Monthly archive

November 2020

December 2020 SDR – Voice for the Defense Vol. 49, No. 10

Voice for the Defense Volume 49, No. 10 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Check out In re Ogg, below. A big win by Mark Thiessen and Carmen Roe. It is the case to use if you need to get a case to trial during the pandemic and the State won’t waive jury. (see also Ex Parte Sheffield, No. 07-20-00216-CR (Tex. App.—Amarillo, Sep. 17, 2020). DPS was dealt a blow in their pet project to deny expunctions to people who have an old conviction for a similar non-expunction-eligible offense in Ex Parte Ferris. And cops are hiding in bushes on horses watching people do unspeakable things.

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

Anaya v. Lumpkin, 976 F.3d 545 (5th Cir. 2020)

Issue. Did counsel render ineffective assistance by failing to advise his client that, in asserting self-defense, the jury could consider failure to retreat because defendant was a convicted felon in possession of a firearm at the time he shot and killed the victim? Did the Court of Criminal Appeals unreasonably apply the federal standard for prejudice?

Facts. Defendant was charged with murder and aggravated assault. He rejected a plea bargain and argued self-defense at trial. His counsel failed to inform him that due to his previous felony conviction his possession of a firearm during the offense meant he was committing a felony and that the jury could accordingly reject his self-defense claim by a finding that he failed to retreat. After being sentenced to 99 years, defendant argued that he would have entered a plea bargain had he been accurately informed of the law.

Holding. Yes. Counsel’s performance was deficient under the Strickland v. Washington standard. 466 U.S. 668 (1984). The defendant “could not fully understand the risks of rejecting the State’s plea offer because he didn’t know that his status as a felon in possession of a weapon would move the goalpost at trial.” No. In a federal habeas writ challenging a federal issue previously considered by a state court, the state court is afforded great deference. The standard for prejudice here requires evidence: (1) that the defendant would have accepted the plea offer, (2) it would have been entered and accepted by the trial court prior to the state withdrawing, and (3) the end result would have been less incarceration. Here the evidentiary standard for satisfying the second prong is sufficiently murky that “fairminded jurists could disagree” about the nature and quality of evidence that a habeas litigant must show.

United States v. Ochoa, 977 F.3d 354 (5th Cir. 2020)

Issue. Can a defendant demand his federal sentence run concurrently with a state sentence without establishing both are premised on the same relevant conduct?

Facts. Defendant was caught cashing checks that he stole from the mail. He pleaded guilty to one count of stolen mail. Defendant’s Pre-Sentence Report (“PSR”) failed to reflect pending state charges out of multiple counties. Defendant objected claiming that the pending charges were based on relevant conduct to his federal charge and that they must be identified so that his time would run concurrent pursuant to United States Sentencing Guideline (USSG) § 5G1.3(c). The government indicated it did not object to concurrent sentencing but would defer to the US Probation Office determination on the matter. US Probation did little to clear things up. At sentencing the defendant asked for concurrent sentencing and the trial court indicated that it would have to be up to the counties where the state cases are pending. The trial court’s failure to specifically order concurrent sentencing resulted in potential consecutive sentencing.

Holding. No. While USSG § 5G1.3(c) requires federal sentences to run concurrently to anticipated state sentences that are based on the same relevant conduct, it is incumbent on the defendant to show the offenses involve the same relevant conduct. Here the defendant did not. 

Comment. The court does note that concurrent sentencing is not a foregone conclusion in this case – a Texas judge may order consecutive sentencing when a defendant is convicted of multiple sentences under Texas Code of Criminal Procedure article 42.08(a).

Texas Court of Criminal Appeals

Ex parte Chanthakoummane, WR-78, 107-2 (Tex. Crim. App. 2020)

Issue. Has the science pertaining to forensic hypnosis sufficiently changed over time that it now warrants habeas relief because new discrediting scientific evidence was previously unavailable at trial? Has the science pertaining to bitemark comparison sufficiently changed over time that it now warrants habeas relief because new discrediting scientific evidence was previously unavailable at trial? Does the combination of discredited hypnosis evidence and erroneous bitemark evidence warrant habeas relief on the basis of false evidence?  

Facts. Applicant was convicted and is now pending execution for a capital murder committed in 2007. Evidence presented at trial included an eyewitness identification following a hypnosis session with a Texas Ranger and “scientific” comparisons of bitemark evidence. Applicant presented evidence of new skepticism relating to forensic hypnosis and testimony showing that the scientific community has now disavowed individualized bitemark pattern matching. The State presented evidence showing that Applicant’s criticisms of forensic hypnosis were not new and have existed since the 1980s, that, that the pre-hypnosis and post-hypnosis accounts remained consistent, and that it was ultimately DNA evidence which overwhelmingly proved the State’s case.

Holding. No. The evidence indicated that the same myths and risks associated with using hypnosis for memory recall have been well known in the scientific field since the 1980s. Maybe. Bitemark evidence is now discredited scientifically, but here the bitemark evidence only played a minimal role in conviction.

Dissent (Newell, J.) (joined by Richardson, J. and Walker, J.) Applicant’s bitemark claims merit further consideration. Although the State’s expert indicates that the risks associated with forensic hypnosis have been known for some time, the risks associated with eyewitness identification have become more apparent. Eyewitness misidentification is the leading cause of wrongful convictions.

Gonzalez v. State, No. PD-0572-19 (Tex. Crim. App. 2020)

Issue. Is a defendant egregiously harmed by inclusion in the jury charge of a statutory culpable mental state not alleged in an indictment for aggravated assault on a public servant?

Facts. The indictment charged the defendant with intentionally or knowingly causing bodily injury on a public servant. It omitted recklessness as a possible culpable mental state. Despite this omission, the trial court instructed the jury on reckless conduct as though it had been included in the indictment. 

Holding. No. This amounts to an error in formatting the jury charge which did not egregiously harm the defendant. It is error to include an uncharged reckless culpable mental state in the jury instruction section for the indicted offense. Reed v. State, 117 S.W.3d 260 (Tex. Crim. App. 2003). However, it remains appropriate to submit an uncharged reckless culpable mental state as a separate lesser-included-offense instruction. Hicks v. State, 372 S.W.3d 649 (Tex. Crim. App. 2012)(reckless aggravated assault is lesser included of knowing/intentional aggravated assault despite same punishment). Recklessness was supported by the record and the conduct of parties showed they anticipated the jury’s consideration of recklessness.

Romano v. State, No. PD-1289-19 (Tex. Crim. App. 2020)

Issue. Is the element of recklessness to another’s presence sufficiently established in an indecent exposure case when a person masturbates in a Houston parking lot in broad daylight but when that parking lot is empty, there appears to be nobody around, and after taking some measures to conceal his activity.

Facts. Officers on horseback concealed themselves partially behind trees and bushes to look for suspicious activity. One officer witnessed defendant park his vehicle in an empty parking lot, open his passenger door, walk to the back of his vehicle, pull his shorts down, and stroke his penis with his hand. The officers emerged on their stallions and confronted appellant who said he was urinating. No other person witnessed defendant’s conduct. The court of appeals found this evidence insufficient to establish that defendant was “reckless about whether another is present who will be offended or alarmed by his act” because he took measures to conceal his activity and to do it in a secluded area.

Holding. Defendant’s conduct was risky. He masturbated in a public park in Houston. The parking lot was “open and visible to passing road traffic, bicyclists, pedestrians, anyone using the public restroom facilities or picnic tables immediately nearby.” The court of appeals analogized defendant’s conduct to the non-reckless conduct of performing a sexual act after driving deep into the woods. Hines v. State, 906 S.W.2d 518 (Tex. Crim. App. 1995). But, it is more appropriately analogized to the reckless conduct of masturbating in a dressing-room where a three-or-four inch gap in the curtain. McGee v. State, 804 S.W.2d 546 (Tex. App.—Houston [14th Dist.] 1991). There is no ordinary standard of care for masturbating in a public park. 

Comment.  I don’t know what to do with this knowledge.

1st District Houston

State of Texas v. Zena Collins Stephens, No. 01-19-00209-CR (Tex. App.—Houston [1st Dist.] Oct. 6, 2020)

Issue. Does the authority of the Attorney General to prosecute “election laws” extend to prosecution of laws outside of the Election Code? Does the statute which grants the Attorney General authority to prosecute election laws violate the Texas Constitution’s Separation of Powers?

Facts. The original opinion in this case was issued in July—the First Court of Appeals reversed the trial court’s motion to quash the indictment with dissenting opinion by Justice Goodman. This month the First Court of Appeals rejected a request for en banc rehearing triggering another dissenting opinion by Justice Goodman. The original opinion involved prosecution of Jefferson County Sheriff Zena Stephens by the Texas Attorney General. The attorney general alleges that the sheriff tampered with a governmental record and to accepted a cash contribution in excess of $100. The sheriff purportedly accepted a $1,000 cash donation and a $5,000 cash donation, then filed a campaign finance report indicating a $5,000 cash contribution in the section of the standard report designated for political contributions of $50 or less. Stephens filed a motion to quash the Penal Code prosecution (tampering with government record) challenging the attorney general’s authority to prosecute non-election code violations under the statute. The sheriff also challenged the constitutionality of the attorney general’s authority under Texas Constitution’s separation of powers—he belonging to the executive branch and the authority to prosecute to the judicial.

Holding. No—the phrase “election laws” doesn’t mean the laws in the Election Code. It means anything that references elections in any way. “Election records” are specifically mentioned by the tampering statute. This makes tampering with a governmental record an election law. No—the Texas Constitution provides the attorney general with “other authorities prescribed by law.” The fact that the offices of district and county attorneys—offices under the judicial branch—are given the authority to “prosecute the pleas of the state in criminal cases” is immaterial.

Dissent (Goodman, J.) The phrase “perform other duties prescribed by law” cited by the majority is actually a sentence containing a list of attorney general powers “[h]e shall . . . seek judicial forfeiture of [corporate charters] . . . give legal advice in writing . . . perform such other duties as may be required by law..” The cannon of statutory construction “ejusdem generis” requires courts to interpret general words in a list to be of the same kind, class, or nature. The majority instead interprets “perform such other duties” clause in isolation. The founders of the 1876 Texas Constitution deliberately separated judicial/prosecutorial authority from the executive branch in response to “despotic control wielded by the Reconstruction governor.” Justice Goodman again dissents to the rejection of en banc review.

Comment. A Scalia-esque dissent from a Democratic justice. Justice Goodman writes an opinion that may gain traction. Sheriff Stephens has moved for an extension of time to file a petition for discretionary review. 

Lynch v. State, No. 01-17-00668-CR (Tex. App.—Houston [1st Dist.] Oct. 13, 2020)

Issue. Under Texas Rule of Evidence 404(b)(permissible uses of prior crimes and bad acts) may the state introduce mere pen packets as probative of defendant’s criminal intent without supporting testimony or context?

Facts. Defendant was charged with possession with intent to deliver 4-200g of cocaine. At trial, an officer testified to the execution of a search warrant at the defendant’s home where officers discovered 7g of cocaine, baggies, and a knife. The officer testified that he encountered four occupants inside the house, including the defendant and his girlfriend. The girlfriend told officers that the cocaine belonged to her. Officers informed girlfriend that claiming the drugs would not prevent charges against the defendant, so she withdrew her confession. At trial, the girlfriend testified that the cocaine was hers, the defendant would not have approved of her cocaine use, and that officers intimidated her into withdrawing her previous confession. The trial court allowed the State to introduce two prior convictions of possession with intent to deliver to rebut defense testimony which showed a lack of criminal intent. Defendant raised several objections, but importantly: a 403 objection that the probative value was significantly outweighed by unfair prejudice.

Holding. No. While 404(b) permits the use of prior convictions to prove criminal intent, there must be some evidence showing similar circumstances between the prior and the instant offense. Mere evidence that the offenses are the “same type of crime” is not enough. Ford v. State, 484 S.W.2d 727, 730 (Tex. Crim. App. 1972). These pen packets merely showed that the defendant intended to deliver cocaine in the instant case because he was a person who committed the crime before. This offers not only low probative value, it is also impermissible as probative evidence under Texas Rule of Evidence 404(b). Accordingly, the unfair prejudice—that the jury will “draw an impermissible character conformity inference” outweighs. See Gigilioblanco v. State, 210 S.W.3d 637 (403 analysis requires consideration of factors: (1) tendency to suggest decision on improper basis, (2) tendency to confuse or distract, (3) tendency to be given undue weight, and (4) potential for undue delay in presentation).

Comment. Appellate lawyer note: this case also had a citation to the United States Supreme Court on harm analysis which I haven’t seen before. It contained language which I will likely cite to in the future. “The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error.” Kotteakos v. United States, 328 U.S. 750, 765 (1946). 74 years late to the ballgame, but better late than never.

Enns v. State, No. 01-19-00234-CR (Tex. App.—Houston [1st Dist.] Oct. 15, 2020)

Issues. Is an accusation by an unnamed informant alleging drug distribution occurring at a specific location sufficiently corroborated by observations of men departing the location in a vehicle and driving around for no apparent reason on multiple occasions, then ultimately loading packages into the trunk and leaving? Is pulling onto the shoulder when an officer approaches quickly from the rear a violation of the Transportation Code which permits driving on the shoulder to allow a faster vehicle to pass? Is a defendant’s testimony that another person pulled out a gun and demanded he commit a crime sufficient to invoke a necessity instruction?

Facts. A confidential informant provided information about an anticipated large drug shipment. The informant indicated that the shipment would stop at distribution point—a home in Waller County—and would depart for Miami and Chicago. Law enforcement conducted ground and helicopter surveillance. Helicopter officers described the premises, the behavior of two men repeatedly entering and exiting a shed, and several “heat runs” (suspects driving around to see if they are being followed) in a white Crown Victoria with dark tints. When the ground surveillance officer learned the suspects loaded the vehicle with packages and left, he relayed information to a standby officer. The standby officer conducted a traffic stop based on the previous surveillance and because the vehicle crossed the “fog line” without apparent cause. During the stop, the standby officer located 2.4 kilograms of methamphetamine in a secret trunk compartment. The defendant challenged the reasonable suspicion for the traffic stop and argued against the purported traffic infraction and sufficiency of the confidential informant tip. He also testified at trial that the other individual in the vehicle pulled out a gun and threatened to kill him if he did not help deliver the drugs.

Holding. Yes. The conduct of the defendant on the suspected property sufficiently corroborated the informant’s tip. It is not necessary to establish informant reliability when the behavior observed is corroborative of the informant tip. Yes. Although there was an indication that defendant might have been pulling onto the shoulder to allow the officer to pass, there were some indications that the officer was not trying to pass (no blinker, not coming particularly close to defendant’s vehicle). Officers don’t have to prove the traffic violation, merely show reasonable suspicion that one occurred. No. Necessity is a confession and avoidance defense. As such, the defendant must admit every element of the offense, and then offer some evidence that he committed the offense to avoid a greater harm. Here defendant admitted all of the alleged conduct, but stated it was not his intention to deliver the methamphetamine. This is an insufficient confession to raise a confession and avoidance defense.

Concurrence (Goodman, J.) While the corroborated informant information is sufficient reasonable suspicion to detain, the purported traffic infraction was not. It was incumbent on the State to show that pulling onto the shoulder was not done for a permissible purpose, and the majority speculates without evidence.

Comment. This opinion on confession and avoidance moves in the opposite direction of a trend by the Court of Criminal Appeals to either eliminate the confession and avoidance doctrine or at least construe evidence liberally in satisfaction. See Ebicam v. State, No. PD-1199-18 at *2 (Tex. Crim. App. 2020). The First Court’s opinion seems to be in near direct contradiction with Juarez v. State, where the Court of Criminal Appeals indicates that evidence establishing the confession and avoidance can come from any source. In Juaraz despite the defendant denying that he acted intentionally, he admitted conduct from which a juror conclude he acted intentionally. 308 S.W.3d 398 (Tex. Crim. App. 2010).

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

Ex Parte Ferris, No. 05-19-00835 (Tex. App. Dallas, Oct. 2, 2020)(en banc)

Issue. A person otherwise eligible for expunction shall be denied when the otherwise eligible offense arose out of the “same criminal episode” as another ineligible offense (i.e. all cases in same criminal episode must be expunction-eligible). Does the definition of “same criminal episode” and its inclusion of the phrase “the repeated commission of the same or similar offenses” require denial of an expunction when a person gets two DWIs 3 years apart and is acquitted of one of them but not the other?

Facts. Petitioner was convicted of DWI in 2015 and served 20 days in jail. Subsequently in 2018 Petitioner was arrested for DWI and was acquitted of that charge in 2019. Petitioner filed a petition for expunction upon his 2018 acquittal. The district attorney agreed to eligibility and the trial court entered an agreed order of expunction. After the order of expunction was signed the Texas Department of Public Safety filed a motion for new trial arguing that the 2018 arrest is ineligible because it was part of the same criminal episode as the 2014 DWI arrest. The trial court rejected this argument:

All right. You’re going to have to help me out here, Ms. Sicola. I’ve worked in the criminal justice system for 35 years as a prosecutor and as a judge. I’m board certified in criminal law, just so you know who you’re talking to. I have never encountered this situation before. Okay? I’ve had, in my career as a prosecutor, guys who drove up and down the highway robbing people on both sides of the highway. Some on the same day. Some, like, the day after. I’ve prosecuted more sex offenders for multiple offenses against the same victim as I can count. I’ve presided over those cases. I’ve never seen a case where, after the first case is disposed of via a plea and the second crime occurs after the first case is disposed of, that that is described or included within the phrase “criminal episode.”

DPS appealed. The decision was affirmed by a panel of the Fifth Court of Appeals. DPS requested the instant en banc review.

Holding. No. Two DWIs occurring years apart are not part of the “same criminal episode” as defined by Texas Penal Code § 3.01. A contrary interpretation “removes analysis of the statute from a ‘cohesive, contextual whole.’” Chapter 3 addresses multiple prosecutions: when offenses may be consolidated, when they may be severed, guidelines for concurrent and consecutive sentencing.  The 2014 DWI arrest has been adjudicated, its sentenced severed, the limitations period expired. The 2014 arrest would be ineligible for “same criminal episode” treatment under any provision of Chapter 3—the two offenses share no common facts, are impossible to prosecute under joinder, cannot share concurrent sentencing. The First District Court of Appeals contrary conclusion under similar facts is wrong.

Dissent (Evans, J.). Section 3.01’s definition of same criminal episode, in particular “the repeated commission of the same or similar offenses” should be read as stated without reference to the statutory context. The concept of same criminal episode is unconstrained by the timing of things. An acquitted person is not necessarily innocent and the legislature apparently deemed them not deserving if they have been previously convicted. Now citizens of six Texas counties will get expunctions that those in 248 others do not receive.

