March 2021

INTRODUCTION

Whether you agree with smoking marijuana (a.k.a. weed, bud, grass, dope, herb, reefer, pot, you get the picture) or not, it is easy to see that marijuana has become almost totally acceptable in today’s society. Marijuana is used both medically and recreationally in the United States and is commonly smoked (in joints or blunts, or out of a pipe or bong) but it can also be eaten in edibles, brewed in teas, and more recently, through vaporizers and vape pens. As a defense lawyer, we need to be aware of the different forms marijuana can come in, what it means for our clients, and how we can best defend them.

WHERE DOES IT COME FROM?

Marijuana is derived from the cannabis plant, which is one of mankind’s earliest crops, and has been around for thousands of years. In fact, dating back at least 5,000 years, marijuana has had medicinal, spiritual, and recreational uses. Still, its legality has been a topic of controversy in America, and even the world, for longer than most of us have been alive.

THE MANY FORMS OF MARIJUANA

Marijuana today comes in a variety of different forms and can now be consumed in various ways. We all know that the most common way of consuming marijuana flower is to simply smoke it, however, THC can be ingested in many forms. The most common way you will likely see THC consumed these days, however, is in a “vape” pen containing a cartridge of oil with some concentration of THC. Below are some of the many examples of substances containing THC, the main psychoactive compound in cannabis that produces the high sensation.

Cannabis Concentrates may include products such as Kief or sift, Hash, Rosin, Live Resin, Shatter Wax, Crumble Wax, Honeycomb Wax, Budder or Badder, Pull and Snap, Tinctures, THC Oil, BHOI & CO2 Extract Oil, Rick Simpson Oil, Distillates, Isolates and Crystalline.

Solvent Concentrates include products and variants such as Shatter, Crumble and Honeycomb, Budder and Badder, Wax Products, Live Resin, CO2 Oil, THC Oil, Butane‑Honey Oil, and Rick Simpson Oil.

Dabs may include products such as Shatter, Wax, Resin, and various types of Hash Oil.

Old Definition of Marihuana (Flour), pursuant to HSC 481.002, “Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: (A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; (B) the mature stalks of the plant or fiber produced from the stalks; (C) oil or cake made from the seeds of the plant; (D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or (E) the sterilized seeds of the plant that are incapable of beginning germination.

Now the New Definition of Marijuana (Flour) adds to the list of not included: (F) “hemp”, as that term is defined by Section 121.001, Agricultural Code.

Old definition of “THC”, pursuant to HSC 481.002, was defined as follows: “Controlled substance” means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1‑A, 2, 2‑A, 3, or 4. HSC 481.103, Penalty Group 2, includes THC: Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity.

Now in the New Definition of “THC,” HSC 481.002 does not include “hemp,” as defined by Section 121.001 of the Texas Agricultural code or the tetrahydrocannabinols in hemp. Note that the definition of “THC” leads to a rational conclusion that there is ALWAYS some THC found in Hemp. So, what is Hemp? According to Tx. Agriculture Code Sec. 121.001, “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta‑9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

And Cannabidiol (“CBD”), according to HSC 443.201, is defined as a “Consumable hemp product” meaning food, a drug, a device, or a cosmetic, as those terms are defined by Section 431.002, that contains hemp or one or more hemp‑ derived cannabinoids, including cannabidiol.

What does all this mean? It means that the green leafy substance and any odors that an officer or a K‑9 smells may be an illegal substance, or it may not. Now, marijuana is Cannabis sativa L. with a concentration of THC over

0.3 percent THC and hemp is Cannabis sativa L. with a concentration of THC under 0.3 percent THC. These are not scientific definitions. They are legislative ones.

A CHANGE IN ATTITUDE – GUESS WEED ISN’T THAT BAD AFTER ALL

In the past decade or so, there has been a dramatic shift in the attitude toward marijuana consumption, and that shift is starting to be shown in our legal system today. A study by the PEW Research Center in 2019 concluded that two‑thirds (roughly 67%) of Americans say the use of marijuana should be legal, reflecting a steady increase over the past decade. The survey revealed that the share of U.S. adults who oppose legalization has fallen from 52% in 2010 to 32% in 2019.

While marijuana remains federally illegal (but the definition also now excludes hemp), marijuana laws are changing at a rapid pace across all 50 states. On November 6, 2012, Colorado and Washington became the first two states (and the first two places in the world) to legalize marijuana for adult use. Alaska, Oregon, and Washington, D.C. followed suit two years later in 2014. In 2016, voters in four additional states (California, Massachusetts, Maine, and Nevada) also approved ballot measures legalizing marijuana. In January 2018, Vermont became the first state to legalize marijuana through a state legislature. Also, in 2018, Michigan became

the 10th state to legalize recreational marijuana, and Utah, Oklahoma, and Missouri voted to legalize medical marijuana, joining numerous other states that already had such laws on the books. More states are expected to legalize in the near future. As of the date of this publication, 40 states have some sort of legalization of Marijuana in place.

