma, IED blasts, murders, killings, and earned numerous decorated medals from his service in Afghanistan and Iraq. When he returned to the United States, he experienced profound PTSD, major depression, and an inpatient psychiatric hospitalization. He exhibited significant neuropsychological impairments despite strong verbal and overall IQ scores. He became addicted to opiates, alcohol, and cannabis in addition to his impairments due to PTSD. He also had a history of concussions pre-dating his military service. 

Case Study

The defendant went on a bank robbery spree and described his motive as to achieve a euphoria and “wanted to feel something” like he felt in Iraq. He did not appear to be planning the offenses, but his motivation was again to achieve a sense of euphoria and rush. There was a disconnect between his emotions, thoughts, and behaviors, which certainly was related to his chronic PTSD condition. 

When holding up the bank tellers he lacked an appreciation as to how his behaviors affected others as he focused only on the stimulating, arousing, and inebriating effects that his actions had on him. He had a gun in the bank and said, “It did not seem like a gun or weapon…it was a like a TV remote…I was programmed to not feel emotion due to my war experiences…I eventually did not feel anything…I never considered what I did was really terrorizing anyone.” His impaired ability to feel, regulate, and process his emotions probably led to a diminished empathy for the victims and deficits in feeling remorse as well as a compromised ability to appreciate the severity and consequences of his behaviors. 

While he understood the wrongfulness of his behaviors, he had difficulty appreciating the quality of his behaviors pursuant to the Federal Insanity Defense Reform Act (IDRA). In particular, he lacked an emotional appreciation of how his behaviors were affecting others. The defendant had suffered from flashbacks involving alteration of consciousness, and he believed he was re-experiencing a traumatic situation when he was committing the bank robberies. These flashbacks, along with nightmares and intrusive memories, led to heightened emotional stress and to low autonomic activity.

While the defense did not raise an insanity defense, they did focus on his PTSD, major depressive conditions, and the neurocognitive deficits from the PTSD condition that placed him at risk for a diminished ability to choose and completely refrain from his behaviors. He was stimulation-seeking, reckless, impulsive, and found himself escalating these behaviors in frequency closer in time to the arrest. 

Despite his intelligence, the veteran’s PTSD condition had altered the functional and neural circuitry of his brain. The neuropsychological assessment revealed significant attention, memory, and executive deficits leaving him impulsive, seeking sensation and intense adrenaline producing experiences with deficits in regulating behavior and appreciating the consequences of his behaviors onto others.21

This defendant was experiencing heightened emotions, including anxiety, fear, guilt, depression, anger, shame, and he would suffer acute emotional reactions when he was exposed to reminders of his wartime traumatic events. Consequently, he utilized drugs to combat and self-medicate these negative emotions focusing his use on opiates to numb his hyper-aroused and traumatic states. 

Ultimately, under USSG § 5K2.0 federal law allows departure from the sentencing minimums for “extraordinary mental conditions.”22 The federal district court recognized this forensic psychological and neuropsychological data in the form of a sentencing mitigation package and sentenced him to 108 months despite him committing up to 12 bank robberies within a six-week span.

Brief Neuroscience Admissibility Issues

Forensic psychological and neuropsychological assessment, the specific testing and results, and testimony related to forensic legal issues such as first phase mental state evidence and mitigation are typically admissible. Courts will admit evidence deemed “relevant” as defined by Texas Rule of Evidence 401, which states that “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. However, Rule 403 allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Although forensic psychological and neuropsychological assessment techniques themselves are typically admitted, the application of psychiatric diagnosis, functional neuropsychological and psychological impairments and symptoms, and their relationship to mental state evidence obviously can be contested by legal parties. The defense must be clear in a 702 hearing how mental health evidence, especially diagnostic symptoms and functional impairments, relate to the specific legal issue(s) in mind such as negating intent related to mens rea and diminished capacity or the standard of ordinary person in a self-defense claim. There should be a nexus between the diagnostic symptoms, functional capacity and impairments, and the law. 


While there appear to be more objections to the admissibility of neuroimaging cases in criminal court, neuroimaging evidence can be considered in both PTSD and traumatic brain injury. Neuroimaging in non-murder cases may not be as technically specific and intricate as in murder and death penalty cases in large part due to cost and funding. The most useful neuroimaging techniques include voxel-based morphometry (VBM) (volumetric MRI) functional magnetic resonance imaging (fMRI), PET scan, and diffuse tensor imaging (DTI). 

In its basics, neuroscientists can measure focal brain volumes with VBM which is an MRI technique that allows for the investigation of focal differences in brain anatomy.23 Essentially, a brain’s image is divided into hundreds of thousands of cubes, and a computerized algorithm quantifies total brain tissue, including gray and white matter and water. The individual’s brain data is then statistically compared with data derived from normal control subjects without neurological and psychiatric disorders and impaired cube brain tissue data. 

With DTI, this is an MRI neuroimaging technique examining the location, orientation, and variations in the brain’s white matter tracts which is important in examining how critical areas of the brain are interconnected. The DTI specifically looks at brain fiber tracks and neural circuitry that connects a variety of brain regions and offers data as to the integrity or damage of these fibers.24  These brain fiber tracks are needed in processing and communicating information to other areas of the brain.

fMRI is an imaging tool for determining which regions of the brain are working, their efficiency by detecting changes associated with cerebral blood flow, especially during cognitive tasks. 

PET scan is a neuroimaging test that includes the use of tracers which are attached to compounds such as glucose which is the main fuel of the brain. The PET scan can detect which areas of the brain are utilizing glucose at the highest rates and which ones are deficient or impaired.25

There are a number of studies addressing the neuroimaging in posttraumatic stress disorder.26 These studies have indicated the amygdala, hippocampus, and medial prefrontal cortex, including the anterior cingulate in PTSD. These areas of the brain are critical for emotional and fear/threat processing, paranoia, traumatic memories, planning, decision making, processing of emotions, and language for example. It is these areas that are often victimized by traumatic brain injury especially the prefrontal cortex, and there can be a double dose effect with a veteran or civilian with both PTSD and TBI. 

