Monthly archive

January 2021

January/February 2021 SDR – Voice for the Defense Vol. 50, No. 1

Voice for the Defense Volume 50, No. 1 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

This month we saw two major cases involving the right to pretrial release. In Daves, et al. v. Dallas County, the Fifth Circuit reiterates the due process requirement of individualized consideration of each individual’s ability to make bail. No. 18-11368 —F.3d—- (5th Cir. Dec. 28, 2020). In an unpublished opinion, the Austin Court of Appeals declines the invitation to use the pandemic as an excuse to prolong the period the State may confine an unindicted person. Ex parte Tucker, No. 03-20-00372 (Tex. App.—Austin, Dec. 31, 2020)(not designated for publication). Of equal importance, we also learn the appropriate way to pose for your baton certification class photo (but only if you read this SDR carefully!)

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. Cases are hyperlinked and can be accessed by clicking on the case name.

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

Daves, et al. v. Dallas County, Texas, et al., No. 18-11368;  —F.3d.—- (5th Cir. Dec. 28, 2020)

Issues. This 42 U.S.C. 1983 lawsuit challenging the constitutionality of cash bail procedures as applied to indigent arrestees raises several issues: (1) Does the subsequent release of inmates in bail litigation seeking injunctive relief eliminate standing? (2) Must all state remedies be exhausted before federal bail litigation? (3) Are the Dallas County District Court Judges proper defendants? (4) Is Dallas County a proper defendant? (5) Is the Sheriff a proper defendant? (6) does the constitution demand more than the implementation of carefully crafted procedures that account for individual circumstances; is there a substantive due process right to be free from wealth-based detention?

Facts. This case is brought as a class action by the same attorneys involved in the Harris County bail litigation. That case now involves three Fifth Circuit opinions upon which this case now builds. Plaintiffs here are a class of indigent inmates who were unable to post bail. Seven Magistrate Judges are named as defendants. The lawsuit also names Dallas County, the Dallas County Sheriff, 17 Criminal District Court Judges, and 11 County Criminal Court Judges. At the time of plaintiffs’ filing, recent arrestees in Dallas County were taken before Dallas County Criminal District Court Magistrate Judges (appointed by the district court judges) who determine bail by reference to a recommended bail schedule (crafted by the district court judges). The schedules at issue set recommended bail amounts for corresponding offenses (absent special circumstances). Despite being stated as recommendations, the federal district court found that magistrate judges routinely treat the schedules as binding. In response to the Harris County litigation, Dallas County District Judges directed Magistrate Judges to begin accounting for an arrestee’s ability to pay based on financial affidavits. The federal district court found these financial affidavits “made no noticeable difference in the practices for setting terms of release.” Inmates who could not afford bail were taken back to jail and kept for weeks or months. The federal district court found “a clear showing of routine wealth-based detention” in violation of procedural due process and equal protection. Pursuant to similar relief granted in the Harris County litigation, the federal district court ordered Dallas County enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without first providing an adequate process for ensuring there is individual consideration for each arrestee and possible alternatives to cash bail.

Holding. (1) No. The issue of standing “is to be assessed under the facts existing when the complaint is filed.” Lujan v. Defs. Of Wildlife, 504 U.S. 555, 569 n. 4 (1992). “Because the Plaintiffs had standing when they filed their original complaint, the capable-of-repetition-yet-evading-review doctrine precludes mootness.” Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). (2) No. Defendant District Court Judges argue that when the constitutional complaint involves a challenge to the “very thing” that stands between the plaintiff and release from custody, plaintiffs must first seek habeas relief before filing a 1983 action. However, the District Court Judges mischaracterize the plaintiff’s requests, they seek individualized consideration of their ability to pay bail and nonfinancial alternatives. “The relief of a more robust hearing would not necessarily lead to ‘immediate release from confinement or the shortening of its duration.’” (3) No. Texas criminal district judges are “undeniably elected state officials” and “act for the state when acting on bail.” As state actors, their actions are covered by sovereign immunity. As such, the only avenue for continued litigation against them is a showing of potential prospective relief from continued and ongoing violation of federal law. Here, the District Judges adopted a policy that permits discretion and plaintiffs take issue in the policy’s implementation. Implementation is not a matter over which District Judges have control. Accordingly, the District judges are not only immune from suit, plaintiffs did not even allege a case or controversy involving them. (4) Yes. While there is some indication that county court judges are part of a state court system, precedent provides that a county court judge is a county actor, not a state actor. As such, when they set policy, they set policy on behalf of the county for which the county may be held liable in a 1983 suit. (5) Yes. “If bail is unconstitutionally required, the sheriff’s ‘constitutional violation is detention on an improperly determined bail amount.’” (6) No. “There is no clear support in the precedents on which the Plaintiffs rely for the expansive liberty right for indigents that the Plaintiffs claim.” Nor does the Eighth Amendment’s prohibition on excessive bail create a substantive right to liberty for indigent defendants. There is no substantive due process right to be free from wealth-based detention. Though liberty cannot be taken without a constitutionally adequate justification, what the constitution requires is procedural due process: an individualized determination of the person’s ability to make bail, whether cash bail is necessary, and whether other alternatives to cash bail may satisfy the government interests involved.

Comment. This is a scary precedent as it pertains to sheriffs. I don’t want the sheriff to be the final arbiter of whether a judge followed the constitution; the Fifth Circuit says its opinion doesn’t go this far. The sheriff’s responsibility is merely a perfunctory one: to see if an individualized assessment was made. But what should a sheriff do when a judge holds a bond insufficient without a hearing, orders a sentence executed that relies upon insufficient evidence?  The other thing which struck me in this case is the invocation of the capable-of-repetition-yet-evades-review doctrine. On the COVID-19 taskforce we have been advancing that argument in the courts of appeal and Court of Criminal Appeals on behalf of inmates denied their statutorily guaranteed release because of delay. Nearly every person we have assisted has mooted-out due to case resolution or some other mechanism. Texas courts have specifically rejected the capable-of-repetition-yet-evades-review argument in the context of bail litigation. This changes things. 

Texas Court of Criminal Appeals

Haggard v. State, No. PD-0635-19 (Tex. Crim. App. 2020)

Issue. Does testimony by a Sexual Assault Nurse Examiner (SANE) via a two-way video system (Facetime) violate the Sixth Amendment?

Facts. Following an outcry of sexual assault, a family friend took the complainant to the hospital for a SANE evaluation. The SANE nurse memorialized the complainant’s story, did not find trauma to the alleged complainant’s sexual organs, but did find a hickey she described on her breast. Despite the complainant describing two instances of ejaculation during the assault, in 2014, the DPS crime laboratory could not find the presence of anyone’s semen in any area of interest, including the shirt the complainant described using to clean herself. In 2017 DPS used new software to determine that the defendant was a contributor of DNA of previous unknown mixed DNA sample from the complainant’s breast hickey (billions of times more likely than any other person to have contributed to the mixed result). At the time of trial (in 2017), the SANE nurse had moved to Montana. Because she committed to voluntarily appearing in court to testify the State did not subpoena her. The Friday before the Monday that trial was set to begin, the SANE nurse changed her mind and informed the prosecutors she would not appear voluntarily. Without attempting to subpoena the SANE nurse or moving for continuance, the State requested that the trial court permit the SANE nurse to testify via FaceTime. The State argued that the SANE nurse was necessary to prove chain of custody and that without the SANE testimony, the DNA evidence would be inadmissible. The trial court granted the State’s motion over defense objection.

Holding. Maybe. It did here. A majority opinion by Judge Hervey, joined by Keasler, Richardson, Newell, and Walker, JJ. A criminal defendant has not only the right confront, but also the right to physically confront those who testify against him. Coy v. Iowa, 487 U.S. 1012, 1017 (1988). That right is subject to important public policy concerns. Id. In Maryland v. Craig the U.S. Supreme Court found one such important public policy concern sufficient. The Court upheld the use of one-way, closed-circuit television for child testimony under a statute which required case-specific findings pertaining to necessity arising from child trauma and inability to communicate while in the presence of the defendant. 497 U.S. 836 (1990). The Court of Criminal Appeals has consistently applied the standard from Craig in cases involving the use of two-way video systems, such as FaceTime. Marx v. State, 987 S.W.2d 577 (Tex. Crim. App. 1999); Gonzalez v. State, 818 S.W.2d 756 (Tex. Crim. App. 1991). The court rejects the invitation of the dissent to treat this progeny as outdated and instead “focus on the realities of the world we live in today.” Citing Scalia, the court notes:

a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.

Order of the Supreme Court, 207 F.R.D. 89, 91 (2002)(Statement of Scalia). The Court noted the evolution of the right to confrontation from a substantive guarantee to a procedural one in Crawford v. Washington. 541 U.S. 36 (2004). The importance of the right is the ability to test evidence in the “crucible of cross-examination.” Id. The Court seems to assume that Craig remains the applicable standard for evaluating virtual confrontation and finds that the trial court’s desire to save the State from its negligence or alleviating travel burdens on witnesses are insufficient public policy justifications to overcome the defendant’s right to in-person confrontation.

Concurrence (Yeary, J.). The Court of Criminal Appeals is limited to addressing only issues which have been ruled upon by a lower court. The Beaumont Court of Appeals assumed for the sake of argument the Confrontation Clause was violated and found no harm. The case should have been sent back to the Beaumont Court of Appeals to require them to analyze the confrontation clause issue. Nonetheless, Judge Yeary opposes the dissent’s position that the Sixth Amendment has evolved to incorporate the use of new-fangled technologies.

Dissent (Slaughter, J. joined by Keller and Keel, JJ.). The dissenters perceive an opportunity presented by the advancement of technology to allow virtual confrontation despite Crawford and Craig. They find the requirements of the Sixth Amendment are limited to (1) taking an oath, (2) face to face examination with some exceptions, (3) opportunity for cross examination, (4) ability of the factfinder to observe the witness’s demeanor. These were all satisfied in the instant case via FaceTime testimony. The dissent notes the use of really big modern TV screens actually make for better and even enhanced interactions (notwithstanding the numerous technical problems in the instant case). If the defendant wants to avoid whatever shortcomings virtual cross-examination presents, the defendant can issue a subpoena.

Comment. A long but necessary summary. The facts of this case predate the COVID-19 pandemic, but the opinion comes squarely in the middle of a surge in U.S. cases. This case is a blueprint both for proponents and opponents of virtual cross examination during the public health disaster. The State in the instant case did very little in way of presenting a good reason to the trial court for allowing 2-way video confrontation (though its argument was certainly a familiar one: “we’re the State, it’s not fair when we lose, and we really, really, want to do it”). It’s hard to predict whether the six judges in the majority would hold should the State presents better arguments revolving around public health and safety during the pandemic. A defendant facing the prospect of unwanted virtual confrontation should definitely parlay the arguments in this case with those in In re Abbott and Ex parte Sheffield, “[t]he Constitution is not suspended when the government declares such a disaster.” In re Abbott, 601 S.W.3d 802 (Tex. 2020); Ex parte Sheffield, No. 07-20-00216-CR (Tex. App. Amarillo—Sep. 17, 2020).

Day v. State, No. PD-0955-19 (Tex. Crim. App. 2020)

Issue. In the context of an evading arrest prosecution (which requires a lawful detention), can an officer’s discovery of a lawful basis for detention (a warrant) be tainted by illegality—a la fruit of poisonous tree—because the initial basis for the detention was unlawful.

Facts. A city marshal was staged three houses down from the home of an individual with a traffic warrant (“target fugitive”). He intended to arrest this individual but didn’t know what he looked like. A vehicle with several passengers arrived as did a couple of individuals on bicycles. One of the individuals in the group was the target fugitive. He asked those in the group to identify the target fugitive and all declined. The marshal asked for identification. The defendant was one of the two individuals who complied with that command. As the marshal checked the defendant for warrants, the target fugitive rode away on his bicycle. Appellant told the marshal that he wanted to leave, that he had to get to work, and that he wasn’t the target fugitive. The marshal declined to terminate the detention. Appellant admitted to having warrants out of Fort Worth, but the marshal indicated he was not concerned with those warrants, at least until he learned they were county-level warrants. When it became clear that he would be arrested, the defendant started to make his escape. The marshal informed the defendant he was not free to leave and that he was under arrest. He ran, anyway. The defendant argued in the trial court that the continued detention beyond the point of defendant’s expression that he wished to leave, was unconstitutional and thus his further detention and ultimate arrest were unlawful. On direct appeal, the defendant argued this fact entitled him to acquittal (evading arrest or detention requires proof of a lawful arrest or detention). The Court of Appeals found that that the prolonged period of detention was unconstitutional and that the later discovery of a warrant did not cure this.

Holding. No. The word “lawfully” as it appears in the evading arrest or detention statute does not incorporate exclusionary rule principles such as “taint” and “fruit of the poisonous tree.” These concepts define the remedy for unlawful police conduct only in the context of suppression. “[T]hey do not transform an otherwise lawful arrest into an unlawful one.” The court rejects the defendant’s argument that once a detention becomes unlawful, it remains unlawful. The court notes that this remains a valid fruit-of-the-poisonous-tree argument in the context of Fourth Amendment suppression, just simply inapplicable in cases of evading.

Comment. This comment might make your brain explode. Because lawful detention or arrest is an element of the offense, you can’t file a motion to suppress in an evading case (noted in opinion). Now, in the context of any motion to suppress you can argue subsequent lawful police action is “tainted” or “fruit of the poisonous tree” due to initial illegal conduct. But, according to the court, in the context of an evading trial, you can’t argue “taint” or “fruit of the poisonous tree” because they have no bearing on the sufficiency of the evidence. Procedurally, where do you get to make these arguments in an evading case? Nowhere now.

Diamond v. State, No. PD-1299-18 (Tex. Crim. App. 2020)

Issue. In a DWI with BAC greater than 0.15 prosecution, is undisclosed evidence that a lab technician accidentally certified questionable blood results in an unrelated case the type of materially favorable cross-examination evidence that would warrant granting a new trial under Brady v. Maryland?

Facts. This is a substitute opinion on motion for rehearing. Defendant was convicted at trial of DWI with a BAC greater than 0.15. In an unrelated case, prior to defendant’s trial, the technician who analyzed defendant’s blood mistakenly certified a blood alcohol analysis where a police officer had mislabeled the submission form accompanying the blood sample. The technician had caught the discrepancy, followed protocols in setting it aside for resolution, but then accidentally certified the analysis without resolving the discrepancy. At the time of Defendant’s trial, the technician had been removed from casework and was working to research and document this incident. The technician’s supervisor, partly to blame for the error, offered inconsistent reasoning for why he had removed her from casework. The trial court rejected the supervisor’s ultimate rationale: that he had lost confidence in the technician’s knowledge base and denied the writ of habeas corpus. The 14th Court of Appeals found otherwise, rejected the trial court’s finding, and accepted as true that the supervisor had lost confidence in the technician and finding that this fact was at least material to the jury’s finding that the defendant’s BAC was greater than 0.15. 

Holding. No. At least not here. The subjective evidence of intoxication was substantial as was the evidence that, in the instant case, the analyst followed all protocols. In the case of the unrelated error, there was never a question whether the technician accurately analyzed the blood – her error was certifying it as belonging potentially to the wrong person (and that error was caught before it caused any damage). Due to these considerations, the erroneous certification in an unrelated case could not have been materially favorable cross-examination evidence for the defendant. With regard to the accusation made by the technician’s supervisor—a suggestion to lack confidence in her work—the trial court was within its discretion to reject that conclusion, especially in light of the fact that it was self-serving, blame shifting, and one of several inconsistent statements provided by the witness.

Comment. In the creative minds of criminal defense lawyers, it is hard to accept that scandalous evidence is not material evidence. Many of us have tried DWI blood draw cases by attacking the reliability of government crime laboratory procedures for identifying and addressing errors and the normal practice of self-investigation. Having particularized instances where these procedures produced (or almost produced) disastrous results, lend credibility to the argument.

1st District Houston

Thomas v. State, No. 01-18-00504-CR (Tex. App.—Houston [1st Dist.] Dec. 1, 2020)

Issue. In an open-plea scenario, where a defendant executes a standard agreed-plea form to indicate her intent to plead guilty, but that form is modified or repurposed to show the absence of a negotiated punishment, may the state wield boilerplate appeal waiver language in that form to defeat the defendant’s right to appeal?

Facts. Defendant and her co-conspirators stole more than $8 million from an engineering company and pleaded guilty to theft and money laundering. Defendant entered an open plea of guilt and proceeded to punishment before the trial court without a sentencing recommendation from the prosecutor. Prior to the hearing the defendant executed standard/boilerplate forms which included waiver of appeal language. Although the prosecutor did not express a negotiated punishment recommendation in this document, he did indicate that the State waived its right to a jury trial.

Holding. No. A waiver of the right to appeal is unenforceable without consideration. The boilerplate waiver executed by the defendant expressly states that the defendant waived the right to appeal in exchange for the State’s sentencing recommendation. That is not true. And there is no other indication that the State gave some consideration for this purported waiver. The State’s argument that its waiver of jury trial was valuable consideration is unpersuasive. The record does not reflect that the State’s waiver of jury trial was offered in exchange for defendant’s plea or waiver of appeal. Moreover, there is no evidence that the State was otherwise disinclined to waive a jury trial.

Brent v. State, No. 01-19-01008-CR (Tex. App.—Houston [1st Dist] Dec. 10, 2020)

Issue. Does the Code of Criminal Procedure impose a deadline on the trial court’s exercise of “judicial clemency” jurisdiction following a defendant’s successful completion of community supervision?

Facts. In March 2017 the trial court discharged the defendant from her conviction-based misdemeanor community supervision. More than two years later, in 2019, defendant filed a “Motion to Set Aside the Verdict and Dismiss Pursuant to Texas Code of Criminal Procedure Art. 42A.701(f)” (motion for “judicial clemency”). The State filed a response objecting to the trial court’s jurisdiction, arguing that the trial court’s authority to enter such an order expires 30 days after its entry of a probation discharge order. The trial court granted defendant’s request for judicial clemency and interpreted 42A.701(f) to have no such deadline.

Holding. No. A discharge from probation is a recognition that the defendant “has paid his debt to society . . . .” “Judicial clemency” is available “when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society . . . .” Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). The literal text of the 42A.701(f) provides:

If the judge discharges the defendant under this article, the judge may set aside the verdict or permit the defendant to withdraw the defendant’s plea. A judge acting under this subsection shall dismiss the accusation, complaint, information, or indictment against the defendant. A defendant who receives a discharge and dismissal under this subsection is released from all penalties and disabilities resulting from the offense of which the defendant has been convicted or to which the defendant has pleaded guilty [subject to certain exceptions not applicable here].

The State’s incorrectly reads the statute to require discharge and clemency to occur at the same time. The statute envisions the discharge as a condition precedent to the order of judicial clemency. Restricting the trial court’s clemency jurisdiction to the time of granting a discharge is inconsistent with public policy. Judicial clemency is a reward for complete rehabilitation, but some have not reached that status at the date of their probation discharge.

(2) No. There are only two types of community supervision discharges: permissive (early discharge upon early completion of conditions), and mandatory (upon completion of conditions and full expiration of probationary term). The court rejects the State’s attempt to add a third category of discharge ineligible for judicial clemency—one where the defendant did not complete conditions but the probationary period expired, is unpersuasive. 

Comment. Justice Goodman takes a principled stance in the face of five sister courts of appeal holding that jurisdiction to grant judicial clemency expires 30 days after entry of an order discharging the defendant from community supervision. Four months on the job as the new SDR editor and I find myself checking each month to see what Justice Goodman has written.

Roland v. State, No. 01-19-00752-CR (Tex. App.—Houston [1st Dist.] Dec. 15, 2020)

Issue. Does a county court at law have subject matter jurisdiction over a prosecution for official oppression?

Facts. Defendant worked at the Fort Bend County Juvenile Probation Department as a drill instructor. He was accused of slapping or hitting juveniles under his supervision. The State tried to charge him with official oppression. They first filed a misdemeanor cases in the county court. Then believing jurisdiction should be in the district court, they moved to “transfer jurisdiction,” but abandoned this maneuver prior to a hearing. The misdemeanor court instead held the misdemeanor charges while the State obtained a grand jury indictment to prosecute the same charges in district court. The district court dismissed the charges based on the expired statute of limitations. The State then reverted back to their conveniently held prosecution in the misdemeanor court and argued that county and district courts have concurrent jurisdiction over official-oppression cases. The county court denied the defendant’s motion to dismiss and the defendant plead no contest and appealed.