Some states are even doing more than just legalizing marijuana. Last June in Illinois, Governor JB Pritzker signed a legal marijuana bill into law that legalized recreational marijuana use but also contains a sweeping criminal justice component, namely, expunging the records of potentially hundreds of thousands of Illinois residents who have previously been convicted for possessing marijuana under previous laws.

Marijuana is now legal in 11 states for adults over the age of 21, and legal for medical use in 33 states, despite the continuing Schedule I status of marijuana under the Controlled Substances Act (“CSA”). Currently, only 11 states remain with a “fully illegal” approach to Marijuana.

WHAT RECENTLY CHANGED IN THE LAW

Federal Law. Marijuana is federally illegal under the Controlled Substances Act (“CSA”), which was enacted in part to implement the United States’ obligations under the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances. See 21 U.S.C. § 801.

Under the CSA, substances are categorized into five schedules, depending on their therapeutic benefit and their potential to result in abuse, diversion, dependency, and addiction. Schedule I is the most restrictive and the substances listed as same are said to have no currently accepted medical use in the United States and a high potential for abuse. Schedule II substances similarly have a high potential for abuse, but they do have a currently accepted medical use. Schedules III–V substances have an accepted medical use and less (relative to each preceding schedule) abuse potential. See 21 U.S.C. 812(b). Marijuana is listed as a Schedule I substance.

In December of 2018, however, the federal landscape for marijuana changed with the passing of House Bill 1325, known commonly as the “Farm Bill.” The Farm Bill was designed to create a legal hemp market and defined “hemp” as the cannabis plant, or any part thereof, including its extracts and cannabinoids, having a THC concentration of not more than 0.3% on a dry weight basis. See 7 U.S.C. § 1639o (emphasis added). Because of this definition, “hemp” is removed from the legal definition of marijuana and it can no longer be considered a controlled substance under the CSA. While not explicitly authorizing interstate commerce of hemp, the Farm Bill likewise does not authorize the interference with the same.

The 2018 Farm Bill requires hemp cultivation to be licensed and regulated pursuant to “state plans” promulgated by a state, which must contain, among other things, provisions for THC testing. It further directed the United States Department of Agriculture (“USDA”) to establish a national regulatory framework for hemp production in the United States. In response, the USDA established the U.S. Domestic Hemp Production Program through an interim final rule. This rule outlines provisions for the USDA to approve plans submitted by States and Indian Tribes for the domestic production of hemp. It also establishes a Federal plan for producers in States or territories of Indian tribes that do not have their own USDA‑approved plan. The USDA has the authority to issue regulations and guidance, but the law explicitly preserves the existing jurisdiction of the FDA.

Cannabidiol (“CBD”) is a non‑psychoactive compound of cannabis. CBD was classified in Schedule I of the CSA because it is considered a compound or derivative of cannabis/ marijuana. See 21 U.S.C. § 802. However, as indicated above, the 2018 Farm Bill has de‑scheduled hemp as it is defined under that law. Therefore, commercial activity with hemp (including its extracts and cannabinoids) is now lawful. A DEA registration is no longer required to cultivate hemp or to conduct research with hemp. However, if clinical research, i.e., involving human subjects, is involved, an investigational new drug exemption (IND) must still be opened with FDA, and the investigational product must be manufactured in a facility that complies with good manufacturing practice requirements. Currently, CBD is approved by the Food and Drug Administration (FDA) as a prescription drug. Per federal law, prescription drugs cannot be added to foods, cosmetics, or dietary supplements.

Texas Law. It is still illegal to use or possess marijuana under Texas law and has been since 1931. What changed last year, however, is how the code defines what marijuana is. The Texas Health and Safety Code now defines “marihuana” as follows:

“Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include:

1. the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
2. the mature stalks of the plant or fiber produced from the stalks;
3. oil or cake made from the seeds of the plant;
4. a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake;
5. the sterilized seeds of the plant that are incapable of beginning germination; or
6. hemp, as that term is defined by Section 001, Agriculture Code.

Tex. Health & Safety Code Ann. § 481.002.

As you can see, the 2019 definition of marijuana changed to explicitly remove “hemp”. Like the federal definition, the Texas Agriculture Code defines hemp as the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, with a THC concentration of not more than 0.3 percent on a dry weight basis. See Tex. Agric. Code Ann. § 121.001.

This definition was changed when, in an attempt to bring the state in line with the 2018 Farm Bill, on June 10, 2019, House Bill 1325 was signed into law by Governor Greg Abbott. HB 1325 legalized the production, manufacture, retail sale, and inspection of industrial hemp crops and products in Texas. This also includes products for consumable hemp products that contain CBD as well as other edible parts of the hemp plant.

The Texas Department of Agriculture (“TDA”) submitted the state hemp plan to USDA on December 2, 2019, and it was approved by the USDA on January 27, 2020. Administrative rules were published in January 2020 and became effective March 11, 2020. Now that the TDA plan is approved by USDA and the administrative rules are adopted, industrial hemp can be grown and cultivated legally in the State of Texas. Furthermore, per this plan, the regulation of CBD consumables, including CBD oil, will be handled in accordance with Food and Drug Administration (FDA) guidelines. The state agency with oversight of CBD consumables is the Texas Department of State Health Services (DSHS) and not the TDA.