The trial court will often have a 702 hearing in which the forensic neuropsychologist will testify about the defendant’s background history, psychosocial and mental health background, the nature of the psychological and neuropsychological testing especially related to function impairments, as well as psychiatric diagnoses. The court will allow the forensic psychologist and neuropsychologist to testify about the defendant’s behaviors, including violence, as well as the forensic legal issues concerning the insanity, diminished capacity, mitigation, etc. The trier of fact may also allow the forensic neuropsychologist (not psychologist) to testify to neuropsychological testing data, brain behavior relationships, including the criminal and violent behavior, as well as the relationship between the neuropsychological testing results and the neuroimaging. The neuropsychologist can testify to not only the brain functions related to the tests themselves but also what regions of the brain the tests may measure. Similarly, the forensic neuropsychologist can testify to the connections between the neuropsychological testing results and to the neuroimaging results, as well as potentially to the psychiatric diagnoses and the neuroimaging results. 

Neuroscientific experts, such as neurologists, neuroscientists, and neuroradiologists will specifically be allowed to testify as to the neuroimaging process and results, as well as neuropathology, but courts often will not allow these experts to delve into criminal behavior or forensic issues as to insanity or diminished capacity. 

In a death penalty case this author examined, the defendant was a former police officer who served six tours as a civilian in a Middle East war zone where he suffered brain injury and later suffered from symptoms of PTSD. The defendant’s mental state deteriorated over time when returning to the United States on leave. He continued to become more impulsive and rageful in benign events, he misperceived threats, and was involved in a road rage incident. The other party to the road rage called the sheriff’s department who attempted to arrest the defendant following the road rage incident. The sheriff tried to gain entrance into the defendant’s home, and the defendant overreacted to his misperceived threat and shot and killed the sheriff.

The neuroimaging data indicated brain damage and shrinkage that could be a consequence of TBI, seizure disorder, PTSD, and/or delusional disorder. 

Psychological testing results yielded conditions consistent with clinical interview and background information relevant to PTSD and delusional disorder. Neuropsychological testing revealed evidence of significant brain dysfunction consistent with PTSD, traumatic brain injury, and an early dementing condition. There was a complete alignment between the structural neuroimaging data and the functional neuropsychological assessment data explaining an ultimate subcortical-cortical process of reactive aggression and violence. 

Essentially, the defendant was in a constant state of paranoia and misperceived threat, was impulsive and easily angered, and was cognitively deteriorating. He had a fight/flight condition regarding his brain neural circuitry and function. The forensic psychological and neuropsychological information and testimony was put forth in the mitigation phase of the court case rather than the guilt-innocence phase, ultimately yielding a life without parole outcome.  

Violence Risk Assessment and Risk Management

Veterans returning for war are at risk for criminal justice involvement, as well as trauma.27 Veterans with probable PTSD or TBI who reported anger and/or irritability are more likely to be arrested than other veterans, and they are at higher risk for aggression and violence. 

As part of a mitigation package, the defense may also request a violence risk assessment and risk management examination by the forensic psychologist/neuropsychologist. This violence risk assessment may be relevant to cases including other assault and violent non-murder cases. The forensic psychologist/neuropsychologist conducting risk assessment should certainly have a handle and experience relevant to the proper examination of violence risk assessment. 

A solid mitigation package is not only useful in figuring out and assessing what is wrong with the defendant, what psychiatric disorders they have, and how their brain is functioning, but also helpful on what to do with a defendant pertinent to risk management issues. Services and plans, living situations, personal and social support, as well as potential stressors need to be considered in this examination process. 

It is important to emphasize a focused and specialized risk assessment for violence with military veterans.28 Forensic evaluation should consider a dispositional, historical, clinical, and contextual risk factor analysis and assessment. 

Dispositional factors are basic demographics related to risk of violence and can include young age, male status, personality traits, aggressive attitudes, and low intelligence. 

Historical factors may include pre-deployment violence and criminal offenses, history of domestic violence, history of child abuse, witnessing domestic violence as a youth, dysfunctional family of origin, substance use, violent events experienced during deployment, and combat exposure.

Clinical factors can include PTSD and prior trauma, high PTSD symptom severity, TBI, substance use, low intelligence, depression, suicidality, and in particular the PTSD symptoms of irritability, low frustration tolerance, and hyperarousal. 

Contextual factors also may include single marital status, unemployment, financial difficulties, relationship problems, and newer marriages.

Treating the Veteran

There are a number of treatments to assist the veteran returning from combat. Obviously, there are a number of conditions to treat and especially are related to polytrauma (PTSD, TBI, chronic pain, and mental illness, especially major depressive disorder and substance dependence). Importantly, the potential of addressing impulsive aggression in treatment is critical through building emotional regulation skills with both individual and group therapies. Psychological treatment options may include skills, training, and affective interpersonal regulation, cognitive behavioral therapy, and dialectical behavioral therapy. Psychiatric medication management is often necessary to treat psychiatric and brain disorder symptoms affecting emotional, behavioral, and cognitive functioning.

Concluding Remarks

This article has addressed the unique issue of examining military motivated murder and violence. The information above in both Parts I and II, especially related to the assessment and diagnosis of PTSD and TBI, certainly can be applied to civilian cases, too. Further, the author cannot overemphasize the prevalence of early childhood trauma and the comorbidity of chemical dependency in military and civilian PTSD and TBI cases. 

Along these lines, this author sets forth a tri-diagnosis phenomenon that includes not only the typical dual-diagnosis and presence of psychiatric disorder and mental illness with chemical dependency and addiction, but as a third component of brain dysfunction, which often is present in these cases pertaining to traumatic brain injury and/or neurodevelopmental disorders present in offenders (early disorders of compromise in brain development, i.e., learning disorder, ADHD, intellectual disability, and autism spectrum disorder). 