Holding. No. Official oppression is a Class A misdemeanor and constitutes an offense of “official misconduct.” Generally, county courts have exclusive original jurisdiction over misdemeanor offenses. Tex. Gov’t Code § 26.045(a). Misdemeanors involving official misconduct are excluded from this general rule. Tex. Gov’t Code § 26.045(a). Article 4.05 of the Code of Criminal Procedure confers original jurisdiction of all misdemeanors involving official misconduct to district courts. Tex. Code Crim. Proc. art. 4.05. Thus, the county court at law here had no jurisdiction to enter its judgment against the defendant. A judgment entered without jurisdiction is null and void and therefor it is vacated and dismissed.

Comment. There is nothing particularly profound about the outcome or analysis in this case. It is all-around good lawyering. If you didn’t know jurisdiction over misdemeanors involving official misconduct lies in the district court, as Biggie Smalls says, “if you don’t know, now you know.”

Torres v. State, No. 01-18-01074-CR (Tex. App.—Houston [1st Dist] Dec. 22, 2020)

Issue. (1) Does the Confrontation Clause apply in probation revocation hearings? (2) When a probationer is required to “successfully complete” treatment, does a conclusory unsuccessful discharge citing generally that the defendant failed to follow rules provide a sufficient basis to revoke probation?

Facts. Defendant’s probation was revoked. He was previously sentenced to deferred adjudication probation with the condition of completing six months of treatment in the Substance Abuse Felony Punishment Facility (SAFPF). The State, by its motion to adjudicate guilt, alleged that he failed to complete the SAFPF program. At the hearing on the motion to adjudicate the State called a probation record custodian who did not have personal knowledge of defendant’s probation performance but authenticated the defendant’s probation records. The State called a SAFPF coordinator who prepared an unsuccessful discharge report based on information conveyed to him during a “treatment team meeting” with SAFPF/prison personnel over the telephone. The State also introduced the discharge report. Neither the SAFPF coordinator nor the discharge report articulated any particular violations, but did cite generally that defendant committed “rule violations.”

Holding. (1) Dodged. Prior to 2012 several intermediate courts of appeal determined that there is no right to confrontation in probation revocation hearings. In 2012, the Court of Criminal Appeals issued its ruling in Ex Parte Doan holding that “[c]ommunity-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings.” 369 S.W.3d 205, 212 (Tex. Crim. App. 2012). But the Court of Criminal Appeals has not expounded on that holding. The First Court assumes a confrontation right but mostly dodges this question by finding reversible error elsewhere. (2) No. “Successful completion” of a treatment program impliedly requires a probationer to abide by rules and regulations. However, the exercise of discretion by a third party in evaluating whether the probationer complied with rules and regulations must be accompanied with the basis for such a conclusion. The reasons for a probationer’s discharge from a mandated treatment program are relevant to the trial court’s decision to revoke probation. Due process requires a trial court to evaluate the exercise of discretion by the third party to verify legitimacy, veracity, and “to ensure it was used on a basis that was rational and connected to the purposes of community supervision.” See Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012). Here, the discharge report only contains conclusory statements that the defendant violated “rules” of the program and bad behavior. It contains no supporting facts, sources of information, and the SAFPF coordinator knew nothing about the bases of the complaints. Thus, the evidence here was insufficient for the trial court to have found the defendant violated the “successful completion” of treatment condition. 

Concurrence (Keyes, J.). Probationers have a right to confrontation in probation revocation hearings. The Court of Criminal Appeals decision in in Doan has sufficiently overruled any predecessor case that holds otherwise. Because the discharge report contained hearsay within hearsay it was inadmissible, despite the proper business record predicate. “Here, there is no indication that the actual facts underlying revocation of appellant’s community supervision were of any concern to the State or to the court; nor was any attention given to assuring appellant’s rights or attempting to reach any result other than a summary dismissal of all obstacles to the swift adjudication of appellant’s guilt and his sentencing to a long term in prison . . .”

Comment. There are two confrontation issues that come up frequently in the context of probation revocation motions: (1) a probation revocation motion prosecuted many years after its filing where the probation department sends a surrogate to testify on behalf of a probation officer with personal knowledge who is no longer employed, and (2) the surrogate probation officer testifying on behalf of the probation officer with personal knowledge to whom the probationer reports in another jurisdiction. These scenarios should draw a confrontation challenge every time.

Rankin v. State, No. 01-19-00156-CR (Tex. App.—Houston [1st Dist] Dec. 29, 2020)

Issue. Was a jury’s rejection of the defendant’s claim of sudden passion based on legally and factually insufficient evidence where the defendant testified that she stabbed her boyfriend immediately after a momentary break from his ongoing assault and strangulation?

Facts. Defendant called her boyfriend to help her jump start her vehicle. When boyfriend arrived, an altercation ensued. According to the defendant’s daughter who witnessed the altercation, the boyfriend grabbed and lunged at the defendant, he stated, “bitch I’ll kill you” and began to choke the defendant. Upon witnessing this, daughter fled to retrieve a baseball bat. Defendant testified that when boyfriend choked her, she felt like she was going to die, she called out for help and then stabbed the boyfriend with a knife as soon as she could free her arms. Boyfriend let go, attempted to drive off, but ultimately collapsed. While boyfriend was attempting to drive off, defendant cried alone in her car. After boyfriend collapsed, defendant rushed him to the hospital. At the hospital an officer asked who inflicted boyfriend’s wounds and defendant admitted that she had. Defendant was interviewed by series of officers and twice omitted that she stabbed her boyfriend amid the ongoing assault and strangulation. Instead she maintained that the stabbing was accidental.

Holding. No. A defendant is punished within the second-degree felony range if he or she “caused the death under the immediate influence of sudden passion arising from an adequate cause.” Tex. Penal Code § 19.01 (d). For conduct to be justified as influenced by a sudden passion “the defendant’s mind must be rendered incapable of cool reflection.” Because sudden passion is an affirmative defense, the court reviews a sufficiency challenge for both legally sufficient evidence (viewing evidence in light favorable to the jury’s rejection of the defense), and for factually sufficient evidence (viewing evidence neutrally and determining whether jury’s finding was contrary to the great weight of other evidence). The evidence was legally sufficient to reject the defendant’s sudden passion claim. The defendant testified that she remained calm and composed before, during and after the stabbing. Defendant’s ability to call out for help belies her claim that the stabbing was an immediate reaction or influenced by a sudden passion. Her crying alone in her car was also reflective of cool reflection. The evidence was factually sufficient to reject the defendant’s sudden passion claim. The evidence contradictory to the jury’s rejection of sudden passion was evidence provided by the defendant and seemed inconsistent with both the testimony of other witnesses and the defendant’s own statements provided to police prior to her arrest. The jury was free to reject the defendant’s testimony as credible evidence.

Dissent (Keyes, J.). This is a classic case of sudden passion. Finding otherwise is against the great weight and preponderance of the evidence. The majority is correct in its legal sufficiency analysis—at least a mere scintilla of evidence supported a rejection of defendant’s sudden passion claim. But, contrary to the majority’s conclusion, the jury’s rejection of sudden passion was factually insufficient. The defendant and the victim were engaged in a physical and verbal altercation. The defendant, having been choked, would have been provoked in a manner that would “commonly produce such a passion in a person of ordinary temper.” Her commission of the murder was immediately upon the victim’s loosening of his grip around her neck and before she could have regained any capacity for cool reflection. A causal connection existed between the provocation, passion, and homicide. There is no evidence to support the conclusion that the defendant did not act out of sudden passion.

Comment. 15 years for a murder sounds like some of the jurors might have believed in the sudden passion theory. It is rare that an appellate court dusts off the relic of factual sufficiency. It is applicable here, in the limited circumstance of assessing sufficiency of the evidence on a defensive issue where the defendant has the burden of proof.

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

Ex parte Tucker, No. 03-20-00372 (Tex. App.—Austin, Dec. 31, 2020)(not designated for publication)

Issue. Do Supreme Court Pandemic Emergency Orders authorizing trial courts to “modify or suspend deadlines and procedures [authorized by statute]” permit a trial court to extend Article 17.151 deadlines mandating pretrial release when the State is unprepared for trial?

Facts. After 88 days of pretrial-preindictment confinement, the State of Texas filed a “Motion to Modify Article 17.151 Deadline” (accused must be released on personal bond when State not ready for trial after expiration of 90 days of pretrial confinement). The State argued it was entitled to extension under the recent series of Texas Supreme Court orders authorizing Texas courts to “modify or suspend all deadlines and procedures . . . .” In support of its argument justifying extension of the 17.151 deadline the State pointed to: (1) the lack of clear guidance on whether other Supreme Court Emergency Orders permitted empaneling grand juries remotely, (2) the inability to assemble a sufficient number of in-person grand jury meetings when the ability to do so became clear, and (3) and the inability to assemble a quorum of grand jurors when remote procedures were authorized. The defendant argued that his pretrial-preindictment period of confinement satisfied the Article 17.151 requirements for a personal bond, and that the Supreme Court’s Emergency Order permitting trial courts to modify statutory deadlines violated the Texas Constitution’s prohibition on suspension of laws by a branch of government other than the legislature. He also argued that the Government Code did not grant the Texas Supreme Court and Court of Criminal Appeals the authority to delegate to the district courts the power to suspend Article 17.151 deadlines. The trial court granted the State’s request to extend the 17.151 deadline and reset the matter for 30 days. The State indicted the defendant two days before the reset hearing date and argued that the matter was now moot. The trial court agreed and denied the defendant’s request for personal bond.

Holding. No. Despite the trial court’s explicit finding to the contrary, nothing in the record indicated that the State was ready for trial (or had returned an indictment) within the 90-day deadline imposed by Article 17.151. A defendant’s entitlement to a personal bond under 17.151 is not mooted by a subsequent indictment returned after a defendant makes a valid request and a showing of 90 days of continuous confinement. Rather than stating the Supreme Court Emergency Orders are unconstitutional (in violation of the Texas’s constitutional prohibition on suspension of statutes), the court merely holds that the Emergency Orders do not apply to Article 17.151. By their own terms, the Supreme Court Emergency Orders permitting extension of statutory deadlines pertain to “court proceedings,” but here no case had been filed and therefore there was no “court proceeding.” Thus, the trial court’s extension of the statutorily prescribed deadline was erroneous.

Comment. This “Motion to Modify Article 17.151 Deadline” was no doubt a widely circulated prosecutor template crafted shamelessly as a tactic on how to take advantage of the ongoing pandemic and executive orders. The spirit of these emergency orders is to thread the needle between much needed emergency action and preservation of our constitutional rights and systems of government. The State acknowledges in briefing that the Governor’s GA-13 Executive Order (prohibiting Article 17.151 release certain indigent people during the pandemic) is unconstitutional because statutory suspension is an authority reserved by the legislature under Article I Sec. 28 of the Texas Constitution. Then, in the same breath, the State asks the trial court to uphold the Supreme Court’s suspension of a statute. Someone might point out that the judiciary is also not the legislature.

4th District San Antonio

Ex parte Jarreau, No. 04-19-00704 (Tex. App.—San Antonio, Dec. 23, 2020)

Issues. Is Texas Health and Safety Code §§ 483.042(a) prohibiting distribution of dangerous drugs unconstitutionally vague on its face because  (1) it fails to provide fair notice of prohibited conduct, or (2) because it fails to provide definitive guidance for law enforcement, prosecutes, judges and juries?

Facts. The Texas Health and Safety Code defines “dangerous drug” as:

A device or drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled Substances Act). The term includes a device or drug that bears or is required to bear the legend:

(A) “Caution: federal law prohibits dispensing without prescription” or “Rx only” or another legend that complies with federal law; or

(B) “Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.”

Holding. (1) No. The Health and Safety Code defines a dangerous drug as “unsafe for self-medication.” This definition is sufficiently clear and specific enough for ordinary people to understand what conduct is prohibited under Section 483.042(a). “The void-for-vagueness doctrine . . . guarantees that ordinary people have fair notice of the conduct a statute proscribes.” Sessions v. Dimaya, 138 S.Ct. 1204, 1212 (2018). A defendant challenging facial vagueness must establish that no set of practical or reasonable circumstances exist under which the statute will be valid. According to the 1981 edition of Websters Third New International Dictionary, “safe” means “secure from threat of danger, harm, or loss;” not threatening danger;” “harmless;” free from contaminating qualities;” and “not liable to corrupt or injure.” Thus, “dangerous drugs” are devices or drugs that are likely to harm or injure, or expose to danger, a person who uses them to treat oneself. This definition excludes over-the-counter drugs commonly understood to be safe for self-medication and provides “fair notice” that the legislature’s intent to prohibit experimental or evolving recreational drugs yet to be categorized as controlled substances. The fact that countless substances could meet this definition is irrelevant, the Constitution only requires “fair notice” of prohibited conduct. To this end, “perfect clarity and precise guidance have never been required.” Ex parte Ellis, 309 S.W.3d 71, 86 (Tex. Crim. App. 2010).  (2) No. As an independent basis for facial validity a defendant may challenge the lack of definitive guidelines for law enforcement, prosecutors, judges, and juries. But the analysis here is the same. The word “unsafe” is sufficiently defined and the defendant fails to show the lack of objective criteria for enforcement of unlawful possession or distribution of a “dangerous drug” as that phrase is previously defined by the court.

Dissent (Rodriguez, J.). The “catchall” definition for “dangerous drug” is unconstitutionally vague on its face. A successful facial vagueness challenge need not establish that the statute always operates unconstitutionally in all circumstances. “The concept that a particular substance ‘unsafe’ for self-medication, i.e., able or likely to cause harm, may differ based on multiple factors including the physical health of the person using the drug, the type of drug, the method of use, the number of times the drug is used, and other various factors.” Further, the degree of harm necessary to satisfy the definition is unclear; it is unclear whether death is a required consequence, or serious bodily injury, or headache, or an upset stomach; must the harm be suffered instantaneously, within hours, or months later?

Comment. This appears to be a case of first impression. The gray area here, as in any facial vagueness challenge, is the degree to which plausible circumstances of conduct unquestionably meets the definition. The multitude of unknowns created by the definition, and cited by the dissent, could tip the balance in favor of unconstitutionality should this case be reviewed further by the Court of Criminal Appeals. 

Avalos v. State, No. 04-19-00192-CR (Tex. App.—San Antonio, Dec. 30, 2020)

Issue. In a capital murder without death penalty prosecution (mini-cap), does Texas Penal Code Section 12.31’s automatic imposition of a life sentence without possibility of parole violate the Eighth Amendment’s (and Texas’s equivalent) prohibition on cruel and unusual punishment as applied to an intellectually disabled defendant?

Facts. This opinion by an en banc Fourth Court of Appeals substitutes the previous panel opinion. Defendant, an intellectually disabled person, pleaded guilty to two counts of capital murder pursuant to a plea agreement in which the state agreed to a punishment of life imprisonment without possibility of parole (automatic in non-death capital murder conviction). The trial court did not consider defendant’s intellectual disability in imposing the agreed-upon and automatic sentence. Defendant appealed claiming that United States Supreme Court precedent prohibits automatic life-without-parole sentencing without a consideration by the trial court of the defendant’s intellectual disability.

Holding. Yes. In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court “barred the execution of intellectually disabled individual as violative of the prohibition on cruel and unusual punishment.” Such sentencing practices mismatch the culpability of a class of offenders and the severity of punishment. Their diminished capacity makes it less defensible to impose death penalty as retribution for their crime. Years later the Supreme Court would apply this same diminished capacity logic to find that an automatic life sentence in the case of a juvenile violated the Eighth Amendment by “run[ing] afoul of [the] requirement of individualized sentencing for defendants facing the most serious penalties.” Miller v. Alabama, 567 U.S. 460, 465 (2012). Based on Supreme Court precedent, it logically follows that a sentencer must not treat every intellectually disabled person as alike with other adults. Because Penal Code § 12.31(a)(2) automatically imposes life without parole, the statute is unconstitutional as applied to intellectually disabled persons.

Dissent (Chapa, J.).  There are differences between an intellectually disabled person and a juvenile – the en banc court erroneously extrapolates from Supreme Court precedent treatment of a juvenile in the Eighth Amendment context. The en banc majority opinion could lead to a lot of intellectually disabled inmates who are in prison getting a new sentencing hearing. Not just murderers but rapists too. Nonetheless, the legislature should reconsider the operation of Penal Code § 12.31(a)(2) to account for intellectual disability.

5th District Dallas

Smith v. State, No. 001-87850-2018 (Tex. App.—Dallas, Dec. 31, 2020)

Issue. (1) Does due process and the doctrine of abatement require an acquittal when the legislature decriminalizes conduct after criminal conduct occurred but before the disposition of a pending prosecution? (2) Where the trial court’s judgment reflects that the defendant was tried for two offenses together in a single trial but the record reflects that the trial court only arraigned the defendant and took the defendant’s plea on a single offense, has there been a trial on the un-referenced charge? 

Facts. On June 10, 2019, the Texas Legislature passed HB 1325, decriminalizing the possession of cannabis with a THC concentration of 0.3% or less and effectively establishing the requirement of laboratory testing in marijuana possession cases. Defendant was alleged to have possessed marijuana before the effective date of HB 1325, but his trial in August of 2019 occurred after the effective date. Despite the State not producing evidence of a THC concentration, the trial court convicted, finding that the partial decriminalization of marijuana possession was a change in the law intended to apply prospectively only and not retroactively to defendant’s conduct predating HB1325. Immediately prior to the State calling witnesses, the trial court announced a single cause number and admonished defendant on a single offense of possession of marijuana. The defendant pleaded “not guilty” to a single charge of possession of marijuana. However, the trial court’s judgment reflects that he was tried and convicted of the additional charge of unlawfully carrying a weapon.

Holding. (1) No. Under the Code Construction Act Tex. Gov’t Code 311.022, “statutes are presumed prospective in their operation unless expressly made retrospective” (Texas’ “general savings clause”) The legislature did not expressly provide for retroactive application in its adoption of HB 1325 which is an indication the legislature intended prospective-only application. Appellant’s due process arguments are unpersuasive because the intent of the legislature controls over what due process would require. The court declines to consider the legislature’s intended use and operation of the general savings clause and appellant’s argument and historical context showing its limited applicability to “technical abatement” or the “the accidental triggering of the abatement doctrine to conduct the legislature still intends to prohibit.” (2) No. A the following presumptions control: the defendant entered a plea when a judgment reflects a conviction, and a judgment is presumed to be correct. A defendant must show affirmative evidence to overcome this presumption. The fact that the record reflects a single plea to a single offense is not persuasive.

Comment. Because I am both the editor of the Significant Decisions Report and Appellant’s attorney in this matter, I present an excerpt from the commentary from the Texas Independent Bar Association Case of the Week summary. Most presciently, David Schulman writes “I fully expect there will be an en banc reconsideration, and thus, a significant possibility of a petition for discretionary review.” John Jasuta provides some historical context regarding the following argument advanced by counsel: if the Code Construction Act suggests retroactive application of sentencing reductions in all pending prosecutions, it should logically follow that completely extinguishing criminal responsibility should do the same. Jasuta notes that similar arguments were advanced in the 1970s when the legislature passed marijuana sentencing reduction and those incarcerated and imprisoned sought relief from their sentences. The Court of Criminal Appeals found that, at least as it pertains to post-conviction relief, to reduce a sentence would amount to a commutation, which is a power exclusively within the prerogative of the Governor.

6th District Texarkana

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

7th District Amarillo

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

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

9th District Beaumont

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

10th District Waco

Holloway v. State, No. 10-18-00053-CR (Tex. App.—Waco, Dec. 9, 2020)

Issue. Did the trial court egregiously harm the defendant by instructing the jury in the abstract portion of the jury charge that the culpable mental state for endangering a child focuses upon the nature of the defendant’s conduct rather than the result of the defendant’s conduct (improperly framing the gravamen of the offense)?

Facts. Defendant was convicted of endangering a child. In the abstract portion of the jury charge, the trial court instructed the jury on the culpable mental states of “intentionally,” “knowingly,” and “recklessly” all “with respect to the nature of her conduct.”