Comment. Historically, in the context of expunctions, courts have favored the bureaucratic concerns of DPS over the rights (or privileges) granted by Article 55 of the Code of Criminal Procedure. This strong rejection of the bureaucratic interpretation bucks this trend 12-1. Nearly every case on expunction law pays homage to a notion that the expunction statute is designed to protect wrongfully accused people. Is it, though? Expunctions are available to people who plead guilty to Class C offenses and receive deferred adjudication, who admit guilt and complete a veterans treatment program, who admit guilt and complete a mental health court program, who admit guilt and complete a pretrial diversion program.

Keaton v. State, No. 05-19-01369 (Tex. App.—Dallas, Oct. 9, 2020)

Issue. When a defendant makes an unconditional threat in the context of a series of conditional threats, and ultimately does commit an assault against a peace officer is evidence sufficient to support a conviction for retaliation by threat (against a peace officer)

Facts. Defendant was arrested for public intoxication. The arrest turned physical—the defendant was taken to the ground. During this, the defendant lobbed verbal insults and challenged the arresting officer to a fight making comments such as “I’d fucking throw you off me if you weren’t a cop” and “[t]ake that badge off, and then let’s fucking fight.” The conditional language escalated to unconditional with the statement “I’ll beat your fucking teeth in.” Then the defendant then kicked the officer in the wrist.

Holding. Yes. Although there were several conditional threats indicating that the defendant wanted to fight the officer only if the officer stepped outside of his role as a peace officer, the situation escalated, the defendant changed his threats from conditional to unconditional and ultimately did commit an assault.

Harrell v. State, No. 05-19-00760 (Tex. App.—Dallas, Oct. 12, 2020)

Issue. Does the admission of autopsy findings and report through a surrogate medical examiner who did not perform the autopsy violate of the Confrontation Clause?

Facts. Defendant was convicted of murder with considerable supporting evidence, including numerous stories provided by the defendant ranging from tangential involvement in the murder to mere presence during the murder and most involving him concealing the body after the murder. The medical examiner who performed the autopsy was unavailable. A medical examiner who did not perform the autopsy testified at trial that the victim suffered two gunshot wounds and multiple skull fractures from blunt-force trauma and that the death was a homicide.

Holding. Yes, but not reversible here. While autopsy findings are testimonial and their admission through a surrogate medical examiner typically violates the Confrontation Clause, when a medical examiner conducts an independent review of another’s findings and renders independent conclusions, there is no Confrontation Clause violation. The admission of the autopsy report was a violation of the Confrontation Clause but was harmless considering the weight of evidence proving the same conclusion.

Comment. This thing was over when the defendant was found driving the victim’s truck, loaded with the victim’s belongings, in possession of the victim’s ID, the victim’s insurance card, the victim’s social security card, the victim’s credit and debit cards, and the victim’s cell phone, and the murder weapon. He also gave four different stories about his involvement in the victim’s death—most of them ending with covering the body with a shower curtain and concealing it. Under different facts the Confrontation Clause issue raised here could have resulted in a reversal as could have the lesser Brady issue raised (resolved against the defendant for similar reasons as the Confrontation Clause argument).

Consuelo v. State, No. 05-19-01385-CR (Tex. App.—Dallas, Oct. 27, 2020)

Issue. Under HIPAA, is an expectation of privacy violated when medical personnel disclose blood alcohol content to law enforcement so they may obtain a warrant or grand jury subpoena?

Facts. Defendant was involved in a motor vehicle accident, the people in the car he hit were injured and defendant was rendered unconscious. Defendant was taken to the hospital and through receiving medical care, his blood was drawn. Hospital personnel disclosed to officers that an analysis of that blood revealed lots of drugs. Law enforcement obtained a warrant for defendant’s blood and used this revelation by hospital personnel as the only evidence of intoxication. The State later acquired defendant’s medical records via grand jury subpoena. Defendant filed a motion to suppress the blood testing results arguing that the hospital personnel violated HIPAA and that the grand jury subpoena was tainted by the wrongful HIPAA disclosure.

Holding. No. HIPAA specifically permits a disclosure to alert law enforcement to evidence of the commission and nature of a crime, and specifically permits disclosure via grand jury subpoena.

Comment. 2020 will be remembered by all as the year of hospital blood evidence (kidding). Last month we looked Crider v. State discussing when the law must authorize both the acquisition of blood from the hospital and the subsequent testing. 607 S.W.3d 305 (Tex. Crim. App. 2020). When the blood is in the possession of the hospital there are two discrete expectations of privacy vis-à-vis the government: that the government not take the blood from the hospital absent a warrant, and that the government not test that blood absent a warrant. But when hospital personnel learn about the blood alcohol content and choose to disclose that information voluntarily or via grand jury subpoena, such disclosure is authorized by HIPAA and therefore no reasonable person receiving medical treatment would expect confidentiality. In these complicated scenarios, I try to analogize searches and expectations of privacy to things that happen in a home – there is no expectation that a house guest keep the drugs they discovered in your home private, but there is an expectation that the police not come in un-invited without a warrant and discover it for themselves.

6th District Texarkana

Johnson v. State, No. 06-19-00222-CR (Tex. Crim. App.—Texarkana, Oct. 8, 2020)(not designated for publication)

Issue. In a prosecution for aggravated sexual assault of a child, is the probative value of cell phone extracted data containing hundreds of images and search results for pornographic websites depicting young looking adult children or adults who look young but who are not underage substantially outweighed by unfair prejudice?

Facts. Defendant is accused of aggravated sexual assault of a young child. In addition to the testimony of the child-victim and her siblings, the trial court admitted cell phone extraction data of 500 pornographic images and a web search history that contained 400 search results for pornographic websites. The detective testified that some of the images appeared to be “very young looking adult children,” but no underage children. The State argued the cell phone evidence “showed defendants predilection for younger looking girls and pornography” and to corroborate the victim’s testimony that the defendant showed her videos of people “humping” on his phone. 

Holding. Yes. The evidence—all of which was adult pornography—was inflammatory and nearly irrelevant to the issues the jury needed to decide. The court considered the Gigliobianco factors when determining error under Tex. R. Evid. 403: (1) probative force of evidence, (2) proponent’s need, (3) tendency to suggest decision on improper basis, (4) tendency to confuse or distract, (5) tendency for undue weight, (6) likelihood presentation of evidence will consume undue time. Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006). The State’s alleged predilection for younger looking girls is mere character conformity evidence prohibited by Tex. R. Evid. 404(a)(1). The probative value in corroborating what the victim claims to have seen on defendant’s phone is low—there was no evidence to suggest any of these images were on the defendant’s phone when she claimed to have viewed it. The websites all involve adult pornography—all depict post-pubescent women. Even if the images resembled teenagers, none involved young children like the alleged victim. The images and websites had little probative value to show that the sexual assaults occurred. The State’s need was slight, the tendency to suggest decision on improper basis or distract the jury significant.

Comment. I hate when the touchstone case in a particular area is difficult to spell and pronounce. Gigliobianco.

Laws v. State, No. 06-19-00221-CR (Tex. App.—Texarkana, Oct. 14, 2020)

Issue. When a defendant makes a speaking objection (failing to state a rule) expressing his concerns about the trial court ordering an alternate juror to observe deliberations, has the defendant sufficiently preserved an issue under Texas Code of Criminal Procedure article 36.22 (“No person shall be permitted to be with the jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.”)? Can the trial court reverse on speculative harm?

Facts. Trial counsel objected to the presence of the alternate juror during deliberations. Counsel stated “I think there’s just too much of a risk and the danger for them to bring input. We can’t police that.” Counsel stated “I think we need to do like we always do and ask them to maybe go downstairs and wait in the room. Counsel reiterated “[b]ut I just think the danger of possible abuse of that is just too—it’s too high, Judge, and I am going to object to that.” The trial court ordered the alternate juror to sit inside the jury room with fellow jurors and to watch them deliberate while he sits in silence. The trial court ordered the other jurors to disregard any comment, statement or opinion by the alternate juror. 

Holding. No. Defendant did not cite “Texas Code of Criminal Procedure article 36.22” so the issue is not preserved. No. The defendant did not brief or show any harm and the court will not reverse harmless error.

Dissent (Burgess, J.). A party need not employ magic words to preserve an issue for appellate review—it is sufficient that he made the trial court aware of the grounds for the complaint. When Article 36.22 is violated, a rebuttable presumption of injury to the defendant arises and the defendant does not have to show harm on appeal – the State has to rebut it. This rationale is explained in the defendant’s brief he would “have no way of knowing what harm may come from such a violation.”

Comment. Usually the difference between majority and dissenting opinions are matters of interpretation. Here, the majority quickly dispatches an issue in a single page which the dissent spends 12 pages discussing. The “no magic words required” doctrine is the most inconsistently applied rule on appellate review, and the dissent makes a good point—why does the appellant have to brief harm if it is presumed?

7th District Amarillo

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

8th District El Paso

State v. Morales-Guerrero, No. 08-19-00185-CR (Tex. App.—El Paso, Oct. 7, 2020)

Issue. When law enforcement provides a custodial interrogation warning that the defendant has the right to remain silent, but omits “and not make any statement at all” must the trial court suppress the defendant’s statements because that specific language is mandated by Texas Code of Criminal Procedure Article 38.22?

Facts. Defendant was charged with continuous sexual abuse of a child. The trial court suppressed the defendant’s statements to law enforcement for failing to substantially comply with Article 38.22 (Texas statutory Miranda warnings). Specifically, the trial court found that law enforcement failed to inform the defendant that he had the right to “not give any statement at all” and that the warnings law enforcement did provide were not the fully effective equivalent: that the defendant has the right to remain silent and that the defendant can decide “from this moment on” to terminate the interview.

Holding. No. Warnings that are the fully effective equivalent of the explicit warnings contained in Article 38.22 are sufficient. A fully effective equivalent warning is one that does not dilute the meaning of the Article 38.22 warnings. “You have the right to remain silent” is a fully effective equivalent to “you have the right to remain silent and not make any statement at all.” The warnings given to the defendant were the full functional equivalent of the Article 38.22 warnings.

Comment. “Remain silent” and “not say anything at all” have the same meaning. But statutory interpretation demands no such redundancy. The Court finds additional meaning in “not make any statement” by distinguishing oral statements from written or sign language statements, the latter being statements made while remaining silent. Thus, in the context of an oral statement, the omission here did not dilute the warning.

Ripley v. State, No. 08-19-00040 (Tex. App.—El Paso, Oct. 16, 2020)

Issue. Does the State’s post-trial disclosure of investigator notes taken during an interview of a victim’s friend require the granting of a new trial when those notes portray an initial victim outcry of sexual abuse as occurring several years before what the victim stated in the trial?

Facts. Defendant’s 5-year-old stepsister informed her mother that defendant had touched her inappropriately and had been doing so for years. This culminated in a trial where counsel raised the implication that the parents of the child manipulated her into an outcry to use as leverage in obtaining a share of a personal injury settlement award belonging to the defendant. There was some inconsistency at trial about the date of the initial outcry. After trial, the State disclosed handwritten notes taken by an investigator during an interview of the victim’s friend. According to the interview notes, the friend indicated that the victim told her mother about the abuse when she was 10 years old, not 13 (as portrayed at trial).

Holding. No. At least not under these facts. The evidence – a suggestion that the outcry occurred several years prior to the date portrayed at trial—ran contrary to the defendant’s theme at trial. The defendant suffered an oilfield injury in 2011 and, as goes the defendant’s theory, in 2014 the parents coached an outcry to get a part of the settlement. The friend’s statement would discredit this theory with an outcry which predated the oilfield incident. The evidence failed to satisfy the second prong of Brady: that the undisclosed evidence be favorable to the defendant.

Comment. Trial strategy changes with the hands we are dealt in discovery and investigation of a case. This doesn’t sound like a case where the defense presented evidence to prove a theory, but rather posed an issue for the jury to consider when performing the task of considering reasonable doubt. Is it conceivable that, with the benefit of this new evidence, counsel would have pursued a different theory of showing why the accusation is false? This case highlights another important distinction: Brady blameworthiness. The failure to disclose here was purely accidental, but as the Court notes “the lynchpin of a Brady violation is the State’s failure to disclose favorable material evidence ‘regardless of the prosecution’s good or bad faith.’” Webb v. State, 232 S.W.3d 109 (Tex. Crim. App. 2007).

9th District Beaumont

Swansey v. State, No. 09-18-00342-CR (Tex. App.—Beaumont, Oct. 14, 2020)(not designated for publication)

Issue. Is punishment evidence in the form of recorded jail conversations substantially more prejudicial than probative (under Tex. Rule Evid. 403) where those recordings demonstrate the defendant’s thought process on rejecting a plea offer?

Facts. Defendant was angry at his ex-girlfriend. He drove to her house and shot at her, her new boyfriend, children standing in front of the house and a police officer. He drove away and a random motorist chased him; he also shot at her, too. In the punishment phase of trial, the State introduced recorded jail phone calls where the defendant discussed: (1) his feelings that punishment should not be more severe when the victim is a police officer, (2) his thought process on rejecting a 50 or 60 year sentence including a discussion about what sentences other inmates were receiving, (3) his frustration with his lawyer, (4) his views about homosexuals and in particular his cell-mate.

Holding. Yes. While the defendant’s views on the value of police officer lives was relevant to punishment and not unfairly prejudicial, the remaining conversations were inadmissible. The trial court can admit in punishment “any matter the court deems relevant to sentencing.” Though this is a low threshold, the evidence must still meet the test for relevance. The Court of Criminal Appeals has made clear that the value in conversations about plea bargains are “at best minimal.” The defendant’s discussion about the sentences of other inmates may have impacted the jury’s fair consideration of the full range of punishment. The defendant’s statements about rejecting a plea offer could have served to anger jurors and created a feeling that their forced service was unnecessary. The defendant’s feelings about homosexuals were similarly not probative of any matter relevant to punishment.

Comment. We practitioners like simple rules, like “if it’s punishment it’s coming in.” Though this is an unpublished case, it is useful as an example which pushes back against perhaps an overly-cynical view of punishment evidence admissibility. 

10th District Waco

Aguirre v. State, No. 10-19-00286-CR (Tex. App.—Waco, Oct. 28, 2020)

Issue. Can a defendant use Texas Code of Criminal Procedure Article 38.23 (Texas exclusionary rule) to suppress evidence of his resisting arrest?

Facts. Defendant and a friend were standing by a pickup truck and drinking. There were beer cans on the ground next to them. Officers responding to an emergency saw the two standing and saw the defendant suspiciously lower his arm and drop something. One of the officers stopped and attempted to arrest defendant and his friend for public intoxication. While the officer was trying to zip-tie defendant’s hands behind his back, defendant pulled his arm away, was taken to the ground, then kept his arms under his body to avoid being placed in restraints. Defendant argued in a jury trial that he was on private property and therefore his arrest for public intoxication was illegal. He requested the trial court to instruct the jury on suppression pursuant to Article 38.23 (juries can suppress evidence if the issue is resolved by deciding disputed versions of facts).

Holding. No. Suppression of evidence under Article 38.23 envisions suppression of evidence that existed prior to the police encounter. Evidence that a person resisted arrest is evidence that comes into existence contemporaneously with the officer’s attempt to arrest. The police, in effecting an arrest, cannot be motivated by the acquisition of evidence of the crime “resisting arrest.” Without such improper motivation, there is no exploitation to be remedied by the judicial system.

Comment. The purpose of the exclusionary rule is to deter unlawful police conduct. United States v. Leon, 468 U.S. 897 (1984). All constitutional violations are unlawful police conduct. A subset of police constitutional violations are exploitative in nature (as opposed to erroneous or accidental conduct). A focus on whether the police conduct was exploitative seems to miss the mark. The stronger point of law—which reaches the same result—is that suppression is not warranted when the deterrent effect is outweighed by societal cost. The Court of Criminal Appeals has already addressed the societal costs associated with permitting those suspected of crimes to decide for themselves when their arrest is unlawful – such rule “presents too great a threat to the safety of individuals and society.” Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

11th District Eastland

Denny v. State, No. 11-18-00270-CR (Tex. App.—Eastland, Oct. 30, 2020)

Issue. When everyone knows that a digital photo is already in the custody of the police, does the deletion of a duplicate of that photo on a cell phone constitute tampering with evidence (by concealment)? Does it constitute attempted tampering with evidence?

Facts. Defendant was a program director at the Abilene CPS office. A child in Abilene died from what appeared to be chemical burns. Two siblings who sustained similar injuries were taken to the hospital by a CPS investigator. Simultaneously, a police detective provided a CPS supervisor at the Abilene office a picture of the deceased child. At the hospital, with the injured children, the CPS investigator informed a nurse that there was a picture of the injuries sustained by the deceased child. The nurse requested the picture from the investigator, the investigator requested the picture from the supervisor, the supervisor requested permission to send from the defendant. Defendant instructed the supervisor to not send the picture and to instead destroy it. The supervisor complied. Defendant was charged by indictment alleging that she knowingly concealed the photograph by directing CPS personnel to refuse to provide the photograph with intent to impair its availability in an investigation.

Holding. No. You can’t conceal something from the police that they can see. The State argues that intent to impair the availability of the photo is sufficient evidence, but the Court of Criminal Appeals rejected this argument in Stahmann v. State, 602 S.W.3d 573 (Tex. Crim. App. 2020). No. You can’t attempt to conceal something you know the police already can see. In Stahman the Court of Criminal Appeals reformed the judgment to criminal attempt because that defendant threw a pill bottle out of a car window, hoping the police would not see, and hoping he would avoid possession charges. Criminal attempt requires a defendant to do an act more than mere preparation that tends but fails to effect the commission of the crime. Without the intent to conceal, there can be no attempted tampering. Here, the defendant knew the police already had the photograph, therefore the defendant could not have acted with intent to conceal.

Comment. So now we have a case that says you can’t conceal something that is visible.

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

Abbott v. State, No. 14-18-00685-CR (Tex. App.—Houston [14th Dist.] Oct. 8, 2020)

Issue. Does the trial court abandon its neutral and detached role by personally interlineating an indictment at the suggestion of the parties? Is counsel ineffective for failing to take advantage of a fatal defect in the indictment by proceeding to trial?