At its heart, this new law means Texans should no longer face criminal penalties for hemp or any of its derivatives, including CBD.

It is also important to note that medical cannabis is said to be legal in Texas in very limited circumstances. Governor Abbott signed the Texas Compassionate Use Act into law in 2015, allowing people with epilepsy to access cannabis oil with less than 0.5% THC. Last year, he also signed House Bill 3703, which expanded the list of qualifying conditions to include diseases such as multiple sclerosis, Parkinson’s disease, and Lou Gehrig’s disease, or ALS.

PROSECUTIONS IN TEXAS HAVE DECLINED

So, what did the new hemp laws do to marijuana cases? While counties in Texas all treat low‑level marijuana cases differently, one thing has become clear across the board: prosecutions in the State have drastically plummeted since Texas legalized hemp. In January of 2020, the Texas Tribune noted that district and county prosecutors across the state began dropping hundreds of lower‑level marijuana cases since the legalization of hemp, which resulted in marijuana prosecutions dropping by more than half. The article also noted that some district attorneys began requiring agencies to submit lab results proving the suspected drugs had more than .3% THC before the case was accepted for prosecution. In fact, even the good folks at the Texas District and County Attorneys Association issued a press release suggesting to its members that such testing is likely needed to prove in court that the seized marijuana substance is illegal.

In 2019, before the passage of the hemp law, there were about 5,600 misdemeanor marijuana possession cases a month. After the law’s passage, that number got slashed in half, with only around 2,000 cases filed in November.

Since the passing of the hemp law, more and more policies across the state started popping up in favor of marijuana legalization, or at least de‑criminalization for minor amounts of marijuana possession. In July of 2019, Bexar County District Attorney Joe Gonzales joined three other Texas District Attorneys (Fort Bend County, Harris County, and Nueces County) in adopting a policy of not accepting criminal charges for misdemeanor possession of marijuana for amounts of four ounces or less. Later that month, even Texas DPS issued a memo instructing its officers to cite and release suspects in misdemeanor marijuana cases (less than 4 ounces in possession cases) “as appropriate.”

In January of 2020, Austin’s City Council voted unanimously to end most arrests and fines, as well as ban spending city funds on testing, for small‑amount marijuana possession cases. The police chief was obviously not on board with this decision, however, as evidenced by his response a day later that he would still instruct his officers to issue tickets or arrest people for these offenses.

THE TESTING

It seems clear that part of the reason marijuana prosecutions are declining is because labs are struggling to keep up with the THC testing. In February of 2020, Texas DPS announced that “the new THC testing methodology for plant material is expected to be finalized by Sam Houston State University (SHSU) near the end of March.” DPS clarified, however, that they will not be accepting misdemeanor cases, likely due to the high volume of arrests. Likewise, the letter clarified that they will not be testing felony concentrate materials at this time. A downside to DPS not testing, though, is that it leaves agencies in many areas to use costly private labs if they are not inclined to forego pursuing marijuana cases. With new kinds of testing, however, it’s also important for us to remember problems that could also arise with its validity, including the ability of the sponsoring expert to meet Daubert factors in trials.

WHAT THE NEW LAWS MEAN FOR DEFENDING YOUR MARIJUANA CASES

The passage of the 2018 Farm Bill and Texas’s HB 1325 give defense attorneys new ways to challenge Marijuana cases and develop issues that have not yet been decided by the courts. A few tools to use in defending marijuana cases today are outlined below.

Challenging PC. The new laws surrounding hemp have a drastic effect on law enforcement’s ability to assert probable cause to search or continuing detaining a suspect. Since the passage of HB 1325, whether something is legal cannabis (hemp) or illegal cannabis (marijuana) is a legal conclusion. The only way to distinguish between legal or illegal cannabis is to have a lab test done to determine the THC concentration. The two are indistinguishable to the nose. One cannot distinguish between legal or illegal cannabis by

the look or smell. Nor is the odor of burnt marijuana or bunt hemp distinguishable. The two are the same plant. The level of THC does not make the plant appear different. The THC level also does not make the plant smell different. The smell of cannabis is based on the terpenes, not the THC level. The human nose is not smelling marijuana, it is smelling the terpenes of the cannabis plant. This means that all an officer can detect, is the odor of Cannabis sativa L., which is legal unless the THC concentration is over 0.3 percent, but the officer cannot detect the level of THC concentration. Therefore, while the odor of marijuana or burnt marijuana previously could establish probable cause to search in Texas, a detention or search based solely on the smell of cannabis or burning cannabis alone is arguably illegal. For these reasons, detentions based upon smell alone lack reasonable suspicion, and searches based on the smell alone lack probable cause. It should now be argued that no probable cause exists if law enforcement has no reason to believe that the odor they claim they smell is not, in fact, hemp.