The attorneys and court systems involved in these cases certainly have a heavy hand in dealing with such complexities in human behavior, brain behavioral relationships, and evidentiary tools such as neuroimaging when considering guilt, innocence, and moral culpability issues when working with these populations. 

In some Texas jurisdictions there are veteran treatment courts29 that allow for specialized handling for veterans involved in criminal court cases that consider coordinated systems of court supervised treatment that ensures accountability while empowering veterans to become an integral and productive member of their community. The veteran’s court dockets often provide programs that utilize evidence-based practices that assist veterans in getting mental health and chemical dependency treatment and vocation and employment training and experiences while providing risk management and rehabilitative efforts with an ultimate goal of preventing re-offending. 

The expert and lawyer should attempt to consult with the U.S. Department of Veteran Affairs and the Veteran’s Justice Outreach Program which is designed to avoid the unnecessary criminalization of mental illness and extended incarceration among veterans by ensuring that eligible, justice involved veterans have timely access to Veterans Health Administration (VHA) services. Veteran’s Justice Outreach specialists can provide direct outreach assessment and case management for justice involved veterans in local courts and jails and liaison with the local justice system partners.30 Along these lines, veteran treatment courts are another viable option to assess and monitor the criminogenic and mental health, as well as chemical dependency treatment needs for veterans involved in the criminal justice system. 

Imperative to assessment and management of risk is the consideration of the tri-diagnosis related to mental illness and frequently PTSD, major depression, with co-occurring substance dependence, and TBI. The potential mediating influence of substance use, mental health, and combat and other trauma experiences has significant implications for preventing criminal aggressive behavior among U.S. active duty military personnel.31

Ultimately, the Global War on Terrorism has had great consequences on the mental health of troops returning to the U.S. post-war service. The risk of experiencing psychiatric, neurological, and chemical dependency issues is profound and ultimately places the veteran in jeopardy of committing violent acts and landing in the criminal justice system. Proper forensic mental health assessment is vital for the best representation and equitable treatment of the veteran.

First! COVID-19 Jury Selection

On Friday, March 13, 2020 I mailed out 85 letters to clients informing them that COVID-19 had forced a shutdown of the court system in Texas, and I did not know what that meant for their case other than it would most certainly affect any preexisting timeline.

On August 25, 2020 (Tuesday) I received an e-mail informing me that I was in the “Strike Zone” for a jury trial, and jury selection would begin on August 31, 2020 at nine a.m. 

On August 28, 2020 (Friday) the court called a jury docket in the 124th District Court room. Five of us defense counsel had gathered having been given the notice of being in the “Strike Zone.” 

  • The first attorney asked for continuance believing that there was some sort of discovery issue with foreign judgments from Mexico.  The case was passed.
  • The next attorney had recently suffered a family tragedy, and the court sua sponte passed those cases.
  • The third lawyer announced that their client would be waiving a jury, and the case was being set for an open guilty plea to the bench.
  • I argued my hastily thrown together Motion for Continuance that was based on the TCDLA Motion due to COVID-19. The motion was denied.
  • The last attorney on the list had his case passed due to witness issues.

August 29, 2020

  • TCDLA past president David Moore reached out to me offering trial strategy, put me in touch with Allison Clayton, the head of the TCDLA COVID-19 Taskforce, and encouraged me to find somebody to second chair at jury selection. 
  • J. Brandt Thorson agreed to help me second chair jury selection.

On Sunday, August 30, 2020 Allison and I started collaborating in earnest getting creative about filing a beefed-up Motion for Continuance with multiple Exhibits attached and a CCP 35.06 challenge to the array.

  • Exhibit A: May 27, 2020 Newspaper article about COVID-19 in the Gregg County jail 
  • Exhibit B: White Oak Independent School District press release that in person school was suspended due to COVID-19 from August 27, 2020 – September 9, 2020
  • Exhibit C: State Bar of Texas Presidential Task Force Interim Recommendations as of 8-26-2020
  • Exhibit D: August 31, 2020 trial docket for the 124th District Court
  • Exhibit E: August 27, 2020 Newspaper article that jury trials were to resume

Monday, August 31, 2020, voir dire at the Maude Cobb Convention Center, Longview, Texas.

  • Challenged the array per CCP 35.06. Denied
  • Argued the new Motion for Continuance with Exhibits A-E attached. Denied.
  • Selected what many have called “a good-looking jury.”

After voir dire it was pointed out to me that my case was not on the “approved jury trials” list as published by the Office of Court Administration. 

So, on Tuesday, September 1, 2020, I drafted and filed a Motion for Continuance based on the fact that my trial was not on the “OCA Approved List” with attached Exhibits.

  • Exhibit F: Emergency Orders Twenty-Two
  • Exhibit G: PDF of Approved Jury Trial list from the OCA website.
  • Argued Motion. Denied.
  • Gave Evidence to the Jury.

Wednesday, September 2, 2020, second day of trial

  • Gave the charge to the jury sometime in mid-morning.
  • Guilty verdict
  • Brief punishment phase
  • State asked for max (20 years). I told them that they knew what to do.
  • Gave punishment charge to jury.
  • Jury assessed 4 years TDC.

On Thursday, September 3, 2020 my Client waived appeal. I called and texted a few people to let them know that we would not be making good case law out of my trial.

Tuesday, September 8, 2020, I briefed the TCDLA Board for about an hour about my experience and provided the checklist at the end of this timeline for future reference.


Then, on Tuesday, September 15, 2020, I received another e-mail letting me know that I was again in the “Strike Zone” for another jury trial to be selected on September 21, 2020 at nine a.m.

Wednesday, September 16, 2020, I share my Motion for Continuance Due to Lack of OCA approval with J. Brandt Thorson.

Thursday, September 17, 2020, I file (multiple) Motions for Continuance with Exhibits attached.