Facts. During an open plea colloquy (no agreement on punishment – trial court will sentence), counsel informed the trial court that the indictment alleged that the defendant possessed methamphetamine but that the lab report showed cocaine. The State concurred and requested an amendment. The State provided the trial court with an interlineated photocopy. The trial court expressed hesitation that the law required interlineation on the original. The trial court amended by interlineating the original. After the open plea hearing, the trial court sentenced the defendant to 48 years.

Holding. No. Texas Code of Criminal Procedure article 28.11 provides that “all amendments of an indictment or information shall be made with the leave of court and under its direction.” The Code does not provide whether the trial court may personally make such amendment but sister courts have found no harm in this method. An amendment may be by interlineation on the original or photocopied original, the trial court’s interlineation was appropriate. No. At least not here with an insufficient record showing what the strategy of counsel was in bringing the fatal variance to everyone’s attention. Conduct which is calculated to earn favor with the fact finder could have been a legitimate strategy of counsel.

Comment. Putting all the eggs in the “they won’t find the fatal variance before trial starts” basket is risky. If you reject the State’s offer to waive jury trial and proceed to open plea just to take advantage of a mistake at trial, the open-plea offer may be gone forever. Keep in mind that the State may amend an indictment “at any time before the date the trial on the merits commences.” Texas Code of Criminal Procedure art. 28.10. 

Abrego v. State, No. 14-18-01010-CR (Tex. App.—Houston [14th Dist.] Oct. 8, 2020)

Issue. Must the record affirmatively reflect that the trial court admonished the defendant regarding his waiver of trial rights? Must a conviction be reversed when the trial court fails to admonish the defendant on his obligation to register as a sex offender?

Facts. This case was a slow plea. (plea of guilty before the jury followed by jury punishment). The record begins with the trial court addressing the jury prior to voir dire. The statements by the trial court and counsel appear to reflect an understanding that was reached before the record began. When the defendant was formally arraigned on the record, the trial court never admonished the defendant regarding his waiver of a right to jury trial, confrontation of witnesses, and self-incrimination rights. Nor did the trial court admonish the defendant that he would be subject to registration as a sex offender as required by Texas Code of Criminal Procedure article 26.13. The defendant argued that his lack of admonishment regarding his trial rights rendered his plea involuntary. The defendant argued his lack of admonishment as to sex offender consequences required reversal on statutory grounds.

Holding. No. While a waiver of trial rights cannot be presumed from silence, the defendant’s understanding can be presumed from what is “spread on the record.” Boykin v. Alabama, 395 U.S. 238 (1969). Here the defendant’s guilty plea appears adequately informed—the State had DNA evidence linking him to a sexual assault of a 16-year-old for which he had no defense other than to mitigate his punishment. Conversations with the venire about the rights the defendant would have had if he plead not guilty also demonstrate an adequate understanding and voluntariness by the defendant. No. the trial court’s failure to admonish on sex offender registration is not reversible error. Article 26.13 specifically provides that failure to comply with the sex offender admonishment requirement is not grounds for reversal.

Comment. I can see where the defendant is going with the sex-offender admonishment arguments. The statute reads literally: “The court must substantially comply with Subsection (a)(5). The failure of the court to comply with Subsection (a)(5) is not a ground for the defendant to set aside the conviction, sentence, or plea. One could say that the legislature appears to create three levels of compliance: insubstantial, substantial, and complete where anything less than substantial compliance is reversible. This interpretation hasn’t been adopted by any court – instead the duty to inform a defendant about sex offender registration is 100% unenforceable.

Blacklock v. State, No. 14-19-00307-CR (Tex. App.—Houston [14th Dist.] Oct. 22, 2020)

Issue. When the State is responsible for 15 years of delay, is the defendant entitled to impeach a complaining witness using convictions that are remote in time (more than 10 years old at the time of trial)?

Facts. Defendant was prosecuted for an aggravated sexual assault which occurred in 2005. Due to DNA backlog, the State did not prosecute the defendant until 15 years after the alleged incident occurred. Details of the assault were presented through witness testimony and reports taken from the victim at the time of the offense. The evidence establishing the identity of the defendant was limited to a 15-year-old mixed DNA sample. At trial, the complaining witness admitted several prior criminal offenses, but defendant wanted to impeach the complaining witness with two theft convictions from 2002, a prostitution conviction from 2004, and another prostitution conviction from 2005. The trial court applied a standard for admission for remote-in-time convictions where ten years have elapsed from the date of conviction and ruled that the prior convictions were not more probative than prejudicial and thus inadmissible.

Holding. No. At least not here. Under Texas Rule of Evidence 609, convictions that are older than 10 years are admissible when their probative value substantially outweigh their prejudicial effect. The factors for consideration are: (1) impeachment value, (2) temporal proximity of conviction to testimony date, (3) similarity of past crime to conduct at issue, (4) importance of witness’s testimony, and (5) importance of the credibility issue. While the impeachment value of theft and prostitution convictions are high, they were fairly duplicative of other convictions already admitted. Their remoteness also would have done little to inform the jury about the present veracity of the witness. The fact that she was a prostitute was adequately established and further evidence would have unfairly focused the jury’s attention on her pattern of past conduct.

Dissent (Poissant, J.) Defendant presented a sufficiency of evidence challenge rejected by the majority. The dissent would reverse on evidence insufficient to establish the greater offense of aggravated sexual assault. The forensic examiner found no injuries and the victim described no aggravated conduct.

Comment. Had the state not caused 15 years of delay in prosecution, the prior convictions would have been admissible. It seems there may have been a legitimate speedy trial issue here.

In re Ogg, No. 14-20-00451-CR (Tex. App.—Houston [14th Dist.] Oct. 27, 2020

Issue. During the COVID-19 pandemic and pursuant to the Supreme Court emergency orders permitting trial court suspension of statutory procedures, may a trial court proceed to a bench trial over the State’s objection in contravention of State’s authority to demand a jury trial under Texas Code of Criminal Procedure article 1.13?

Facts. Kim Ogg is the Harris County District Attorney. Ogg filed petitions for writs of mandamus and prohibition challenging a Harris County court at law judge’s authority to conduct a bench trial without the consent and waiver of jury trial by the State. The defendant had moved for speedy trial on his misdemeanor charges following removal from a pretrial intervention (or pretrial diversion) program. The defendant requested a trial before the court (bench trial) because jury trial was prohibited under the current orders of the Texas Supreme Court regulating court proceedings during the COVID-19 pandemic. In his request for a bench trial, the defendant requested the trial court waive the requirements of Texas Code of Criminal Procedure article 1.13 – a provision securing the State’s authority to demand a jury trial.

Holding. Yes. The Supreme Court’s COVID-19 emergency orders that “subject to constitutional provisions” a trial court may “modify or suspend all deadlines and procedures, whether prescribed by statute, rule, or order.” The State has no constitutional right to a jury trial – the authority to demand one is merely statutory and thus subject to the Supreme Court order permitting trial court modification. This remains true notwithstanding the State’s arguments that the trial court action ran contrary to the statutory emergency authorities granted to the Supreme Court—namely that the legislature intended emergency powers to suspend procedural but not substantive law.

Comment.  The TDCAA summary comment on the same case expresses concern over the slippery slope and “what other statutes can be suspended during the pandemic.” Interestingly their concern was missing when the Governor suspended habeas corpus and statutory rights of criminal defendants. Indeed, prosecutors statewide have made the exact same arguments as the defense in the present case in a widely-circulated motion demanding the suspension of Article 17.151 deadlines to permit indefinite pretrial confinement of arrestees. Geese and gander.

Requiem for a Titan

Scrappy. What a perfect name for a lawyer!  And it was so fitting.  But it wasn’t a moniker that he “chose” as many of our brethren and sisters now do to enhance their marketability. Scrappy was ascribed to Clifton L. Holmes, before he ever drew his first breath.  His aunt, upon seeing how active he was in his mother Edith’s belly started calling him Scrappy, and the name just stuck.  I don’t imagine that the aunt realized how prescient she was when she bestowed that nickname upon him.

Scrappy was born in the Piney Woods of East Texas in Kilgore on February 17, 1939.  His dad, Clyde, worked for six or seven decades in the oilfields – over fifty of those years with the same company.  And Clyde bestowed in Scrappy a work ethic which he carried all his life.  Scrappy certainly never forgot where he came from.  I will always remember him talking about his roots.  He would occasionally tell me about his Cherokee lineage and how when his grandmother died, she had to be buried outside of the community cemetery fence because she was an Indian, labeled a heathen.  When he would stand in front of juries and talk about not judging someone until you walked a mile in their shoes, Scrappy would tell it with a twist – talking to them about his little Cherokee grandmother and then telling the jury how she would always tell him not to judge people until he had walked a mile in their moccasins.  Might sound a little corny at first blush, but I knew he was talking from his heart. So did the jurors, and they ate it up.

Scrappy managed to get out of Kilgore, out of the oil patch, and while supporting his own fledgling family, he worked his way through both college and eventually law school, graduating cum laude from George Washington University National Law Center in 1966.  He then came home to Texas and started what would become a legendary career.

And what a career it was!  He was named the Texas Outstanding Criminal Defense Lawyer in 1992 and 1996 by the Criminal Justice Section of The Texas Bar.  He was officially designated a “Texas Hero” by a proclamation issued by the Texas Secretary of State in 1992.  Perennially tabbed as a Super Lawyer.  He was named by Texas Lawyer as one of the “Top Five Go-To Lawyers in Texas” in 2002 and 2007.  He was enshrined by TCDLA in the Texas Criminal Defense Lawyer Hall of Fame in 2007.

Absolutely one of the best lawyers I have ever seen communicate with the jury, one might argue about his place in the pantheon of Texas criminal lawyers, but there is no doubt that he belongs there.  And Lord knows that the best in the nation come from The Lone Star State.    Best of his generation?  Best ever?  I don’t know.  But I am certain that Scrappy deserves to be mentioned among them.  I am reminded of what Bum Phillips once said when he was asked if Earl Campbell was in a class by himself, Phillips responded “I don’t know if he’s in a class by himself, but I know when that class gets together, it sure doesn’t take long to call the roll.”  The same is true of Scrappy. 

But Scrappy’s calling wasn’t only about representing his clients, and he certainly wasn’t self-absorbed in seeking to polish his own star.  Perhaps his greatest legacy stems from his love of his fellow criminal defense lawyers which was exemplified by his dedication and constant efforts to help each of us become everything that was possible in our collective and individual pursuits of justice.

He was one of the early founding fathers of TCDLA, first serving on the Board of Directors from 1978 through 1984, and then as President in 1984 and 1985.  I remember him telling stories about them occasionally literally passing the hat around at board meetings in the early days to pay the bills. He was driven to find ways to help educate and train other lawyers.  To that end, he helped found the Criminal Defense Lawyer Project.  He was also instrumental in establishing the Trial College in Huntsville where thousands of young criminal lawyers have learned how to better represent the citizen accused. 

Perhaps as a result of how his grandmother was treated throughout her life, and her tragic experiences, Scrappy was a champion of racial and gender equality.  He loathed racism, misogyny, and bigotry.  Just ask Betty Blackwell, TCDLA’s first female president, how instrumental Scrappy was in encouraging her and helping her as she blazed a trail for our sisters in TCDLA.  Indeed, Scrappy was always at the forefront pushing us to become more inclusive and more diverse, to become a tent where everyone was welcome and equally valued.

His love for TCDLA was without measure, and his dedication to us was unceasing.  I could not begin to quantify for you the hours, days, and years that he enthusiastically gave to better our band of brothers and sisters.  The personal investment that he made in all of us is staggering.  I know this to be true, we have been blessed with a plethora of great leaders, but I don’t believe that anyone has ever done more for us, or more to promote the common good than Scrappy.  He was a Titan. 

Although you would never hear Scrappy complain about his lot in life, he certainly had personal hardships.  While their four children were still young, Scrappy lost his wife, the love of his life, Edwina.  Additionally, in the late 70s, he was riding in a car with fellow lawyers that was involved in a terrible accident where one of them was killed.  Scrappy was thrown from the vehicle and onto the pavement, physically broken, causing him to endure multiple future surgeries and encumbering him with pain for the rest of his life.  Then, within the past decade, he lost a beloved grandson in another car accident.  Scrappy knew devastating personal loss, and I think those experiences made him more empathetic to the plight of others. 

And oh, how he loved his family.  Loving son, husband, and father.  Doting grandfather.  In a day and age when grandparents seem to crave being referred to by the grandkids by whatever catchy or chic name of the times is, Scrappy absolutely reveled in his grandchildren calling him by that old-school southern familial name, Big Daddy.  He did everything within his power to let them know they were cherished, he provided for their educations, he endeavored to expand their horizons, and he encouraged them to find happiness and to become the best they could be.

Scrappy was compassionate toward others.  He was kind.  He was giving.  If you spent a modicum of time with him, you felt that you had known each other forever.  It didn’t matter if you were an old friend, a judge, a prosecutor, or a first-year lawyer – after two minutes with Scrappy, you would feel like he really cared about you.  And the truth is, he did.

He always treated people with respect, regardless of their station in life.  He was always courteous to his opponents in the courtroom, a trait that regrettably we seem to find in fewer and fewer lawyers these days. Scrappy was always perplexed by the erosion of civility and hoped that we would find a way to return to that as a norm.

And what a mind! His intellect was absolutely astounding. In many ways that made his battle with the cruel disease of dementia seem particularly unfair – to see the brilliance stripped away. I know that we do not get to choose the manner of our departure from this world, and I recognize that death comes to us in a variety of ways. The manner of our passing is unrelated to our character, and good people often have to sometimes fight long and protracted battles. But, I just can’t help but feel that Scrappy deserved better. Instead of that brilliant mind slipping into a state where he didn’t know who or where he was, or what he had been, it would have been so much more fitting for him to die in a courtroom at the end of one of his great closing arguments. He should have been carried from a courtroom on his shield.  

He was such a joy to be around.  His wit, his warmth. . . he was always the hub of the wheel in any setting.  Folks were drawn to him, and vice-versa.  He loved people, and we loved him.  Scrappy meant so much to so many of us.

As a result of that, he will endure.  Thomas Campbell once wrote, “To live in the hearts we leave behind is not to die.”  That certainly is true of Scrappy.

C.H. Spradlin said it another way, “A good character is the best tombstone.  Those who love you, and were helped by you, will remember you. So, carve your name on hearts, and not on marble.” 

I will miss Scrappy immensely and all the good times we had together.  His name is certainly carved on my heart, as it is with many of you.

I think of To Kill a Mockingbird (just about everyone’s favorite lawyer book/movie), and the scene where Atticus Finch is preparing to leave the courtroom after Tom Robinson’s conviction.  Atticus has done his best for Tom and in doing so exposed the racism surrounding the accusation and the trial.  Still, Tom is found guilty.  Atticus’s daughter, Jean Louise, better known as Scout, is sitting in the courtroom’s balcony with the blacks from the community, who were segregated and excluded from the main floor of the courtroom.  As Atticus began to leave, all of the African Americans silently rose to their feet in a show of respect for him.  Scout, still seated, doesn’t seem to understand what was happening until Reverend Sykes tells her “Miss Jean Louise?  Miss Jean Louise, stand up.  Your father is passin’”.

TCDLA?  TCDLA, stand up.  Scrappy’s passin’.

ABCs and 123s of Parole Law: An Introduction to Parole Law

Welcome to the world of parole law. It is an honor to be asked to write about my practice area for the TCDLA membership. It is also a privilege to be selected to be a board member for this wonderful organization. I am passionate about my work and love my career.

For those of you who don’t know me, I spent the first 12 years of my career as a public defender in Chicago (Cook County). I started in Traffic Court and worked my way up to the Felony Trial Division. The pace was frantic and the caseloads immense; there was always ongoing litigation.

I moved to Texas in 2015 and started my law firm focusing on a statewide parole practice. In the upcoming months, I will write a series of articles on parole law. The purpose of these articles will be to give clear, concise, and easy-to-apply principles of parole law for practitioners to use daily. Some of the topics will include general parole fundamentals, the parole review process, discretionary mandatory supervision, and parole revocation hearings. 

For starters, parole law can be confusing. That is mostly because there is no central repository for parole law. Most of the “rules” pertaining to parole issues come from many different sources including: Chapter 508 of the Government Code, Texas Administrative Code, Parole Board Policies and Directives, Parole Division Parole Operating Procedures, and case law.

One of the biggest differences between parole law and criminal defense law is the focus of the work. In criminal defense work, we are generally micro-focused on the case at hand. We are looking at the offense charged, the elements of the offense, the evidence, and any potential defenses. Due to time constraints, we rarely have time to focus much on mitigation until after the case is tried. And as we all know, very few cases are tried to verdict. So, the focus is usually centered on the alleged offense, but the full backstory is usually not covered.

Parole law on the other hand is macro-focused. The instant offense is just one small part of the overall picture. In fact, during my daylong long interviews with my clients (many lasting over six hours), we may only discuss the instant offense for 30 minutes or so. We spend the rest of the time discussing their childhood, adolescence, education, family, home environment, mental health, learning disabilities, medical issues, ties to the community, family support, job skills, employment history, prior offenses, and conduct in prison, just to name a few. 

You could say that parole law is holistic in nature; it looks at the whole person and not just the instant offense. In the following article and the ones to follow, I will present the most common questions and topics clients and attorneys ask regarding corrections and parole. Parole can be quite complicated, but this article and the ones to follow should be a great start for attorneys when advising clients who may be facing prison sentences. 

Who Are the Parties Involved in Parole Decisions?

The Texas Board of Pardons and Paroles (“Parole Board”) determines who shall be released on parole. The Texas Department of Criminal Justice (“TDCJ”) has no say in the release of offenders. Contrary to popular belief, the Parole Board and TDCJ are not the same entity. You can think of it this way: TDCJ houses and monitors offenders until and unless the Parole Board tells them otherwise. The Parole Board doesn’t tell TDCJ how to run their prisons, and TDCJ doesn’t tell the Parole Board whom to release.

The Parole Board is actually comprised of seven board offices: Amarillo, Angleton, Austin, Gatesville, Huntsville, Palestine, and San Antonio. Board Offices are assigned to vote on prison units in their general geographic region. For example, the Austin Board generally votes on cases in Central Texas and the San Antonio Board generally votes on cases in South Texas. Each board office has three voters (one Board Member and two Parole Commissioners).

What may be surprising is that votes are not done as a group. The first voter on a particular case (lead voter) typically votes on a case, and then the file is turned over to the next voter. Two of three votes are needed to either grant or deny parole.1 In a typical year, the Parole Board will vote on 80,000 cases. Last year the overall approval rate was 35 percent. There are many reasons for that number, but we will discuss that in the next article.

What Kinds of Votes Are There?