Holding. No. The instruction was erroneous but not egregiously harmful (standard for unobjected-to jury charge error). An abstract portion of a charge includes general legal principles. The penal code couches culpable mental states as the mental state the defendant has with regard to either: (a) the nature of his conduct, or (b) the result of his conduct. A proper jury charge must correctly categorize the offense as such. “When specific acts are criminalized because of their very nature, the culpable mental state must apply to committing the act itself.” However, when “unspecified conduct that is criminalized because of its result,” the culpable mental state must apply to the result. Here, the nature and circumstances surrounding the conduct of child endangerment are inconsequential to the commission of the offense. The Penal code criminalizes unspecified conduct which causes a result – a child having been placed in danger. Thus, the conduct (whatever it may be) must be done with the required culpability to effect this result. The jury charge was in error, but it was not egregiously harmful. Generally, error in the abstract not present in the application paragraph is not egregiously harmful. Here the State actually argued the case as a result of conduct: “at the very minimum . . . [she] ought to be aware that there is a risk there.”

Comment. The courts of appeal are split on the issue of whether endangering a child is a “nature of conduct” or “result of conduct” offense. A secondary issue in this case, which counsel was wise to tap, is a growing sentiment that the doctrine of factual sufficiency should be revived under the Texas Constitution. factual sufficiency review, as opposed to a legal sufficiency review, requires a reviewing court to consider record evidence in a neutral light (rather than one most favorable to the verdict). In doing so, the court evaluates the weight of the evidence and reverses when it is “so obviously weak as to undermine confidence in the jury’s determination.” The 10th Court declined this invitation, but appellate attorneys should continue to make the argument.

11th District Eastland

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

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

State v. Baldwin, No. 14-19-00154-CR (Tex. Crim. App.—Houston [14th Dist], Dec 10, 2020)(En Banc)

Issue. (1) when witnesses describe a murder suspect as a Black male who drove a white four-door sedan, does being Black and driving a white four-door sedan in the neighborhood the day prior to the murder establish probable cause? (2) Does the bald assumption that co-conspiring criminals discuss their crimes on their cellphones establish probable cause to seize and search a suspect’s cellphone?

Facts. The 14th District Court of Appeals, en banc, reconsiders this case previously summarized in the September Edition of the Significant Decisions Report. Justice Bourliot, the previous dissenter in the panel decision, writes on behalf of the Court. Two masked gunmen killed a homeowner during the course of a robbery and fled the scene. A witness described the suspects as two Black men in a white four-door sedan. Investigators acquired information about two Black men who were in and out of the neighborhood the day before in a white four-door sedan as well as the license plate number of their vehicle. Four days later, after tracking down the owner/operator/defendant, officers conducted a pretextual traffic stop for the purpose of investigating the murder. The defendant consented to a search of his vehicle but not his cellphone. Officers obtained a search warrant for the phone through a probable cause affidavit attempting to tie the defendant to the crime by his race and the vehicle description and attempting to establish the cellphone as evidence by articulating in the abstract that cellphones are used generally in the commission of crimes.

Holding. (1) No (plurality). Here the affidavit contained no particularized facts connecting the defendant or his cellphone to the commission of the murder—at most the affidavit allows for a conclusion that the defendant was in the neighborhood the day before the murder and he had a cellphone on him five days later. As for the defendant’s presence in the neighborhood, “It would strain credulity to conclude in a county with nearly five million people that evidence of a crime probably would be found in someone’s car just because he was in the neighborhood on the day before the offense in a car the same color as the one driven by a suspect who also happened to be Black.” “The dissent takes issue with the fact that we require a description of the vehicle more specific than white, four-door sedan to support probable cause. But that is exactly the point. There is nothing distinctive that would tie Baldwin’s white car to the one seen at the offense.” (2) No. The “lack of nexus between the sedan and the crime . . . lays a predicate to determine whether there was probable cause to search the cellphone.” Cellphones contain the “most intimate details of a person’s individual life.” A link between cell phone usage and the commission of a crime must be established. Generic boilerplate language about what might be on the phone or how suspects might have used the phone during the commission of the crime does not satisfy the requirement of probable cause. “Under the dissent’s reasoning, any time more than one person is involved in a crime, police officers would have probable cause to search a cellphone.”

Concurrence (Zimmerer, J.). Agrees with the majority opinion as it pertains to a lack of nexus between the cellphone and the commission of the offense. Would find a sufficient nexus between the defendant’s vehicle and the commission of the offense.

Dissent (Christopher, J.). There is a sufficient nexus between the defendant’s vehicle and the commission of the crime. The majority fails to give deference to the considerable weight of evidence stablishing that a white four-door sedan was seen driven by Black men the day before the murder and that a witness to the murder saw Black men in a white four-door sedan fleeing. The matching descriptions of: race, number of occupants, color of car, number of doors, and time proximity when combined were sufficient facts from which to find probable cause that the individuals seen fleeing the scene were the same individuals seen in the neighborhood the day before. There is a sufficient nexus between defendant’s cellphone and the commission of the crime. Although the warrant affidavit contained nothing but boilerplate generalizations about the use of cellphones during the commission of crimes, the affiant’s boilerplate belief that “it is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications” is crucial. This boilerplate statement, combined with the fact that the offense was described as committed by co-conspirators, creates the probable cause assumption that evidence would be discovered on the cellphone.

Comment. With courts of appeal across the State flipping partisanship, many eyes are on the impact. Do divided courts result in red-team v. blue-team? Can they find common ground? Can diversity of opinion result in persuasion against a one’s initial instinct? Here, the Fourteenth Court split hard among party lines. Don’t jump the gun and assume a trend from a single example. But this breakdown made me think about the recent Dallas Fifth Court of Appeals en banc opinion in Ex parte Ferris, No. 05-19-00835 (Tex. App. Dallas, Oct. 2, 2020)(en banc). In Ferris, Fifth Court split not only among themselves, but also from sister jurisdictions on an issue pertaining to expunction law (DPS’s claim that “same transaction” bar to expunction is a concept of near-infinite possibilities). The Ferris split was a 6-plus-1 (Dem-Rep) majority opinion and a 4-plus-2 (Rep-Dem) minority opinion.

State v. Chen, No. 14-19-00372-CR (Tex. App.—Houston [14th Dist.], Dec. 31, 2020)

Issue. Is Texas’s electronic harassment statute facially unconstitutional under the First Amendment?

Facts. After the State charged the defendant with electronic harassment, the trial court granted the defendant’s motion to quash and writ of habeas corpus, finding the applicable provision of the Texas electronic harassment statute facially unconstitutional under the First Amendment. The applicable provision states: 

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another person, the person:

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) In this section:

(1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and

(B) a communication made to a pager.

Holding. Yes. The first step in analyzing a First Amendment facial validity challenge is to determine whether the statute implicates a substantial amount of protected speech (communication and receipt of ideas, opinions, and information). “The State may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable way.” Citing Cohen v. California, 403 U.S. 15, 21 (1971). The Court of Criminal Appeals has rejected a First Amendment facial challenge to a similarly phrased prohibition of telephonic harassment Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010). In Scott, the Court of Criminal Appeals determined that such telephone calls were “essentially noncommunicative” under the First Amendment because the “sole intent” of the defendant who makes such calls is to inflict emotional distress and thus “invade[s] a substantial privacy interest of another (the victim) in an essentially intolerable manner.” Scott v. State, 322 S.W.3d 662, 670 (Tex. Crim. App. 2010). The following courts of appeal have applied the Scott rationale to reach the same outcome as it pertains to the instant electronic harassment provision: Beaumont, Austin, San Antonio, Amarillo, El Paso, Eastland, Corpus Christi. However, some courts and justices believe that Scott has been abrogated. In particular, the Fort Worth Court of Appeals recognizes that the Court of Criminal Appeals refused to apply the rationale of Scott to a materially identical version of the electronic harassment statute in Wilson v. State. 448 S.W.3d 418 (Tex. Crim. App. 2014). Contrary to the holding in Scott the Court of Criminal Appeals in Wilson recognizes that a person communicating electronically can have a dual intent (to communicate protected ideas and opinions while also intending to harass, annoy, alarm, etc.). There is a significance to the fact that a victim of telephonic harassment is a captive audience which makes telephonic harassment “inherently personal and invasive.” The phenomenon of a captive audience “loses its force” in the context of electronic communications. The prohibition of electronic communication “encompasses a far broader array of activities,” many of which fall outside of the context of a captive audience and require affirmative actions by the user to access such content. Examples include clicking on an email or going to another’s Facebook page to seek out the harassing content. With these considerations “we conclude that the electronic-communications-harassment statute goes well beyond a lawful proscription of intolerably invasive conduct and instead reaches a substantial amount of speech protected by the First Amendment.” Because the statute is “content-neutral” the court does not presume invalidity and analyzes the prohibition with a less-than-strict-scrutiny approach. However, because a substantial number of the statute’s applications are unconstitutional when compared to its “plainly legitimate sweep” the electronic harassment statute is facially overbroad. The court agrees with Judge Keller in describing the breadth of prohibitions as “breathtaking” (Facebook posts, message-board posts, blog posts, blog comments, newspaper article comments, any of which are merely criticism of another person constitute a crime). This overbreadth chills legitimate speech and is unconstitutional.

Dissent (Zimmerer, J.). no opinion.

Comment. I will not admit that I have written more than one Significant Decisions Report commentary that was intended to alarm anyone or that was written in a manner critical of the law, but if I did, it appears I would be subject to arrest in Beaumont, Austin, San Antonio, Amarillo, El Paso, Eastland, and Corpus Christi. If you are receiving this communication in those jurisdictions, this message will self-destruct in five seconds. 

Warren v. State, No. 14-19-00589-CR (Tex. App.—Houston [14th Dist.], Dec. 31, 2020)

Issue. Did the State fail to disprove defendant-police-officer’s justification defense beyond a reasonable doubt when both his partner and a baton instructor testified he was not justified in continuing to beat a man with a baton after he had fallen to the ground (from the baton beating)?

Facts. Defendant was an officer who was convicted of assaulting an individual for sleeping on a bench at the METRO light rail platform. According to the complainant, Defendant approached him, defendant stated “n***a, didn’t I tell you to move around?” when complainant stood up he said “say what?” and defendant beat him with “an antenna” while saying “huh, huh, huh, huh.” Two videos were admitted into evidence, one roughly depicts these events. Defendant’s partner testified that they previously encountered the complainant during the same day, and he had been aggressive to the point of requiring him to draw a taser. According to defendant’s partner, complainant was fake sleeping and would not get up after being “tapped” “excessively.” Defendant’s partner believed the complainant was aggressive in the way he stood up from the bench but became compliant after a single strike with a baton. After complainant fell back onto the bench, Defendant continued to strike him with the baton. When complainant fell to the ground from the bench, Defendant continued to beat him with a baton. Eventually defendant’s partner had to tug him to get him to stop striking the complainant. Defendant repositioned himself and beat the complainant a little bit more. According to Defendant’s partner, none of the strikes after the first two were necessary and defendant’s use of force was excessive. The State called a METRO Police Department “baton instructor” who reviewed video footage and testified that the continued beating of the complainant as he fell to the ground was improper. Nonetheless, defendant argued in the trial court that he was justified as a peace officer to strike complainant in the manner he did.

Holding Appellant argues that that the State did not prove his personal belief regarding the necessity of force. However, Penal Code § 9.41(a) requires a consideration of a “reasonable belief” which is a belief of an ordinary and prudent person in the circumstances. The record contains ample evidence that defendant exceeded the amount of force that was reasonably necessary to assist in making an arrest.

Comment. There is such thing as a baton instructor? Interesting. Don’t do a google image search if you don’t like to see people wearing khakis and black tees in a mixture of gleeful and menacing poses while holding batons.

ADVOCATING FOR CRIMINAL DEFENSE: TCDLA Lobbyists Head to the State Legislature

Allen Place, Shea Place, and David Gonzalez comprise your 87th Texas legislative session TCDLA lobby team. The team is gearing up for what will certainly be an unprecedented session.

Allen, a former State Representative of nearly 10 years, has been with TCDLA for over 20 years. He was Chairman of the House Committee on Criminal Jurisprudence and authored the Penal Code revision. He maintains his law practice in his hometown at Place Law Office, where he works with his wife and daughter. Generally, whether in session or not, you can find Allen meeting with legislators, staying up to date on current Texas politics and races, and talking to the media.

Shea practices with Allen at Place Law Office in Gatesville and Austin with a focus on parole law. Shea has been with TCDLA for 4 years and this will be her third session. Shea regularly attends legislator, stakeholder, and affiliate group meetings, follows current events, keeps track of member requests, and provides legislative updates to members. You can access these updates in the legislative list serve on the TCDLA website.

David has worked for TCDLA for over 10 years. He is a partner in Sumpter & Gonzalez in Austin and serves as an adjunct professor in the Trial Advocacy Program at the University of Texas School of Law. He is board certified in criminal law, was appointed by the Supreme Court to serve on the Board of Disciplinary Appeals, and has served as a special prosecutor for Travis, Kendall, and Panola Counties. TCDLA is fortunate to have David working for the association during the session.

TCDLA Legislative Committee members are: Chair William (Bill) Harris, Vice Chair Bobby Mims, Mark Daniel, Danny Easterling, Michael Heiskell, Susan Kelly, Timothy Rose, and Mark Snodgrass. Additionally, TCDLA President Grant Scheiner, TCDLA Executive Director Melissa Schank, TCDLA staff member Keri Steen, and TCDLA lobbyists Allen Place, David Gonzalez, and Shea Place all serve on the legislative committee.

The legislative committee meets for an in person (when allowed) meeting every quarter at the TCDLA board meetings. We have monthly calls to discuss new business. The committee reviews, discusses, and votes on each legislative request submitted for consideration. These suggestions form a list of priorities for the next legislative session. The committee also follows Texas politics and current events to better understand the political landscape and works to hash out the finer details of legislation like bill language and sponsors.

Typically, during pre-covid sessions, Allen, David, and I spend most of our time at the State Capitol. We work to draft legislation, defend against bills we do not support, testify in support of or opposition to bills of interest, maintain continual interaction with legislative members, committee chairmen, and their staff, and often work to make last minute changes in order to garner the most support for a bill. We attend any and all hearings relevant to our bills. These hearings are known to have delays and last well into the night.

Legislators are able to start filing bills in November. There are approximately 6,000-7,000 bills filed each year. The lobby team reads each bill and finds those of interest to TCDLA. We then track those bills, usually about 800-1,000 bills that relate to criminal justice. We continue following our bills of interest through each chamber and on to the Governor’s desk.

Much like football teams after winning a championship, the TCDLA lobby team celebrates for a day, then gets right back to work. We enjoy an excellent sine die party, but the work for the next session, still over a year and a half out, is already falling into place. We immediately start to formulate our agenda for the next session, prepare our full legislative report paper, and teach legislative update CLEs around the state to inform members about the new laws. Throughout the interim we also attend affiliate group, state agency, and stakeholder meetings, as well as individual meetings with legislators.

In the 87th legislative session, we face a lot of uncertainties. Not only are we in the middle of a pandemic and unsure how much access we will have to the Capitol building, we also do not know who the Speaker of the House will be. Texas will once again have a new Speaker of the House, which indicates yet another speaker’s race in 2020 just as we had in 2018. The primary difference in this year’s race is the talk of the Texas House turning Democratic. Without question, this speaker’s race has been quieter since many Representatives are hedging their bets, waiting on the results of the November election. Further, the pandemic and the social unrest of the last few months have spawned numerous bill ideas from both the right and the left, with some comments from those in the middle as well.

We have our positive agenda prepared and are ready to defend against bills that negatively affect criminal justice in Texas. Among other issues, TCDLA is looking at ways to improve grand juries and other criminal justice reform measures, such as mandatory body cameras and blind administration of photo arrays. It is anticipated the authors of the Sandra Bland Act will seek additional changes in 2021. In addition, Texas should have its own version of a bill in honor of George Floyd.

Although our legislative agenda is finalized for the 2021 session, you can email us at . Please do not hesitate to reach out if you have any questions or concerns.

The Boy with the Crime Scene Tattoo: Tattoo Evidence in Texas Courts

According to a recent survey, four out of ten adults in the U.S. (ages 18 to 69) have at least one tattoo, with roughly a quarter of the respondents acknowledging that they bear multiple examples of body art.1 Thirty percent of all college graduates have tattoos. One side effect of this popularity is the growing importance of tattoos as evidence in criminal cases. It’s so important that the U.S. government, through the National Institute of Standards and Technology, recently completed a tattoo image-matching system, Tatt-E (Tattoo Recognition Technology Evaluation) to assist law enforcement in finding criminal suspects.2

Indeed, body ink can reveal a lot about a person, and its importance transcends use as a mere form of identification. In one high-profile example in 2017, a Massachusetts judge allowed evidence of former New England Patriots tight end Aaron Hernandez’ tattoos to be admitted in a double murder trial; the tattoos, which were done soon after the slayings, included one of a revolver with five bullets in the chamber—supposedly indicative of the five shots fired into the victims’ car.3 Tattoos have become so critical that judges have sometimes resorted to creative measures to obscure a defendant’s ink during the guilt or innocence phase of a trial. One Florida judge had a cosmetologist (paid $125 a day by the state) use makeup to cover up the disturbing neo-Nazi facial tattoo of one murder defendant, while an Indiana judge had the hair of another murder suspect dyed to hide a “death row x 3” neck tattoo that apparently referred to two other murders unrelated to the one that was the subject of trial.

The significance of tattoos as evidence has even reached the U.S. Supreme Court. In the 1992 case of Dawson v. Delaware, the Court considered the case of an escaped prisoner who burglarized a house, stole a car, and brutally murdered the woman who owned the car.4 After being convicted of first-degree murder, Dawson was confronted with evidence during the penalty phase of trial about his membership in a white supremacist prison gang—including multiple swastika tattoos and an “Aryan Brotherhood” tattoo on his hand. The jury recommended the death penalty and Dawson appealed, arguing that because the murder wasn’t racially motivated, the evidence of his tattoos and association with the hate group wasn’t relevant. The Supreme Court agreed, holding that both Dawson’s Fourteenth Amendment rights and his First Amendment rights of freedom of association were violated by the admission of the tattoo evidence.

In addition, a number of courts have held that tattoo evidence can be used not just as a form of identification or as proof of an association (such as with gangs) but can be testimonial evidence as well. For example, in the 2011 case of U.S. v. Greer, the Second Circuit considered the conviction of a man arrested after police found ammunition in a car linked to the suspect, along with a car rental agreement signed by someone named “Tangela Hudson.” At the time of his arrest, police noticed the name “Tangela” tattooed on Greer’s left arm, a fact that was brought up at trial. The Second Circuit held that while the tattoo evidence was indeed both testimonial and incriminating (thus implicating his Fifth Amendment rights), since it hadn’t been compelled by the government, there was no Fifth Amendment violation.5

But there are some cases that give new meaning to the term “testimonial,” like our titular “boy with the crime scene tattoo.” The 2011 murder conviction of California gang member Anthony “Chopper” Garcia owed much to the sharp-eyed detective who noticed that Garcia’s chest tattoo bore an eerie resemblance to the crime scene of an unsolved 2004 murder of a man outside Ed’s Liquor store in east Los Angeles. The tattoo depicted a helicopter, or “chopper,” raining down bullets on the body of a man (pointed in the same direction as the actual victim), along with the Ed’s Liquor store itself complete with Christmas lights, a distinctively bowed street lamp, and a street sign—all under the chilling banner “RIVERA KILLS” (a reference to Garcia’s gang, Rivera-13). As Sheriff’s Captain Mike Parker described it, “He tattooed his confession on his chest.”

As bizarre as the Garcia case may be, he’s not the only “boy with the crime scene tattoo.” In late February 2019, Eastland’s Eleventh Court of Appeals issued its opinion in Martin v. State, in which Richard Joseph Martin, a member of the Rolling 60s Crips gang, contested his conviction for murdering fellow gang member D’Quay Harris. Believing that Harris and another gang member had robbed him and his stepdaughter, Martin shot Harris multiple times. The prosecution introduced a photo of Martin’s tattoo, which featured the following elements: a bent stop sign at Seminole Street (the shooting took place at the intersection of Seminole and Rochester); a rat with its mouth taped shut, hanging from the stop sign and shot in the chest (Harris had been shot in the chest); the rat’s legs were torn off (Harris was initially paralyzed, losing the use of his legs, before succumbing to his gunshot wounds); on one side of the rat was a person with “Ke Loc” on the eyebrow (a reference to Harris’ friend and purported eyewitness Kevorick Shedwin, who went by the nickname “Ke Loc”); and on the other side of the rat was the name “Desi” (the name of Martin’s stepdaughter who was robbed). As the court put it, “the jury was able to see that Appellant’s tattoo reflected many of the details and circumstances surrounding the shooting.”