Friday, September 18, 2020, went to trial docket and witnesses the following.

  • Lawyer #1 had his Continuance granted due to settings in Federal Court.
  • Lawyer #2 (me) had his Motions for Continuance denied.
  • Lawyer #3 Had his Continuance approved on Thursday, due to Evidence issues.
  • Lawyer #4 fled the State on vacation, leaving a letter on file with the Court.
  • Lawyer #5 Set their case for a Motion to Suppress.

Monday, September 21, 2020, jury selection at Maude Cobb Convention Center, Longview, Texas.

  • Sung Kim sat second chair with me.
  • We picked what was considered another “good-looking jury.”

Tuesday, September 22, 2020, Trial

  • Sung Kim sat at counsel table as second chair.
  • Jury returned a Guilty Verdict by 2:30 PM.
  • Client waived Jury as to Punishment.
  • Punishment reset until November 13, 2020.


Then, on Friday, September 25, 2020, the third jury trial docket since COVID-19 was held, and I was not on it. 

  • Jeff Jackson found out he was going to trial.
  • I called Jeff to offer to sit second chair during voir dire.

Monday, September 28, 2020, voir dire, Maude Cobb Convention Center.

  • Many quizzical looks from Courthouse Security as to why I was there.
  • Mr. Gary Cristian, thanked us for what looked like “an amazing Jury.”

Wednesday, September 30, 2020, 3:00 PM.

  • Word got out, Not Guilty! 

COVID-19 Checklist

  1. Is your trial approved by the OCA?
  2. If your client is incarcerated:
    1. Has your client been tested?
    2. Has your client been in quarantine since testing?
    3. What are the number of active cases in the jail?
    4. How many inmates are in quarantine in the jail?
  3. Off-Site Voir Dire:
    1. Object that it is not the hallowed halls of justice.
    2. Object that it is not covenant to the populace.
    3. Ask Jurors if they can see you.
  4. Summons:
    1. Does the Jury Summons comport with the Code of Criminal Procedure?
    2. Are jurors excused without having been sworn per CCP 35.02.
  5. Are jail cases of COVID published on the Jail Commission website, or do you need to subpoena them from the sheriff?
  6. Courtroom:
    1. Have the judge on record describe where the jury, counsel, defendant, witnesses, gallery members, and other visitors will sit during the trial.
    2. Enter a drawn schematic of the courtroom into evidence.
    3. Ask if there will be cleaning protocols for the witness stand and trial exhibits.
    4. Will concessions be made so that the attorney and defendant can converse while maintaining good social distancing practices.
    5. Where will the Jury be sequestered to during breaks and during deliberation.
    6. Will the jury be ordered to wear clear plastic facemasks during the trial?
  7. Motions for Continuance; attach exhibits and verify under oath:
    1. OCA approved trial list;
    2. Reports of jail infection rate;
    3. Local newspaper articles about school closures;
    4. Published infection rates for the area;
    5. Press releases from local government and elected officials;
    6. Census records.
  8. Motion to challenge the array under CCP 35.06.
    1. Census records;
    2. In writing;
    3. Verified;
    4. Infection rates for disparaged classes of jurors.
  9. Never announce “Ready.”
  10. Ask for “Running Objection.”
  11. Ask witnesses if they can see all jurors from the witness stand.

Current Issue: November 2020




14 | Report from the Reapportionment/Redistricting Committee – By Tip Hargrove
16 | Blue Matters Matter – By Mitch Adams & Bobby Mims
28 | Veterans and Violence Part 2: Forensic Psychological and Neuropsychological Evaluations of Veterans with PTSD and TBI – By John Matthew Fabian
37 | First! COVID-19 Jury Selection – By Brandon T. Winn


6 | President’s Message
8 | Chapter and Verse
9 | Federal Corner
12 | From the Front Porch
13 | Shout Outs


5 | CLE Seminars and Meetings
39 | Significant Decisions Report

President’s Message: Balancing the Supreme Court


Justice Ruth Bader Ginsburg was an American treasure. In her life and legal career she was a barrier-breaker, a fierce advocate for her clients and the causes in which she believed, a role model, and ultimately a cultural icon. Justice Ginsburg’s loss will be impossible to measure — except perhaps in one stark, numerical way: The Supreme Court of the United States (SCOTUS) will likely move from 5-4 to 6-3 “conservative.”

This will have an enormous impact on the practice of criminal defense.

Over the past several decades and especially most recently, SCOTUS decisions (often with one or two conservative justices siding with liberals or vice versa) have narrowly upheld constitutional protections in 4th, 5th, 6th and 14th Amendment cases. These will be fewer and further between if SCOTUS stays with nine justices.

The point of this thought-exercise is not to suggest that our President and United States Senate should hold off nominating and confirming Amy Coney Barrett until after the 2020 presidential election. They’re not going to do that. Instead, as concerned citizens and criminal law practitioners we should be thinking of ways to safeguard the rights of the criminally accused in this highly charged political environment.

There is no shortage of suggestions for how to re-balance SCOTUS or remove it from the political arena. Please add mine to the list. It may strike you as slightly different.

I believe most Americans want a balanced SCOTUS, as opposed to a political tribunal that tilts in favor of one side or the other. To me, this begs a fundamental question: Why does SCOTUS have to have an odd number of justices?

There is nothing in the Constitution that specifies the number of SCOTUS justices. Most advocates of court expansion (derisively called “court packing”) favor adding more justices to achieve an odd number that favors their side. Some liberal advocates are talking about forging a 13-justice Court, with a 7-6 advantage for the liberal camp.

But again, why does it have to be an odd number? Is it because SCOTUS is supposed to be the final arbiter of legal questions and no one wants a tie?

The vast, overwhelming number of constitutional law cases in America do not reach the Supreme Court. If a criminal case includes a crucial, debatable constitutional issue and not merely a fact dispute, and the case even reaches the appellate level, it is usually decided in a state court of appeals. In federal criminal cases, district and circuit courts typically resolve constitutional issues. A successful petition for certiorari is rare even in some of the most hotly disputed criminal law topics.