When an offender2 is reviewed for parole, it is not usually a “yes” or “no” vote. The Parole Board has many options when deciding to grant or deny parole. For parole approvals, the Board can order many types of votes, which are called FI votes. Among the more common votes: immediate release (FI-1 vote), substance abuse programs FI-5, FI-6, or FI-R vote), or sex offender programs (FI-4, FI-9, & FI-18 vote). In fact last year, of the offenders granted parole, approximately two-thirds of offenders were required to complete a program in prison prior to release.

Where Will Offender Go and How Soon Until They Leave?

Offenders generally stay in county jail no longer than 45 days after sentencing. This is referred to as “catching chain.” Offenders must first go to an intake unit. The intake units for men are the Byrd, Gurney, Holliday, and Garza West Units. Women generally go to the Plane State Jail and Woodman State Jail for intake.

What Happens at Intake Units?

Once an offender arrives at the intake unit, they are generally “off the radar” for three weeks. Be prepared to tell your clients that the first three weeks of prison are often the worst. Offenders are arriving at these units from all over the state. Some are there for two-year non-violent sentences and some are there serving life sentences for violent offenses. 

There are no visits allowed during this initial time, no phone calls, and no access to commissary. During this time, offenders will be photographed, fingerprinted, and assigned a TDCJ number. All tattoos will be documented and gang membership will be questioned. Offenders will also get medical screenings (physician, dentist, and psychologist). Usually an IQ test will be given, too. There will be little to no programming available. It is during this time that offenders are given their Line Class and Custody Classification. An offender’s parole eligibility date will be calculated as well. Within 48 hours of arriving at an intake unit, an offender will appear on the TDCJ website, which shows their unit of assignment and contact information.

Offenders can stay at an intake unit or state jail unit for the first two years of their sentence. This is generally frowned upon by offenders because these units generally have fewer options for work assignments, programs, and classes.

Good Time Credit and Custody Classification

Each offender is given a Line Class and Custody Classification. Line Class corresponds to Time Earning Status.3 For example, most offenders arrive at TDCJ as Line Class 1. With good behavior, they can be promoted to various Trustee Levels (SAT II-IV). If they misbehave, they will be reduced to Line Class 2 or 3.

Good Time Credit

Offenders entering TDCJ as a Line Class 1 will receive 20 days Good Time for each month served. Once assigned a job, offenders in Line Class 1 will receive and extra 15 days of Good Time on top of the 20 for each month in prison. If promoted to trustee, Good Time will increase up to a maximum of 45 days per month. Please note that Good Time is not awarded to offenders serving time for a 3G offense.4

Custody Classification

Each offender is also assigned a Custody Classification, which is also referred to as G Levels (G1-G5). This determines where an offender can live, how much supervision they will need, and what jobs they can be assigned. The factors used in determining Custody Classification are current and previous institutional behavior, current offense, and sentence length.

On the high end, G1 classification allows offenders the most freedom, and they are generally assigned to Trustee dorms with unarmed supervision. On the low end, G-5 custody classification is relegated to those offenders who are escape risks or have a history of assaultive behavior. Administrative (“Ad”) Segregation is actually the lowest custody classification. Those offenders are usually in single cells for 23 hours a day.

What About Credit for Time Spent in County Jail?

Offenders who are sentenced for non-3G offenses receive 20 days Good Time for each month in custody.5 Therefore, a client who spent one year in county jail before sentencing will receive eight months Good Time credit upon arriving at TDCJ.

What Kind of Job Will My Client Get?

Contrary to popular belief, TDCJ has many jobs and vocational classes for offenders to participate in. Everyone in TDCJ is assigned a job, everyone goes to work. For those offenders who are in ill-health or have severe medical problems, they can be declared “medially unassigned.” During intake, offenders should talk about their work experience, job skills, and certifications. Many offenders are assigned to field squad, laundry, or garment factory. In my experience, offenders who have marketable skills such as welders, electricians, and plumbers usually get the best assignments. For those who wish to learn new skills, TDCJ offers some unique training programs. I have had clients who trained security dogs used on manhunts and others who trained service dogs. I even had a client who obtained his CDL in prison and spent his time driving a truck back and forth between prison units. Once again, the availability of these jobs is dependent on the particular unit, their custody classification, and of course luck.

What Kind of Programs Are Available?

TDCJ offers a wide variety of programs for inmates. This is unit-specific, many units offer more programs than others. Many clients find that classes help them pass the time, learn something new, or just be there as a support system for other offenders. Some popular programs include: Quest for Authentic Manhood, Bridges to Life, Cognitive Intervention, and Voyager. Many of these programs are run in coordination with faith-based or community-based organizations. A few units offer college courses as well. Keep in mind that the most popular programs often have long waiting lists and entry is not guaranteed.

What Can I Do to Help My Client?

The single most important thing an attorney can do for a client who is going to prison is to SAVE THE CLIENT’S FILE. That means keeping the file, either paper form or scanned into your hard drive. This does not only include the discovery but also investigator reports, plea offers, and trial notes. I cannot stress enough how important that is. 

After being granted permission by the client, I always call the client’s prior attorney to discuss the case. You would be surprised how much information can be learned about the case from talking to the prior attorney.  For example, it is common for a deadly weapon finding to be removed in the plea process. However, if that deadly weapon finding were removed because the investigation revealed that no weapon actually existed, this can be a very helpful piece of information. Moreover, affirmative defenses raised at trial, even if not successful, can be mitigating factors when presenting cases to the Parole Board.

In the next article, I will discuss the parole process in more depth. Topics will include factors used in the parole voting process, Discretionary Mandatory Supervision, set-offs, ex post facto issues, and parole in absentia.

Absurd Results During COVID-19

During the pandemic, Texas resident Ace Cannon wanted liquid refreshments – beer, to be precise – but lacked the required monies to pay for his “need.” Undeterred, Mr. Cannon headed to the nearest Stop and Rob. Grabbing an ice-cold twelve pack of cans, Mr. Cannon quickly whisked past the checkout counter without stopping to make requisite payment. However, our “Hero” quickly fell into the hands of the local law enforcement, who arrested him for Theft of Aluminum, a state jail felony.1

The grand jury returned an indictment for that felony offense. The State then “enhanced” the SJF to a third degree offense because it was committed “in an area that was at the time of the offense subject to a declaration of a state of disaster made by the Governor.”2 Ace’s Class C theft,3 with an assist from the Great State of Texas, has Mr. Cannon facing a potential ten year pen trip.

I know what you are thinking. “They” can’t do that! Yes. Yes, “they” can.

If you have a client facing a COVID-19 “state of disaster” enhancement, all is not lost. Although the plain language of the applicable enhancement statute seemingly allows such “horse hockey,”4 a look back on the legislative history of this law shows otherwise. Time to dust off your knowledge of statutory construction and argue that the enhancement is ill-advised outside times of natural disasters – and offenses directly related to the occurrence of the natural disaster. In legal terms, to apply the enhancement for “an offense committed in a disaster area” in Mr. Cannon’s case would provide for “an absurd result.”

Not all disaster declarations are meant to trigger this enhancement.

The trip to the “absurd result” begins with the landfall of Hurricane Ike in Texas on September 13, 2008.5 Ike swept through Galveston Island and onto the Texas mainland.6 Pertinent to our Tale of Woe, police arrested eight persons in Galveston County for looting in the week following landfall.7 Over 100 arrests were made for “looting” in Harris County in the same time.8 Then State Senator (now Lieutenant Governor) Dan Patrick heard the siren’s call, and introduced legislation “to increase punishment in theft cases committed in certain evacuated or disaster areas.”9 It important to note that the initial bill was tied only to the Theft statute, but evolved into a general sentence enhancement. The chart below tracks the progression of all related bills through the Texas Legislature in 2009.

12/15/2008: Senate Bill 359 filed.10

S.J. of Tex., 254 81st Leg. R.S.

“Relating to punishment for the offense of theft committed in certain evacuated or disaster areas.”11

03/13/2009: HB 4101 is filed.12

03/27/2009: The Senate Research Center issues its “bill analysis.”

“This bill addresses punishment levels for the offense of theft committed in evacuated areas or disaster areas. After Hurricane Ike, local officials brought to light the problem of looting in abandoned or evacuated areas. Section 31.03(f) (relating to certain offenses committed by actors that qualify for the next higher category of offense) of the Penal Code lists several specific theft offenses for which penalties are increased to the next higher category of offense.

C.S.S.B. 359 adds Section 12.50 (Penalty If Offense Committed in Disaster Area or Evacuated Area) to Subchapter D (Exceptional Sentences), Chapter 12 (Punishments), Penal Code, to provide that the punishment for an offense is increased to the punishment prescribed for the next higher category of offense if it is shown on the trial of the offense that the offense was committed in an area that is considered to be a disaster by certain government officials.”13

03/30/2009: Senate Bill 359 is reported out of committee revised to punishment enhancement, instead of focusing on amending the theft statute.14

05/18/2009: The House Research Organization bill analysis is issued.

SB 359 would help deter potential criminal behavior during a hurricane or other disaster by increasing the punishment for certain crimes if they occurred within a declared disaster area. Curfews are not enough to deter burglary or theft after a hurricane, because many looters and burglars are discovered after set curfew times. Some residents do not evacuate during hurricanes out of fear that their homes or businesses will be broken into or looted. By enhancing criminal penalties for certain offenses, the bill would provide peace of mind to residents and business owners.15

05/18/2009: SB 359 is amended.

Amend SB 359 (house committee printing) in SECTION 1 of the bill as follows: (1) In proposed Section 12.50(a), Penal Code (page 1, line 12), strike “is” and substitute “was, at the time of the offense”. (2) In proposed Section 12.50(a)(1), Penal Code (page 1, line 13), strike “considered to be a disaster area by” and substitute “subject to a declaration of a state of disaster made by”.

(3) In proposed Section 12.50(a)(1)(B), Penal Code (page 1, line 18), immediately following the underlined semicolon, insert “or”. (4) Strike proposed Section 12.50(a)(1)(D), Penal Code (page 1, lines 22-23).16

06/19/2009: SB 359 was signed into law by Texas Governor Rick Perry.17

Currently, the statute provides for a listing of applicable offenses that can be enhanced under the statute.18 If a listed offense “is alleged to have been committed in an area subject to a state of disaster declaration made by the President of the United States, the Texas Governor or a presiding officer of a governing body under Texas Government Code section 418.108 or subject to an emergency evacuation order,” then the punishment is increased to that prescribed for the next higher category of offense.19

Here is where it gets legal

The legislative history shows a clear intent that the punishment enhancement was to be used in cases where there is a combination of a natural disaster and persons attempting to “profiteer” from the results. But the plain language of the statute provides no such limitation. So, in the words of The Stork, “what the hell are we supposed to do, ya moron?”20 Well, hold my beer. All that is necessary is to prove that jacking Ace into the Institutional Division is an “absurd result.”21

The start of this process is to use statutory construction. The objective of this process is to give effect to the Legislature’s intent.22 To do so, the first step is to examine the statutory text according to its plain meaning.23 If the meaning of the statutory text would have been plain to the legislators who voted on it, courts are to “give effect to that plain meaning.”24 However, where application of a statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, the plain language method is not used.25 A statute is ambiguous when it “may be understood by reasonably well-informed persons in two or more different senses.”26 Yeah, but how do you get to the absurd result? The absurd-results principle appears to be simple enough: “[i]interpretations of statutes which would produce absurd results are to be avoided.”27 There you go. Just tell the judge to avoid this issue.

How about another approach, one that might not draw the blank stare of indignation or incite judicial anger? One a bit more “legal?” Texas opinions finding “absurd results” are divisible into four general categories:

  • The “conditional” statement, i.e., one stating that an interpretation producing absurd results should not be adopted if an alternative construction is available;
  • The “normative” statement, i.e., one stating that courts should, may, must, or will not adopt a construction of a statute that leads to absurd results, without making the exception conditional on the existence of a reasonable alternative construction and without expressly declaring that the rule will control even over the literal meaning of statutory language;
  • The “presumptive” statement, i.e., one stating that courts will presume the legislature did not intend for a statute to produce absurd results; and,
  • The “deviatory” statement, i.e., one expressly stating that the court will deviate from the literal meaning of statutory language if an adoption of such meaning would produce absurd results.28

Luckily, it is necessary to examine only the “deviatory statement,” as it provides the best fit under existing Court of Criminal Appeals guidance. The deviatory statement theory includes those opinions that state the absurd-results principle in terms that are (1) not conditioned on the existence of an alternative reasonable construction, and (2) expressly stated to control even over the literal or plain meaning of the statutory language.29 This category is the most significant for purposes of Mr. Cannon’s defense – because it is the only version of the absurd-results principle that is, on its face, a true exception to the plain-meaning rule.30

Two Court of Criminal Appeals opinions demonstrate the “deviatory” statement theory. Begin with Mr. O. A. Bizzelle, who in 1938, was convicted of operating a modern school of beauty culture “without having it at all times under the direct supervision of a registered hairdresser or cosmetologist.”31 Mr. Bizzelle had left his school under the care of another, one Miss Cavanaugh.32 Miss Cavanaugh had absented herself from the cosmetology school for “several days” while visiting her sister.33 Obviously, under the plain meaning test, Mr. Bizzelle has committed an offense. However, the Court was called upon to determine the meaning of the language “at all times under the direct supervision of a registered hairdresser or cosmetologist.”34

The Court quickly found that enforcing the plain language of the statute would “lead to consequences which the Legislature could not have contemplated.” “When the literal enforcement of a statute would lead to consequences which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”35

A similar issue arose when the Court of Criminal Appeals was asked to determine the meaning of the statute which required “[i]f during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”36 In Johnson, while on the witness stand, the defendant “lapsed into a rambling narrative stating that he had been ‘under surveillance for five years’ by certain law enforcement officials; that certain documents and pieces of his private mail had been stolen from him… and also that there was a conspiracy among the trial officials, including the trial judge and his attorney, to send him to the penitentiary unjustly.37 Citing the plain language of the statute, the Court of Criminal Appeals found this outburst to be sufficient evidence to require the court to have a hearing concerning competency, and reversed the matter for a new trial.38

However, upon rehearing, the Court of Criminal Appeals reversed itself.39 Apparently having realized the import of what they had held in the original decision,40 the Court quickly backtracked. “In construing a statute, its subject matter, reason and effect must be looked to… when a literal enforcement would lead to consequences which the Legislature could not have contemplated, the Courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”41 The Court then declared “the plain meaning” of the statute could not stand, concluding that “the Legislature could not have contemplated the consequences attendant upon a literal interpretation.”42

“Nothing is over until we decide it is!”

Let’s return to our statute in question. Clearly, Lieutenant Dan did NOT intend for the State of Texas to use this enhancement as a weapon of mass destruction – however broadly it was written. It was to be pinpointed to areas that were affected by a natural disaster such as a hurricane or other weather events – and at those who attempt to profiteer from said disaster. To do so otherwise would certainly seem as absurd as fining the owner of a cosmetology school for not having 24/7 supervision of the participants or having a defendant create a need for a competency hearing when it is clear that it is a fake. In other words, a link to the “disaster” and the allegations of the crime is necessary.

Further, when attempting to limit this enhancement to a proper application, the Legislative history comes into play.43 Extra-textual factors that maybe considered include (1) the object sought to be attained by the Legislature; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and (7) the title or caption, preamble, and any emergency provision.44

So what did Lieutenant Dan tell us in the legislative history? The bill was to “deter potential criminal behavior during a hurricane or other disaster by increasing the punishment for certain crimes if they occurred within a declared disaster area. By enhancing criminal penalties for certain offenses, the bill would provide peace of mind to residents and business owners.”45 It is also known that this bill arose at the time when South Texas had been hit by Hurricane Ike – and that reports of looting and other criminal activity arising from those profiteering from the misery of others had been published. Last, the bill’s title was “Penalty If Offense Committed in Disaster Area or Evacuated Area.”

The plain language may allow use of the enhancement in Ace’s case, but the adoption of such a broad meaning would produce absurd results – or [in less legal terminology] would constitute a “really futile and stupid gesture.”46 As such, Mr. Cannon’s indiscretion should not be seized upon to create another resident of the Institutional Division of the Texas Department of Criminal Justice. Although the plain language of the statute provides the State with this potential, pointing out the irrationality of this application saves Ace an undeserved and unwarranted stay at TDCJ.47

Now, go do that voodoo that you do so well.48

Cross Examining the State’s Domestic Violence Experts: The Blind Lumpers

The Problem

A disturbing pattern is emerging. The blind lumpers are coming.

There is a growing pattern of the State designating and attempting to use advocates now in domestic violence (“DV”) cases to lump these cases into the same shape and size. They are frequently calling “blind” experts who either intentionally or unintentionally know nothing about the specific case – except for the fact the Defendant is guilty. Their job is to explain to the jury how every bit of evidence in the case (or lack of evidence) points to Defendant’s guilt.

For some time now, in child sex cases you can usually count on the State to parade one advocate after another to the witness stand to shore up the weak aspects of the State’s case under the guise of being an expert under rule 702. They often use their “training and experience” in their malleable discipline to show the jury they are human polygraph machines.

Now they’re doing it in domestic violence cases, too.

In DV cases these witnesses are armed with charts and anecdotal theories such as the Power and Control Wheel (“PCW”) and Cycle of Violence (“COV”). There are ways to combat this tactic by both effective cross examination and legal efforts to either prevent the witness from testifying and/or preserving the matter for appeal.

Overviews and Goals of the Article

DV analysis and interpretation is a soft science to be sure. It’s difficult to have any confidence in empirical sociological or scientific research done due to the inability to reliably have controlled studies in this field. The little research that has been done tends to be wildly inconsistent and point in all directions. Academic papers and researchers who attempt to harmonize these inconsistencies have a difficult time doing so. Other groups entering the ‘academic’ fray in the debate are also attacked as having a specific agenda.

Because the expertise in DV cases tend to be “clinical” in nature as compared to “academic,” the topic lends itself to being difficult to cross-examine. Practitioners in the field are coming to testify, and they are armed with mountains of anecdotal evidence and scientific principles they learned at weekend conferences from teachers whose name they forgot. Cross examining them can be like trying to nail Jell-O to the wall.

What the State is really doing is manipulating Rule 702 to substitute advocates for experts, and thus far, the Courts have let them get away with it.

This article examines and discusses current trends and techniques utilized by prosecutors with regards to their expert witness practices. It is designed to assist the reader to effectively identify, cross examine, and preserve error when confronting the State’s DV experts.