Martin argued on appeal that the tattoo was not relevant, since it merely reflected his support of a “no snitch culture” in which informants shouldn’t cooperate with law enforcement. He also maintained that introducing the photo of his tattoo violated his First and Fifth Amendment rights, and that the prejudicial nature of the tattoo outweighed its probative value. The Eleventh Court rejected all these arguments and pointed out that the detailed tattoo was “highly probative” because “[i]n many respects, the tattoo can be viewed as a confession.” The court observed that while the tattoo was a testimonial communication, Martin had not been compelled to make it, making it “more akin to a preexisting documentary communication.”

In fact, Texas courts have routinely held that the display of a defendant’s tattoo to the jury is not a violation of Fifth Amendment rights against self-incrimination.6 Texas courts have treated tattoos as a personal identifying characteristic, just like (as one court put it) “the color of a person’s eyes, the sound of his voice, or the color of his hair.”7 Because of this, an accused may be compelled to disclose his or her tattoo to the jury regardless of its location on the body.

Evidence of particular types of body ink has been used to prove a defendant’s gang affiliations.8 It has also been deemed relevant to illustrate the defendant’s background or character or to provide evidence of the defendant’s beliefs or motives for committing the crime in question. For example, the Court of Criminal Appeals upheld the compelled display of the defendant’s tattoo of a “demon eating the brains of Christ” as relevant not only to the defendant’s character but also “an assessment of future dangerousness.”9 In various contexts such as the punishment phase of a trial, tattoo evidence has been introduced to show that the defendant has a history of violence or white supremacist ties.10

In one of the more bizarre examples in Texas law, tattoo evidence was used to show not just the defendant’s moral character, but also his “disregard for the truth” and “lack of respect for society.” In Wood v. State, the defendant challenged the admission of testimony by Sheriff David Halliburton during the punishment phase about Wood’s unique eyelid tattoos.11 The word “Lying” appeared on one eyelid, while the word “Eyes” was inked on the other. The Eastland Court of Appeals held that this testimony (which was referenced by the prosecutor during closing argument) was relevant to show Wood’s disregard for the truth, and that such evidence did not violate the defendant’s First Amendment rights.

So, when it comes to tattoo evidence, you might say (with due apologies to Don Henley), that “there ain’t no way to hide your lying eyes.” Tattoo evidence can speak volumes about a defendant, and in the case of certain poorly chosen tattoos, even provide evidence of motive and the crime scene itself. A picture is indeed worth a thousand words.

Dealing with Stress, Isolation & Illness in the Age of COVID from a Psychiatric Perspective

Many of us in American society lived demanding, socially isolated lives, even before COVID-19 entered the picture. Our daily interactions with others were frequently draining, both mentally and emotionally. Our perverse sense of duty as professionals distorted our boundaries; thus, governed by an inability to say “no,” the resultant overinvolvement in our work left little energy for ourselves. The era of COVID has only exacerbated these states of mind, resulting in weariness and feelings of desolation. We may be more connected through the Internet than our predecessors, yet a lack of social intimacy has only deepened our feelings of alienation during the pandemic. Before practical measures for combating stress, dealing with isolation, and promoting psychological and physical health can be addressed, it would behoove us to define “stress” and the “Body-Mind” relationship.

First, what does “stress” really mean? Physics’ original definition is “The interaction between a force and the resistance counter to it.” In medicine, the clinical notion was popularized by Hans Selye, a Canadian physiology researcher, who tested the impact of stress on rats. He took the concept of stress to a new level: “The nonspecific response of the body to any demand put upon it.”1 No matter what “stress” he subjected his lab rats to, including injecting toxins or the cold winter, on autopsy, there were always the same three findings, called “the triad of stress”:

  • Enlargement of the adrenal glands
  • Lymph node/immune system atrophy
  • Stomach ulcers

These findings extrapolate to humans2 in that with both species stressors cause the release of brain hormones which trigger the adrenals, where cortisol and adrenaline are produced and stored. Adrenaline signals the stomach to become acidic, which leads to ulcers – once known as the “merit badge of Wall Street.” Selye’s animal’s third symptom of stress has as its more modern counterpart GastroEsophageal Reflux Disease. GERD, a stress-induced stomach disease, is an “equal opportunity” affliction, manifesting not only in the time-pressured businessman but also in the “worry-wart” type of blue-collar worker.

The overstimulated adrenals also release cortisol, a steroid known to alter and suppress the immune system. A dysfunctional immune system cannot properly destroy the mutant cancer cells due to aging, nor can it “put the brakes on” the body’s cells attacking its glands and organs—like in the autoimmune diseases of Lupus or thyroiditis.

The oldest conception of the “Body-Mind” relationship came in the form of the Greek physician Hippocrates’s (460 BCE—375 BCE) “four humors” consisting of yellow bile, black bile, blood, and phlegm. The basic idea was that if the physician could balance these fluids, their patient should be entirely healthy.3 2000 years later, René Descartes proposed that the body and mind had no relationship and were entirely separate entities, with the body being the doctor’s realm and the immaterial mind belonging to God. The Cartesian paradigm was supplanted over time, and the “Body-Mind” relationship has been redefined on multiple occasions by such familiar figures in psychiatry as Sigmund Freud (“there must be a comprehensive fusion of biological and psychological concepts”) to less familiar personages such as his student, Franz Alexander (“physical symptoms are but a symbol of unresolved unconscious conflicts”).

Although the “Body-Mind” relationship is a bit more difficult to characterize than “stress,” modern science provides strong evidence suggesting that there is more than a nominal interconnection. Robert Ader, Ph.D., the founder of “psychoneuroimmunology” (the theory that the brain and immune system comprise a single, integrated defense system), used classical conditioning techniques with his research animals. Ader’s behavior modification paradigm consisted of force- feeding his lab rats saccharine paired with injecting them with cyclophosphamide, an anti-tumor drug and immunosuppressant. After several trials, he found that the animals could be administered only the sweet taste and still manifest a depressed immune system. For human beings, this capacity for a placebo or “mind-only based response” is much greater than for a rat.

With these understandings, the million-dollar question remains: what can you do to alleviate feelings of COVID-related stress and isolation? Since we cannot directly affect others’ behaviors, we can only change our own feelings, thoughts, and actions. However, it is critical to recognize that this intellectual answer may not be consciously endorsed by the brain’s lower regions: the limbic-emotional system or the primitive-reptilian brainstem. A salutary ego-syntonic approach that would allow all of these parts of the brain to work together in a coordinated fashion (rather than in conflict) can be achieved through a process hearkening back to A. H. Maslow’s “Hierarchy of Needs.” “Maslow’s pyramid” (see Fig. 1)4 demonstrated that a person had to satisfy the needs embodied in the bottom-most tier (e.g., physiological) before the next highest tier (e.g., safety needs) could be achieved, with the goal to continue moving upwards, thereby completing the hierarchy.

Although Maslow’s “Hierarchy of Needs” certainly has its benefits when it comes to coping with COVID-19, it may not be entirely effectual. Thus, I have devised a pandemic-focused edition of Maslow’s hierarchy:

The bottom-most hierarchy level is the most rapid and minimal in time and cost: a non-obligatory Prescription Medication Consultation. This might involve a visit to one’s primary care physician, or, if necessary, to a psychiatrist for a psychotropic medication evaluation (e.g., anti-anxiety agents, antidepressants, a sleeping pill, or a pain med). This is a useful first step, with the emphasis on it being a consultation, meaning that pharmaceuticals might not be needed or that the person may ultimately decide not to take medication.

The next level that may be entertained is Lifestyle, which involves nutrition, weight management, exercise, and good sleep hygiene. The pyramid climber does not need to take on all these lifestyle changes at once, but instead can pick one that seems doable and may add on the rest as they see fit. (It is not recommended that more than one be added at a time until you are already well-practiced in the others.)

Socialization (level 3) includes 12-step groups (e.g., Alcoholics Anonymous) which can fulfill multiple levels of needs on the hierarchy (i.e., Step 11’s admonition re: “prayer and meditation”5 is a prescription for tools found on level 5). Recreational clubs, group psychotherapy, and spiritual groups round out this social skills tier. By joining a group, not only will you experience decreased sensations of isolation, but you may also find a sense of community and an outlet for expression. Most of these groups host both in-person and virtual meetings to accommodate everyone’s needs during the pandemic.

But what if the idea of joining a group causes part of your anxiety or stress? Similarly, what if the initial adverse body signals or feelings of dysphoria while starting a new exercise regimen, or diet, are so overwhelming they drive you back to being a couch-potato or pigging out on carbs? While you may benefit from starting at level 1 of the pyramid and progressing step-by-step, if the level 3 tier of Socialization, or any other level, simply seems overwhelming then you can always start elsewhere, and become relational on a smaller, more structured scale, as may be found on level 4: Professional One-on-One. Psychotherapy, a successful treatment method for many people, is often covered by insurance, and entails 45-60 minutes at a frequency of roughly once every 1-2 weeks. Studies show its success is predicated on only two factors: that you believe it works, and that you like and respect the therapist.6

For those who prefer a more physically involved type of remedy, bodywork (a branch of healthcare with a focus on touch-based healing) is a good option. Bodyworkers are encompassed by a wide range of professionals, using techniques involving manipulative therapy, breath work, or energy medicine.7 The focus is on treating the “mind” through the “body.” Research supports the existence of abdominal neural serotonergic networks—hence the “gut feeling” truly results from the “gut brain,” as well as the gut microbiota.8,9

As for the 5th and final level, Spiritual Tools, meditation has proven to be popular and effective in furthering physical and psychological health. How to Meditate by psychologist Lawrence LeShan divides meditation into two branches: “mindfulness” and “structured.” Mindfulness, or Vipassanā10 Meditation, is the act of non-judgmentally observing one’s environment. Conversely, structured (concentrative) meditation is exemplified by the Zen Buddhist koan, an intellectually unsolvable puzzle, e.g.: “What is the sound of one hand clapping?” Movement meditations, which may be useful for those of us who feel most focused when our bodies are engaged, include yoga, t’ai chi and mindful workout routines.

Psychologist BJ Fogg’s Tiny Habits that Change Everything outlines the “baby steps” used to create an epiphany through “changing the environment.” For instance, with meditation, you could start by setting an alarm to remind you to meditate for 3 minutes a day at lunchtime, and once that has become a habit, increase the amount of time you meditate accordingly. Meditation (“listening to God”) can be complemented by prayer (“talking to God”). Prayer is an activity often “ego-syntonic” with religious beliefs. Science supports that it benefits various physical and mental diseases by physiological mechanisms, and some say divine intervention (which cannot be disproven).11

While these are all excellent methods for alleviating your COVID-related stress, it can be difficult to decide where to start. Considering that every individual has different needs, the “risk/benefit ratio” can determine where to strike a balance. Thus, one evaluates their personal experiences with health and stress and what has worked for them previously, according to their individual values. My own approach (admittedly at one extreme) to address the vicissitudes of the pandemic, is guided by a personal history of viral hepatitis and viral pneumonia acquired treating E.R. and I.C.U. patients, as well as a work history having ministered to thousands of viral and infectious illnesses. Because of my familiarity with clinical/epidemiological issues and the well-being I experience from maintaining a socially and physically active lifestyle, the benefits outweigh the potential risk of acquiring coronavirus. At the opposite end of the spectrum, a highly respected psychotherapist colleague, whose wife died from a viral infection, has found a different balance. For her, the risk of acquiring coronavirus and transmitting it far outweighs any potential benefits of being socially active, thus she maintains strict social distancing, while continuing to conduct therapy sessions and classes by teleconference.

In conclusion, even though COVID-19 has dramatically altered the avenues we use to seek stress relief, we are not without options. Using the pyramid based on Maslow’s Hierarchy of Needs, you can find a combination of treatment modalities encompassed by one or all of five levels. Some may need to start at the Prescription Medication Consultation level or the Professional One‐on‐ One level. For others, they might find it most beneficial to begin elsewhere, like at Socialization, Lifestyle, or even Spiritual Tools. When deciding where to set in motion your program, as well as which way to proceed, you may consider using the risk/benefit ratio to evaluate which level and its representative modalities fit best with your personal experiences and resources. All in all, while COVID-19 has flipped so much of our world on its head, there are treatments that you can use to decrease your feelings of stress and isolation, harmonize the Body-Mind relationship, and ultimately improve your overall physical and mental health.

Diagnostic Aid (Appendix A): The Holmes-Rahé stress scale helps to “diagnose” stress as causal to medical conditions. This eponymously named tool developed in the late ’60s was invented by two psychiatrists at the University of Washington – Thomas Holmes and Richard Rahé. They examined over 5000 medical records of patients to determine what stressful events might cause illness. Their research generated a list of some 43 “life events,” each of which was, according to statistical methods, given a different “weight” in terms of a point scale. Based on your point score from events that occurred in the previous year you can rate your chances of “stress-induced health breakdown” in the upcoming two years. https://drive.google.com/file/d/1kqmn6XukzGImqW0p5Z_Fl9AwH-he4u_T/view?usp=sharing

APPENDIX B:

Treatment Aid: An effortless relaxation or meditation technique derived from yoga has been popularized by Andrew Weil, M.D., the holistic physician from Arizona. This “4-7-8” breathing technique can be found on his 3-minute video at: https://www.youtube.com/watch?v=gz4G31LGyog

The Road of Recovery

The road to addiction is paved with self-doubt, selfishness, bad decisions, insanity, and confusion.  Getting that drink or getting that medication (drug) is the only red blip on the radar.  It challenges the importance of everything and everyone else and ultimately overcomes them.  There is a general surrender of your will and the cunning, baffling, powerful pull of the addiction takes over, completely.  You may not have ended up in jail, but you could have.  You may not have completely destroyed all of the relationships around you, but you could have.  It is important to know as you deal with all the shame and guilt that comes with this is that you have a disease.  It is not a moral failing, it is not a character defect, it is a disease.  A disease for which there can be recovery and healing.

This story is personal because it is my story. I have also found that with changes in the details, this is the story of many others, too. I took a prescription medication for anxiety and before long I was addicted. My life revolved around my next prescription or my next visit to get a prescription. We are in a stressful career, the law and lawyering can be overwhelming at times, and I was sure that I could manage the prescription and its use until I woke up one day and I could not.  “As needed” quickly became “all the time”. I knew, in the depths of my conscience, that I had no control over this drug or my use of it. It scared me, but because I have a disease, I continued to use. I used more and more of it. Some colleagues made comments about my speech or my general appearance when I was in the depth of my disease. I always had a response to deflect the true concern they had for my well-being. I was not going to give up my relationship with this drug. I could not. It made me numb, and in my addicted mind, numb was better than feeling and taking life on life’s terms. 

I continued to win cases and this only made the illogical argument that I had to have this medication even stronger. God was watching over me, and I refused to see it – all I saw was the little pill(s) that made me numb. All I could do was continue to feed the monster of addiction. Numb to everything. I lost my laugh, my tears, my love. I was simply and completely numb. I could and would lie to even the closest people to me, including my wife and children. I was fine, work was just hard. I am fine, I am just tired. I am fine, you cannot find out that I must have this drug, that I have no power over my taking this drug.

Then I get a call from the pharmacy around the time that I always waited for, it was even on my calendar, refill day. The call was that they could not refill my prescription because I had the same prescription I had recently refilled at another pharmacy. A cold sweat came over me and a huge sense of desperation. I was convinced at this point that I could not and would not make it if I did not have my special little pills. Desperation became detoxification and a nightmare of a time. I could not get my medication and my body and mind, after many years of taking it, rebelled and screamed mightily. There is something called “night terrors” which is aptly named. It is the dreams one can have while detoxifying from my drug. The dreams were so terrorizing and so real that sleep was to be avoided at all costs.  But waking hours also held their own terrors. I began to say things that were hurtful and hateful. I began to believe, truly believe, that I had killed myself (suicide) and was only able to watch my family around me and that they could not see, hear, or interact with me. I thought I was living, or not living, in someplace in between and that the verdict was still being decided as to whether I went to Heaven or Hell.  Then God stepped in for me in the form of my wife. She got the kids together and took them to her mother’s house and told me that I must go see a doctor immediately. I was in Hell and did not even have the energy to argue. I surrendered to everything at that point. The doctor said I needed professional help, and I was immediately enrolled in a treatment facility.

I do not even remember the drive to the treatment facility; detoxification was having a surreal effect on my mind and my body. Sleep was filled with night terrors and being awake was just filled with terror. I was not doing well. I was seen, upon my arrival, by a psychiatrist who specialized in addiction, and the shame of what was happening to me seemed to be all that I had. Shame was the only feeling I had, but at least it was a feeling. I was thinking like a crazy man, I was not at my home, I could not see or speak to my family and I was broken, completely. The psychiatrist, I am told, informed me that I could have died at home from the withdrawals. This was told to me again after I got clean of the drug because I did not remember the first conversation with the psychiatrist. I would have died. And, without this recovery, I would have without a doubt. I would have continued to ruin all that was right in my life.  Now, I was in treatment – the place I had so often recommended to clients that struggled with addiction. Here I was.

I started out on a cot in a room where there was another man who I had never met. I felt completely alone and disconnected from life. It appears that I slept for the first 20 to 24 hours. I woke up after the sun had gone down on another day and I was groggy and unsure of everything. I was shaky, angry, and full of shame, that dreaded shame. I ventured out of my room on the detox side of the house and walked into a dining room with more than 30 people I had never met. I felt alone and out of place though I was surrounded by people. Over the next 35 days, these people became my family with all the love and little fights that come with being a family living and struggling together. We ate together, we cried together, and we grew together. I dispelled my biggest fear while in treatment; I found out I was not alone in my struggle or my addiction.  What a wonderful gift that is. I was convinced I was absolutely and completely alone. Some kids were 18-years of age and some men and women were approaching 60 years of age.

For the first 6 or 7 days, I remained in a fog and took in as much as I could at the hourly meetings. My mind and body were recovering from the years of toxifying them. Topics of dopamine and frontal cortex and all manner of ways that intoxicants affect the brain were being discussed and I was taking in about 10% of it and wondering what was happening the rest of the time until that great day. I had been hearing ringing in my ears and could not sleep more than a few minutes at a time. I finally slept the entire night with no night terrors, I finally woke up with a clear head, something I was not accustomed to. I felt myself slipping out of my selfish little self and began wondering and asking about others’ stories and states of being. It was this journey into a fellowship of like-minded people that began the true and glorious road to recovery.

I was participating in AA meetings and NA meetings, something I had only ever recommended to clients of mine with addiction problems. I found out that my suggestions were just what I needed. During down times when we were not in formal meetings or counseling, I began to form real friendships with people from all walks of life. Two of my best friends are a surgeon from Texas and a restaurant owner from India, both of whom I met in recovery. The idea that I was not alone began to take root. I found brothers and sisters on this road to recovery. We shared the same disease, addiction.  I have now come to peace with the idea that addiction is a lifelong issue I will continue to recover from, gloriously recover from day by day, sometimes minute by minute.

When I say gloriously please do not misunderstand me. The one day at a time saying that many have heard is factual. Any addict is one drink or one fix away from destruction. One is too many, and a thousand is never enough. But the road to recovery is also paved with clear thoughts, feeling again, being present in the moment, and change. I have ventured on the road of recovery with meetings, a counselor, and a greater relationship with my God/Higher Power. I am learning that taking each day as it comes and doing so one day at a time does not have to be the nail-biting, cringe-worthy way of living I thought it was. It is much more beautiful without the constant fog and chasing my addiction, much more beautiful. For sure there are and will continue to be apologies that need to be said, amends that need to be made, but it is me doing it. Not the numbed out, always a little altered me, but me. There is peace that comes with this.  There is room for pride where there was only shame and guilt.