Given the similarities of marijuana and hemp, not only does law enforcement lose its ability to form probable cause to search vehicles incident to the vehicle exception or use odor as the basis for probable cause in a search warrant, but arrests of persons and seizures of green leafy substances are also devoid of probable cause absent other articulable facts indicating that the substance is, in fact, illegal marijuana.

It should be noted that smokable hemp containing CBD is widely used as a method of ingesting CBD for its medicinal effects. Many people prefer smoking hemp rather than using a “vape” cartridge given the unknown and often negative effects of “vaping” oils.

It goes without saying that “vape” cartridges containing CBD are indistinguishable from “vape” cartridges containing THC. It is impossible to deduce the concentration levels of either CBD or THC within a cartridge just by looking at them. For this reason, as with the indistinguishability problems of marijuana and hemp, so too are substances containing CBD and THC likewise indistinguishable. For these reasons, the same arguments apply concerning the probable cause to search, arrest, and seize.

Officers aren’t alone in their inability to distinguish illegal marijuana from legal hemp or illegal THC from legal CBD. Narcotics detection dogs are likewise unable to make any meaningful distinctions. Cases involving indications that a “K‑9 alerted to the presence of narcotics” which form the basis of probable cause to search are also ripe for suppression. No K‑9s have ever be trained to distinguish between Hemp and Marijuana, assuming that there is any scientific basis to even do so. And these issues can create even worse problems for cases relying on K‑9 sniffs. Because of this, an “alert” from a K‑9 can now be a false positive. The sniff is therefore no longer reliable probable cause. See People

1. McKnight, 2019 CO 36, 446 P.3d 397, reh’g denied (July 1, 2019).

In Colorado, where small amounts of marijuana were legalized in 2012, drug dog searches became problematic because the animals would alert officers to a legal amount of marijuana. The Colorado Supreme Court ultimately held that that police had to establish probable cause before using a drug‑sniffing dog, a move that led authorities to roll back the role of dogs in drug cases. See id. As well, there can be no more probable cause for “vape pens” and/or “THC Cartridges” because there is no way to differentiate and spot the difference between a THC‑Pen and a CBD‑Pen.

If there is no probable cause, the arrest should be suppressed. Don’t forget, however, the seizure should be suppressed, too. Without the requisite probable cause, likely, any incriminating post‑arrest statements should also suppressed, as well as any testing to confirm the substance is THC. If argued correctly, this can be a huge tool to use to get your case dismissed. For example, in a possession case involving alleged THC oil, if there is no pre‑arrest admission that the substance in question is THC oil, and not CBD oil, it is virtually impossible for the officer to distinguish between the two. It is also very important to note that field tests cannot give probable cause to arrest in this situation because a substance containing less than 0.3 percent of THC can produce a positive result while remaining a legal substance. What the state has to prove. As noted by DA Joe Gonzales, “[t]he immediate effect of the hemp law is that it requires the state to prove a THC concentration on marijuana cases that cannot be accomplished without lab testing.”

It can now be argued in marijuana cases that the State has to prove beyond a reasonable doubt that the substance in question is not legal hemp, but rather a substance containing more than .3% THC. This has proven to be a difficult task for prosecutors, as THC‑level testing is still developing and uncommon. The lack of testing resources to distinguish between Marijuana and Hemp casts too much reasonable doubt over criminal proceedings, which is why, as mentioned above, many counties are either tossing low‑level marijuana cases or holding off on pursuing criminal charges in larger cases. If you have a case where a private lab has determined the level of THC‑concentration in a material, remember to challenge its validity, and remember the Daubert Factors required for expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

There currently exist no peer‑reviewed scientific procedures to test THC concentration levels in Cannabis sativa L. While arguably, High Performance Liquid Chromatography (HPLC) could produce concentration levels, no studies have been produced or peer‑reviewed. Even with the limited use of HPLC to obtain concentration levels for commercial marketing reasons in recreational jurisdictions, the experimental nature of those procedures does not meet the necessary Daubert standards and have technical problems of their own.

How we instruct the jury. Because of the new hemp laws, changes are required in how juries are instructed when it comes to alleged marijuana cases. Because the definition of marijuana has changed to exclude material with 0.3 percent THC concentration or less, juries should be instructed

accordingly. Juries should also be instructed that it is the government’s burden to prove beyond a reasonable doubt that the alleged marijuana does in fact have a concentration above 0.3 percent THC. Obviously, since no expert can testify to this fact, your chances of winning greatly improve. Hemp is just back door jury nullification. We already know that the public’s appetite for prosecuting marijuana is virtually gone. Assuming the state could even empanel a jury that could convict or punish someone charged with possession of cannabis in 2020, why would they ever want to. Obviously, in most possession cases of any type of contraband, the only way to win is through suppression. If they caught you red‑handed, what’s your defense? You can’t just argue to the jury, “C’mon, it’s just weed” can’t you?

Maybe now you can?