“Blind” Experts

A blind expert is an expert brought in to testify who was not involved with the case. This person has typically not reviewed any discovery, conducted any independent interviews, nor generated any reports. These experts are often affiliated with third-party advocacy groups such as battered women’s shelters and/or children’s advocacy centers. It is not uncommon for these witnesses to be designated in every case by the state, and it’s further not uncommon for these witnesses to hop from one courtroom to another to testify in similar cases for your particular county’s DV prosecution team.

“Lumping” vs. “Splitting”

Charles Darwin originally coined the phrases “lumpers” and “splitters” which have gained more wide-acceptance over time. Healthy academic communities and disciplines have both. The lumper is the academic who tries to put everything in broad ‘lumps’ or big groups. The splitter is the academic who does the opposite. The splitter attempts to isolate cases and show smaller or more unique distinctions within groups. The lumper v. splitter debate can be applied to attempting to decode COVID-19, study dinosaurs, or the stock market.

The distinction helps to understand the State’s experts in DV cases are typically “lumpers.” That is, they lump everything into their broad world view frequently with little or no empirical data or support.

As always – when attacking an expert witness, it is fundamental to attack (often baseless) assumptions. Knowing you are dealing with a ‘lumper’ helps and gives you a base set of cross examination points.

Common Topics of State’s DV Experts

The Duluth Model

The Duluth Model is the most common batterer intervention program used in the United States as of 2006 and was developed as a way to reduce domestic violence against women. It was named after Duluth, Minnesota – the city where it was developed. The founder of the program was Ellen Pence, an activist. It is the framework of the BIPP (Battering Intervention and Prevention Program) course many courts require as a term and condition of community supervision.

Some staples of the model include the “Cycle of Violence” (“COV”) and the “Power and Control Wheel” (“PCW”) developed as teaching tools for the ‘re-education’ of offenders to address typically male violence towards women from a socially reinforced sense of entitlement.

The Cycle of Violence

The COV was developed by Lenore Walker in 1979. Her research was based on 120 battered women. Ms. Walker developed three phases in the cycle of violence:

  • Tension Building Phase – where the abuser becomes more temperamental and critical of the victim. As the tension escalates, the victim feels as if she is “walking on eggshells.” The victim often placates the abuser.
  • Acute Explosive Phase – Abuser verbally or physically attacks the victim.
  • Honeymoon Phase – The batterer expresses remorse and promises to change.

Criticism and weaknesses of “The Cycle of Violence”

It Presumes Guilt

The COV comes with a flawed and fatal assumption if it’s being used as a method to prove guilt. It assumes Defendant is Guilty in the first place. For any of the supporting phases to be true – this base assumption also has to be true.

If you replace the very top assumption with its opposite – Defendant is innocent – then absolutely none of the other phases make logical sense. But this diagram shows how the echo-chamber logic is circular in the first place.

The COV doesn’t Account for Mental Illness or Substance Abuse

A major gap in the COV is it does not account for mental illness or substance abuse. Ms. Walker’s original theory had “power” and “control” as the main motivators for domestic abuse, yet those who practice criminal defense on a regular basis understand the roles of depression, anxiety, and other mental illnesses on these cases. Another unaddressed issue by the COV is substance abuse whether or not related to mental illness.1

The COV Converts Evidence of Innocence into Evidence of Guilt

Another criticism of the COV is it takes evidence of innocence and flips it into evidence of guilt with rhetoric alone. Is buying flowers for your spouse evidence of innocence or evidence of guilt? Is having a calm marriage where something both intimate partners agree was not domestic abuse in the first place evidence of a healthy relationship or is it ignoring an two-ton elephant?

The State’s blind lumper expert would argue buying flowers is evidence of guilt because it shows Defendant is trying to control and manipulate the ‘victim’ in the ‘honeymoon’ phase of the cycle of violence. Then again, some spouses are just nice to one another and have a perfectly healthy union.

COV was Developed and Based on Anecdotal Evidence

Lenore Walker has conceded the data set of women originally studied was a small set and were all involved in violent relationships. She further admitted the women were not randomly selected and they cannot be considered a legitimate data base from which to make specific generalizations.2

“Duluth Model Treatment” Fails to Stop Domestic Violence

While academic studies are ‘all over the map’ on DV, there are many studies which show the Duluth Model – despite being the most common treatment method – has little or no positive effect on violent behavior. Researchers found in 2011 “there is no solid empirical evidence for either the effectiveness or relative superiority of any of the current group interventions… the more rigorous the methodology of evaluation studies, the less encouraging their findings.”3

The Duluth Model Focuses Only on Men

Yet another criticism of the Duluth Model is it is focused on male perpetrators and insists male DV is due to patriarchy which condones violence. Critics claim the model is overly-confrontational rather than therapeutic and fails to deal with underlying psychological causes.

A leading critic of the Duluth Model is Donald Dutton, Psychology Professor at the University of British Columbia. He claims, “The Duluth Model was developed by people who didn’t understand anything about therapy.”4 He also argues lesbian battering is more prevalent than heterosexual battery by a 2 to 1 ratio.5 Additionally, author Phillip W. Cook points out male-dominance is absent in homosexual relationships so the Duluth Model blaming male patriarchy falls flat.6

The Power and Control Wheel

The “Power and Control Wheel” (“PCW”) is a diagram displaying a pattern whereby a batterer establishes and maintains control over his partner. While the COV addresses phases in the relationship, the PCW is supposed to demonstrate methods and motivations employed by an abuser. It includes subcategories such as “Male Privilege,” “Coercion and Threats” and “Minimizing, Denying and Blaming.”

Criticism of the PCW

Like the COV, the PCW is similarly not validated scientifically. Further, it suffers from the same fatal assumption the COV does – that is, for it to work, the entire ‘wheel’ must begin with the assumption Defendant is guilty in the first place.

The PCW actually compounds assumptions, though. It primarily assumes defendant is guilty. But then it goes on to further assume the motivations for his guilt. It assumes motivations for being a “batterer” are rooted in power and control. Even if the person is guilty in the manner they suggest – the PCW has a major ‘blind spot’ because the motivation may have nothing at all to do with power and control. It could be mental illness, addiction, or reciprocal domestic violence.

Countervailing Theories to the Duluth Model

Reciprocal Intimate Partner Violence

Reciprocal Intimate Partner Violence (“RIPV”) is also referred to as mutual violence and/or symmetrical violence. It is where both partners – in essence – take turns being the abused and the abuser. The thought that both intimate partners engage in domestic violence undermines both the COV and PCW because both of those assume the domestic violence, abuse, and manipulation to be unilateral.

Several studies place RIPV at anywhere between 42% and as high as 70% of the over-case count for domestic abuse occurrences. In a 2007 study published in the American Journal of Public Health, researchers found about half of the relationships which experienced DV – had violence characterized as reciprocal. In reciprocally violent relationships, it was women who were the aggressors 70% of the time although men inflicted more serious injuries on their partners.7

Dealing with Medical Testimony – Choking

Evidence of choking can be difficult to detect and evidence will not be present in all cases. One law enforcement report showed in 62% of strangulation cases the police officers saw no visible signs of the choking. In 22% of cases minor visible injuries such as redness or scratch marks were reported. Only 16% of cases had significant visible injuries such as bruises, red marks or rope burns. Voice changes occur in 50% of victims. Chin abrasions can be common too as the victim lowers their chin to instinctively protect their neck.8

Visible injuries may be fingernail scrapes, scratches, or lesions.9 Redness known as erythema may or may not darken to become a bruise. Some bruises may not appear for hours or days afterwards. Much bruising is caused by an assailant’s hand or thumb and can make a discernable pattern.10

Petechiae are small red spots in the eye which are evidence of ruptured capillaries (the smallest blood vessels in the body). They can sometimes be found underneath the eyelid. Petechiae can also be found around the eyes in the peri-orbital region or anywhere on the face or neck.11

How the State’s Blind Lumper Will Testify About Choking

If there is little or no physical proof of choking – The State’s blind lumper will likely testify your client is still guilty. It is no different than a SANE nurse brought in to a sexual assault trial with their sole purpose to turn evidence of innocence (a clean medical exam) into an evidentiary tie. For example, the State’s expert will say, “just because there’s no evidence of choking doesn’t mean he’s innocent.”

If there is physical evidence of choking – then it’s probably time to get a medical expert of your own involved – typically in forensic pathology.

Preserving Error

Consider analyzing error in reverse. Be cognizant of the Appellate Court’s standards of review when making the appropriate objection.

Under Texas Rules of Appellate Procedure the Court will either review an error as “Constitutional” or as “other error.”12 Constitutional error requires reversal “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”13 Non-Constitutional error or “other error” “…that does not affect substantial rights must be disregarded.”14

Translation – if it’s not Constitutional error, then it basically gets ignored on appeal.

Making All Objections Constitutional Error

Consider ‘Federalizing’ your objections to the State’s blind lumper expert. Possible objections could include objections based on the confrontation clause or to the Due Process Clause under the 5th and/or 14th Amendment.

The Confrontation Clause

Under the 6th Amendment to the US Constitution, a person has a right to confront accusers. The theory of Rule 702 further goes such an expert would have to concede both good and bad facts or scientific or technical nuances which may hurt the proffering party. The expert is an advocate for the science – not a particular party.

But the blind lumper expert is designed so they can’t be cross examined at all.

They don’t know any of the facts – so you can’t undermine their opinion there. They also frequently don’t rely on any specific authority such as treaties, empirical studies, or trade guidelines they will admit to – nor bring with them to Court.

Because the blind lumper is not tethered to any specific fact, circumstance, or academic principle – they are very difficult to cross-examine.

Due Process

If you really think about it – all objections rooted in the Texas Rules of Evidence can be characterized as “Due Process” objections, too. Again, if you are overruled on objections to ‘bolstering’ or on a Rule 702 objection the Court of Appeals will analyze any error as “other error” which simply won’t result in reversal. If the objection is couched as a Due Process objection – and the Court agrees it is error – then you stand a real chance at reversal.

“Blind Experts” – a Texas Tradition

Rule 702 – And How it’s Increasingly Useless in Stopping the Blind Lumpers

Here is a quick refresher on Rule 702 and the rule’s application with regards to the blind lumper witness. There is a critical distinction between the State and Federal version of Rule 702 which makes the blind lumper witness far easier to proffer as a witness in Texas Courts:

Tex.R.Evid. 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

Federal Rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case. (Emphasis Added).

In Federal cases the witness must demonstrate a firm basis in the facts of the case. State Courts have some control measures similar to the federal rules – but they are supplied by case law, and they are far looser than the federal requirements. Texas Courts further break-down expert witnesses into different categories based on how subjective the discipline may be.

Challenges to the Experts’ Qualifications Generally Fail on Appeal

Courts have permitted the use of expert testimony on the COV and its dynamics of PCW to fortify a complaining witness’s delay, reluctance, and inconsistencies in reporting abuse as well as other behavior, including recanting a report of abuse.15 16 17 As recently as the week prior to this paper being written, the Dallas Court of Appeals again held a “blind expert” was permissible.

To make matters even more impossible on this line of attack for the Defense – the Dallas Court held because the “blind” expert was so general in nature, any error committed would be harmless anyway.18 The trial court even issued a limiting instruction because of how weak the testimony was. This holding allowing the testimony is illogical. To be relevant in the first place, the expert would need to be able to assist the jury with a fact of consequence in the first place. The Court by holding the evidence was so inconsequential conceded the expert was irrelevant.

Rule 702’s “Fit” Requirement

Some of the language which supports scrutiny towards the “blind lumper” expert witness is the “fit” requirement. Expert witness testimony must “fit” the facts of the specific case to be relevant under Tex.R.Evid. 702. Jordan v. State, 928 S.W.2d, 550, 552 (Tex.Crim.App. 1996). “When examining the Rule 702 issue, the trial court must determine whether the expert “makes an effort to tie pertinent facts of the case to scientific principles which are the subject of his testimony.19

And then there is Bolstering

Bolstering is “any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantially contributing ‘to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.’” Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993) (quoting former version of Tex.R.Evid. 401). Tex.R.Evid. 613(c) states, “Unless Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not admissible if offered solely to enhance the witness’s credibility.

Checklist for Cross-Examining the Blind Lumper

Start in Opening Statement

Attack the blind lumper expert in your opening statement if you know they are coming. Let the jury know what a blind lumper is, how they hop from courtroom to courtroom, and how the only thing they are sure of is Defendant is Guilty.

705 Hearing

Rule 705 allows you to have a hearing outside the presence of the jury examining the expert’s opinion and the underlying facts and data supporting the opinion. Always request a 705 hearing to learn beforehand what, if anything, the expert has reviewed prior to court – and when they reviewed it. Chances are if you argue about them being a blind lumper in opening statement, they make take a crash course on the facts of your case in the hallway waiting to testify.

i.Hit “Blindness”

If your expert is blind – cross examine them on it. If you’re calling your own experts, enhance your expert’s credibility by comparing and contrasting their preparation with your own expert’s preparation. Don’t simply let the ‘blind’ expert off with one or two questions about how they didn’t review the case – ask them as many questions on the ‘blindness’ as you can:

Q: You didn’t talk with the complaining witness?
Q: You don’t have any social background on the complaining witness?
Q: Didn’t talk with the detective?
Q: Didn’t read any offense reports?
Q: Didn’t look at any pictures?
Q: Watch any of the videos?
Q: Look at any academic studies for this case?
Q: Didn’t review any medical records?

Hit Assumptions and Weaknesses of COV and PCW

Discuss the weaknesses and assumptions listed above about both the COV and the PCW. Remember, they both presume guilt and not innocence. Further, if they are being discussed in punishment – remember they proscribe particular underlying motives which ignore mental illness, RIPV, and substance abuse.

Follow the Money Trail

If the State’s expert witness is from an advocacy center or perhaps hospital or other organization “supporting the cause” of ending domestic violence – explore the financial ties, if any, between that organization and the elected DA. Do they donate? Is the DA trying to curry favor with these groups or vice-versa? Is the battered-women’s shelter providing blind lumper experts something they all concocted in a board room when the DA was hoping to get a donation for re-election? Maybe there is nothing there – and maybe your blind lumper knows nothing about it. Then again, maybe there is something there a jury would find interesting.

Solving the Problem of the Blind Lumper

Blind lumper expert witnesses called by the State manipulate the rules and put Defendant in the difficult spot of cross-examining a Jell-O like witness who isn’t tethered to any facts, any data, or any empirical research. They twist, bend and ultimately ‘lump’ all of their opinions into “he’s guilty.” It’s a real challenge of your complete advocacy skills both in front of a jury, to the trial judge, and even the Court of Appeals to put a stop to their practice. Hopefully, this helps.

Expert Witnesses and Challenges to Expert Testimony Pt. 1

The admission of expert testimony is generally governed by one statute and four rules.  Discovery of expert witnesses prior to trial is governed by Article 39.14(b), C.C.P.  Texas Rule of Evidence 702 sets forth the standard that the proponent of the evidence must meet to have expert testimony admitted before the trier of fact. Texas Rule of Evidence 703 sets forth the kind of information that an expert may rely upon in giving opinion testimony. Texas Rule of Evidence 704 provides that an opinion is not objectionable just because it embraces an ultimate issue.  Texas Rule of Evidence 705 sets forth the rules that govern the testimony of an expert in trial.  Each of the foregoing is addressed herein. 

In part one of this two-part series, Article 39.14, C.C.P. and Texas Rule of Evidence 702 will be addressed. In part two of this series, Texas Rules of Evidence 703, 704, and 705 will be addressed.

I. Article 39.14(b), C.C.P.
Discovery Relating to Experts

(b)  On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.  Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin.  On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.

Discovery relating to experts in criminal trials is governed by Article 39.14(b), C.C.P. It is a unique statute because it is the only provision that requires the defense to provide discovery to the State in a criminal prosecution. Instead of using terms such as “State” or “defense,” the statute uses the terms “party’s request,” the “requesting party,” and the “disclosing party.” A distinction is not made as to whether the requesting or disclosing party is the State or the defense.

The process required by the statute begins when a party makes a request not later than the 30th day before the date the trial is scheduled to begin. While the statute does not say what the requesting party has to request, it provides that the party that receives the request “shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Tex. R. Evid.” Rule 39.14(b), C.C.P. Article 39.14(b) requires only the disclosure of the names and addresses of persons that the party “may use” at trial to present evidence under Rules 702, 703, and 705, Tex. R. Evid. In re Stormer, 2007 WL 1783853, *2 (Tex. Crim. App. 2007); Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006).

The Court of Criminal Appeals has recognized the distinction between a “consulting expert” and “testifying expert”, which is well established in civil law. Pope v. State, supra at 359-360. “Thus, once a party designates a particular person as an expert that he may use as a witness at trial, that person is no longer a “consulting” expert, he is a “testifying” expert, and the opposing party, whether the State or the defendant, may seek further information from or about him for use at trial.” Id. at 360. The best approach for defense counsel is to initially hire an expert as a “consulting” expert and then decide later whether the expert will testify. However, if the State makes the request for disclosure of the name and address of any expert the defense may use at trial, defense counsel must make the decision as to whether the expert is going to be a “testifying” expert, and if so, make the disclosure to the State, or he will not be allowed to testify over the State’s objection.

“In order to trigger the requirements of Article 39.14, a timely request that designates the items requested to be produced must be made to the State from the defendant.  Davy v. State, 525 S.W.3d 745, 750 (Tex. App.– Amarillo 2017, pet. ref’d); Glover v. State, 496 S.W.3d 812, 815 (Tex. App.–Houston [14th Dist.] 2016, pet. ref’d).  Absent such a request the State’s affirmative duty to disclose the evidence extends only to exculpatory information.”  Hinojosa v. State, 554 S.W.3d 795, 797 (Tex. App. –Waco 2018).  “Article 39.14(b) is not ‘self-executing.’ Tamez v. State, 205 S.W.3d 32, 39 (Tex. App.–Tyler 2006, no pet.); . . . . . .  Rather,  Article 39.14(b) ‘allows [a] trial court to [order] the State to list [its] expert witnesses upon a request,’ but, ‘[w]ithout such an order, [any] complaint [is] not . . . . preserved.’  Tamez v. State, 205 S.W.3d 39-40; . . . . . .”  Harris v. State, 287 S.W.3d 785, 792 (Tex. App.–Houston [1st Dist.] 2009). In Harris, the trial court overruled a defense objection to an expert witness that was not listed on the State’s notice, expressly noting that Article 39.14(b) requires a court’s ruling on a defendant’s motion to disclose expert witnesses and that the trial court had not ruled on the appellant’s motion.  In particular, the appellant in Harris complained he had not been given the 20 day notice required by Article 39.14.  The court held that “the simple fact remains that, because he never obtained an order on his motion, appellant was not entitled to the State’s disclosure of expert witnesses not later than the 20th day before the trial began pursuant to article 39.14.”  Harris v. State, supra at 793.  Accordingly, the court of appeals held that the trial court did not err in allowing the expert witness to testify.  Id.  The Harris case was tried several years prior to the passage of the current version of Article 39.14(b), which has since been amended to be more particular.