I think counseling has played a big part in my progress on the road of recovery.  In my mind, I thought recovery meant pain. I did not think that it was a true recovery if everything did not hurt. That is not the case. There are days where the actions of my past come to visit me, and those are certainly uncomfortable days but to make it through those days, honestly, are just more victories on my road. There is a saying that a good day is when things go well and you do not use the substance, but a great day is when the day is hard and has the problems of life and you still don’t use the substance.  I have found this saying to be very true. I am learning to take life as it is, not as how I so foolishly wanted it to be or thought I could control. I have found pleasure in things that would have bored me when I was using. I have found it much easier to listen and truly hear what people are saying and, at times, what they are not saying. This active listening was impossible while I was using, utterly impossible. One thing that I am finding out is who I really am and that who I am is enough, always. That is something I completely denied and did not believe while I was active in my addiction. I was never enough so I had to keep feeding the monster – the monster that would have certainly taken my life.

As I remain on this recovery road I look back and wonder what was it that made it so hard to reach for help. I now realize that the disease of addiction is a disease with deceit as part of the foundation. We lie about our use, we hide our use, we lie even to ourselves and ignore the voice begging for help because our addiction silences it. Another realization I have come to is that the stigma and shame that come with addiction is paralyzing, or it can be. It took an act of God to wake me up and I was put on this ride to recovery almost against my will. The earliest concerns and some that still stay with me are “what does this make me?”, “what will people think of me?”. In moments of clarity I know that this makes me a human with a disease.

Still, in our society, many see it as a moral issue when the truth is that it is a disease, one that will take everything from you. The sad part is that the uncommon part of this is getting the help we need. The stigma remains too tall, too deep and too much.  But it does not have to be. We can begin to accept our brothers and sisters with addiction.  We can begin to reach out and provide services that will take the scarlet “A” out of addiction. Some studies indicate our career, lawyers, has one of the highest rates of addiction. It is, however, not to be the end of the story. There are counselors, meetings, sponsors, friends, and family that can help us stand when we need to stand the most. Some stories are similar to mine in every town and every profession. It is time that attorneys circle the wagons and allow those that are suffering from addiction to be open and honest without the fear of scorn or mocking.  That was such a fear of mine, a paralyzing fear. I was convinced that nobody would understand and everybody would cast judgment against me. This is not a disease that is unique to us – it affects all levels of our society – but we are in a profession where support has been and can be hard to find. Recovery is a journey and not an easy one but the return of who you are and what you can and will be are certainly worth the fight. Now let us all join and support our brothers and sisters and celebrate the road of recovery. It is possible….one day at a time.

I have found that there are beautiful and caring people that will find you as you walk the road of recovery. There will be moments that you can only explain as your God/Higher Power intervening in your life.  Recovery does not need to be a religious thing but it is certainly a spiritual one in my experience. I have stumbled across and become friends with some people that have walked the dark path of addiction and are now living their very best life. I am on the road to my best life, too. It is that first step, reaching out, that too many people do not experience, and for them, I pray. The difference between an active addiction and an active road of recovery are as different as sanity and insanity.

Reach out and know hands are waiting to grasp yours. Friendly hands, experienced hands, loving hands. Desperation can either be the beginning of the end or the beginning of recovery. You can escape the craziness of addiction, and you can feel again. Celebrate recovery.

Expert Witnesses and Challenges to Expert Testimony Pt. 2

This is a continuation of Expert Witnesses and Challenges to Expert Testimony Pt. 1 in the December 2020 issue of Voice for the Defense.

III.  Texas Rule of Evidence 703
Bases of an Expert’s Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed.  If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

A. Basis of Expert Opinion

Rule 703 describes the type of information upon which an expert may base an opinion. “An expert’s opinion can be based on (1) facts the expert has personally observed, (2) facts reviewed by the expert, (3) facts the expert has been made aware of, (4) facts presented to the expert at a trial or hearing in the form of hypothetical questions, and (5) facts that are inadmissible as evidence.”  Brown and Rondon, Texas Rules of Evidence Handbook, Rule 703, p.737 (2019); Hart v. Van Zandt, 399 S.W.2d 791, 798 (Tex. 1965) (doctor should have been allowed to give an opinion on the cause of patient’s condition based on a personal examination, patient’s history and correspondence with other doctors); Williams v. Illinois, 567 U.S. 50, 67, 69 (2012) (plurality op.) (“It has long been accepted that an expert witness may voice an opinion based on facts concerning the events at issue in a particular case, even if the expert lacks first-hand knowledge of those facts. . . .  Modern rules of evidence continue to permit experts to express opinions based on facts about which they lack personal knowledge, but these rules dispense with the need for hypothetical questions.  [A]n expert may base an opinion on facts that are ‘made known to the expert at or before the hearing,’”); Duckett v. State, 797 S.W.2d 906, 920 n.17 (Tex. Crim. App. 1990) disapproved on other grounds, Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (“Rule 703 provides that the facts or information upon which an expert witness bases an opinion or inference includes that which he or she perceives or is made known to the expert at or before the hearing.”). The facts and data underlying an expert opinion need not be admissible themselves for the opinion to be admissible, as long as experts in the particular field would reasonable rely on those kinds of otherwise inadmissible facts or data in forming an opinion. In the Commitment of Regalado, 598 S.W.3d 736, 741 (Tex. App.-Amarillo 2020).

“Physicians routinely rely on a variety of sources, including patients and family members, medical records kept by others, conversations with the nurses and technicians, and x-rays, CT scans, and other test results. If physicians make treatment decisions based on such data, the argument goes, the rules of evidence should not preclude them merely from offering an opinion based on the same data. Their training and experience enable them to gauge the reliability of the hearsay data that they routinely rely on in their professional lives. Physicians also routinely consult with specialists and other physicians and rely on their opinions. Rule 703 allows an expert to consider other expert’s opinions in drawing their own opinion.”  Goode and Wellborn, Texas Practice, Guide To The Texas Rules Of Evidence, Vol. 2, 4th Ed. 2016, § 703.3, p.113; Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 352 (Tex. 2015) (“No rule prohibits experts from using other experts opinions to formulate new opinions based on their own expertise.  In fact, Tex. R. Evid. 703, and our prior cases contemplate exactly such an arrangement.”); Anderson v. Gonzales, 315 S.W.3d 582, 587 (Tex. App. – Eastland 2010, no pet.) (“An expert may rely on the opinions of other individuals that have rendered reports or diagnoses.”); Roberts v. Williams, 111 S.W.3d 113, 121-122 (Tex. 2003) (pediatrician based opinion in part on pediatric neurologist); Stam v. Mack, 984 S.W.2d 747, 749-750 (Tex. App. – Texarkana 1999, no pet.) (trial court did not err in allowing expert pediatrician to base opinion in part on expert radiologist’s opinion); Associated Indem. Corp. v. Dixon, 632 S.W.2d 833, 835-836 (Tex. App. – Dallas 1982, writ ref’d n.r.e.) (“Medical experts may rely on ‘examinations, tests and diagnosis by other doctors’”.). “Rule 703 goes beyond simply eliminating the need to introduce otherwise admissible data; expert opinion may be predicated solely on inadmissible hearsay.”  Goode and Wellborn, supra at 114; Wood v. State, 299 S.W.3d 200, 212 (Tex. App. – Austin 2009, pet. ref’d). Opinions based on evidence already admitted are admissible. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 563 (Tex. 1995).

B. Hypothetical Questions

An expert may base his or her opinion on facts presented through hypothetical questions.  To be proper under Rule 703, the hypothetical questions must be based on facts and evidence, facts within the personal knowledge of the witness, or facts assumed from common or judicial knowledge.  Gonzales v. State, 4 S.W.3d 406, 417-418 (Tex. App.–Waco 1999, no pet.). The rule does not require the expert to have personal knowledge of the facts contained in the hypothetical question.  Matson v. State, 819 S.W.2d 839, 851 (Tex. Crim. App. 1991); Moore v. State, 836 S.W.2d 255, 259 (Tex. App.–Texarkana 1992, pet. ref’d). The questions may assume facts per the questioner’s theory of the case as long as the assumed facts can be inferred from facts and evidence.  Barefoot v. State, 596 S.W.2d 875, 887-888 (Tex. Crim. App. 1980).  The questions do not have to assume all of the facts presented in evidence. The questioner can limit the facts the experts should consider on direct examination, anticipating that the opposing party will vary the hypothetical on cross-examination.

However, if an omission makes the hypothetical questions misleading, the question is improper. Harris v. Smith, 372 F.2d 806, 812 (8th Cir. 1967).  Hypothetical questions may include facts not yet admitted into evidence as long as the proponent of the expert testimony eventually introduces those facts into evidence.  If testimony supporting the hypothetical is never offered, a court has the discretion to strike the expert’s opinion and to instruct the jury not to consider the testimony in its deliberations. If an instruction to the jury appears insufficient to cure the harm the trial judge may declare a mistrial. Brown and Rondon, Texas Rules of Evidence Handbook 2019, p. 740. The use of hypothetical questions has been subjected to criticism as being clumsy, artificial, and time-consuming. Due to the change in modern evidentiary rules that allow an expert to base his opinion on a broader range of information, the use of the hypothetical question is now generally unnecessary. Williams v. Illinois, 567 U.S.50 69 (2012) (plurality op.). 

C. Confrontation Issues

Rule 703 allows expert witnesses to base opinions on inadmissible facts, but the rules of evidence are subject to constitutional provisions.  Crawford v. Washington, 541 U.S.36, 61 (2004); Wood v. State, 299 S.W.3d 200, 212 (Tex. App.–Austin 2009, pet. ref’d) (“[E]vidence rules cannot trump the Sixth Amendment”). Therefore, Confrontation Clause issues can arise in criminal cases where an expert relies on hearsay information in forming an opinion. There is not a problem if the expert is available for cross-examination and the underlying information is not used to prove the truth of the matter asserted but instead is used only to explain the basis of the expert’s opinion. Martinez v. State, 311 S.W.3d 104, 112 (Tex. App.–Amarillo 2010, pet. ref’d) (Confrontation Clause not violated merely because an expert bases an opinion on inadmissible testimonial hearsay; testifying expert’s opinion is not hearsay and testifying expert is available for cross-examination).

However, if the expert conveys the substance of the testimonial out of court hearsay statements to the jury, the defendant has not had an opportunity to cross-examine the person who made the statements and the proponent of the expert testimony does not establish the declarant’s availability, the defendant’s right to confrontation is violated.  Crawford v. Washington, 541 U.S. at 68; United States v. Mejia, 545 F.3d 179, 198-199 (2nd Cir. 2008) (expert’s reliance on the repetition of out of court testimonial statements by individuals during the course of custodial interrogations violated the defendant’s rights under the Confrontation Clause). Also, out of court testimonial statements cannot be communicated to the jury in the guise of an expert opinion.  United States v. Lombardozzi, 491 F.3d 61, 72 (2nd Cir. 2007); United States v. Flores-de-Jesus, 569 F.3d 8, 19-20 (1st Cir. 2009). Testimonial statements do not have to be spoken communication.

In Melendez-Diaz v. Massachusetts, the Supreme Court held that affidavits by chemists declaring that the evidence seized was cocaine were testimonial statements under Crawford, admission of the certificates without the chemists’ testimony violated the defendant’s confrontation rights because the certificates were functionally identical to live, in-court testimony, and there was no showing that the analysts were unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine them. Melendez-Diaz v. Massachusetts, 557 U.S. at 310-311.  However, when an expert bases an opinion on inadmissible evidence that does not reveal the contents of the evidence in his testimony, there is generally no violation of the Confrontation Clause.  Williams v. Illinois, 367 U.S. at 78, 79.

IV. Texas Rule of Evidence 704
Opinion on An Ultimate Issue

An opinion is not objectionable just because it embraces an ultimate issue

Rule 704 allows witnesses to express opinions on ultimate issues to be decided by the trier of fact.  It is a rejection of the common-law rule that no witness could testify to an ultimate issue in a trial for fear the witness might invade the province of the jury.  The current rule focuses on whether an opinion is otherwise admissible or is objectionable under another evidentiary rule.  Both lay and expert witnesses may give an opinion about an ultimate fact or issue under Rule 704 as long as the lay opinion is helpful under Rule 701 or the expert’s opinion will assist the trier of fact under Rule 702.  Helena Chem Co. v. Wilkins, 477 S.W.3d 486, 499 (Tex. 2001); Blumenstetter v. State, 135 S.W.3d 234, 248-249 (Tex. App.–Texarkana 2004, no pet.) (expert testimony that defendant was intoxicated based on his breath-test results and retrograde extrapolation should have been excluded as a scientifically unreliable opinion on an ultimate issue under Rule 704); Gonzales v. State, 4 S.W.3d 406, 417-418 (Tex. App.–Waco 1999, no pet.) (expert testimony about Child Sexual Abuse Accommodation Syndrome and typical behavior patterns of victims aided jury and did not decide ultimate fact issues); Russell v. Ramirez, 949 S.W.2d 480, 489 (Tex. App.– Houston [14th Dist.] 1997, no writ) (under Rule 704, accident reconstruction witness could testify that defendant driver’s failure to drive at a legal speed limit was a “cause in fact” of the passenger’s death). 

Opinions that do no more than tell the jury what verdict to return, whether a criminal defendant is guilty or innocent, what punishment to assess, or what witnesses to believe, are mere personal conclusions and are not helpful to a jury and therefore not admissible.  Kirkpatrick v. State, 747 S.W.2d 833, 836 (Tex. App.–Dallas 1987, pet. ref’d) (while Rule 704 authorizes opinion testimony on an ultimate issue, the opinion must be otherwise admissible and the opinion of one witness as to the veracity of another’s testimony is not otherwise admissible); Taylor v. State, 774 S.W.2d 31, 34 (Tex. App.–Houston [14th Dist.] 1989, pet. ref’d) (error to permit police officer to testify that defendant’s statement to him was not credible; witness could not give an opinion about the truth or falsity of other testimony, but error was harmless because the “jury could not logically have reached a different conclusion”); Ayala v. State, 352 S.W.2d 955, 956 (Tex. Crim. App. 1962) (counsel cannot ask a witness’ opinion on whether another witness’ testimony is true or false, but the defendant was not harmed when State cross-examined him on whether police officers were incorrect in their testimony about his intoxicated demeanor); Smith v. State, 737 S.W.2d 910, 915-916 (Tex. App.–Ft. Worth 1987, pet. ref’d) (defendant could not ask a doctor his opinion about whether a child “had been raped or not” because the response would have amounted to an inadmissible comment on the child’s credibility).

A witness cannot give an opinion on a pure question of law because such a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact.  Williams v. State, 531 S.W.3d 902, 921 (Tex. App.– Houston [14th Dist.] 2017, pet. granted 3/21/18).  An expert may not instruct the jury on the requirements of the law or express an opinion on the meaning or content of the law and the jurisdiction. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 752-753. Courts have permitted expert witnesses to offer opinions on mixed questions of law and fact in which “a standard or measure has been fixed by law and the question is whether the person or conduct measures up to that standard.” Rule 704 does not permit any witness to testify that a particular legal standard has or has not been met when the standard is expressed as a legal term that would be unclear to those outside the legal profession. Thus, for the opinion to be admissible, there must be a showing that the witness knows the proper legal definition in question. If the legal term carries an ordinary meaning that is understood by or can be made clear to the witness, Rule 704 does not bar opinion testimony on that matter.  If the term is one that the witness does not normally use or that does not carry an ordinary meaning, the witness may not use that term in testimony unless the term has been defined and clarified by the judge.  Id. at pp. 753-754.

V. Texas Rule of Evidence 705
Disclosing the Underlying Facts or Data and Examining an Expert About Them

(a)  Stating an Opinion Without Disclosing the Underlying Facts or Data Unless the court orders otherwise, an expert may state an opinion–and give the reasons for it–without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

(b)  Voir Dire Examination of an Expert About the Underlying Facts or Data. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may–or in a criminal case must–be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.

(c)  Admissibility of Opinion. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.

(d)   When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed; Instructing the Jury. If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect.  If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly.

The procedural provisions of Rule 705 serve three purposes: (1) to ensure that the judge and opposing party have an opportunity to discover whether the proffered expertise is based on sufficiently reliable underlying facts or data to be admissible, (2) to ensure that inadmissible facts or data reasonably relied on by an expert and disclosed to the jury are not misused as substantive evidence by the fact-finder, and (3) to provide the trial judge with the discretion to prevent disclosure of inadmissible facts or data that, although supportive of the expert’s opinion, that are unfairly prejudicial. Rule 705 permits a broader range of expert witness testimony than the common law did and allows greater flexibility in how the expert may testify. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 755-756.

Rule 705(a) permits an expert to give an opinion without first testifying to the underlying facts or data.  Rule 705(b) requires the trial judge to give the opposing party an opportunity, if the party so requests, to voir dire the expert outside the jury’s presence on the facts and data underlying their opinions. In civil cases, the trial court has the discretion to provide such an opportunity. In criminal cases, it is mandatory. Rule 705(c) makes the expert’s opinion inadmissible if the court finds that the expert does not have a sufficient basis for their opinion.  Rule 705(d) provides that, if the probative value of the inadmissible facts or data on which the expert is reasonably relying in helping the jury to evaluate the opinion is outweighed by their prejudicial effects, courts must exclude these underlying facts or data. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992) (court must determine whether disclosure of data would be “more prejudicial than probative”); Kramer v. State, 818 S.W.2d 923, 925 (Tex. App.–Houston [14th Dist.] 1991, pet. ref’d) (evidence may be admitted if “the probative value outweighs the probability that it will be improperly used by the jury”); Speering v. State, 763 S.W.2d 801, 807 (Tex. App.–Texarkana 1988) (court must not permit disclosure of underlying evidence to the jury if evidence’s value in supporting expert’s opinion is outweighed by the danger that it will be used for an improper purpose), reformed on other grounds, 797 S.W.2d 36 (Tex. Crim. App. 1990).  Rule 705(d) is slanted more toward exclusion than is Rule 403, where the probative value must be “substantially” outweighed by a counterfactor before the relative evidence may be excluded. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 756-757.

A. Rule 705(a). Stating An Opinion Without Disclosing Underlying Facts or Data

“Rule 705(a) permits the expert to give an opinion at the outset of the explanatory testimony without first testifying to the underlying facts or data. In fact, the rule permits the witness to be qualified as an expert and then give a one-sentence opinion under direct examination.”  Brown and Rondon, supra at 757. A primary goal of Rule 705 was to eliminate the need for the cumbersome hypothetical question that had historically been the only mode for an expert with no personal knowledge of the facts to express an opinion. While the rule still allows hypothetical questions, it does not require them. The trial judge retains the discretion to require advance disclosure of facts and data that the expert used in forming the opinion.  Brown and Rondon, supra at 758. Because an expert who has no personal knowledge of the specific facts of a case, is not limited under Rule 703 to giving an opinion in response to a hypothetical question, they can base an opinion solely on inadmissible and unadmitted evidence. The rule also eliminates the need to inform the jury, before the expert gives the opinion, of all the facts taken into account in forming the opinion.  Joiner v. State, 825 S.W.2d 701, 707-708 (Tex. Crim. App. 1992); Ramirez v. State, 815 S.W.2d 636, 651 (Tex. Crim. App. 1991). If the facts and data on which the opinion is based are not disclosed by the proponent of the evidence, ordinarily the opponent will request such disclosure on cross-examination. Nenno v. State, 970 S.W.2d 549, 564 (Tex. Crim. App. 1998); Moranza v. State, 913 S.W.2d 718, 727-728 (Tex. App.– Waco 1995, pet. ref’d) (trial court did not err in allowing State to impeach expert witness with hearsay statements included in another expert’s report because witness relied on a summary of the report to form his opinions). However, while both the direct examiner and the cross-examiner normally have great discretion to explore the factual basis for an expert’s opinion, some evidence upon which the expert relied in rendering his opinion may be inadmissible before the jury because of the danger the jury may improperly use those facts as substantive evidence which is addressed by Rule 705(b).  Brown and Rondon, supra at 760-761.

B. Rule 705(b). Voir Dire Examination of an Expert

In criminal cases, Rule 705(b) requires a voir dire examination outside the jury’s presence, upon request of the opponent, to determine the underlying facts or data of the expert’s opinion. Alba v. State, 905 S.W.2d 561 (Tex. Crim. App. 1995), cert. denied 516 U.S. 1077; Brook v. Brook, 865 S.W.2d 166 (Tex. App.–Corpus Christie 1993); Harris v. State, 133 S.W.3d 760 (Tex. App.–Texarkana 2004), pet. ref’d, habeas corpus denied, denial of post-conviction relief affirmed; Goss v. State, 826 S.W.2d 162 (Tex. Crim. App. 1992), cert. denied 509 U.S. 922 (because of mandatory nature of rule permitting defendant to conduct voir dire examination of State’s expert, the trial judge’s denial of timely and proper motion for such a hearing constitutes error). The voir dire examination under Rule 705(b) is supposed to be directed to the underlying facts or data upon which the expert’s opinion is based. Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995), cert. denied 516 U.S. 1077. It has been said that the purpose of the voir dire examination is two-fold: (1) it allows the defendant to determine the foundation of the expert’s opinion without the fear of eliciting inadmissible evidence in the jury’s presence, and (2) it may supply the defendant with sufficient ammunition to make a timely objection to the expert’s testimony on the ground that it lacks a sufficient basis for admissibility.  Shaw v. State, 329 S.W.3d 645 (Tex. App.– Houston [14th Dist.] 2010).