On occasion, such as in the aftermaths of death or resignation of a SCOTUS justice or when a justice is recused or steps aside from a case, America has an even number of Supreme Court justices. Not surprisingly there have been dozens of tie votes in the Supreme Court dating back to the 1950s.

As most lawyers know, when an appellate court vote ends in a tie, the lower court decision stands. Finito!

Expanding the number of justices to 12 would balance the High Court and ensure that no big decisions would happen unless one side or the other persuades at least one fellow justice to cross over and join their voting block. Absent that, a lower circuit court decision would stand and it would be up to us lawyers to argue to trial and appellate courts what it all means. Gone would be the days when major constitutional issues are resolved by a single vote on what appears to be party lines. True, there would be circuit splits in some narrow areas of the law, but there are already a bunch of those and lawyers and courts deal with them routinely.

Although a 12-justice SCOTUS would probably require a Democratic President and a Democratic Senate (which are far from certain in the upcoming election of 2020), the concept of 12 justices actually has historical precedent. In the 1860s Congress set the number of justices at nine in order to match the number of federal circuits. There are currently 12 federal circuit courts in the United States! Moreover, a 12-justice SCOTUS should be enticing to Republicans, because all tie votes would revert to the decision of the lower circuit court and Republicans currently have a voting advantage in seven of the 12 federal circuit courts. The Senate and Electoral College are already structured in ways to almost always give Republicans the Senate, the presidency, or both – thereby ensuring a long-term advantage in the federal circuits. For their part, Democrats should embrace a 12-person SCOTUS, because, for them, it would be a vast improvement over what will probably soon be a 6-3 conservative majority.

Legal practitioners and Americans should all demand a 12-person, balanced SCOTUS because it would give us some things we haven’t had in decades — stability, objective fairness and a far less politicized tribunal at the very top of our legal system.

Some might grumble that no one wins with a tie.

That’s absolutely true and exactly the point.

Chapter & Verse: Defending in the Name of Hope


My Dear and Beloved Defenders,

Today I am reading TCCP 1.051, the next nibble in our attempt to eat the law whole. Right to Representation by Counsel. And then 1.051 (c), especially close to my little public defender heart: An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation.

If the interests of justice require… that’s the part I’m thinking the most about today. The “interests of justice” part. Something I wonder about in the minutes of quiet during this quarantine is my role in the interest of justice. Sometimes I struggle with the part we all play as defense counsel to the damned. The further we climb into this system, the more apparent it is that it is rigged, that the game is predetermined, and the dull and powerful will win every time.

Grant Gilmore (who knew a lot about Hell because he was one of the law professors who drafted the Uniform Commercial Code-remember that?) wrote in the New York Times in 1977: “The worse the society, the more law there will be. In Hell there will be nothing but law and due process will be meticulously observed.”

I wonder if my appearance as counsel helps to legitimize an illegitimate system. If I know that the deck is stacked, why am I playing the game? I’ve thought about this many times in the seven long and strange years I’ve done this job, and more than once I’ve almost walked away because of it. 

When I was in law school, my aunt fought breast cancer. By the time they caught it, it had already metastasized and there was little hope of her survival. She had also struggled for many years with drug addiction, and she was the first person I knew who went to prison. When I was eight years old I visited her there in TDCJ. She wrote me long letters on yellow legal pads and drew the intricate and beautiful designs the women in her cellblock would weave into each other’s hair.  Later, when I was 17, I would bail her out of jail. I would sit up with her and pray that she would not go to prison again. I would try to sneak in stamps and perfume in the pages of letters I mailed her and help her come up with spread recipes from the prison commissary lists.

Later, when I was 29, I sat in a hospital room, trying to chat casually as the doctors dripped slow, thick poison into my tiny aunt’s veins to kill her cancer. I complained about law school. I complained about the idea of being a lawyer. “But at least you… have a chance,” she said, “and I…” she trailed off. That was as close as she ever came to admitting her disease was terminal, that she knew she was mortal. Soon after, as my aunt lay dying in her tiny apartment, my mother would lift her sister’s frail body, hollow-boned and aching, from the shallow bathtub and I heard her rasp, “I’m not going to die in that bed.”

 “I’m not going to let you,” my mother said, firmly, in this voice that I have always believed. “I won’t let you.” And I know she believed it, fervently, they both did, even though they also both knew that my mother, as powerful as she was and is, had no real control over life and death. And though I didn’t see it, I imagine my mother patted my aunt’s narrow arm as she lifted her up into the bed that she would in fact, two days later, die in.

I think of both of those women, and I know that I can’t be a spectator to all of this. That even if I know the result, that I know my client’s fate is sealed, that even if my whole job is palliative care, I have to do it. That as I have faced terrible things in my own life, I have wanted someone by my side to pat my arm and believe fervently that there is hope.

Oh friends, I love you, and I revel in your victories that are healing and restorative, that push past hospice and into recovery. But please know that in your defeats you are just as meaningful, and sometimes more so. And whether or not justice will exist for your client, and whether or not hope is justified, please know that that is why you are there, at the feet of the dying, because if there is hope it is in your advocacy and your representation, and you are called, by the interests of justice, to serve.

Love always and wash your hands.

Federal Corner: Do Your Research Before Predicting Your Client’s Advisory Sentencing Guidelines Range


This is an experience that we have all had:  The evidence against your client in his federal criminal case is overwhelming and he has realized that a plea of guilty is probably inevitable.  He asks, “What am I looking at?”  The answer to his question may be more or less complex.  In either instance, though, he is entitled to an intelligent – and accurate – answer.  If he receives something less, there is always the possibility of a post-conviction writ alleging ineffective assistance of counsel.  This is something that every lawyer should want to avoid.