It is clear from the language of the statute that a party is not entitled to any discovery regarding experts unless the party has first made a request, and that request was made not later than the 30th day before the date the jury selection is scheduled to begin or the evidence is scheduled to begin in a trial without a jury. While the current statute only refers to requests and disclosures, the foregoing cases would indicate that the requesting party should also file a motion and get the trial court to order production of the name and address of potential expert witnesses by a date certain or risk a court finding that the party waived any complaint it may have about a party not providing the required information. See Kirksey v. State, 132 S.W.3d 49 (Tex. App.–Beaumont 2004).  Another reason to file a motion is because a court may order an earlier time at which the other party must make a disclosure to the requesting party.  Art. 39.14(b), C.C.P.

In Branum v. State, 535 S.W.3d 217 (Tex. App.–Ft. Worth 2017), the State added an expert witness to its witness disclosure less than 20 days before the trial began.  The defendant objected to the late designation before the witness testified, but the court overruled the objection and allowed the witness to testify.  In considering whether the trial court abused its discretion in allowing the expert to testify, the appellate court considered whether there was any showing of bad faith on the part of the prosecutor in the late designation and whether the defendant could reasonably have anticipated that the witness would testify although his name was not previously disclosed.  The court of appeals found there was no showing that the State failed to disclose the witness through bad faith, and instead found that the State notified the defense as soon as it found that the previously designated witness could not be present for trial, and identified its replacement witness. The court further found that the defendant could have reasonably anticipated that a representative from the medical examiner’s office would testify to the cause of death of the decedent. The court also noted that the defendant failed to request a continuance based on the late designation therefore rendering any error on the part of the trial court harmless.  Id. at 226-227. The court also found that the aforesaid factors caused them to conclude that the trial court did not abuse its discretion by allowing the late designated expert to testify over the defense’s objection.

In White v. State, 2003 WL 865351 (Tex. App.–Ft. Worth), the appellant contended the trial court abused its discretion in permitting a State’s expert witness to testify because the State did not give timely notice of its intent to call her even though such notice was timely requested by defense counsel. The defendant had filed a request to the State seeking written notice of its intention to use evidence and statements. Unfortunately, the defendant failed to secure an order pursuant to the version of Article 39.14(b) that was in effect at the time. The appellate court found that the trial court did not abuse its discretion in allowing the witness to testify considering that there was not a showing of bad faith on the part of the prosecutor in failing to disclose the witness’s name before trial, and that the defendant could reasonably have anticipated that the witness would testify even though his or her name was not included on the list, citing Nobles v. State, 843 S.W.2d 503, 514-515 (Tex. Crim. App. 1992).

In Strawn v. State, 2003 WL 21235537 (Tex. App.–Ft. Worth), prior to trial, the State filed a motion to compel the designation of any expert that appellant might call at trial. The trial court granted the motion.  During the punishment phase of the trial, appellant sought to introduce expert testimony. The State objected to the proposed testimony because appellant had not disclosed that the expert would testify at trial. The court granted the State’s motion and excluded the testimony of the expert.  Noting that no Texas court had, at that time, published an opinion applying Article 39.14(b) to a defendant’s failure to timely disclose the identity of a testifying expert, and because Article 39.14(b) does not specify what sanctions are required or permitted should a party fail to comply with the trial court’s discovery order, the court looked at cases discussing sanctions permitted to remedy the State’s failure to timely disclose expert witnesses for guidance.  Id. at *2.  The court noted that appellate review usually encompassed two factors: (1) whether the party’s action in failing to timely disclose the expert witness constituted bad faith; and (2) whether the opposing party (the State in this case) could have reasonably anticipated that the undisclosed witness would testify, again citing Nobles v. State, supra.  The appellate court found there was no evidence in the record demonstrating that appellant’s failure to disclose the expert was in bad faith. However, the court found that the State was not on notice that the defendant intended to call the expert to testify, especially in light of the fact that a specific order was in place requiring pretrial disclosure of experts. Id. at *3. The court of appeals also noted that the expert testimony would not have been helpful to the jury in determining the appropriate sentence in that case and so held that under the specific facts of this case the defendant should not be permitted to avoid the requirements of an order entered pursuant to Article 39.14(b) by stating the expert is a rebuttal expert without demonstrating in some manner that the expert testimony was relevant to issues at sentencing. The court held that the trial court did not err in granting the State’s objections to the expert testimony. 

In Medrano v. State, 2008 WL 5050076 (Tex. Crim. App. 2008), a death penalty case, the trial court ordered the State to provide the name, address and curriculum vitae of its intended expert witnesses to defense counsel no later than July 29, 2004. The State filed its notice of possible expert witnesses on July 27, 2005, which included the name and address of witness Alvarez. The State did not provide defense counsel with Alvarez’s curriculum vitae until August 19, 2005. The guilt phase of the trial had begun on August 15, 2005. On Tuesday, August 23, 2005, the trial court held a Rule 702 hearing outside the presence of the jury on the admissibility of the testimony of Alvarez.  Defense counsel objected at the hearing that the State did not timely provide the curriculum vitae and therefore was not in compliance with the trial court’s order to provide the information at least 30 days prior to trial. The prosecutor contended that he had given the defense copies of the curriculum vitae that he had, the week before. The State contended: “It may have been an oversight, your honor, but they were provided a copy of that.” Id. at *15.  Defense counsel argued he had been given the information about four days before, which did not give him the opportunity to investigate the particular individual. The prosecutor argued that the witness had testified in three prior trials in that county, two of those cases involving the same exact murder that was the subject of this trial. The State contended that transcripts of his testimony have been offered and have been available. Defense counsel argued that the court had ordered the State to provide the curriculum vitae to them 30 days prior to trial and the State did not comply. The witness had been on a list that was provided to the defense the previous week.  The court overruled defense counsel’s objection. On appeal, the Court of Criminal Appeals determined the State only partially complied with the trial court’s order in a timely fashion by supplying only the expert’s name. However, the Court of Criminal Appeals noted that the defense did not contend the State acted in bad faith and there was not an indication in the record of bad faith. The Court of Criminal Appeals found that appellant could reasonably have anticipated Alvarez’s testimony, given that his name appeared on the State’s notice of possible witnesses three weeks prior to trial and he had previously testified in the trials of two co-conspirators. The Court of Criminal Appeals held that the trial court did not abuse its discretion in permitting Alvarez to testify. Medrano v. State, supra at *15.

In Osbourn v. State, 59 S.W.3d 809 (Tex. App.–Austin 2001), appellant complained of the trial court allowing an officer to testify under Rule 701, that a substance was marijuana. The witness was not listed as an expert witness by the State even though the State had been ordered to list its expert witnesses. When reviewing the State’s failure to list the witness, the court found that “appellate review usually encompasses two factors: (1) whether the State’s action constituted bad faith, and (2) whether the defendant could have reasonably anticipated that the undisclosed witness would testify.” Id. at 816. The court of appeals found nothing in the record that suggested the State had acted in bad faith or willfully failed to respond to the court’s Article 39.14(b) order, that the State did not consider the witness to be an expert, appellant had not shown the State intended to deceive her and did not claim the State’s action left an inadequate time to prepare.  The court of appeals found that the offense report clearly indicated that the witness’s personal knowledge of the discovered substance was rationally based on her subjective perception and that appellant could have anticipated the witness’ testimony, most of which was included in the offense report. The court of appeals also found: “If appellant was caught off guard, she did not request the trial court to grant a recess, postponement or continuance to remedy the situation . . . . . .  Having found no bad faith and that appellant could have reasonably anticipated [the witness’s] testimony, we conclude that the trial court did not abuse its discretion even if the witness’ testimony as to the marijuana was admissible only under Rule 702.”  Id. at 816.

The lessons from the foregoing cases are: (1) to file the request and a motion; (2) get a ruling on the motion; (3) scrupulously comply with the court’s orders; (4) make sure that the testimony of the expert is relevant to an issue in your case; (5) and do not be surprised when the court does not enforce its orders against the State; but (6) be prepared to make a record that the State’s failure to disclose was done in bad faith and that the defense couldn’t have reasonably anticipated the undisclosed witness would testify.

II. Texas Rule of Evidence 702
Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

A. Predicate for Admission of Expert Testimony

While the admission of expert testimony is generally governed by Texas Rule of Evidence 702, it operates in conjunction with other evidentiary rules. “The Texas Rules of Evidence set out three separate conditions regarding admissibility of expert testimony. First, Rule 104(a) requires that ‘[p]reliminary questions concerning the qualification of a person to be a witness. . . .be determined by the court . . . . . .’” Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006). Second, Rule 702 provides that if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise. Third, Rules 401 and 402 render testimony admissible only if it “tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401 and 402. “These rules require a trial judge to make three separate inquiries, which must all be met before admitting expert testimony:

(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training or education;
(2) the subject matter of the testimony is an appropriate one for expert testimony; and
(3) admitting the expert testimony will actually assist the fact-finder in deciding the case.’

These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.”  Vela v. State, supra at 131; Harssema v. State, 2020 WL 831614, *12 (Tex. App.-Dallas, pet ref’d); Williams v. State, 606 S.W.3d 48 (Tex. App.-Houston [1st Dist.] 2020); Brantley v. State, 2020 WL 1680050, *5-6, (Tex. App.-Houston [1st Dist.]); Murray v. State, 597 S.W,3d 964, 970-71 (Tex. App.-Austin 2020, pet. ref’d)Tex R. Evid. 702. Expert testimony must aid, but not supplant the jury’s decision. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Macias v. State, 539 S.W.3d 410, 416 (Tex. App.-Houston [1st Dist.] 2017, pet. ref’d 2018). “Expert testimony does not assist the jury if it constitutes ‘a direct opinion on the truthfulness’ of a child complainant’s allegations.” Schutz v. State supra at 59; Macias v. State, supra at 416 (“The Court of Criminal Appeals has further held that an expert who testifies that a class of persons to which the victim belongs, such as child sexual abuse complainants, is truthful is ‘essentially telling the jury that they can believe the victim in the instant case as well,’ and this is not testimony that will assist the trier of fact.”).

B. Qualifications of Expert

In Rodgers v. State, 205 S.W.3d 525, 527-528 (Tex. Crim. App. 2006), the Court of Criminal Appeals stated “that an appellate court should consider three criteria when determining whether a trial court abused its discretion in evaluating a witness’s qualifications as an expert: (1) ‘is the field of expertise complex?’; ‘how conclusive is the expert’s opinion?’; and (3) ‘how central is the area of expertise to the resolution of the loss?’.” The mere fact that a witness possesses knowledge and skill not possessed by people generally does not in and of itself mean that such expertise will assist the trier of fact regarding the issue before the court. A witness will not always qualify as an expert merely by virtue of a general background. Qualification is a two-step inquiry. First, a witness must have a sufficient background in a particular field, and second, a trial judge must then determine whether the background goes to the matter on which the witness is to give an opinion. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998) (“just as not every physician is qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified to testify as an expert in every products liability case”); Harssema v. State, 2020 WL 831614,*12 (Tex. App.-Dallas, pet ref’d). “An expert’s qualifications must be greater for more complex fields of expertise and for more conclusive and dispositive opinions.” Brantley v. State, 2020 WL 1680050, *6 (Tex. App.-Houston [1st Dist.]); Rodgers v. State, 205 S.W.3d 525, 528 (Tex.  Crim. App. 2006). However, “[n]either a particular college degree nor a particular license is required under Rule 702 for a witness to qualify as a witness.” Cura-Cruz v. Centerpoint Energy Houston Electric, LLC,552 S.W.3d 565, 573 (Tex. App.-Houston [1st Dist.] 2017, reh. en banc overruled).

In Broders, a medical malpractice case, the proponent of testimony from an emergency physician argued that merely because the witness was a medical doctor he was qualified to testify on all medical matters. Broders v. Heise, supra at 152. The Texas Supreme Court rejected that argument finding there was no validity to the notion that every licensed medical doctor should automatically be qualified to testify as an expert on every medical question. Id. The court held that “[i]f a medical degree carried automatic expert qualification in medical matters, a trial judge could no longer fulfill his gatekeeping duty and ‘ensur[e] that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Id. at 152-153; Vela v. State, supra at 132. Instead, a proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on the particular subject. Broders v. Heise, supra at 153; Vela v. State, supra at 132. “The focus, then, is on the ‘fit’ between the subject matter at issue and the expert’s familiarity therewith, and not on a comparison of the expert’s title or speciality with that of the defendant or a competing expert.” Broders v. Heise, supra at 153; Vela v. State, supra at 133. Thus, in order for an expert’s qualifications to “fit,” the expert’s background must be tailored to the specific area of expertise in which the expert desires to testify.  Vela v. State, supra at 133; Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996); Harssema v. State, supra at *12. The background that gives an expert special knowledge which qualifies him to testify and “give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things.”  Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995); Wolfe v. State, 509 S.W.3d 325, 337-338 (Tex. Crim. App. 2017) (physicians with training in pediatric medicine and experience as treating physicians are qualified to testify about the nature and cause of a child’s head trauma).

While an expert must be qualified to testify regarding the specific area of expertise involved in the case, there is no “best-expert rule.” An expert does not have to be highly qualified to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (internist who had knowledge of cardiac conditions and toxicology was qualified to give his opinion that a drug did not cause a pregnant patient’s cardiomyopathy; internist was not required to be board-certified in cardiology or toxicology to testify). The proper question in assessing a physician’s qualifications to submit an expert report “is not his area of practice, but his familiarity with the issues involved and the claim before the court.” Collini v. Pustejovsky, 280 S.W.3d 456, 464 (Tex. App. – Ft. Worth 2009, no pet.). In ExxonMobil Corp. v. Pagayon, 467 S.W.3d 36, 52-53 (Tex. App. – Houston [14th Dist.] 2015), rev’d on other grounds, 536 S.W.3d 499 (Tex. 2017), the court held that a physician from one specialty may testify about the negligence of a physician from a different specialty as long as the standard of care for the task at issue is the same across specialties. There, a physician who did not specialize in emergency-room medicine was qualified to testify about negligence of an emergency-room physician in reading a chest x-ray. “A physician does not need to be a practitioner in the same specialty as the defendant to qualify as an expert. The proper inquiry in assessing a doctor’s qualifications to submit an expert report is not his area of expertise, but his familiarity with the issues involved in the claim before the court.” Estorque v. Schafer, 302 S.W.3d 19, 25-26 (Tex. App. – Ft. Worth 2009, no pet.). In Burlington N.R. v. Harvey, 717 S.W.2d 371, 377-378 (Tex. App. – Houston [14th Dist.] 1986, writ ref’d n.r.e.), a trial court did not in err when it determined that an expert anesthesiologist had the skills and knowledge necessary to give expert testimony about urology. But see Harssema v. State, 2020 WL 831614, *12-13 (Tex. App.-Dallas, rehearing en banc ref’d, pet. ref’d), where the court of appeals affirmed the trial court’s exclusion of testimony from an anesthesiologist, who was the brother of the Defendant, about the Defendant’s neuro-degenerative disorder although the anesthesiologist’s training included diseases of the brain and brain function, he attended all of the Defendant’s medical appointments with a neurologist and had observed the Defendant on a daily basis as his caretaker, and the expert witness had researched the Defendant’s disorder. The court of appeals noted that the expert had testified on voir dire that he did not have the training and experience to discuss movement disorders in great detail and had not specified what his medical research or specialized entailed. Id., at *13.

C. Reliability and Relevance of Expert Testimony

Prior to the United States Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Texas Court of Criminal Appeals decided Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), whereby it announced and implemented a process very similar to that promulgated by the Supreme Court in Daubert. The Kelly case involved the admissibility of DNA “genetic fingerprinting” evidence. In that decision, the Court of Criminal Appeals explicitly rejected the long-standing test of “general” scientific acceptance that had been promulgated in Frye v. United States, 293 F.1013, 1014 (D.C. Cir. 1923). In rejecting the Frye test, the Kelly court stated as follows: “[f]irst, there is no textual basis in [Criminal] Rule 702 for a special admissibility standard for novel scientific evidence.  Second, it should be fairly obvious, scientific evidence may be shown reliable even though not generally accepted in the relevant scientific community.” Kelly v. State, supra at 572. Thus, the Court of Criminal Appeals held that the admissibility of novel scientific evidence was governed by Rules 702 and 403, Tex. R. Evid. However, to prevent the admission of “junk science,” the court adopted several procedural and substantive limitations. Under Kelly, a trial judge must first determine whether scientific evidence is sufficiently reliable and relevant so that it would help the jury in reaching an accurate result; and then must decide whether the probative value of the expert testimony is outweighed by one or more factors identified in Rule 403. Id. at 572.1

The Court of Criminal Appeals went on to address how the proponent of novel scientific evidence proves it to be reliable.

“As a matter of common sense, evidence derived from a scientific theory, to be considered reliable, must satisfy three criteria in any particular case: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. . . . . . .  Under Rule 104(a) and (c) and Rule 702, all three criteria must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted. Factors that could affect a trial court’s determination of reliability include, but are not limited to, the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential  rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question.” 

Kelly v. State, supra at 573. The Court of Criminal Appeals went on to hold that due to the difficulty lay persons have in evaluating the reliability of scientific testimony, the burden of persuasion is clear and convincing evidence rather than simply preponderance of the evidence. “In other words, before novel scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore, relevant.” Id. at 573; Jenkins v. State, 493 S.W.3d 583, 601-02 (Tex. Crim. App. 2016); Patterson v. State, 606 S.W.3d 3 (Tex. App.-Corpus Christi-Edinburg 2020) reh. and reh. en banc denied).

After the Court of Criminal Appeals’ decision in Kelly, the Texas Supreme Court, in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), adopted the same type of analysis as is set out in Daubert and Kelly and has declared that the test in Kelly and in Robinson are functionally the same. In re M.P.A., 364 S.W.3d 277, 286 n.10 (Tex. 2012). The Court of Criminal Appeals has since extended the Daubert/Kelly/Robinson reliability analysis and criteria to all scientific evidence, not merely “novel” or experimental scientific theories. Hartman v. State, 946 S.W.2d 60, 62-63 (Tex. Crim. App. 1997); Reynolds v. State, 204 S.W.3d 386, 389-390 (Tex. Crim. App. 2006); Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).