If you lose that suppression issue, remember you can always put it to a jury with a 38.23 instruction. But more importantly, think about this argument. If you have sufficiently Voir Dired on how many states and how many millions of Americans are making billions of dollars in legal cannabis markets, and how important it is to hold the state accountable to the proper standards of testing and reasonable doubt they should be ready for virtual cannabis nullification. “Sure, we know that it’s weed” but the state never proved beyond a reasonable doubt that the weed had more than 0.3 THC in it. They set the bar at 0.3 percent, they should have to reach that bar, that’s what the legislature wanted. Malum prohibitum laws are technical ones, to begin with. There is nothing inherently evil with that green leafy substance. It’s technically illegal, not actually evil. So, it stands to reason, they must technically prove it’s got more than .03 percent THC.

The same is true in federal court. Obviously, the issues are a lot heavier to contend with when we are in federal court, but these same concepts hold true. Because these concentration distinctions come directly from the federal “Farm Bill,” all the arguments apply equally. In reality, a marijuana case in federal court obviously will have more serious consequences than in state court, so all the more reason to fight.

How we negotiate with Prosecutors. The new hemp laws give us more leverage when negotiating plea agreements with the government. Remember all the arguments discussed in this article and highlight some of them when discussing your marijuana case with prosecuting attorneys. Convince them that if pushed to trial, you will hold them to their burden and will make them prove every element of their case, which may prove difficult concerning the current inability to test THC levels. If you have a good suppression issue, use that to your advantage to try and secure a dismissal.

CONCLUSION

The attitudes surrounding marijuana have drastically changed both in the United States and in Texas and show strong support in favor of legalization. Nationwide and statewide polls reveal a strong pattern in favor of marijuana legalization, evidenced by the fact that 40 states in America have some form of legalization and that it’s fully legal for adults 21 years of age or older in 11 of those states. In Texas, numerous counties are no longer prosecuting small‑amount marijuana possession cases, including Bexar, Harris, and Dallas County. The 2018 Farm Bill and Texas’ House Bill 1325 have changed the landscape of criminal defense for marijuana cases indefinitely and gave criminal defense lawyers new and effective tools to use to beat marijuana cases. So, fight every fight, NEVER plea a misdemeanor marijuana case, and NEVER let anyone become a felon for marijuana. And to quote my homie Dr. Dre, “Smoke [hemp] everyday.”

Endnotes

1. Newton, D. (2013). Marijuana: A Reference Handbook. ABC-CLIO: Santa Barbara, CA.
2. Tackett, History of Marijuana. American Addiction Recovery Centers. 31 Oct. 2019. Available at: https://law.uakron.libguides. com/c.php?g=627783&p=6800463.
3. Daniller, A. Two-thirds of Americans support marijuana legalization. Pew Research 14 Nov. 2019. Available at: https://www.pewresearch. org/fact-tank/2019/11/14/americans-support-marijuana-legalization/.
4. Mead, A. Legal and Regulatory Issues Governing Cannabis and Cannabis-Derived Products in the United States. Frontiers in plant science, 10, 697. 2019. Available at: https://doi.org/10.3389/fpls.2019.00697.
5. McCullough, Jolie. Marijuana prosecutions in Texas have dropped by more than half since lawmakers legalized The Texas Tribune. 03 Jan. 2020. Available at: https://www.texastribune.org/2020/01/03/texas-marijuana-prosecution-drop-testing-hemp/.
6. See id.
7. See Interim Update: Texas District & County Attorneys Association. 24 June 2019. Available at: https://www.tdcaa.com/legislative/interm-update-hemp/.
8. See fn. 5.
9. Statement on hemp/marijuana case filing policy. Bexar County District Attorney’s Office. 03 July 2019. Available at: https://www.bexar. org/CivicAlerts.aspx?AID=513.
10. Prince, Randall. Department of Public Safety Interoffice Memorandum regarding HB 1325 Enforcement Guidance. Texas Department of Public 10 June 2019. Available at: https://static.texastribune.org/media/ files/6bb887232ae43ab238d88d50d18b196f/DPS-citerelease2019.pdf?_ ga=2.102158146.252285754.1602180849-554138637.1602180849.
11. Menchaca, M. CBD, hemp, medical marijuana? Here’s what you need to know about Texas’ changing pot laws. KBTX-TV. 28 Jan. 2020. Available at: https://www.kbtx.com/content/news/CBD-hemp-medical-marijuana-Heres-what-you-need-to-know-about-Texas-changing-pot-laws-567357991.html.
12. See id.
13. McCraw, Steven. Letter to DPS Laboratory Clients. Texas Dept. of Public Safety. 18 Feb. 2020. Available at: https://www.texasnorml.org/wp-content/uploads/2020/02/thcMethodologyUpdate.pdf.
14. See Statement on hemp/marijuana case filing policy. Bexar County District Attorney’s Office. 03 July 2019. Available at: https://www.bexar.org/CivicAlerts.aspx?AID=513.