While the Rule 705(b) hearing is ostensibly for the opponent of the evidence to determine and explore the underlying facts and data that supports the expert’s opinion, it should be a vehicle by which the opponent may challenge the admissibility of the expert’s testimony by challenging the qualifications of the expert and the relevance and reliability of the expert testimony. The opponent should challenge the admissibility of the expert testimony and include all applicable legal grounds and should make the challenge outside the presence of the jury. However, an opponent’s objection to an expert’s qualifications is separate from a Rule 705(b) hearing, which is supposed to only explore the underlying facts or data of an expert’s opinion.  Jenkins v. State, 912 S.W.2d 783, 814 (Tex. Crim. App. 1995) (op. on reh’g) (it was harmless to deny Rule 705(b) hearing outside the jury’s presence because the defendant already had a copy of the witness’ report setting out the facts and data and the expert did not testify to damaging and inadmissible material). The opponent of expert testimony should seek to have the Rule 705 hearing well before trial. The opponent of the evidence should use such a hearing as an opportunity to subpoena the records of the expert to the hearing and all the expert’s underlying documentation in the case. Also, the opponent could serve a subpoena on the expert seeking production of the authorities, articles and publications relied on by the expert in rendering his opinion in this particular case. The opponent of the evidence should request that he be allowed to review all of the expert’s authorities before the Rule 705 hearing, or at least before the expert’s testimony at trial. The party seeking a hearing outside the presence of the jury should state all the purposes for which the opponent wants to examine the expert witness. Jenkins v. State, supra.

C. Rule 705(c). Admissibility of Opinion

Rule 705(c) makes the expert’s opinions inadmissible if the trial court finds that the expert does not have a sufficient factual basis for the opinion. While the inquiry under the Daubert/Kelly/Robinson line of cases focuses on the reliability and relevance of an expert’s scientific theory and methodology without regard for the conclusions, Rule 705(c) focuses on the specific factual data that supports the expert’s conclusions.  The issue here is not whether experts can reach reliable results on a certain issue, but whether the facts that the expert in the present case relied on were adequate to support a conclusion.”  Brown and Rondon, supra at p.763; Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017); Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 832-833 & n.11 (Tex. 2014); In the Commitment of Regaldo, 598 S.W.3d 736, 741 (Tex. App.-Amarillo 2020).

In Flowers v. State, 2002 WL 31247093 (Tex. App.–Dallas, pet. ref’d), the admission of testimony from sexual assault nurse examiner that in 80% to 85% of cases of sexual assault on children the physical examination of the victims is completely normal, was not an abuse of discretion in an aggravated sexual assault case. The nurse testified to the authors of some of the articles she relied upon in her testimony and there was no evidence in the record that the expert failed to provide the titles of the articles she relied on to defense counsel as she promised.

In Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006), that expert testimony from a certified legal nurse consultant that no rape occurred because no DNA evidence or physical evidence linked the defendant to the alleged rape, was inadmissible in a sexual assault trial. The court of appeals failed to conduct an adequate inquiry into the consultant’s qualifications, evaluate the reliability of the testimony and give proper deference to the trial judge’s ruling excluding the testimony, thus the judgment of the court of appeals was vacated and the case remanded. In Escamilla v. State, 334 S.W.3d 263 (Tex. App.–San Antonio 2010, pet. ref’d), the trial court erred when it allowed a SANE to testify that the quick dilation of the victim’s anus was consistent with sexual abuse because the testimony was not reliable as the witness could not elaborate to the extent to which the underlying scientific theory and technique were accepted as valid in the relevant scientific community, she made only vague references to the literature supporting her underlying scientific theory and technique, and she did not appear to understand the concept of the potential rate of error of the technique.

In Teczar v. State, 2008 WL 4602547, 2011 WL 1743756 (Tex. App.– Eastland, pet. ref’d), a clergy abuse victim who operated counseling services to clergy abuse victims, was not qualified to testify as an expert on the psychology and behavior of those who would commit child sex abuse because the witness had a lack of actual institutional instruction in the field, other than five-weekend seminars, and the witness’ testimony was not supported by evidence of any scientific theory, soft or otherwise. The witness was not qualified as an expert to advance conclusions, and the witness’s testimony about the defendant’s activities with him was remote in time and was character conformity evidence. 

D. Rule 705(d). When Otherwise Inadmissible Underlying Facts or Data May be Disclosed

“Rule 705(d) provides that the inadmissible facts or data on which the expert is reasonably relying will be excluded if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. The balance is between the probative value of the admissible data to help the jury evaluate the reasonableness of the expert’s opinion and either, (1) the unfairly prejudicial effect of this inadmissible material on the opposing party or, (2) the likelihood that the jury may use this inadmissible data as substantive evidence for some other purpose. If the otherwise inadmissible facts and data supporting the expert’s opinion are disclosed to the jury, the opponent, upon a timely request, is entitled to an instruction restricting the jury’s consideration of that inadmissible data solely to its permissible explanatory purpose.”  Brown and Rondon, supra at p.765; Depena v. State, 148 S.W.3d 461, 470 n.10 (Tex. App.– Corpus Christi 2004, no pet.). The right to this limiting instruction would apply only when the underlying facts or data were otherwise inadmissible.

Trial courts may permit experts to give opinions, but not allow them to testify to all of the admissible facts that led to their conclusions.  Rule 705 does not give the proponent of the expert testimony the right to disclose all the facts and underlying data. First Southwest Lloyd’s Insurance Company v. MacDowell, 769 S.W.2d 954, 958 (Tex. App.–Texarkana 1989, writ denied). Thus, the trial judge has the discretion to limit the admission of such underlying inadmissible data under Rule 403 if it is unduly prejudicial, confusing, or misleading. Id. at 958.  An expert witness cannot be used as a conduit to put the party’s self-serving hearsay version of the facts before the jury. Davis v. State, 268 S.W.3d 683, 701-702 (Tex. App.–Ft. Worth 2008, pet. ref’d) (the trial court properly prohibited the defendant from asking the detective, as an expert witness, about statements that defendant had made to the detective; the defendant admitted that the value of the statements was not as an explanation or support for the detective’s expert opinion, but instead as substantive evidence to advance his own self-defense claim, a purpose that Rule 705(d) intends to prevent).

In Walck v. State, 943 S.W.2d 544, 545 (Tex. App.–Eastland 1997, pet. ref’d), the trial court did not err in barring the defendant’s expert from relating, on direct examination, the content of the interview between the defendant and the expert. The defendant claimed that under Rule 803(4), his expert could relate inadmissible hearsay on the defendant’s state of mind at the time of the offense because it was imperative to the expert’s opinion. The trial and the appellate court disagreed with that contention, concluding that the evidence was not admissible under Rule 803(4) because the expert did not examine the defendant for purposes of medical diagnosis or treatment, but instead conducted the evaluation to formulate an opinion about “sudden passion.” The court of appeals reasoned that the trial judge had the discretion to exclude the defendant’s self-serving out of court statements under Rule 705(d) because the danger that they would be used for an improper purpose outweighed any probative value they might have had in explaining the expert’s opinion. Id. at 545-546. While generally, an expert may testify to the facts underlying his or her opinion, if the underlying facts or data would otherwise be inadmissible, they may not be disclosed if their probative value is outweighed by their prejudicial effect. In the Commitment of Regalado, 598 S.W.3d 736, 742 (Tex. App.-Amarillo 2020). A limiting instruction may mitigate the prejudice of admitting testimony regarding the facts upon which the expert relied in admitting his or her opinion.  Such instruction should instruct the jury to not consider the testimony for its truth, but only as the basis of the opinion of the expert.  In the Commitment of Lares, 2020 WL 2441368, *5 (Tex. App.-San Antonio).

Rule 705(d)’s balancing test does not need to be conducted on the record. Davis v. State, 268 S.W.3d 683, 701 (Tex. App.–Ft. Worth 2008, pet. ref’d). Unlike under Rule 403, the unfairly prejudicial effect does not need to substantially outweigh the probative value before the underlying facts or data can be excluded. A preponderance of the evidence is sufficient. The balancing provision of Rule 705(d) is mandatory so that a trial judge must, upon a timely request, exclude any references to the inadmissible material if he determines that the prejudicial effect outweighs the probative value. Id.

E. Conclusion

Rule 705 substantially relies on cross-examination by the opponent to determine whether the expert testimony is admissible and to provide the trier of fact with all the necessary information needed to evaluate the testimony. In a criminal case, an opposing party (most often a defendant) is entitled to the Rule 705 hearing. So, the defense should seek a Rule 705 hearing since it is required that the court grant the hearing upon request.

ABCs and 123s of Parole Law: An Introduction to Parole Law Pt. 2

This is a continuation of ABCs and 123s of Parole Law: An Introduction to Parole Law Pt. 1 in the December 2020 issue of Voice for the Defense.

The initial article focused on introductory topics in parole law such as the Parole Board composition and voters, time credits, housing, and programming.  In this article, I will focus on the parole voting process and related topics. As in the previous article, I will focus the subject into question and answer format. I do so for the simple reason that these are the most typical questions I receive from attorneys, which their clients also ask them. 

Please note that that this article will cover the most common issues presented to criminal defense lawyers when discussing parole with their clients. There are a lot of nuances and sometimes there are exceptions but this is meant to be a thorough guide for the most common issues and areas that are commonly faced on a daily basis. 

Anyone who knows me knows that I am passionate about my work and can talk about parole law for hours.  With that in mind, after reading this article, if there are any questions you may have or want clarification regarding a topic please feel free to contact me and I’ll be happy to discuss.  

What is parole?

Parole is the discretionary release of an offender by a Board of Pardons and Paroles decision to serve the remainder of a sentence in the community under supervision.  There is NO RIGHT TO PAROLE, IT IS A PRIVILEGE.  There is no liberty interest for release on parole.  I say this, as many times, attorneys and offenders contact me about when an offender will get out.  While there are factors to consider to estimate the likelihood of release on parole, there are no guarantees.  Each case is decided on its own merits.

The parole review process starts 6 months before the Parole Eligibility Date (“PED”) for a first review and 4 months before a subsequent review.  The review process is the mechanism wherein an offender’s case is assembled and prepared for the Parole Board to review.  Among other things, the documents assembled may include court documents, police reports, disciplinary cases, work assignments, programming, and home plan verification, etc.

It is important to note that the PED is simply an eligibility date, not the date the case is going to be voted. Votes rarely happen on the actual PED. The Parole Board can vote on a case up to 2 months before the PED. They can even vote a case after the PED. Most votes occur a few weeks before or after the PED.  If an offender or their family are planning on submitting materials to the Parole Board, they should send them at least 2 months before the PED.

It is important to note that the date of the PED is determined by the statute at the time of the commission of the offense.1  Therefore if you have a case that was indicted years after the offense occurred or is based on a probation revocation from years ago, you must check the parole eligibility on the date the offense occurred.  

The risk factors used in evaluating a case are both static (non-changing) and dynamic (evolving). The static risk factors include age at first commitment, history of revocations, other incarcerations, employment history at the time of the offense, and the type of offense.  Dynamic factors include current age, threat group membership, education, disciplinary conduct, and current custody level. 

Additionally, the type of offense the offender is currently serving is taken into account as well. This is called the “offense severity class.” 

The risk factors and offense severity class are given numbers which are then “tabulated” to give a Parole Guidelines Score from 1-7, with 7 being the most likely to succeed on parole.

How much time will an offender serve before parole eligibility?

Naturally, this is the most common question posed to attorneys when a client is looking at a prison sentence.  In general, it depends on whether the offense is aggravated or non-aggravated.  

Aggravated Offenses are found in 508.145 of the Texas Government Code. They include:

  • 42A.054(a)/3G offenses (other than Capital Murder)
  • Any offense with an affirmative finding of a deadly weapon
  • 20A.03 Continuous Trafficking of Persons
  • 71.02 Engaging in Organized Criminal Activity
  • 71.023 Directing Activities of Criminal Street Gangs

For aggravated offenses, an inmate is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good time equals ½ of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release in less than 2 calendar years.2 

So for aggravated offenses, an offender must serve ½ their sentence without regard for good time before becoming eligible for parole. Good time has no impact on parole eligibility for aggravated offenses. And the first two years are to be served as “flat time”, meaning that a 2-year sentence would mean they would serve all two years.  

For all non-aggravated offenses, an inmate is eligible for release when the inmate’s actual calendar time served plus good conduct time equals ¼ of the sentence imposed or 15 years, whichever is less.3

If you recall, offenders serving a non-aggravated sentence receive good conduct time of roughly 30 days for every 30 days served (assuming they are in good disciplinary status).4 For example, an offender who is sentenced to 8 years on a non-aggravated offense will be eligible for parole after serving approximately 1 year of their sentence in custody. That is because their calendar time (1 year) plus good time (1 year) equals 2 years or ¼ of their sentence.  If that client has backtime credit, you can see how they may be eligible rather quickly even while looking at a somewhat lengthy sentence.

There are a few other offenses that do not fit squarely into the aggravated/non-aggravated scenarios. Those are covered in Texas Government Code 508.145 (a) Sentence of death, a life sentence without parole, and convictions under 21.02 and 22.021(f) of the Texas Penal Code (no parole), 508.145 (b) Capital Felony when the inmate was younger than 18 (40 years until parole eligibility), and 508.145 (c), repeat sex offenders (35 years until parole eligibility).

Drug-Free Zone cases present an interesting twist. Although not considered an aggravated offense, they have a unique parole eligibility consideration. An inmate serving a sentence for which the punishment is increased under 481.134 (H & S Code), is not eligible for release on parole until the actual calendar time served, without consideration of good conduct time, equals 5 years or the term to which the inmate was sentenced, whichever is less.5 This means that an offender who receives a sentence for an offense in a drug-free zone will have to serve the first 5 years of their sentence before becoming eligible for parole (without consideration of good time).  

So as you can see, the difference between a plea or sentence to an aggravated or non-aggravated offense can have a huge impact on when an offender will be eligible for parole. Once again, please note that even if an offender is eligible for parole, it does not mean they will receive a favorable vote.

What are the chances an offender will make parole?

As mentioned in the previous article, the overall parole approval rate last year was 35%. That number included all offenders eligible for parole: aggravated, non-aggravated, first-time offenders, repeat offenders, parole violators, etc.   So as you can see, that number can be deceptive at first glance.  Let’s take a closer look.

A popular rumor in prison is that non-aggravated offenders get out quicker than aggravated offenders. While it is true that a non-aggravated offender is eligible sooner than an aggravated offender, they are not automatically more likely to be released sooner.  In addition to the Parole Guidelines Score, there are other factors the Board considers when reviewing a case. In general, offenders who stay out of trouble and don’t accumulate disciplinary infractions are looked upon more favorably. Offenders who engage in educational, vocational, and faith-based programming show the Board that they are making good use of their time. Additionally, offenders who are well-educated, who have work experience, and a solid parole plan make great candidates for parole. 

There is no “one size fits all” approach to when or how soon an offender will be released. It can be suggested that a first-time offender who is serving a sentence for an aggravated offense might be a lower risk than a repeat offender who commits the same types of offenses over and over again. In other words, a well-educated aggravated offender with significant job skills and work history who otherwise had never previously been arrested may be a better candidate for parole than an uneducated, repeat non-aggravated offender. As you can see, while a non-aggravated case may get an offender eligible for parole quicker, it does not mean they will necessarily be granted parole faster.  

What is Discretionary Mandatory Supervision?

Discretionary Mandatory Supervision (“DMS”) is one area of parole law that is shrouded in mystery among offenders and attorneys alike. DMS is also referred to as “Mandatory Date”, “Short Way”, or “Projected Release Date” in TDCJ vocabulary.   These terms are all synonymous. 

DMS is the legislatively mandated release of a prisoner to parole supervision when the combination of actual calendar time and good conduct time equal the sentence. 

It is important to first study the history of DMS. When first implemented in 1977 all offenses were eligible for DMS (then called Mandatory Supervision). That is, once an offender reached roughly half of their sentence, if they had not already been released on parole, they were released on mandatory supervision.6

Year by year, various “disqualifying” offenses were added to the list that rendered an offender ineligible for DMS. However, the basic rule still applied: if an otherwise eligible offender was behaving, they would serve approximately half of their sentence before being released (calendar time plus good time equaling their sentence). Plus if you were previously convicted of a disqualifying offense, but you came back to prison on a separate offense, you would be eligible for DMS review on your new case.

The disqualifying offenses for DMS are listed in Texas Government Code 508.149. Please note these offenses are more expansive than 3G offenses. For example, Robbery and Arson are disqualifiers for DMS but are not aggravated offenses.

By 1996, Mandatory Supervision was changed to Discretionary Mandatory Supervision. This was a major change in the law, as now offenders would not “automatically” be released once they had served half of their sentence. 

Additionally, the change in law barred offenders for DMS review who had previous disqualifying offenses. That is, if you were previously convicted of a disqualifying offense, you would never again be eligible for DMS. You will, however, still be voted for parole when eligible. Not being eligible for DMS has no impact on your general parole eligibility.  

Can you give me an example of DMS eligibility?

Simply put, once an offender’s actual time plus good time equal their sentence, they will be considered for release for DMS. The best way to think about DMS is the following. Consider a client sentenced to 8 years for a DMS eligible case. That client will be reviewed for parole after serving ¼ of their sentence, which would be 1 year of actual time plus 1 year of good time = 2 years. If denied, they will be reviewed again and if denied, reviewed again, etc. However, once they approach the halfway point of their sentence they will be reviewed for DMS. That is, once their calendar time plus good time equals their sentence (4 years calendar plus 4 years good time = 8 years) they will be reviewed for DMS and not parole. If denied at that time, they will continue to be reviewed for DMS and not parole in subsequent votes.

So what makes DMS voting different?  

As opposed to voting an offender for parole, the DMS law establishes due process safeguards. “The statute confers a liberty interest in the eligible inmate and the statutory presumption is slanted toward release. The parole panel must justify non-release. Unlike parole, which requires that the Board vote in favor of release, the mandatory supervision statute requires that the offender be released absent Board action to the contrary.”7

When considering a case for review under DMS, the Board must vote to release UNLESS there is a finding that the:

  1. Offender’s good conduct time is not an accurate reflection of the offender’s potential for rehabilitation, and
  2. Offender’s release would endanger the public.

Offenders under review for DMS must also be given written notice that they are under review. They must be given at least 30 days to provide supporting documents to the Parole Board.  If granted release under DMS, an offender will be supervised in the community similarly to someone released on parole.

The other thing to consider with regards to DMS is that opposed to parole, the Parole Board must vote the case before the DMS date. If you recall, the PED is just a date the offender is eligible for parole. Many offenders are voted on parole after their eligibility date. However, DMS is different. If the Parole Board fails to vote before the DMS date, the offender must be released. This happens occasionally when an offender is sentenced to a short prison sentence but has a lot of backtime credit by the time they enter TDCJ. By then they have already passed their DMS date. These are considered Retzlaff cases and they will be released without even a vote.8  If you have a case wherein a client is eligible for DMS and they are sentenced to a short sentence (i.e. 2 years) with a year of backtime, contact my office to discuss. 

To sum up DMS, offenders are eligible for DMS if they have no prior or current sentences for DMS disqualifying offenses listed in 508.149. Most offenders are eligible for DMS when they have served roughly half of their sentence. The important thing to know about DMS is that for virtually all offenders who are eligible, they will be reviewed for parole a few times before becoming eligible for release on DMS. If they are not DMS eligible they will still be voted for parole like any other offender. Given the nature of the “Discretionary” addition to DMS in 1996, now that DMS release is not “automatic”, its relevance to many offenders is not as important as before. Finally, when considering a plea offer to an offense, it is usually far more important if the offense is aggravated or non-aggravated than whether it is eligible for DMS.  