Unfortunately, the lawyer for Aluro Pablo Valdez, Jr., did not give him such an answer.  Even so, a divided panel of the United States Court of Appeals for the Fifth Circuit held that Valdez’ lawyer’s performance in incorrectly advising him about the applicable Sentencing Guidelines range was not ineffective.  United States v. Valdez, 973 F.3d 396 (5th Cir. 2020) Panel:  Circuit Judges Wiener, Engelhardt and Oldham.  Opinion by Engelhardt; dissenting opinion by Wiener.)

Judge Engelhardt’s opinion reads, in part, as follows:

Valdez’ Claim of Ineffective Assistance of Counsel

Defendant-Appellant Lauro Valdez, Jr., federal prisoner # 76629-080, appeals the denial of his 28 U.S.C. § 2255 motion to set aside his conviction for being a felon in possession of a firearm. Valdez advanced several grounds for relief in the district court, but this court granted a certificate of appealability as to only one: Valdez’s claim that before he pleaded guilty, he received ineffective assistance of counsel because his trial attorney underestimated the range of imprisonment recommended by the United States Sentencing Guidelines (‘Guidelines’). United States v. Valdez, No. 18-40495 (5th Cir. Feb. 28, 2019) (one-judge order). (emphasis added)

An Overview of Valdez’ Plea and Sentencing in the District Court

After a jury was empaneled for his trial, Valdez pleaded guilty—with no plea agreement—to one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Valdez used the firearm to commit murder, so the Guidelines recommended a range of 324 to 405 months’ imprisonment. Valdez’s attorney estimated that his Guidelines range would be between twenty-four and thirty-three months, but the district court, after two colloquies pursuant to Fed.R.Crim.P. 11(b), accepted the guilty plea and sentenced Valdez to the statutory maximum term of 120 months in prison. (emphasis added)

The Background of the Case

Valdez was arrested and charged in state court with murder. While the state case was pending, Valdez was charged in federal court for being a felon in possession of a firearm.  In the federal matter, Valdez planned to assert a justification defense. Someone had fired shots at Valdez’s house ten days before the killing of Rodriguez, and Valdez claimed that he had received threatening phone calls. Valdez argued that he was justified in possessing the firearm because, in the context of those prior incidents, he feared for his life when Rodriguez arrived outside his door and yelled threats.

Valdez decided to go to trial for the possession charge. On October 19, 2015, after the jury had been selected, the district court conducted a hearing on whether to allow Valdez to assert the affirmative defense of justification at trial. The court clarified that Valdez would not be permitted to raise his affirmative defense unless he could make a prima facie showing on all four elements of justification.

 … after conferring with his counsel, Valdez then, before the district court officially ruled on any pretrial motions, sought to change his plea to guilty. The court specifically noted that only his sentence and any § 2255 issues would be appealable, and his counsel confirmed that was correct.

The Plea Colloquies

During the Rule 11 colloquy, the district court told Valdez, appropriately, correctly, and expressly, that

right now you don’t know what sentence I would give you, I don’t know what sentence I would give you and I don’t know that because a Probation officer has to meet with you, your lawyer gets to be present and they have to give me a report about your criminal history and then they’ve got to give me a report about this case and where you score.

Valdez initially said that his attorney had not reviewed the Guidelines with him, but after being shown a copy of the manual, he said that he was familiar with them. The court thoroughly explained how the Guidelines arrive at a recommended sentence, noted clearly that the court had the power to sentence above or below that range, and stated the factors that the court must consider when choosing a sentence. The court asked, ‘Are you aware of the penalties?’ to which Valdez replied, ‘Yes, ma’am.’ The court then explained that the statutory maximum penalty was ten years in prison. Valdez again said that he understood and that he had no questions about the penalty. The court explicitly addressed the issue of an estimated sentence, including one from Valdez’s counsel (emphasis added):

And this is important because I will tell you that your attorney may have given you a good faith estimate where he thinks you may fall in that chart and — and he may tell you, ‘You know, I’ve been in front of this Judge a lot of times, I think she may or may not do this,’ but at the end of the day he really has no idea and you really have no idea and I have no idea because I don’t know where you’re going to score and I don’t know everything about your life history, and so whatever your lawyer may have said to you is not a promise, it’s not a guarantee and it’s not binding on this Court. Do you understand that? (emphasis in the opinion)

Valdez said, ‘Yes, ma’am,’ and confirmed that he wanted to proceed with pleading guilty.

The hearing continued to the next day, October 20, 2015, when the district court again confirmed that Valdez understood that he could not withdraw his guilty plea if he was unhappy with the sentence he received. The court then gave Valdez a chance to withdraw his plea. He declined, and the court accepted Valdez’s plea of guilty.

 The Advisory Sentencing Guidelines Range

The district court determined that the Guidelines recommended a range of imprisonment of 324 to 405 months. Valdez had a criminal history category of II, which the district court found significantly underrepresented Valdez’s criminal activity. The district court determined that Valdez’s base offense level was forty-three because he committed first degree murder … The court then applied a three-level reduction for acceptance of responsibility.

Under the Guidelines, when a firearm is possessed or used in connection with another offense that results in death, the base offense level for illegal possession of that firearm is taken from the homicide subpart of the Guidelines that is most analogous to the conduct, if the resulting offense level is greater than it would be otherwise. U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(c)(1) (U.S. SENTENCING COMM’N 2015). First degree murder results in an offense level of forty-three, second degree murder an offense level of thirty-eight, voluntary manslaughter an offense level of twenty-nine, and involuntary manslaughter an offense level of twelve to eighteen. Id. §§ 2A1.1, 2A1.2, 2A1.3, 2A1.4.