Stress and Resiliency

The adversarial system places litigators in conflict with another lawyer, a judge, and often, a client and his family. This basic nature of law practice is one of the things that makes our profession so different and so much more stressful than other challenging professions. Doubtless, the challenge of “representing” another person and effecting the consequences of the decisions made by a court with our work are as stress‑inducing as any other profession. Doctors certainly have significant stress in administering to the medical needs of their patients, but they don’t face another doctor challenging every decision made in the treatment. Statistics show that lawyers abuse alcohol and other substances more than other professions, suffer from anxiety and depression more often than other professions, and die by suicide more often than other professions.

In order to survive the practice of law, we must realize what stress is, what it does for and to us, how to safely respond to it, and how to respond if we don’t do well when we first face it. Not all stress is bad. Both physical and mental stress can improve our performance so long as the stress is of an appropriate duration and intensity. An appropriate stress response comprises introduction of a stressor, resistance (including mobilizing to withstand the stress), exhaustion (depletion of body’s resources), recovery (return to homeostasis). In their appropriate form the resistance and exhaustion develop strength. When this isn’t the pattern and the stressor continues such that there is stress beyond exhaustion, chronic stress is the result.

Even under chronic physical stress conditions there comes a time that our bodies quit responding and struggling against the resistance. We may develop a cramp in a muscle or run into some other wall that stops the physical activity. This isn’t the case with mental and emotional stress. There is no protective response that stops our attempts to respond to the incoming stress. Human beings are, therefore, capable of “stressing” beyond the breaking point. Chronic stress, not handled appropriately, can result in burnout. The choices, therefore are avoiding stress where we can, limiting stress when we can, taking time to engage in activities that help us recover from stress when it can’t be helped, and avoiding excessive use of substances or processes which might become addictive.

Though there is no universal “right way” to accomplish the results listed above, there are processes which can mitigate stress and accelerate recovery. The first step toward surviving the stress of law practice is recognizing what stress is and being aware when it overtakes us. In order to identify the stress, we become aware of what is likely to cause stress in our life and practice. Thereafter, we learn skills to manage the stress to the degree possible, learn and use skills to recover from stress and learn and practice skills to avoid or recover from burnout.

First Things First

If there are two words that we would choose to live by, we could be far less stressed than we commonly are. SLOW DOWN! That’s all, move slower, and think more. To borrow lyrics from the Hamilton Broadway show, “talk less, smile more. . .” or, for the more mature lawyers, from Simon and Garfunkel, “Slow down, you move too fast.” When we research wellness we regularly read about mindfulness. One can’t be mindful while moving at warp speed like we often do.

Causes of Stress in Lawyers

The sources of stress for lawyers are legion. In addition to the stresses listed above, we have the human challenges common to marital relationships, familial relationships, financial challenges, and health issues. We are confronted by secondary trauma from dealing with anger, frustration, and the emotions of our clients; we usually have a sense of perfectionism, we act as if everything has to be done exactly right or we risk absolute failure; we never feel that our clients are truly pleased with our work; we sometimes act in a way that isn’t aligned with our core values; and, we are often working long hours which aren’t physically, mentally or emotionally sustainable.

Avoidance of Stressors

There are stresses that we have the capacity to avoid or to limit. The most prevalent stressor that we have the opportunity to avoid is anger. Our work often leads to heated discussions about the facts we are dealing with, the law applicable to them or the appropriate disposition of a case. We are likely to feel our blood pressure rise and a throbbing in our temples.

Other changes, which we often don’t notice, include our vision becoming more constricted and our decision‑making becoming “split‑second.” These are the common symptoms of the “fight or flight” response. One of the things these changes signal is that our brain is changing the decision‑ making locus from the pre‑frontal cortex to the amygdala ‑ from the large, advanced, human brain to the reptile brain. This part of the brain is extremely fast and quite narrow in its capability. When it is engaged, it always acts as if we are being threatened with serious injury or death. The reptile brain made us able to evolve from reptiles to the higher species, but it is a dangerous place to be making decisions that will have long‑term consequences.

Hurriedness is another stressor that we have power over. Over the years, thousands of “time saving” applications and devices have been marketed. There is no way to save or create more time; there are only so many hours in a day and only so much can be done in any given hour. Far from giving us more time for ourselves, reliance on the new technology complicates “down time” by providing entertainment or accessibility 24 hours a day. We seldom schedule time to think or to meditate. Since this is a self‑imposed stressor, we can integrate it to the degree and with the effectiveness we commit to. Most of us have considered meditation and the majority of those that have, have quit after a short time because their mind wouldn’t slow down and let them be. It is difficult! The good news is that one needn’t be a “perfect” meditator to benefit from the effort. Research has shown that only minutes a day yield significant benefits. Experience also shows that staying with small successes builds to large successes.

Realize Limitations

Know yourself and listen to your body. J.K. Rowling, of Harry Potter fame, has said, “It is impossible to live without failing at something, unless you live so cautiously that you might as well not have lived at all.” One of my favorite Alcoholics Anonymous speakers pointed out in a recorded talk that “the only thing a perfectionist is ever going to be is a failure.” Research has shown that it is possible to grow from failure. When we reach our limit, we need to learn to stop and either choose a different route or come back when we are in better shape. We can improve our “conditioning” by a course of study in a fashion similar to the way we improve our physical condition by exercise. If the end we reach is a real end, though, we need to recognize it and stop the battle. Chronic stress brings burnout and all the potential bad consequences.