After the Daubert, Kelly, and Robinson decisions, Texas courts had to consider whether those criteria applied to all expert testimony or was limited merely to scientific evidence. The question was addressed in Nenno v. State, 970 S.W.2d 548 (Tex. Crim. App. 1998). The court held that “[t]he general principles announced in Kelly (and Daubert) apply, but the specific factors outlined in those cases may or may not apply depending upon the context. We do not attempt, here, to develop a rigid distinction between ‘hard’ science and ‘soft’ sciences or non-scientific testimony,” noting that “the distinction between the various types of testimony may often be blurred.” Nenno v. State, supra at 560-561. “When addressing fields of study aside from the hard sciences, such as social sciences or  fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a ‘theory’ or ‘technique’ in these fields may be roughly accurate but somewhat misleading. The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. These questions are merely an appropriately tailored translation of the Kelly test to areas outside of hard science. And, hard science methods of validation, such as accessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside of the hard sciences.” Nenno v. State, supra at 561; Taylor v. State, 555 S.W.3d 765, 778 (Tex. App.-Amarillo 2018, pet. ref’d 2019); Patterson v. State, 606 S.W.3d 3, 31, (Tex. App.-Corpus Christie-Edinburg 2020) (“Because a pathologist must interpret data and frequently cannot reach essential conclusions with mathematical precision, we hold that the admissibility standard from Nenno may apply to the expert testimony of a pathologist”, quoting Bess v. State, 2013 WL 827479, *26 (Tex. Crim. App.)).

D. Application of the Rules to Particular Cases

  1. Application of Nenno Standard

The Nenno standard is applicable to expert evidence in the “soft sciences” as well as non-scientific expertise.  Morris v. State, 361 S.W.3d 649, 654 (Tex. Crim. App. 2011) (“[e]xpert testimony does not have to be based upon science at all: by its terms, Rule 702, by applying to ‘technical or other specialized knowledge,’ permits even non-scientific testimony.” Police officers’ testimony on “grooming” behavior by people who sexually victimize children was admissible under Nenno as a subject matter within a legitimate field of expertise); Davis v. State, 329 S.W.3d 798, 815 (Tex. Crim. App. 2010) (trial court did not abuse its discretion in admitting expert testimony under Nenno about Satanism; expert “had conferred with other experts on the subject in various cases, and had spent years teaching the subject to college students and law-enforcement personnel,” was considered an expert by others, and had read numerous books and articles on the subject); Gallo v. State, 239 S.W.3d 757, 765-767 (Tex. Crim. App. 2007) (trial court properly analyzed and rejected expert testimony under Nenno standards because witness testified that research and the study of filicide–parents killing their children–was not extensive enough); Weatherred v. State, 975 S.W.2d 323, 323-324 (Tex. Crim. App. 1998) (admissibility of expert testimony on eyewitness identification was determined under Nenno standards for “soft sciences”); Taylor v. State, 555 S.W.3d 765, 778 (Tex. App.-Amarillo 2018, pet. ref’d 2019) (psychology is considered a soft science); Rhomer v. State, 522 S.W.3d 13, 21-22 (Tex. App.–San Antonio 2017) (police officer’s testimony on point of impact in vehicle collision was evaluated using Nenno factors because accident reconstruction was based on officer’s experience and training rather than scientific inquiry); In re J.R., 501 S.W.3d 738, 747-749 (Tex. App.–Waco 2016, pet. denied) (in case terminating parental rights, court applied Nenno factors and determined that psychologist’s testimony on parental psychological assessments were admissible); Washington v. State, 485 S.W.3d 633, 639 (Tex. App.–Houston [1st Dist.] 2016, no pet.) (gang membership is legitimate field of expertise, police officer’s testimony that defendant was current or former gang member was in scope of that field, and testimony relied on self-admission and gang tattoos which are factors frequently relied on by law enforcement to identify gang members); Brewer v. State, 370 S.W.3d 471, 474 (Tex. App.–Amarillo 2012, no pet.) (in aggravated-assault case, expert could testify about “psycho-violence” to assist jury in understanding a victim’s delay in calling police; trial court properly asked expert in voir dire whether her testimony would be “standard in the industry”); Hammal v. State, 352 S.W.3d 835, 841-843 (Tex. App.–Ft. Worth 2011) (police officer’s testimony on handling drug-detection dog was reliable under Nenno), rev’d  on other grounds, 390 S.W.3d 302 (Tex. Crim. App. 2012); State v. Smith, 335 S.W.3d 706, 712 (Tex. App.–Houston [14th Dist.] 2011, pet. ref’d) (proponent of expert testimony on dog-scent lineup did not show that expert’s opinion was reliable; expert’s testimony that his dogs were reliable and accurate in identifying scents, without any evidence to support those claims, was not sufficient to show reliability); Salazar  v. State, 127 S.W.3d 355, 359-360 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d) (upholding exclusion under Nenno of defense expert’s testimony on “content-based criteria analysis” to evaluate interviewing techniques used with sexually abused children; method was not generally accepted, study of technique was still ongoing, and potential for error was great); Roise v. State, 7 S.W.3d 225, 236-237 (Tex. App.–Austin 1999, pet. ref’d) (testimony of psychologist that photographs would promote sexual impulses and sexual fantasies and that children in photographs would have been developmentally harmed was not relevant or reliable under Nenno standards for “soft sciences”); Chavarria v. State, 307 S.W.3d 386, 391 (Tex. App.–San Antonio 2009, no pet.) (the appropriate standard for assessing the reliability of a psychology expert’s testimony relating to his examination of a child sexual abuse victim is the Nenno soft-science standard, rather than the Kelly hard-science standard).

In In The Interest of K.L.R., 162 S.W.3d 291, 302-304 (Tex. App.–Tyler 2005, no pet.), the trial court erred in allowing a licensed counselor to testify because she did not state that counseling is a legitimate field; did not state that her testimony was within the scope of her field; and did not state that she relied on principles involved in her field. Id. In In re J.B., 93 S.W.3d 609 (Tex. App.–Waco 2002, pet. denied), DFPS offered the testimony of a psychologist who had conducted a parenting assessment of the mother whose rights they sought to terminate. The court of appeals, employing the factors set out in the E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), found that the trial court abused its discretion by admitting the evidence because the proponent of the evidence had proffered only the psychologist’s testimony to establish the reliability of his methodology, but offered no specific, independent sources to support its reliability. In American West Airlines, Inc. v. Toupe, 935 S.W.2d 908 (Tex. App.–El Paso 1996, no writ), the court ruled that the trial court did not abuse its discretion by excluding testimony from the plaintiff’s treating mental health worker, as the expert’s testimony was subjective, the peer review of the expert’s method was limited, the expert offered no examples of publication of her work, and the potential rate of error for her diagnosis was unexplored. The Court held that these factors outweighed the evidence that the expert’s techniques were accepted as valid by the psychological community and that the techniques were generally used for therapy.

  1. Reliability of the Evidence

Even where it is determined that the expert testimony is relevant to an issue in the case, the proponent of the scientific evidence still must show by clear and convincing evidence it is reliable; that is, the scientific theories underlying the expert opinion are valid and the techniques used to apply the theories are valid. State v. Jordan, 950 S.W.2d 210, 212 (Tex. App.–Ft. Worth 1997, pet. ref’d); Weatherred v. State, supra. Jordan was remanded back to the court of appeals from the Court of Criminal Appeals after it was determined that the testimony as to eyewitness reliability was relevant because it might be helpful to the jury. However, on the issue of reliability, the court of appeals found that the proponent of the evidence failed to present sufficient evidence of the validity of the scientific theories underlying the expert’s opinion or the validity of the techniques used to apply the theories. The Court criticized the proffer of the expert’s testimony as follows:

While Dr. Finn constantly referred to support for the validity of the theories in vague generalities such as “research of others,”  “some research,”  “a number of studies,” and even “one specific test”; he failed to mention by name any other person who purports to be an expert in the field or produce or name the studies he relied on to research his opinions. Dr. Finn also admitted he had never been subjected to peer review or conducted scientific research to test the validity of these theories himself. Finally, there is not evidence of error rate in applying Dr. Finn’s method of reaching his conclusions under the theories he discussed.  Based on the record before us, we cannot say that the trial court abused its discretion in excluding his testimony.

State v. Jordan, 950 S.W.2d at 212. In Weatherred v. State, 515 S.W.3d 540 (Tex. Crim. App. 2000), the Court of Criminal Appeals found the proffer of expert testimony to be lacking, noting specifically that the defendant had offered the expert’s testimony but nothing more. Although the expert had claimed that he and others had carried out extensive research on the reliability of eyewitness identification and he had written much on the subject, he failed to produce or even name any of the studies, researchers, or writings, in question. The Court of Criminal Appeals found that the trial court had not abused its discretion in excluding the expert testimony.

When the alleged crime is a child sexual abuse offense expert witness testimony may be proffered to describe the “syndrome” experienced by victims of the offense. Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993). From the prosecution’s standpoint, the purpose of offering this evidence is to assist the jury in concluding that the victim, who exhibits the described characteristics of the syndrome, was in fact the victim of a sex offense. Thus, it is the type of evidence that the offering party hopes to have considered as direct evidence of the charged act.  From the defense standpoint, the dangers inherent in syndrome evidence are not insignificant.  First, it appears to be establishing the “truth” of the allegation. Second, even if the syndrome evidence tends to explain that the victim has been the victim of a sex offense, it does not answer the question of identity of the perpetrator. To the extent that syndrome evidence is scientific theory it should be subjected to all the rigors encountered for any type of expert testimony.

Expert testimony on a topic may be admitted even though there is not universal agreement as to the validity of the expert’s opinion. In Wolfe v. State, 509 S.W.3d 325 (Tex. Crim. App. 2017), the State offered expert testimony from three separate witnesses regarding the cause of abusive head trauma to a child complainant. The State’s witnesses’ testimony was based upon a triad of symptoms – subdural hematoma, retinal hemorrhaging and brain swelling – and through a process of differential diagnosis that was an “all – encompassing process – of – elimination consideration of every possible cause” based on the patient’s particular history and presentation. The State contended that the abusive head trauma diagnosis is widely accepted among esteemed national and international medical organizations as a valid diagnosis and has been the subject of extensive research. On the other hand, the defendant’s expert testified that there was significant disagreement within various segments of the medical and biomechanical communities regarding the validity of the diagnosis based on the triad of symptoms. The court held that the lack of universal agreement in the medical profession did not render the State’s evidence “junk science,” due to other indications of reliability from the evidence. The Court of Criminal Appeals held that “even accepting that appellant’s expert and the State’s experts were all qualified, their disagreement about their methods and conclusions would not necessarily render one side’s testimony unreliable.” Wolfe v. State, supra at 341. The court noted that just because two qualified experts may reach directly opposite conclusions using similar, if not the same, databases, or disagree over which data to use or the manner in which the data should be evaluated, does not necessarily mean that one opinion is per se unreliable. “That some scientists in a field disagree with an expert’s theories or conclusions does not render those theories or conclusions unreliable.” Id. That there is disagreement in a scientific community does not render testimony from either side of the disagreement unreliable, and therefore not admissible. Id.

  1. Credibility of the Child Witness

Probably the most significant case relating to the admission of expert testimony in child sexual abuse prosecutions (and, to a lesser degree, relating to the impeachment of credibility in child sexual abuse cases) is Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). In Schutz, the Court of Criminal Appeals addressed the admissibility of five categories of evidence that touch on issues of credibility:

(1) substantive evidence of guilt which incidentally impacts on credibility; i.e., symptoms exhibited by child abuse victims and whether or not the complainant exhibited those symptoms; physical evidence and whether such evidence is consistent or inconsistent with the complainant’s allegations – admissible in case-in-chief or on cross- examination;

(2) general testimony relating to impaired witnesses or declarants; i.e., general testimony about the ability of a class of persons recognized by society as being impaired, such as young children or the mentally retarded, to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events that are at issue in the given case – admissible in case-in-chief or on cross-examination if an impaired person is the victim or an expected witness (an impaired person could be a young child);

(3) general testimony that directly attacks credibility, i.e., testimony that the child has  general character for making untruthful or dishonest statements, or fantasizing, or is the kind of child who is susceptible to manipulation, or has difficulty distinguishing between fantasy and reality;  or testimony as to the common symptoms or traits of a child who is fantasizing or being manipulated, coupled with testimony that the victim does exhibit those symptoms or traits;  or testimony that the child suffers some mental or physical handicap, disorder, or impairment, coupled with testimony about the adverse effects that would have on perception and/or memory; or testimony that third parties committed acts designed to manipulate the child into making allegations – admissible in case-in-chief or on cross-examination to attack credibility of witness or declarant  (generally falls under Texas Rule of Evidence 608(a));

(4) general testimony that directly supports credibility; i.e., that the child has a general character for making truthful or honest statements; that the child does not have a general character for fantasizing; that the child is not the type who is susceptible to manipulation; that the child does not have difficulty distinguishing between fantasy and reality – admissible in rebuttal to attacks on credibility, so long as there is a loose fit between the rebuttal and the attacks on credibility;

(5) specific testimony attacking or supporting credibility; i.e., specific instances in which the child has lied, fantasized, been manipulated, told the truth, accurately perceived reality, or resisted manipulation;  child’s allegations relating to the offense were the result of manipulation or fantasy, or were lies, or testimony that they were not; child did not, in fact, accurately perceive or remember events due to physical or mental impairment- admissible only to rebut other specific testimony attacking or supporting credibility and only if there is a tight fit between the rebuttal testimony and the previous testimony supporting or attacking credibility. Id. at 75. (See Appendix to case – chart explaining admissibility of various kinds of testimony). Expert testimony is generally not permitted to rebut lay testimony. Id. at 72, 74.  

An example of the proper admission of expert testimony about the behavioral characteristics of abused children can be found in Perez v. State, 113 S.W.3d 819 (Tex. App.– Austin 2003, pet. ref’d). The appellate court recognized the long-standing Texas rule that expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been abused is relevant and admissible under Rule 702. In a lengthy opinion, the Austin Court of Appeals discussed expert testimony and the “soft” sciences in terms of the Daubert test as interpreted by the Court of Criminal Appeals in Nenno. The Perez court concluded that: (1) the expert’s field is a legitimate one; (2) due to the witness’s “superior knowledge and experience”, the common characteristics and dynamics of children who have suffered sexual abuse were within the scope of his expertise; and (3) the witness’s unimpeached testimony supports a conclusion that his opinions and writings on sexual abuse of children were accepted by the relevant scientific community of psychologists.

On the other hand, it is error for a trial court to allow an expert to testify, over objection, that the testimony of the child is “consistent with child abuse” or there was grooming in the case on trial. The expert may testify to what constitutes grooming or answer a hypothetical as to whether a certain type of conduct is grooming but may not opine that the child in question was groomed. Kelly v. State, 321 S.W.3d 583 (Tex. App.–Houston [14th Dist.] 2010, no pet.)

Expert testimony about the truth or falsity of the allegations or the truthfulness of the complainant is prohibited. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993); Lane v. State, 257 S.W.3d 22, 27 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d); Kelly v. State, supra at 602, (expert should not have been allowed to imply children were telling the truth by claiming she would not have agreed to be a witness in the case if she saw evidence of deception).

In Wilson v. State, 90 S.W.3d 391 (Tex. App.–Dallas 2002, no pet.), over objection, an employee of the children’s advocacy center was allowed to provide expert testimony that 2%  to 8% of children who make outcries of sexual abuse make false reports and the majority of those arise in custody cases.  Id. at 393.  The court of appeals held that it was error to allow this testimony because it “did not aid, but supplanted, the jury in its decision on whether the child complainant’s testimony was credible.”  Id. at 393. However, upon considering all the evidence in the case the error was found to be harmless. For the next ten years, at least in Dallas County, the prosecution continued to offer, and the courts continued to admit, such evidence.

Then, in Wiseman v. State, 394 S.W.3d 582 (Tex. App.–Dallas 2012), the successor to the expert witness in Wilson was allowed to testify, over objection, that only 2% of children who make allegations of sexual abuse are making false accusation, and that 77% of those are involved in custody or divorce-related issues. Citing Yount and its decision in Wilson, the court of appeals again found the trial court erred by admitting the testimony as to the percentage of children who lie about being sexually abused. Wiseman v. State, supra at 587. The court also rejected the State’s contention that the defendant opened the door to such testimony by eliciting testimony that some teenagers lie. The court reversed, finding that the expert testimony violated the defendant’s substantial rights because the case turned solely on the credibility of the witnesses and the testimony of the witness went directly to that issue. Id. at 588. The same result was reached regarding the same evidence in another case, Quan An Tran v. State, 2012 WL 1199102 (Tex. App.–Dallas). In Wiseman and Tran, the court of appeals found the testimony to be harmful, leading to the reversals.  The Dallas District Attorneys office quit offering this evidence after the decisions in Wiseman and Tran.

An expert’s testimony must be accurate. In In the Matter of M.P.A., 364 S.W.3d 277 (Tex. 2012), at a juvenile disposition hearing an expert testified that an Abel Assessment of the respondent juvenile showed he was a pedophile who had a significant interest children of both sexes. The expert testified that Abel testing was 85% accurate and had been validated by studies at Brigham Young University. The respondent was sentenced to 20 years.  On a writ application it was proved that this testimony was false. It was shown that according to Abel and his colleagues that the testing was only 65% accurate for classifying people with a significant interest in children under 14 years of age; and that the BYU studies failed to establish the Abel Assessment was reliable as applied to adults and it was unreliable as applied to adolescents. Id. at 286-287. The Texas Supreme Court found that if the trial court had heard accurate testimony the Abel Assessment would not have been admitted into evidence and that the false testimony contributed to the respondent’s sentence entitling him to a new disposition hearing.  Id. at 292.

In Kelly v. State, 321 S.W.3d 583 (Tex. App.–Houston [14th Dist.] 2010), the defendant was accused of engaging in organized criminal activity based on a predicate offense of aggravated sexual assault of a child. The court ruled that although the State’s expert witness could answer a hypothetical question as to whether showing the child complainant masturbation techniques with dolls was a type of “grooming,” the prosecutor could not testify and argue in his hypothetical by asking the expert whether she would expect to see grooming in a hypothetical case where children were forced to engage in sexual intercourse with another, and where multiple children were forced to strip down, dance naked, and act out in sexual plays and fantasies. The appellate court also held that the State was improperly allowed to ask its expert witness whether the child’s testimony was consistent with child abuse, and whether “there was grooming in this case,” because both questions ask the expert to give her opinion as to whether or not the testimony of the children was true.