Being eligible for DMS does have some significance when we discuss Parole Revocation Hearings in the forthcoming article.

What are disqualifying offenses for DMS?

An inmate may not be released to mandatory supervision if the inmate is serving a sentence for OR has been previously convicted of the following 508.149 offenses:

  • Agg. Assault, 1st or 2nd Degree
  • Agg. Kidnapping, 1st or 2nd Degree
  • Agg. Robbery, 1st or 2nd Degree
  • Agg. Sex Assault, 1st Degree
  • Any Deadly Weapon finding
  • Arson, 1st Degree
  • Burglary of Habitation, 1st Degree
  • Capital Murder
  • Compelling Prostitution
  • Criminal Solicitation (1st Degree)
  • Continuous Sex Abuse of Child
  • Indecency with a Child
  • Injury to a Child, 1st Degree
  • Murder, 1st or 2nd Degree
  • Robbery, 2nd Degree
  • Sexual Assault
  • Sexual Performance by a Child
  • Trafficking of Persons 20A.03 & 20A.02
  • Engaging in Organized Criminal Activity/Directing Street Gangs
  • A felony Increased under Health and Safety Code (Drug-Free Zones & Use of Child in Commission of Offense)

Parole/Discretionary Mandatory Supervision was denied, how long until the next review?

When an offender is denied a release, the subsequent date they are reviewed again is called a “set-off.” In general, all offenders get an annual review after a denial decision. 

However, offenders currently serving a sentence for an offense under Texas Government Code 508.149 or Texas Penal Code 22.04 (2nd and 3rd-degree felony) are subject to a set-off from 1 to 5 years. Basically, if you are currently serving a sentence that is listed in 508.149, you can be set-off for up to 5 years.  

For example, if an offender was previously convicted of Aggravated Robbery (listed in 508.149) but they are currently serving a sentence for DWI, they will be subject to a potential 1-year set-off. The set-off rule only applies to sentences an offender is currently serving.

Offenders serving a sentence under Texas Penal Code 20A.03, 21.02, 21.11(a)(1) or repeat sex offenders under 508.145(c) have a minimum 3-year set-off. Offenders serving a sentence for Aggravated Sexual Assault or a life sentence for a capital felony have a minimum 3-year set-off with a maximum of 10 years.  

Are there any ex post facto issues in regards to set-offs?

Unfortunately, set-offs can be applied retroactively. Earlier we mentioned that the PED must be determined based on the date the offense occurred, not the law in effect today. However, for set-offs, that is not the case. That is, an offender who is subject to a 1-year set-off on the day they were sentenced can be subject to a longer set-off if the law is changed in the future. “The Board’s ability to impose a longer set-off between parole reviews creates only a speculative risk of increased punishment. The change in parole laws did not mandate that the Board impose a longer set-off, it simply vested the Board with the discretion to do so.”9

What is Parole in Absentia?

Parole in Absentia (PIA) is when an offender is voted on parole while not in the custody of TDCJ. That usually means they are in custody in a county jail or a federal prison. In practice, I usually see PIA in two situations. The first is when a client is in county jail awaiting transport to prison on a short sentence and has a lot of backtime, especially if they are DMS eligible.  The other situation is rather unique and interesting.  

A little known fact of criminal law in Texas is that offenders sentenced to 10 years or less can choose whether to stay in county jail or go to TDCJ if appealing their conviction. Article 42.09, Sec. 4 of the Texas Code of Criminal Procedure reads:

If a defendant is convicted of a felony, is eligible for release on bail pending appeal under Article 44.04(b), and gives notice of appeal, he shall be transferred to the Texas Department of Criminal Justice on a commitment pending a mandate from the Court of Appeals or the Court of Criminal Appeals upon request in open court or upon written request to the sentencing court.10

Texas law has clarified that the term “upon request” means that the request has to come from the offender. “Thus, where a defendant receives a sentence of ten years or less, he may only be transferred to the Department of Corrections if he so requests.”11 Therefore, the offender chooses where to spend their time pending appeal. This potentially has parole implications to consider.  

Many times, an offender would prefer to stay in county jail when appealing their sentence. Usually, the county jails are closer to their family and have liberal visitation schedules and easy access to phone calls. Plus, they are still gaining credit towards their sentence. 

However, for an offender who already has significant backtime and is going to be eligible for parole rather quickly, the offender may choose to go to TDCJ while their appeal is pending. Even though the client will be reviewed for parole in county jail when their PED approaches, it may benefit the client to go to TDCJ. There are a few reasons for this. Most county jails do not have the wide array of job assignments or programming that TDCJ offers. Many times an offender will sit in county jail for months or years without any meaningful job assignment (if any), educational classes, or vocational instruction. However, TDCJ generally has options for offenders to learn new job skills, study a trade, and engage in a multitude of rehabilitative classes. When the offender is reviewed for parole (while pending appeal) they can at least show they have: been working their job assignment, staying out of disciplinary trouble, and engaging in programming. The offender who stayed in county jail may not be able to show the same when being reviewed. This is a determination that should not be made hastily and should be made with the advice of counsel.  

In the next article, I will discuss the Parole Revocation Hearing Process.

Blinded Justice: Lessons Learned from Trying a Case via Zoom

/

On a Thursday morning, we logged into Zoom like it was any other day. For months, Zoom had been used, like in many other settings, to keep court operations running. There in the gallery view on our computer monitors were cameras facing the well of the court with counsel tables, the judge, and a spattering of other attorneys logging in for morning docket. But this was not just a regular docket. The day before, six people were selected to sit as a jury in a trial. Our trial.

I unmuted my microphone and pointed out to the judge — who had already overruled every objection I had made about the proceedings leading up to that moment — what I thought was a simple oversight: “Your Honor, I see they are setting up a camera facing the witness stand but I don’t see a camera facing the jury.” Her response, “I’m not putting a camera on the jury since we’re live-streaming this. I don’t want their faces shown in the live-stream.” In my mind, I thought, what difference would it make since the jurors were wearing masks? But I had already toed the line on being held in contempt and was not about to face the prospect of being jailed during the pandemic. I politely asked, “How will we be able to see the jury then, your Honor?” The judge replied, “You are welcome to come down here and be present in the courtroom, but I am not going to put a camera on the jury.”

And so began a jury trial where a defendant and we as his attorneys — who refused to put ourselves at risk of contracting a deadly virus for which there is no vaccine and no studies to show the long term effects — were faced with no other choice but to appear for trial by Zoom. And for the entire trial, we would be blind. Unable to see the jury that would be judging us and our client. The jury would be in the courtroom, along with the judge, the witnesses, and the prosecutors. Myself, my associate, Sierra Tabone, and our client would appear on television monitors in the courtroom. And so, began an abomination.

COVID-19 and OCA’s “Experiment”

Our client was charged with driving while intoxicated back in December of 2018. Delays in obtaining evidence from the prosecutors and then the State having to retest our client’s blood contributed to multiple delays, and the case was not scheduled for its first trial setting until January 2020. The case was not reached and ultimately rescheduled to April.

But by then, the COVID-19 pandemic had set in. Government officials had made declarations of disasters and declared states of emergencies. The judicial system followed suit with the Texas Supreme Court and Court of Criminal Appeals issuing Emergency Orders that grinded the judicial system to a halt. The wheels of justice, however, could not come to a complete stop for too long, and judges throughout the state scrambled to figure out how to get those wheels turning again.

One of the first solutions was to use Zoom or some other videoconferencing application. Although awkward at first, it turned out to be a workable stopgap. Courts resumed holding non-trial dockets where attorneys for the State and the defense would confer with the courts to determine case status and discuss other issues.

As for jury trials, however, those obviously could not resume. So, like for our client, many defendants had to wait for their day in court. All that would change at the end of June when the Supreme Court issued its Eighteenth Emergency Order Regarding COVID-19 State of Disaster. In that order, it laid out an ambitious plan to have the Office of Court Administration (“OCA”) coordinate with Regional Presiding Judges and local administrative judges to “assist trial courts in conducting a limited number of jury proceedings prior to September 1.”1 These limited numbers of “test trials” had to

  1. be at the request of the judge presiding over the case;
  2. ensure adequate social distancing and other restrictions and precautions [were] taken to ensure the health and safety of court staff, parties, attorneys, jurors, and the public;
  3. take all reasonable steps to protect the parties’ constitutional and statutory rights;
  4. require the admonishment of petit jurors as appropriate to ensure that proper attention is given by each juror and that outside influence is removed; and
  5. permit the OCA to observe the processes used during the proceeding in order for the OCA to prepare a report to submit to the Supreme Court and to develop best practices for other courts’ use.2

A number of judges around the State jumped at the opportunity to get their dockets moving again and requested to hold jury trials.3 OCA approved a total of 85 requests to hold jury trials and so began the “great experiment.”4

While several of the cases were ultimately resolved without the need for a trial, a total of twenty jury trials were held throughout the state.5 As required by the Supreme Court’s order, the OCA observed those proceedings, prepared and submitted its report to the Court, and made a number of recommendations for allowing courts to move forward with jury trials between October 1 and December 31.6

Surprisingly, not mentioned anywhere in the OCA’s report was an account of an alarming incident that occurred with two trial proceedings that took place in Brazos County.

On August 17, the Honorable Steve Smith, Presiding Judge of the 361st Judicial District Court of Brazos County, started a jury trial in a criminal case where the defendant was accused of burglary. At or about that same time, the Honorable Kyle Hawthorne, Presiding Judge of the 85th Judicial District Court of Brazos County, located across the hall from Judge Smith’s court, started a jury trial in a criminal case where the defendant was accused of continuous family violence assault. Both trials were on the OCA’s approved jury trial list and presumably followed the directives set out in the Supreme Court’s Eighteenth Emergency Order to limit the transmission of COVID-19 in these “test trials.”

While both trials apparently commenced with little difficulty, something went terribly wrong on August 18. As reported by a local television station and newspaper, Judge Hawthorne had to declare a mistrial after it was discovered that a COVID-19 positive inmate was accidentally transported to the courthouse along with the defendant in trial before him.7 That other inmate: the defendant in trial before Judge Smith.8 Judge Smith ultimately had to call for a two-week recess of the punishment phase in that trial.9

In the OCA’s report to the Supreme Court, this was all that was reflected regarding those two trials:

And even though the OCA’s report had a date-by-date account of significant events related to its “pilot program,” this incident was surprisingly omitted from their report.

The OCA nevertheless made its recommendations to resume in-person jury trials and, based on these recommendations, on September 18, the Supreme Court  issued its Twenty-Sixth Emergency Order Regarding COVID-19 State of Disaster allowing for in-person jury trials to commence following the recommendations set out by the OCA.10

The Dreaded E-Mail and the Decision to Withdraw

Because the Supreme Court’s Twenty-Sixth Emergency Order had not yet been released, our case, which had a trial setting on September 16, was rescheduled to November 11, 2020. We began anticipating and preparing for trial but awaited further instruction from the judge in our case, the Honorable Toria Finch, Presiding Judge for Harris County Criminal Court at Law No. 9, to determine if she was going to follow the Supreme Court’s directives regarding in-person jury trial proceedings as other judges in Harris County were beginning to do.

On October 21, we received an email from the judge informing us that she intended to start trial on November 11 and our case was number one on the list. The judge also informed us that the trials were to commence as scheduled following the court’s safety plan as well as the plan created by the Harris County Judiciary.

Myself and my associate reviewed the court’s safety plan and we both had concerns. First, the plan specified that witnesses would not be required to wear masks and would be placed behind a Plexiglass barrier which we knew not be effective at containing the spread of the virus.11 We were also concerned that the plan allowed for the judge to ask any person before the court to remove their masks if needed to make a proper record. We were also concerned that, if the trial took more than one day, the plan did not account for what trial participants, including jurors, would be doing when they were not in the courtroom and returned home where they were not subject to the protections in the safety plan.

Right about that time, our fears were validated when we learned about another incident in Beaumont. As reported by a Beaumont news station, in Jefferson County’s first jury trial since the COVID-19 pandemic began, a juror in a criminal case tested positive for COVID-19 requiring the judge in that case to declare a mistrial.12

Approximately one week later, on October 28, it was reported that health care officials and government leaders were “pleading with Houstonians: Act now to prevent, or at least minimize, a third wave of infections across Greater Houston” that had developed over the previous weeks.13

By that point, we felt we had to move for a continuance. Aside from our personal concerns for our health and safety, we were concerned how proceeding to trial would infringe upon our client’s constitutional rights at trial. Hence, on October 29, we filed our motion for continuance modeled largely on the TCDLA COVID-19 Task Force’s motion for continuance.

Prior to presenting it to the judge, however, we began to prepare ourselves for the judge to deny the motion. That meant we had to begin to consider our obligations to our client and whether we could still effectively and, more importantly, ethically represent him if we were forced to trial on November 11.

 Rule 1.06(b) of the Texas Disciplinary Rules of Professional Conduct states, “a lawyer shall not represent a person if the representation of that person . . . reasonably appears to be or become adversely limited by . . . the lawyer’s . . . own interests.”14 As the comments to the rule state, “Loyalty is an essential element in the lawyer’s relationship to a client.”15 And, when “an impermissible conflict of interest . . . arises after representation has been undertaken, the lawyer must take effective action to eliminate the conflict, including withdrawal if necessary to rectify the situation.”16

What myself and my associate concluded after much consideration was that we had to put our own interests in our personal health and safety above that of our client and his case and potentially withdraw due to the conflict of interest.

We held out hope, however, and made our case to the judge at a pretrial conference on November 4, which ironically was held by Zoom. After presenting our arguments, as anticipated, the judge denied the motion and indicated to the parties that we were to appear at the NRG Arena for jury selection on November 11. We then expressed to her our ethical concerns and the possibility of withdrawal. Despite not having made a formal motion, the judge quickly replied that she would be inclined to deny that motion.17 In terms of reasonable alternatives to allay our fears, we asked if the judge would consider requiring all trial participants to submit to diagnostic tests prior to appearing for the trial or even possibly holding the trial in an outdoor venue. Again, denied.

After several difficult discussions with our client, we informed him that we had to move to withdraw and did so on Tuesday, November 10. Expecting the judge to deny that motion, however, I had spent the entire weekend before preparing a petition for writ of mandamus. While I had seen other attempts at mandamus fail based on a denial of a motion for continuance, I felt we had a better shot because ours was based on the failure of the judge to let us withdraw. Caselaw clearly established that mandamus relief was appropriate where a trial court refused to allow an attorney burdened by an actual conflict of interest to withdraw.18

The petition was filed and assigned to the First District Court of Appeals in Houston that Tuesday afternoon at 2:51 p.m. along with a motion to order a temporary stay of the proceedings in the county criminal court at law. At 4:20 p.m., we received an email from the Court of Appeals notifying us that our motion for the temporary stay was denied.

We were overwhelmed with a feeling of defeat. Again, we had seen other cases where parties moved for and were denied a continuance, including a case involving a tax dispute in Scurry County where the lead counsel for one of the parties sought a continuance due to his age and underlying health conditions, and because his physician had directed him to self-quarantine for at least twelve weeks. He sought mandamus relief to the Eastland Court of Appeals and the Texas Supreme Court, both of which denied his request without opinions.19 We had heard of other attorneys throughout the state and in Harris County whose motions for continuance and petitions for mandamus relief were also summarily denied. The evidence was there to support a strong inference that although there was no explicit directive, there was tacit direction from the top down to deny any motions and overrule any objections that would delay the proceedings.

It was then that we realized we were no longer operating by the same system of rules and protections we have. Although the Texas Supreme Court had stated, “The Constitution is not suspended when the government declares a state of disaster,” the actions of every court in Texas demonstrated the exact opposite.20 We knew we had to shift the paradigm and adapt to our situation.

We could not just show up and participate in person as it would have been counter to everything we had represented to both the trial court and appeals court. We were not going to participate in the trial.

The judge had given us an option: we could appear by Zoom. Instinctively, it sounded like a good solution because it resolved what, in our minds, was our primary concern: our personal health and safety. But almost instantaneously, we were equally concerned with the multiple constitutional violations that it would involve.

First and foremost, it would deprive our client of his constitutional right to be physically present at his trial.21 Although the judge had said it was our choice to appear by Zoom, it was really a “Hobson’s choice” because the alternative was that our client would be deprived both of his right to conflict-free representation and effective assistance of counsel.22 There was also the fact that our client would be giving up his constitutional right to physically face those who testify against him.23 Effective assistance of counsel would also be compromised simply because we would not be in the courtroom to witness everything that was taking place. The list just seemed to go on and on.

Because we were faced with a true “Hobson’s choice,” we decided to move forward as intended and not be physically present at trial but instead appear by Zoom while making all the necessary objections to preserve the error for appeal.

Voir Dire and Preparing the Jury to See Us on Zoom

The morning of November 11, we had to appear at NRG Arena — a convention hall located next to NRG Stadium and the old Astrodome site that had been converted to a massive jury assembly hall — because there was no indication that the voir dire rooms were equipped for Zoom. That was indeed the case when we arrived.  While the county had not provided that sort of technology, we heard the sound of cash registers ringing as we walked in and saw large numbers of staff to assist jurors and parties, as well as high-end audio and video equipment. This included individual voice-activated microphones and Sony headsets at each “juror station,” a seat for each veniremember spaced six feet apart from the others. For us, we too would wear headsets to be able to listen to everyone speaking, be it the judge, the prosecutors, or the veniremembers responding. Hearing would have been otherwise been impossible given the cavernous space that we occupied.

Our concerns about our health and safety were not as great as they were for the actual trial proceedings that would take place the following day at the Harris County Criminal Justice Center in the courtroom for County Criminal Court at Law No. 9. Veniremembers wore not only face masks, but county-provided plastic face shields. Staff members came through before and after voir dire spraying down equipment with what appeared to be disinfectant. Sanitizer sessions were spread out throughout the venue.

As expected, Judge Finch was not there but instead, like other courts using NRG, used a visiting judge to conduct the voir dire proceedings.

As the veniremembers filed into the room, we realized the first problem. While we had questionnaires for each, we had no idea what they looked like. Wearing the masks was bad enough, but with the face shields which just reflected the ceiling lights each time the veniremember moved, there was no way we could see each individual veniremember except for maybe on the first two rows; even then, we could only barely see their eyes.

The visiting judge started the voir dire and surprisingly made little mention of COVID-19 and the abnormal environment we were in. He gave a standard voir dire covering general principles of law applicable to a criminal case. The prosecutor likewise made little mention of COVID-19 and went through the standard State DWI voir dire (e.g. review the elements, discuss potential grounds for cause).

When it came time for me to start, I knew I had a tough road ahead. Ordinarily, I use a power point to talk about the burden of proof and other issues related to the issues in my case. I threw it all out. Again, I knew I had to shift the paradigm and had to prepare the veniremembers for what lied ahead.

The DWI was important but, like I told the jurors, there was a bigger elephant in the room, and it was a really big elephant given the size of the hall at NRG arena we were in. That elephant: COVID-19. I talked to the jurors about their opinions about the pandemic, setting it up as a scaled question where a “4” was a person who was hypervigilant and hardly ever left their home, while a “1” was a person who thought the virus was a hoax and was appalled about wearing masks. This gave us the opportunity to get an idea of who would be receptive to our position. And then we told them ours. I explained how I was somewhere between a 3 and 4, my brother-in-law being an epidemiologist and having lost friends to COVID-19; my associate was also between a 3 and 4 as her mom was immunocompromised having just beat breast cancer.

I then explained to them how things have been working in the criminal justice system since the COVID-19 pandemic began, how judges were panicked about the wheels of justice coming to a halt, and how they were pushing things to get moving again.

I then talked to them about Zoom and other videoconferencing apps to see how many of them were familiar with it and used it regularly. I then explained how we in the criminal justice system had been using it on a daily basis for day to day court appearances and to keep the “wheels turning.”

Then, I turned to our present dilemma. With the presiding judge not being there, it was easy for me to scapegoat her. I told the jurors that we had pleaded with her to push this off until after the pandemic settled and how we did not need to put ourselves or jurors at risk. I told them, as much as they did not want to be there, we wanted to be there even less. I felt this would make them less likely to punish us for their plight.