Valdez’ Argument at Sentencing and the Court’s Response

Despite the … undisputed facts, Valdez urged the district court not to apply the homicide cross-reference because he had not been convicted of homicide in state court, making the base offense level twenty. That would have resulted in a Guidelines range of twenty-seven to thirty-three months of imprisonment after a three-level reduction for acceptance of responsibility. See Id. Ch. 5, Pt. A. The court overruled Valdez’s objection to the cross-reference and sentenced him to the statutory maximum term of 120 months in prison. The court observed that, although it found that Valdez committed first degree murder, the Guidelines recommendation would also have exceeded the statutory maximum if Valdez had only committed second degree murder. Important to the issue raised here, the district court further explained that even if it had not used a first or second degree murder application to calculate the Guidelines range, the court would have relied on Valdez’s extensive and underrepresented criminal history to vary upwards to the maximum sentence of 120 months. (emphasis added)

 Valdez’ Allegation in a § 2255 Petition and His Lawyer’s Response

Valdez then filed a motion under 28 U.S.C. § 2255, seeking to set aside his conviction. Valdez … asserted … that his trial counsel was ineffective in substantially underestimating Valdez’s Guidelines range and therefore failing to advise Valdez that he faced a significant risk of receiving the statutory maximum term of imprisonment.

Valdez’s trial counsel submitted an affidavit stating that he ‘informed him of the guideline levels’ and the statutory maximum of ten years but admitting that he did not inform Valdez that the base offense level could be forty. 

The District Court’s Ruling

The district court denied Valdez’s § 2255 motion. As to the issue now on appeal, the district court found that Valdez understood that he faced a maximum possible sentence of 120 months, and there was no evidence that his counsel promised him a particular sentence. With that understanding, the court reasoned, Valdez could not show that he was prejudiced by ignorance of section 2K2.1(c)(1)(B)’s potential application before his decision to plead guilty.

Valdez’ Burden at the Fifth Circuit

To prevail on an ineffective assistance of counsel claim, a defendant must satisfy the test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by showing that (1) his ‘counsel’s performance fell below an objective standard of reasonableness,’ and (2) that his counsel’s deficient performance caused him prejudice. United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004).

Valdez’ Lawyer’s Advice and the Court’s Holding

Here, although Valdez’s counsel’s estimate of what he ‘hoped’ Valdez’s sentence would be was well below the 120 months to which Valdez was ultimately sentenced, counsel properly apprised Valdez, prior to his pleading guilty, of the maximum penalty the court could impose. And counsel also made abundantly clear to Valdez that no estimation he offered was a guarantee or a promise. It is no doubt that counsel’s estimated sentencing range was far lower than Valdez’s actual sentence. Nevertheless, we do not find any deficiency in counsel’s estimation to be unreasonable. (emphasis added)

Valdez Was Aware of What He was Facing

…Valdez was clearly aware that the maximum possible prison term was 120 months, even though he and his attorney were operating with the understanding that the Guidelines with a plea would suggest a significantly lower sentence. …Valdez and his attorney knew full well the circumstances of the charge against him, including most significantly the use of the subject firearm to murder Rodriguez, … as well as Valdez’s significant criminal history aside from this incident. It came as no surprise to the defendant or his counsel that the district court would indeed factor in all of the circumstances in determining a sentence, whether after trial or following a guilty plea. See Lee, 137 S. Ct. at 1966 (‘The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea.’). (emphasis added)

Valdez was clearly advised—multiple times—by both the court and his counsel of the maximum sentence he could receive, such that he was ‘fully aware of his plea’s consequences.’  

Be Aware That This Analysis Will Not Apply to Every Case

This is not to say that every defendant whose attorney makes an error in estimating his Guidelines range has not suffered prejudice.  But, in this instance, Valdez has not shown that his counsel’s estimation of the applicable Guidelines range alone caused him to plead guilty. Rather, the record indicates that Valdez’s decision to plead guilty at the eleventh hour was logically motivated by the exposure of evidence which proved fatal to his affirmative defense, all but guaranteeing a conviction at trial, without any possible sentencing benefits he knew might be available with a plea of guilty.

Accordingly, the judgment of the district court is affirmed.

Judge Wiener filed a dissenting opinion in which he cited cases from the D.C., Sixth, Seventh, Ninth and Tenth Circuits in support of his conclusion that Valdez’ lawyer had not provided the effective assistance of counsel.

Judge Wiener’s opinion reads, in part, as follows:

I respectfully dissent in the belief that Valdez has satisfied both prongs of Strickland and that the majority deeply undermines the Sixth Amendment’s guarantees in contemporary criminal defense by rendering counsel’s familiarity with the Sentencing Guidelines optional when advising a client of the consequences of a guilty plea. 

Because of the importance of sentencing guidelines in contemporary criminal practice, professional standards for defense counsel repeatedly emphasize that defense counsel must be familiar with the law and procedures applicable to sentencing, including any applicable sentencing guidelines. Such standards can inform the attorney conduct that is reasonable. ‘Although they are “only guides,” … and not “inexorable commands,” … these standards may be valuable measures of the prevailing professional norms of effective representation….’

Recognizing the importance of the Guidelines in the sentencing process, several other circuit courts require defense counsel to make a minimally competent Guidelines estimate, or at least a good faith attempt. They do so, for the most part, even in the era of advisory Guidelines, and so by implication hold that defense counsel does not discharge his duty by merely informing his client of the statutory maximum sentence.

The consistent theme in the foregoing decisions is that defense counsel’s performance in making a Guidelines calculation is unreasonable under prevailing professional norms when, because of his ignorance of basic Guidelines provisions, counsel makes an error of significant magnitude. And that is precisely what happened here. (emphasis added)

At the very least, Valdez has shown enough to merit an evidentiary hearing in the district court, which he was denied. ‘A district court must hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”’ Valdez’s claim is plausible enough that he should be allowed to present evidence regarding (1) why counsel failed to advise him of the cross reference provision and (2) the benefits that counsel erroneously advised Valdez might accrue from his pleading guilty.

These are the reasons why I respectfully dissent.