Optimism is the Key

“Deadlines and commitments, what to leave in and what to leave out, against the wind . . .” Bob Seger and the Silver Bullet Band described the plight of the lawyer well in their 1980 hit. For most of us, a positive attitude doesn’t come easily. Part of that is likely because we have to analyze every fact and its probable effect in every case. We end up doing comparisons of everything in our life. We sometimes find ourselves “comparing our insides to someone else’s outsides” in AA parlance. There are times when every other lawyer at the courthouse looks more content, competent, and successful than we feel. We can develop doubts of our skills and our value. Our work is being judged, sometimes fairly and sometimes unfairly by judges, other lawyers, clients, clients’ families, and the reading public if you or your case end up in the news. Our responses, especially when we aren’t successful in our undertaking, make the difference between what one writer calls learned helplessness and resilience. Research has shown that one way we can improve our optimism is to be grateful. Making a gratitude list daily and really digging down to the emotion while we do so can support an outlook of optimism. I have found myself doing a perfunctory gratitude list, just scraping off the top, and my experience is that that type of list is much less effective. We can benefit from taking the time to fully engage our gratitude and realize the gifts we have received in the past 24 hours.

Prioritize

Prioritize and then set reasonable goals. My wife accuses me of thinking that I can arrive at one location at the same time I leave another. I am notorious for working to within five minutes of a meeting and leaving for the meeting, which is a 10‑minute drive, and not believing that I arrived late. This is a small thing, but it moves me from my rational, thinking brain into my fear‑based fight or flight brain. That change narrows my vision and limits alternatives and builds suspected adverse results. If I will take the time to plan and prioritize my day, I can avoid “running around like a chicken with my head cut off.” One of my favorite excuses for not planning and prioritizing is that it takes time. While it is true that planning is work and it does take time, its net result is often that we are more efficient and end up not causing stress for ourselves.

Exercise

Exercise in moderation. This is easily said to an attorney but hard to practice if you are one like me. Competition probably fueled our desire to be admitted to law school. It certainly drove us during law school, and it isn’t likely that it is diminished when we started practice. Often our “driven” nature makes it difficult for people to get near us or understand us when they do. If we take the competitive nature that got us through law school into our exercise program, there is a real likelihood that we will end up injured. This is especially true for the more mature lawyers like me. I was never going to be satisfied that I was a cyclist until I finished the Hotter ‘N Hell Hundred in Wichita Falls. Then one completion of the test wasn’t enough. I hadn’t ridden fast enough, so I did it each year for the next couple. I broke my hip in April of this year when I fell on my bicycle. My most fervent hope is that I can complete the H‘NH next year. I tell you this so you know that I have a hard time following my own suggestions. The truth is that most everything I know about stress management, I learned by doing it wrong. So, do as I say, not as I do! The goal should be activity rather than perfection.

Take Vacations

This is the “smile more” from the Hamilton song. We need to take real vacations, not “working vacations” where we take our computers and check in with the office in the morning and again in the afternoon. Many of the vacations I took with my kids may have been vacations for them but they wouldn’t have qualified as “an extended period of leisure and recreation, especially one spent away from home,” a vacation according to the Oxford Dictionary, for me. Over the years, it has seemed to me that there was always more to do than I had time to do it. In response, I would combine things that seemed to nearly fit together. Time with children and time away from the office were closely related but I fowled both of them by taking work along with me. We need to truly vacate when we take vacation if we want to feel the benefits that they can provide. The benefits aren’t a luxury, they are necessary. Similar to sleep, we can’t do without a break.

Share Feelings with a Trusted Person

It is probably best to have a friend who isn’t a lawyer to talk to. Even when we lawyers understand stress, we accept way more than we should. The problem of venting with a colleague may be that they hear you and either think or say, “I’m having it much tougher than he is. . . ” Sharing with a “civilian” can give another perspective. It is appropriate to consider, too, whether the civilian is a spouse or significant other. It is often a good idea to share with these people but sometimes consider sharing with them after talking with an unrelated person. Spouses are likely to be affected similarly by the consequences of the issue shared as we are so their response may not be much more objective than our own. A member of a church congregation or a social group or, as in my case, another member of Alcoholics Anonymous, is more likely to give the dispassionate consideration of your controversy and bounce more creative responses back to us than another who is affected by the same events which affect us.

Seek Help

I was in therapy for years just before and during my early sobriety. My therapist was fabulous and one thing that she told me that personalized her to me was her belief that any therapist needed to be in counseling with another professional. I didn’t really understand referred trauma and emotional fatigue at that time, but it still made intuitive sense and made me trust her even more. What I know today is that it isn’t crazy people who go to counselors, but it is often the few who stay sane. Life is complex, especially for people who serve the public. In the same fashion that we expect a person who tries to defend himself in a DWI case to crash and burn, we are likely to suffer the same result when we try to diagnose and treat our own stress.