But then I explained that the judge had given us the option of appearing by Zoom. We told the panel that we wanted everyone to appear by Zoom – the prosecutors, the witnesses, and, most importantly, them. But logistically, it was not going to work so I then reached the climax of the voir dire: we could not pass up appearing by Zoom — that myself, my associate, and our client did not want to put our health and safety at risk being in the courtroom. At that point, we asked who would be offended by that and, as grounds for cause, who could not treat us impartially even though, while they would be in the courtroom, we would only be on television monitors.

By then, having had an open, honest discussion about COVID-19, the jurors were willing to open up. Several said they were indeed offended and would not treat us the same; those jurors would ultimately be struck for cause by the visiting judge. Fortunately, there was a good number of other veniremembers who gave us their commitment that they would hold the State to their burden and not treat us differently. At the end, we got six good jurors and one alternate. Before I concluded, I told them, it was going to be the last time we saw each other in person. It was a surreal moment.

“Uh, We Can’t See the Jury”

The following day, while we were expecting to not see them in person, we were not expecting to not see them at all. But that is exactly what happened.

Having spent the afternoon before, after voir dire talking with the prosecutors about exhibits (which we agreed to preadmit) and witnesses, things started off smoothly putting agreed motions in limine on the record and renewing my objections to the proceedings. But then, when I pointed out to the judge that we could not see the jury — and she responded by saying she was not putting a camera on the jury — we knew we were in for nothing short of a kangaroo court.

I was set up on my computer in my office without a mask. My associate was similarly situated in her office. Our client was set up on his laptop at his office. We would use text messaging to communicate with each other (which had its limits).

We had a camera view of the well of the court with counsel tables where we could see the prosecutors. The judge had arranged to have a laptop set up in front of the witness stand which allowed us to see the witness and the witness to see me during questioning. The judge’s camera was helpful, not for being able to see her, but because it allowed us to see one of the monitors in the courtroom set up behind and to the side of her bench.

This would be a critical component of this entire process because it allowed us to see what the jurors were seeing in the courtroom on the “Zoom screen.” Even though I would be set up with gallery view or have whoever was speaking “pinned” on my monitor so I could watch them, the judge controlled what was published on the monitor in the courtroom. Instead of having a gallery view (where each party on the Zoom is shown), it only showed whoever was speaking. Since that was almost always me, it was almost always my face on the screen. The only time the jurors saw our client was when he was arraigned and pleaded “not guilty” and then, at the end of the trial when, at the beginning of my closing, I asked him to say “hello” so that his voice would switch the voice-activated camera to him and show him on the monitor. I wanted the jurors to see his face one last time to remind them that they held his fate in their hands. Otherwise, with his face not being shown, we did not have to worry about an expression, smirk, or laugh being heard or seen by the jury.

Of course, we were not going to have the same benefit. When I gave my opening statement, I was talking to a computer monitor that had my face on it. I could not see the jury. It was like practicing my opening in front of mirror except I could hear my voice through the computer speakers as well. I also had my notes in a separate window below the Zoom window on my computer monitor as if I had a teleprompter I could read off or look at to remind me what I wanted to say to the camera.

When the prosecutors called their first and only witness,24 surprisingly, he had a mask on. This was contrary to what the judge’s trial safety plan had provided. Nevertheless, we were able to watch him in a separate Zoom window. We turned off our cameras (except our client; the judge wanted to make sure he was watching) and muted our microphones so that I would not be shown on the monitor in the courtroom. This was beneficial because I could take notes, look up things in exhibits, exchange text messages, even do legal research on my second computer monitor without the jurors seeing me fidgeting around or even hearing what I was saying as I was talking with my associate in her office down the hall.

When it came time for cross-examination of the officer, I knew I was in for a different experience. Not being there, not being able to see the jury and read their reactions, and not being able to physically get up in his face put me at a distinct advantage. But the Zoom setup did something beneficial. Even though I was not physically in his face, the laptop was set up directly in front of the witness stand so I was “virtually” in his face for the entire cross. Whereas officers are typically trained to look at the jurors when responding, while this officer did it at first, after several questions, he was locked on my on the screen.

As for the jurors, although I could not see what they were doing, I could see what they were looking at on the monitor in the courtroom: me.

Every time I asked the officer a question, I could watch my demeanor, expressions, and delivery while also hearing my question through my computer speakers. This provided me with instant feedback and helped make me self-aware of what I was doing unlike any of the over 100 trials I had participated in prior to this.

As much as I hated not being able to see the jury, this atrocity was allowing me to focus on nothing else but what they were seeing.

Handling evidence also was much better. Instead of fumbling around with courtroom equipment or getting up to approach the witness stand, I simply had to hit the “Share Screen” button and, since I had all my exhibits set up in separate windows, I just selected what I needed to publish and then, boom, it was on that monitor in the courtroom for the jurors to see. I used Adobe Acrobat Pro to highlight items on exhibits that I needed to highlight. I could play a video on my computer, stop it, stop the screen share so that I was back on the monitor in the courtroom, and ask a question of the officer. Then, if I needed to jump back the video, a couple of clicks, and the jurors were back to watching the video on the monitor.

At the end of my cross, I had a satisfied feeling because I asked every question I wanted to ask and made every point that I wanted to make. But still, I had no way of knowing what the jury was thinking. I had no idea if they had understood what I was asking or where I was going. I had no idea if they were rolling their eyes or falling asleep.

It would be the same experience when I gave my closing argument. I had a couple PowerPoint slides that I opened with after opening with my client’s face being shown on the monitor. But then, it was just me, speaking to the jury but not seeing the jury.

After the jury went back to the jury room to begin deliberations, the judge stepped off the bench and it was just the prosecutors on Zoom. I asked them, “What were the jurors doing during the closing arguments?” Again, I had no idea how they responded.

While the jury deliberated, I started working on a motion to dismiss our petition for writ of mandamus to file in the court of appeals, leaving a blank where I stated what the jury’s decision was. Although I expected it would be summarily denied like all the others, I did not want to take the chance that it would create bad precedent.

Twenty minutes later, the jury came back with a verdict. Not Guilty.

It was vindication, not just for our client, but for everything we went through.

Afterthoughts about Trial by Zoom

Despite the outcome, everything we went through was an abomination. From not being able to exercise our conscience to comply with our ethical obligations, to the multiple violations of our client’s constitutional rights, to the mere fact that we were gathering in a public place when health officials were warning people in the community of a third spike in infections and more deaths made me ashamed of our entire system. Instead of working to seek justice in compliance with the law and respectful of the rights and safety of all involved, we were an unwilling participant in an authoritarian regime. A judicial body focused on one thing and one thing only: keeping the wheels of justices turning.

In my voir dire, I explained it this way. The judicial system is like a car. The judge is the driver. The parties are the two kids in the backseat fighting. The jurors are the unsuspecting group of people standing alongside the road who get pulled into the front passenger seat to listen and settle the fight. But the judge is driving the car. They have to follow the rules of the road, but they get to decide how fast or slow to go and when and where to go. However, when the COVID-19 pandemic struck, those were nails in the tires. While we pulled over to the side of the road to check it out, the judges decided to get back in the car and keep driving on the flattened tires. Why? Because they had to get where they needed to go. No one knows entirely where that was, but it did not matter. The wheels of justice had to keep turning. It did not matter if it was dangerous to others on the road. It did not matter if was dangerous to the passengers in the car. We are riding down a road with flattened tires.

Like we told the veniremembers, we begged the judge to pull over to the side of the road and wait for a tow truck to come tow us to a safe place where we can repair the tires and then get back on the road safely. The judge in our case, like many judges all over the state, however, said “No. We’re going to keep driving.”

This article is not meant to be interpreted as an endorsement of Zoom trials nor should it be. We, as attorneys, must continue to fight this effort to use Zoom on every level. All of the concerns set out by Jennifer Lapinski, Robert Hirschorn, and Lisa Blue in their article, “Zoom Trials: The Idea Exceeds the Technology” in the October Issue of Voice for the Defense were absolutely spot on and witnessed by us in our exercise in futility. We provide this account of our experience to help attorneys who, like us, find themselves with no other choice but to participate by Zoom. Hopefully, no one will ever have to go through what we went through. Hopefully, this pandemic will end and trials as we have always known them and experienced them will return to normal.

There is one positive takeaway from our experience, however. Using Zoom helped me be more self-aware of a lot of things that I normally do not get to see or experience in trial. For one, I got to see what I looked like giving opening and closing arguments. I was more aware of my facial expressions and seeing what the jury was seeing. A lot of people will practice their arguments in front of mirror. I would suggest you practice in front of a Zoom camera. Although hard to describe, it feels more effective when you can see yourself on a monitor as opposed to an identical size, mirror image.

With these things in mind, for anyone with an upcoming jury trial, I strongly recommend holding a mock trial by Zoom to help you prepare. I have done regular mock trials before and they are indeed helpful. But getting mock jurors together is a hassle and seeing them sitting there in person whether in a conference room or ball room at a hotel makes the process too “unreal.” Instead of trying to recreate the trial environment, use the Zoom environment to give you what it does best: instant feedback. Instead of looking at the jurors, you can focus on yourself, and when doing direct or cross examination, focus on the witness alone. Then, after the exercise, the jurors can provide you the feedback that you are looking for both on your case and your presentation of your case. You can also watch the recording of the Zoom session to see yourself and fix what you like and do not like.

Zoom undoubtedly has changed the way we practice law. There is a real benefit to being able to appear at non-trial court settings virtually instead of having to drive miles to a courthouse, find parking, go through metal detectors, and spending wasted time waiting to talk to a judge. We should embrace the technology for those aspects of our practice. But the jury trial is sacred. As Thomas Jefferson stated, “I consider trial by jury as the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution.”

HIPAA in the Age of COVID

/

Most of us are familiar with the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. While digital discovery and electronic transfer of records is no new thing, COVID stomped on the accelerator pushing lawyers into technology and e-practice. A lot of us are stumbling into the digital realm, and safeguarding the Protected Health Information (PHI) we have in our possession probably isn’t the first thing on our to do list.  Unless you want to risk the potential of fines between $119 and $59,522 per violation, you’re going to want to pay attention. 

To understand if your practice falls under the regulations of HIPAA, you first need to look at the Texas Medical Records Privacy Act (TMRPA). The TMRPA’s definition of a covered entity is broader than the Federal Law. If you create, receive, store, or work for someone that creates, receives, or stores PHI, you fall under TMRPA. Texas Health and Safety Code §181.001(b)(2)(A-D). Essentially, if you come into contact with PHI, you’re a covered entity and will need to comply with the requirements protecting that information.

What is Protected Health Information (PHI)? PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual. 45 C.F.R. §160.103. This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.” Id. So, if it’s medical information that can be tied to a specific person, it’s probably PHI.

As attorneys, there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMPA. For example, Mental Health records we receive for a mitigation packet for a grand jury presentation, TDCJ records that include infirmary trips, SAFPF records that include counseling, UA results for a pre-trial check in, or discovery with EMT or blood draw records, the potentials are pretty limitless. Remember, too, that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations.   

What does it mean then that we are covered entities maintaining confidentiality of PHI? Obviously, secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. PHI is not our main focus, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release, and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements. 

Under what circumstances can a party re-disclose PHI that we have received? The first is to have a valid court release. A subpoena signed by the Judge, a Grand Jury subpoena, or Administrative Subpoena authorizes a covered entity to re-disclose PHI in their possession. That is not the most likely scenario for when we will re-disclose PHI. Usually those subpoenas are going to go to the people creating the PHI. We will need a valid release to re-disclose PHI.

A valid release is more than just a set of initials on your intake contract saying you can use a client’s medical records for anything we need. Texas Health and Safety Code 181.154(d) tasked the Attorney General with creating a standardized form to comply with signed releases to comply with TMRPA and HIPAA. The 2013 form has some specific requirements like designating who the documents are being released to (not just “anyone who wants them”), the purpose of the release, a description of the information to be used or disclosed, and a specific expiration date. Additionally, there must be a separate statement for release of mental health records, drug or alcohol information, or HIV records that are to be released. The Attorney General’s standardized form is available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumer-protection/hb300-Authorization-Disclose-Health-Info.pdf  Your releases are allowed to be in written or electronic format, or even orally given as long as properly documented. Tex. Health &Safety Code 181.154(b) Best practices though: Get it in writing.

What constitutes a valid signature? It’s easy enough when a client is in person with a State ID to verify who is signing your release. But gone are the days of ink and pen, and an electronic signature is acceptable as long as it is valid under applicable law. The touchstone is the ability to verify that the signature is valid, and the person signing has the authority to do so. Some programs – SIGNiX, eSignLive by Vasco, and Adobe Sign – have been found to comply with HIPAA requirements of verification. 

What about just safeguarding the records in our file? Is your USB drive encrypted? Can you use your Hotmail account to e-mail the records to another attorney or the Judge? How complex is your password? These are all things that HIPAA, and through it, the TMRPA expect you to have considered and made a plan for. The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004. HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306. It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why.  The goal is that if there ever is a breach, we can show we did everything we could to avoid it.  Here are some highlights of best practices:

Encryption. Encryption renders PHI unreadable and undecipherable. The data can only be read if a key or code is applied to decrypt the data. While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place. There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/best-encryption-software for some ideas. 

Passwords. Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPPA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember. So instead of using a complex sequence of numbers, letters, and symbols use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980”

Third Party Storage. Are you using another company to maintain your files? If so, you’re going to need a business associates agreement. 45 CFR §164.308(b). A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself. 

E-mail. Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: (1) end to end encryption; (2) a business associates agreement with your email provider; and (3) make sure to configure your e-mail correctly; (4)  have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant e-mails.

If you’re not a solo practitioner, you have to make sure that you’re training your associates, too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training.  Tex. Health &Safety Code 181.101(a) & (d). 

And why are we doing all of this? Because we want to avoid the enforcement arm of HIPAA and the TMRPA. The TMRPA in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. Texas Health and Safety Code §181.201. As noted above, The Department of Health and Human Services published a final rule increasing the civil penalties for 2020. For violations the covered entity did not know about fines can be between $119 and $59,522 per violation. If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation. 

These are not nebulous threats. In May 2017, HHS levied a $2.4 million civil penalty against Texas Health Systems after they released the name of a patient who had presented fraudulent identification and was subsequently arrested. Concentra Health Services in Addison, TX was fined $1.7 million after an unencrypted laptop was stolen from its facilities. The largest HIPAA fine to date has been against Anthem Health in 2019 for $16 million dollars for failing to protect patient data.

So, what do we take away from this? Remember that as we implement new technology and new ways of doing business into our practices, we ought to be aware of steps to make sure private client information stays private. A lot of us may be old hat to encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds.

Pandemic at the PDO

/

I come into the office maybe twice a month. It’s so strange that it is something I can quantify in months. When I left in March, I thought that we might be gone for two weeks. I left yogurt in my secret, fire marshal-unapproved under-desk office fridge – that’s how confident I was I’d be back relatively soon.  The government machine that grinds men’s bones doesn’t usually trust work-from-home efforts, in my humble experience.

I ran into a coworker at the checkout line in the grocery store; both of us looking sheepishly down at our groaning shopping carts. He grinned, “This is wild, isn’t it? I mean, it’s terrible, but it’s kind of exciting.” It was exciting, navigating through the apocalyptic empty displays, outsmarting the other shoppers: no rice in the rice section, but if you looked in international foods, on the very bottom shelf, 10 lbs of basmati for a bargain price; no toilet paper, but plenty of baby wipes; judging that others are buying out all the raw flour but none of the cold medicine. A sense of mild superiority, of hunting and gathering to survive, of feathering one’s nest.

But now, here we are, some immeasurable amount of time later with a reliable supply chain, and I’m sitting on my back patio writing this instead of trying to figure out how to dim the ubiquitous florescent lights in my office enough to stop giving me a headache but not too much that I have to strain my eyes to see (oh, the decrepitude of advancing years!). I have abandoned my stuffy courtroom wear for the schadenfreude of “athleisure.” I revel in the solitude my secret loner soul has craved for all these years in tall buildings full of people. And yet…

Public Defenders’ offices, including my own, are going through sea-changes right now. At least, it feels that way to me from the inside. There’s not a lot of records kept that I could access, not a lot of numbers yet. But recent, rapid increases in funding for PDO’s across Texas are seemingly making for strange bedfellows with pandemic protocols. As my office stretches to find attorneys to fill new positions, young attorneys with little experience are often coming straight from nascent private practices into felony dockets.  Outside of Texas, this is pretty common, but within Texas, PDO jobs have historically been competitive and awarded to more experienced attorneys who don’t need as much supervision. This has created a gaping chasm in training and management of new lawyers, which is significantly worsened by COVID.

Private practice trial attorneys are often forced into bravado. Obtaining paying clients requires flash and confidence, which, at first, often comes in the form of over-confidence. I have these cringe-y memories of myself as a young attorney desperately trying to act like I knew what I was doing. I shudder when I realize that some people believed me. If it weren’t for the delicate, ego-sparing assistance of a few kind and brilliant mentors, I would have made some truly horrible mistakes in my brief time as a private lawyer. Moving into the larger and less-lonely world of public defender offices working shoulder-to-shoulder with much more experienced attorneys changed the way I do everything.

I see the same kind of bluster and ego that I had in a lot of the new attorneys my office has hired, but in the absence of gentle mentoring and accessible peer attorneys, in the weird vacuum of Zoom court, I worry that they are left teaching themselves how to do this work, which is unfair to both them and their clients. Stopping by someone’s office to chat about a case will always be less formal and more congenial than having to pick up the phone and make a call to solicit advice. COVID has eliminated that possibility.

PDO’s breed a type of “no-snitching” culture where formal complaints or observations to superiors about the poor conduct or performance of other lawyers in the office is taboo. Compounding this is that middle-management staff are often ill-equipped to handle attorney discipline or training since they are largely promoted because of their tenure with the office and successes at trial. While these are admirable skills to warrant promotion, they are not skills that translate into management or mentorship abilities, and many great trial attorneys are poor supervisors who lack the ability to delegate authority. This is coupled with the difficulty inherent in managing people who are drawn to criminal defense practice, a notoriously anti-authoritarian and prideful group if ever there was one.

Related to the increases in budgets are increases in the number of cases appointed to PDO’s. As most criminal defense attorneys are all too aware, prosecutors seem unmotivated to move cases or even answer their phones in the midst of the pandemic, even when defendants are sitting in jail exposed to the virus or have languished on bond for years. Since there has been no risk of trial for several months, individual caseloads seem to have grown, apparently a result of the idea that if an attorney is not going to go to trial, they can handle more cases overall, which is true in the short-term. As trials start to resume, trial attorneys are finding themselves with heavy dockets of old cases on top of an expectation that they will continue to intake a higher number of new cases.

I don’t mean to be all criticism and darkness. I am also sweetness and light. There are good things, too. Forcing courts and old-school attorneys to adapt to technological advances has been largely beneficial. Off-docket resets and minimized appearances are definitely time-savers and prevent clients from having to cough up money for public transport or parking, stand in ridiculous lines, and miss work to go to court for nothing to happen.  It feels like a blessing not to have to sit in the gallery for an hour on the day you (of course) forgot to charge your phone, waiting for a late judge to come toddling in from a leisurely brunch to start his docket.  I think I fume a lot less.

Personally, I like the option of being able to work from home on days that I can’t have any distractions- when I don’t want to be rude to the coworkers dropping by to chat but I really need to get this thing done now so please stop talking about your freaking cat’s hysterectomy. And even though my commute isn’t terribly long, it’s amazing what a timesaver it is to avoid it and avoid the serpentine parking situation of the courthouse complex.

That said, I miss the camaraderie of my old office. I miss the collaboration and the chatter and the support, and I’ll admit, I even miss the drama. It was nice to know that in a contested hearing, half my office might show up in the courtroom to show support. It loses something on video conference.  I can’t imagine things returning to the way they were before all this. The days of standing next to a client during a plea with my hand on the back of his jail garb are gone. The idea of several colleagues ordering a pizza together, picking up pieces with our hands from the same box, eating together, laughing and spewing germs all over the conference room seems unthinkable now. The intimacy of having someone in my office sans mask chatting with the door closed feels almost indecent.

I believe in the model of the Public Defender’s Office with all my heart, life, and career. There is not a job I would rather do. I know that what I am witnessing is something our country is (hopefully) going through in a larger sense, too: the painful birth of a more progressive movement at a critical and bizarre time in history. I endeavor to be proud to say I was here now, was part of this hard thing and pushed through it into something better. I hope everyone in our office, at the end of their career, will be able to say that.