My Thoughts

  • I liked Judge Wiener’s dissent and can see where another panel might have come to a different conclusion than the one that decided Valdezs appeal.
  • Valdez appeared for his plea and sentencing before United States District Judge Marina Garcia Marmolejo of the United States District Court of the Southern District of Texas.  Her plea colloquies with Valdez and her explanation as to the sentence imposed provided the basis for the panel’s holding in Valdez.
  • After all these years, I can still find some federal sentencing issues to be confusing.  My “go to” resource is Federal Sentencing Guidelines Handbook by Roger W. Haines, Jr., Frank O. Bowman, III, and J. Douglas Wilson 2019 Thomson Reuters.  I would recommend it.

From the Front Porch: An Introduction to the Rural Practice Committee


Hopefully, this will be the first of many articles during which we will explore the differences and challenges faced by the criminal defense attorney in a predominately rural area. I know that many of us have handled cases in rural areas throughout the State as part of our practice, and we realize there are some distinct differences which exist between representing the citizen accused in a rural versus urban environment. Those differences can be seen in how cases are docketed, pre-trial hearings are held, and ultimately, the type of jury pool you encounter.

As we begin to adapt to this ever-changing landscape of criminal defense work during the COVID-19 pandemic, it is apparent that many rural areas are much closer to attempting to get back to business as usual. This is partly because the positivity rate has been decreasing in smaller counties, and the courts are ready to get back to conducting jury trials. However, it is also because of the lack of infrastructure, where smaller county jails are near or at capacity, and their respective criminal dockets and backlog of jury trial settings have exponentially increased since March of this year. It is like that old pressure cooker your grandma used to use – you can hear the pot rattling and the whistle blowing, but we cannot quite take it off the stove yet. We don’t know what our jury trial experience will resemble when we get back to the courtroom, but it is likely that many of our brothers and sisters in rural areas will begin to understand how the ongoing pandemic will impact that experience before some of us handling cases in cities such as Houston, Dallas, Fort Worth, San Antonio, or Austin.

The bulk of my practice surrounds counties in and around the Texas Hill Country, and I rarely handle cases in Bexar or Travis counties. From my limited perspective, I have heard from several criminal defense practitioners who are anxious to get back to the courtroom so long as it is safe and we have an established set of procedures and rules that everyone must follow. I can’t assume that is the perspective of all of our rural members throughout the state, but if I were a betting man, I would hedge my bets that we need to brace ourselves for a future of conducting jury trials during this pandemic. Please understand, I am not endorsing the idea that we must get back to the courtroom and jury trials this week or next, but I do believe it is a situation that over the next couple of months will require us to hone our trial skills and find a way to adapt when we are required to get back into the courtroom. It has become clear that commencing jury trials at least by December 1, 2020, will become the norm with or without a vaccine, unless God forbid, there is another huge spike in the COVID-19 positivity rate which requires another shutdown. Keep in mind that a small county jail can only hold so many people before they start bursting at the seams, and much like the pressure cooker, the only way to diffuse that pressure is take it off the stove. Like it or not, this is the situation that many of us may find ourselves in as soon as December 1, 2020.

As the co-chair of the Rural Practice Committee, we are working on organizing our thoughts and resources on this situation and preparing for the circumstances when we will have to start returning to trial. Within the next month, we should all have access to all the county plans for returning to jury trials as approved by each of the respective administrative regional judges throughout the state. The COVID-19 Response Task Force has come up with a checklist of procedural requirements and safeguards for returning to the courtroom for purposes of trial. I would encourage all our members to access the checklist via our website and use it, as necessary. 

The Rural Practice Committee hopes to add to this functional checklist, taking into consideration some of the specific problems sometimes encountered by the rural practitioner. As such, if you are handling or have handled a case in a rural area and have a particular question or believe there is an issue of particular concern which needs to be addressed moving forward, please contact me or John Hunter Smith to let us know how we can help.

Many of us have probably picked a jury in a small town in the local Civic Hall, American Legion Hall or other county wide venue facility designed to hold hundreds of people versus a hundred people. However, we have never had to do that wearing a mask and face shield with each juror socially distancing 6 feet apart. We are social creatures, and this new age is going to present some challenges, but we all must stay safe and healthy or we cannot help anyone, let alone our clients.

In small towns social distancing requirements are often difficult and not well received by our neighbors which makes jury selection even more difficult and time consuming. I believe if it was going to take you a half-day to pick a jury prior to the pandemic, it will now take a full day. Also, I have not yet seen a plan for a rural area, as of writing this column, but how is a shuffle going to work, and where is the court going to park a hundred or two hundred folks while they work that out and then re-seat the panel? These are just some of the issues we have been discussing on the Rural Practice Committee, and we would like your input and any information pertinent to this situation to help us develop some local resources for the benefit of all of our members.

As an example, today as I was writing this column, I received an email from one of the Rural Practice Committee Members asking for assistance for a fellow member because a judge in a small county was picking a jury and sent out 200 summons – 35 people showed up and 6 were excused. The Court decided it would just round up 30 more jurors for the panel and start a general voir dire that afternoon. Within a few minutes of sending out a request for help, Allison Clayton, one of the current co-chairs of the Covid-19 Response Task Force, responded by sending out a motion to the challenge of the array. It is this type of support and development of resources that TCDLA hopes to continue to refine over the course of the next couple of months.

We are here for our members, and we need your input and assistance so that we can be proactive and responsive to our members and their needs regardless of where they practice. Whether you are in Alpine or Austin, we are here for you. Please know that it is never just you against the government because we can bring to bear the collective voice, experience, and knowledge of over 3,200 members statewide. As we navigate these uncertain times, please send us any questions you have or issues that you have encountered practicing in a rural area. Do not assume someone else has already contacted us or experienced the same thing. We want to help if we can, and there is no such thing as a bad question. We are in this together and remain TCDLA Strong.

John Hunter Smith Co-Chair of the Rural Practice Committee can be contacted at .

Clay Steadman Co-Chair of the Rural Practice Committee can be contacted at .

Melissa Schank can be contacted at .