Even when the expert’s testimony can only be viewed as an attempt to directly bolster the complainant’s credibility and as a direct comment on the complainant’s truthfulness, the abuse of discretion in admitting that evidence may not be reversible error. In Salinas v. State, 166 S.W.3d 368 (Tex. App.–Ft. Worth, 2005, pet. ref’d), the child complainant was taken to the hospital for a sexual assault examination four and a half months after her outcry statement to her mother. The examining doctor found no physical evidence of sexual assault. At trial the doctor was allowed to testify over objection that she diagnosed sexual abuse by digital penetration of the anus based solely upon the history provided by the child, and “she had an exam which was consistent with that history [no physical evidence of abuse].” Admitting that testimony was error but after reviewing the entire record, the appellate court concluded it did not have a substantial and injurious effect or influence on the jury’s verdict, that is, it was harmless.

  1. Admissibility of Testimony on Other Issues

In In re E.C.L., 278 S.W.3d 510 (Tex. App.–Houston [14th Dist.] 2009) it was reversible error to exclude expert testimony on “battered child syndrome” because lay people who have not experienced abuse for most of their lives do not have a frame of reference to understand why a child might have thought deadly force was immediately necessary to protect himself and/or his brother.

In Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008), an examining physician’s testimony was proper where she did not testify that the child was abused or was telling the truth, but did testify that, although not definitive, the child’s physical condition was consistent with the abuse that she described. Additionally, it was proper for the doctor to testify regarding the fact that child abuse victims also delay making an outcry and initially deny the abuse as the behavioral characteristics common among abused children is an appropriate area for the physician’s testimony.

In Bryant v. State, 340 S.W.3d 1 (Tex. App.–Houston [1st Dist.] 2010), the court found that opinion testimony of a police officer that he came to the conclusion a sexual assault had occurred and that was why he prepared an affidavit to obtain an arrest warrant was admissible in a child sexual assault prosecution. The officer testified about what he relied on to determine whether he should swear out an affidavit to obtain a warrant for the defendant’s arrest not whether the child witness was telling the truth.

In Zuniga v. State, 811 S.W.2d 177 (Tex. App.–San Antonio 1991), testimony of a physician, based on his own exam of a nine year old complainant, that history and physical examination was consistent with sexual assault, was permissible expert testimony as aiding the jury from a medical standpoint on the nature and extent of sexual assault, and did not impermissibly invade the province of the jury even though whether sexual assault had occurred was one of the ultimate issues at trial.

“Psychologists and counselors have been found to provide reliable, relevant testimony in child abuse cases, specifically regarding PTSD.”  Moreno v. State, 2020 WL 908024, *5 (Tex. App.–San Antonio), citing Johnson v. State, 432 S.W.3d 552, 557 (Tex. App.–Texarkana 2014, pet. ref’d); Zinger v. State, 899 S.W.2d 423, 432 (Tex. App.–Austin 1995, rev’d on other grounds, 932 SW2d 511 (Tex. Crim. App. 1996). However, in Lane v. State, 257 S.W.3d 22 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d), the court of appeals disapproved testimony by a social worker that the victim suffered from PTSD due to sexual abuse. Courts have found that mental health professionals are in a unique position to explain victim behavior as it pertains to a disorder, such as PTSD, that is not commonly understood by lay persons.  Moreno v. State, supra; Zinger v. State, 899 S.W.2d at 432, citing Duckett v. State, 797 S.W.2d 906, 917 (Tex. Crim. App. 1990), disapproved on other grounds by Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim. App. 1993). 

In Moreno v. State, supra, the State offered testimony from a licensed professional counselor with 14 years of experience with abused children, to testify on behaviors of sexually abused children, symptoms of PTSD, and her experience working with the complainant in that case.  The witness was, at the time of her testimony, the clinical director of a children’s advocacy center.  She testified that to be qualified to do her work she was required to have a master’s degree in psychology or counseling-related area plus 3,000 hours of supervised training.  She also testified that it was not her practice to diagnose clients with PTSD but that she could describe symptoms of the disorder in them. The trial court allowed her to testify as an expert if she did not comment on the complainant’s truthfulness. On appeal, the appellant challenged the witness’s ability to diagnose PTSD on the grounds that she was not qualified and that her testimony on PTSD would inappropriately bolster the complaint’s testimony. The trial court found the witness’ proffered testimony to be analogous to expert testimony on behaviors or symptoms consistent with child abuse.  The court of appeals concluded “that it was up to the jury to decide if the symptoms that [the witness] described really did help them understand the victim’s testimony and demeanor and whether these apparent symptoms actually reflected prior trauma caused by Moreno.” Moreno v. State, supra at *6. The court of appeals found that the trial court’s decision to admit the expert testimony on PTSD was within the zone of reasonable disagreement.

In Brantley v. State, 2020 WL 1680050 (Tex. App.–Houston [1st Dist.]), a vehicular crimes police officer was found to be qualified to testify as an expert as to the basic functioning of a crash data recorder (CDR) and the data retrieved from it.  The court of appeals found that the witness’s field of expertise – downloading black box data – was not particularly complex. The court found that the vehicular crimes officer’s field of expertise in accident reconstruction was legitimate; that he testified within the scope of his expertise in accident reconstruction; and he properly relied on and utilized principles involved in the field of accident reconstruction. The court further found that the officer’s lack of knowledge of the manufacturing process of CDR and its accelerometer, or the black box’s rate of error, did not affect the reliability of his expert testimony.

In William v. State, 606 S.W.3d 48 (Tex. App.–Houston [1st Dist.] 2020), the State called an analyst with the Texas Department of Public Safety’s Telephone Records and Analysis Center (TRAC) as an expert to testify on the approximate location of a cell phone, based on historical phone records and a list of the coordinates of Houston’s cell phone towers, provided by carriers to law enforcement. The witness testified that she was trained in cell phone mapping, employed the techniques daily, and had three years of experience doing so. The court of appeals found that the plotting software’s error rate did not impact the reliability of her opinions; the cell phone records showed the exact tower to  which the phone connected; and the witness testified that she checked the records for accuracy. The court of appeals concluded that the trial court did not abuse its discretion when it determined that the witness’s opinion on the general location of the defendant’s and the victim’s cell phones was reliable.

Some intermediate courts are giving great deference to trial court decisions regarding expert witnesses. Malone v. State, 163 S.W.3d 785 (Tex. App.–Texarkana, 2005, pet. ref’d) (social worker with undergraduate degree permitted to testify to incest offender profiles based on articles she reviewed on the internet); Longoria v. State, 148 S.W.3d 657 (Tex. App. – Houston [14th Dist] 2004, pet. ref’d) (victim–impact testimony from expert witnesses about the physical and psychological impact of child sexual abuse was admissible at guilt-innocence because of its tendency to make more or less probable whether the defendant committed sexual assault on his two stepdaughters).

Other courts of appeal seem to be holding trial courts to a higher standard. In Kelly v. State, supra at 601, the trial court erred by allowing a DFPS worker, with an associate’s degree and without medical training, to testify to the sexual development and response of children as a predicate to her testimony about grooming. The lack of consistency in the appellate courts sometimes creates a guessing game for defense lawyers, prosecutors, and judges as to who may be qualified as an expert and what “scientific” evidence  may be found to be relevant and reliable.

Current Issue: December 2020

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Features

15 | Requiem for a Titan – By David Moore
18 | ABCs and 123s of Parole Law: An Introduction to Parole Law – By Sean David Levinson
21 | Absurd Results During COVID-19 – By Stan Schweiger
25 | Cross Examining the State’s Domestic Violence Experts: The Blind Lumpers – By Jeremy Rosenthal
30 | Expert Witnesses and Challenges to Expert Testimony Pt. 1 – By Craig Jett

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

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5 | CLE Seminars and Meetings
39 | Significant Decisions Report

President’s Message: Texas Inmates Are Dying of Coronavirus

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If it were revealed that Texas prisons and jails had failed to prevent more than 200 people (and counting) from suffocating during 2020, it would be an international outrage. Yet that’s what appears to be happening, according to a new study from the University of Texas Lyndon B. Johnson School of Public Affairs (UT-LBJ-PA).1 Will this disgrace continue or will the State of Texas put a stop to it?

Some of the lowlights of UT-LBJ-PA’s study, released in November 2020, are:

  • As of early October 2020, at least 231 people have died in Texas correctional facilities. This includes staff, jail and prison deaths. UT-LBJ-PA Study at 6.
  • Prison deaths account for 93% of deaths among people in custody. Id.
  • In the Duncan Unit in Diboll (south of Lufkin), almost 6% of the incarcerated population has died. Id.
  • The average age of death is 64 for people in prison. It is 56 for people in jail. Id.
  • 21 people had served 90% or more of their sentence at the time of their death. Id.
  • 11 of the 14 inmates (approximately 80%) who died from COVID in Texas jails were not convicted of a crime. Id.
  • 58% of people who died in prisons from COVID were eligible for parole. Id.
  • 9 people who died in prisons from COVID were approved for parole but not yet released. Id.

Even accounting for the massive size of Texas’ incarceration population, the Lone Star State appears to be in much worse shape than other American states. Texas prison systems have more COVID infections than any other state, including significantly more than California and the entire federal system. UT-LBJ-PA Study at 9. Texas also has more COVID infections among staff than any other prison system. Id. Not surprisingly, as of early October 2020, Texas has significantly more COVID deaths of incarcerated people (190) than any other prison system. Id. at 10. Florida is second with 134. The federal system is third with 133. Id.

Texas has significantly more staff deaths from COVID than any other prison system. UT-LBJ-PA Study at 10. This not only paints a damning picture of conditions inside the state’s prisons, but shows an apparent tendency to spread infections beyond prison walls and into surrounding communities.

People in Texas prisons are testing positive for COVID at disproportionately high rates. UT-LBJ-PA Study at 11. A whopping 490% higher than the state of Texas as a whole. Id. It is 40% higher than the national prison population average. Id. And, it is 620% higher than the national average of people in the United States. Id.

People in Texas prisons are dying from COVID at disproportionately high rates. UT-LBJ-PA Study at 11. The death rate is 140% higher than the state of Texas as a whole. Id. It is 35% higher than the national prison population average. And it is 115% higher than the national average. Id.

Texas is not the worst in every single category. Of the ten largest prison systems in the U.S., Texas has the second highest rate of COVID infections. UT-LBJ-PA Study at 12. Florida is 1,663 per 10,000 people and Texas is 1,623 – a difference of less than a percent. Id. Even accounting for our size, Texas has one of the highest death rates.2

One final statistic gathered between April – August 2020: Other states (including Ohio and Michigan) that started with a high number of COVID prison deaths have done substantially better than Texas in bringing down their death numbers. UT-LBJ-PA Study at 13. It appears that Texas is not on par with most of its peers in combatting the virus and saving lives.

The statistics are shocking, disturbing, and admittedly a little numbing. Reading through pages and pages of numbers almost causes one to forget that the figures – especially those relating to deaths – represent actual human beings who weren’t sent to jail or prison for execution. They were fathers and mothers, sons and daughters, brothers and sisters. Their lives meant something to people on the outside. The fact that more of our elected officials are not outraged by what’s happening in our Texas prisons and jails during the pandemic is, itself, an outrage.

I do not claim to have all of the answers for what may be done. But we should at least consider a few possibilities. I call on Governor Greg Abbott (who has the power and certainly the willingness to issue Emergency Orders), the Texas Legislature (which is scheduled to meet January 12, 2021 – or earlier, if the Governor so directs), TDCJ Executive Director Bryan Collier (who is the top manager responsible for the care and custody of all TDCJ inmates) and county sheriffs (whose job includes the protection of inmates at county jails across the state) to consider doing the following: (1) segregate older and medically vulnerable inmates from the rest of prison and jail populations and administer daily, rapid testing to the protected groups; (2) increase training for prison guards and inmates, in order to avoid contracting and spreading COVID, and institute a “zero tolerance” policy for prison and jail employees who violate safety protocols; (3) speed up the parole process and instruct the Texas Board of Pardons and Paroles to show more flexibility in allowing release (with appropriate conditions) — especially for non-violent offenders; (4) encourage release of county jail inmates who are eligible for bond. This should include withdrawing Executive Order No. GA-13 relating to detention in county and municipal jails during COVID-19 disaster

Texas can do this. We can do whatever works in other states and we can supplement with our own approaches. The current situation in Texas prisons and jails is unacceptable and must be addressed immediately. People are dying.

As it stands, Texas detention facilities are losing the war against COVID-19 and losing it badly.

Executive Officer’s Perspective: Ending 2020 and Entering 2021

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Our souls need time to think, dream, and reflect.

Jo Ann Davis

As we continue, many are probably still wondering how to move forward with the continuous changes. Since March, TCDLA has put on numerous virtual trainings, creating the COVID-19 Resource Page, hosting roundtables, and creating resources to assist our members. The COVID Task Force, the Strike Force, the Ethics Committee, and the Voice editors stay busy trying to provide our members the best service and communication. Our newly formed Diversity, Justice, and Inclusion Committee has been meeting and discussing how to assist our members and clients. With the committees’, board’s and officers’ collaborative work, our goal is to address and confront the challenges we are facing. These efforts will remain a high priority through 2020 and beyond.

Upcoming, we have the Defending Those Accused of Sexual Offenses being offered in-person, livestream, or at your own pace. We hope to have you join us for the event on December 3-4, 2020. The Nominations Committee will also meet virtually to select our next slate of officers. We had an overwhelming number of applications sent in, which is exciting. All of our committees have been very active this year and will have lots of new tools and resources for our members. Did you know we have over 30 committees?

As the holidays approach, not only are many of us dealing with our job responsibilities, we have taken on a second job as a teacher. How many have gotten a new pet during this time? I have been teaching my kids what disappointment is and how to deal with it. As hard as it is for myself to be secluded, I can only imagine what they are feeling. I am over baking everything from scratch, bingewatching Netflix, rearranging the house, and now have moved onto making homemade Christmas cards… We will see how that goes.

I thought 2020 was going to be my year; I dare not say that with 2021. This year I went through the good and bad like many and learned not to get stressed with things beyond my control. I have become more compassionate with those I do not see eye to eye. Many people delete these people from their social media. I don’t want to do that. During this time of closeness with my children, I have learned a great deal from my mistakes. Missing my family and friends due to social distancing has been the biggest challenge for this social butterfly. This will be the first year for the holidays that I will make things a little easier and not go above and beyond and make everyone crazy with me (so I say now).

I hope everyone will reach out to someone during the holidays and be inclusive, kind, and caring. We have no idea what anyone is going through even though they may have a smile on their face and seem to have it all. People can be surrounded and yet be so lonely and then there are those who are alone. I hope that in 2021, we will have a safe vaccine and see one another once again. I truly do miss my TCDLA family! I truly believe everything happens for a reason, and maybe COVID is giving everyone some time to slow down, reconnect, and self-reflect. Wishing everyone a wonderful holiday, whether you are doing a lot or a little and a fabulous New Years! Cheers to you for surviving 2020!

Editor’s Comment: Is the Risk Worth it?

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The Voice has always been an important benefit of this organization. Back in 2007, I submitted my first article for publication to the Voice. It addressed the presentment requirement of search warrants as applied to search for blood.1

Now, 13 years after my first article – and along with many other Americans, I’m certain – I find myself contemplating more and more another topic related to search warrants: no-knock warrants. The requirement has long been a part of history even before Justice Thomas authored the opinion for a unanimous SCOTUS in Wilson wherein he wrote: “At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.”

Wilson v. Arkansas, 514 U.S. 927, 929 (1995). The case involved a search warrant based on information from a confidential informant. Police had information that the target had previously been convicted of arson and firebombing and also that he had threatened the confidential informant with a semiautomatic weapon. Police officers announced entry contemporaneous with, rather than prior to, entry in this case. The SCOTUS ultimately reversed and remanded the case to the Arkansas Supreme Court to address whether evidence of potential danger to law enforcement and destruction of evidence justified the failure of law enforcement to announce their presence prior to breaching the door.

Thus, since 1995, the knock and announce requirement is part of the reasonableness inquiry of a Fourth Amendment analysis. But now, especially given all the recent events, the question is: does the ever-increasing cost of no-knock warrants outweigh their potential benefits?

The scene in executing these no-knock warrants is often the same – an arsenal of police in military-type tactical gear (versus typical patrol uniforms that we are all used to) load up under the cover of darkness and surround the target house often giving hand signals to communicate. To anyone watching, they appear ready for war. Then, when the signal is given, they breach entry with some sort of battering ram, again under the cover of darkness, throw flashbangs while simultaneously screaming commands, and storm the location with guns drawn and shields up. The occupants are often sleeping, and there are frequently noninvolved people – sometimes kids and/or elderly – present at the location. They are awoken or interrupted suddenly by the sounds of flashbangs and screaming. Through an open interior door, the occupants may see smoke and guns pointed at them. Predictably, panic and chaos often ensue, and gunfire is often exchanged.

In my experience and reading, these no-knock warrants are typically employed in drug raids. Certainly, the same concerns that existed in Wilson as justifications for the failure of the police to announce their presence will exist in the execution of a warrant in virtually every drug (and every other criminal) case. The consideration, then, has to be is it worth the risk. Is it worth the risk to any one law enforcement life? Is it worth the risk of life to the sometimes completely innocent occupant? Importantly, to answer the question, we must acknowledge that “it” is most frequently a covert drug bust. The problem is further compounded by the fact that Texas is a proud “stand your ground” state. Gunfire, or the sound of gunfire, will often predictably be met with the return of gunfire. Is the risk of harm really worth it? Not a chance.

Just search “no-knock warrants” and you will find that many police departments in Texas are now suspending or severely limiting the use of no-knock warrants for precisely this reason. And, in June, Kentucky Senator Rand Paul introduced the Justice for Breonna Taylor Act to prohibit no-knock warrants at the federal level and for states or any local law enforcement agency that receives funding from the Department of Justice.2 What harm will it actually do to eliminate or severely restrict the use of no-knock warrants like many police departments and legislation propose? None. The warrants will still be executed, police will still come prepared, and people will still be arrested. The risk isn’t worth it.

And finally, although our country is clearly divided, let us not become so. Let us embrace the differences in each other and let us remember that whatever our differences may be, we stand united because we all are criminal defense lawyers.

Peace on earth and goodwill to all.

P.S. – A huge thank you to all those committees and individuals who have committed to contribute to the Voice. Your thoughtful contributions are what continue to propel the success of this publication.