Burnout

You might be burning out if:

• You end each workday highly stressed;
• Feel a knot in your stomach on Sunday night;
• Find yourself disengaging from work, family, friends, and health; or
• Have ulcers, upset stomach, headaches, backaches, colitis, lack of concentration, rage, and even potentially a heart

Burnout is characterized by physical and emotional exhaustion, feelings of cynicism and detachment, and a sense that nothing you do makes a difference. Mindtool.com suggests 5 responses to burnout: (1) thinking about the “why,” (2) focus on the basics, (3) taking a vacation or leave of absence, (4) say “no,” and (5) practice positive thinking. You can see that some of these are extensions of or more imperative applications of some of the suggestions made above. A couple of these suggestions, though, need further development.

What is the “why?” Are there specifics about your work or your life that leave you with resentments? Sometimes the cause of the resentment is a person and other times they are circumstances or governmental entities (IRS included). When you come to an understanding of what you resent, it becomes possible to address removing it. Sometimes we can remove the object of the resentment and other times, we have to change the way we feel about it. This takes focus and commitment. Vague feelings of “I’ll do better. . .” aren’t going to work, and it may take a therapist’s assistance to dig the right hole.

Nancy Reagan wanted us to “Just say no” in her anti‑drug campaign back in the day. While I have reservations about how successful that campaign was, I absolutely know that a well‑placed “no” goes a long way toward freedom from many resentments. People will make requests of us so long as we agree to take on the burden they offer. Once the challenge is “our problem” the referring party can move on, free from the burden and the responsibility it carried. We have to choose what we can and want to do. We need to reserve a little time in our life in case a new and wonderful opportunity comes. Every time we say no to someone else, we are saying yes to ourselves!

Addiction

The effect of a drink or use of a recreational drug is relatively immediate and the sensation of stress changes. The feeling we end up with may not be any better than the stress we were feeling, but it is different, and sometimes that is enough. Litigators must take note of how and when we drink or use prescription medications. It isn’t unusual to notice a pattern of heavier use in times of stress. Not everyone who drinks is, or is likely to become, an alcoholic, even if they drink more than they should at times. Neither is everyone who uses drugs likely to become addicted. There are other consequences of use though, both physical and emotional. When use becomes addiction, the consequences multiply and become more complicated. Addiction is defined as a chronic, relapsing disease, and recovery may be a long and winding road. Recovery from addiction is supported by the State Bar and the Lawyers Assistance Program. It is also supported by individual counseling and numerous 12‑step meetings. The first step toward recovery is “to quit digging” the hole of despair, fear, and remorse for just long enough to engage another person and then to lean on the other person until we can walk on our own.

The foregoing list of challenges and responses are in no way lists of everything which could populate these categories. Hopefully, they can give a toehold on the challenge you face. The TCDLA Attorney Wellness Committee is composed of a group of criminal defense litigators who have an interest in, and a commitment to, helping other lawyers with issues such as those listed above. These lawyers and their email addresses are listed below. The Texas Lawyers Assistance Program also provides confidential assistance and referral. They can be reached at: tlaphelps.org or (800)343‑TLAP (8527).

Rick Wardroup |
Andrew Herreth |
William Stith |
Coretta Graham |
Savannah Gonzalez |
Amy Blalock |
Mark Griffith |
Amy Boylan |
Shana Stein‑Faulhaber |

It is common in today’s criminal law practice for the State to possess cell phone data that they claim inculpates our client. Many times, it does actually implicate our client. We all know that one of the first steps a law enforcement agency takes per their investigation is to locate and seize relevant mobile devices and computers. We can then expect to see in the discovery materials a search warrant for the mobile device or computer, and/or a search warrant to obtain additional digital devices. This first round of search warrants is often followed up with search warrants to cell phone service providers and social media sites such as Facebook, Instagram, etc., for relevant digital information in the possession of these entities.

This article will discuss the steps that a criminal defense attorney may have to take to receive complete discovery of the data recovered by a digital forensic extraction from a cell phone, tablet, or computer.

Data is forensically copied from a cell phone or other mobile device in a process called an extraction. There are three types of cell phone extractions seen in the industry: a file system extraction, a physical extraction, and a logical extraction. The principles discussed in this article apply to all three types of extractions. In fact, the logical extraction which directly outputs limited data to a ready‑to‑review .html web page is particularly problematic for discovery purposes because it is often used in a pinch by untrained law enforcement to quickly (but not thoroughly) identify information on a cell phone.

Numerous software providers make cell phone extraction and analytics software. The most common and state‑of‑the‑art software is manufactured by Cellebrite, an Israeli digital intelligence company. Cellebrite software is used by most law enforcement agencies. There are also private digital labs that perform cell phone extractions using Cellebrite software.

To conduct a cell phone extraction, the cell phone is connected to forensic hardware which could be a computer or a standalone device such as a Universal Forensic Extraction Device (UFED) that runs the extraction software. The files from the cell phone are then copied to the computer or a target drive connected to the UFED. The extraction software stores cell phone data into a container file or files with an extension of .zip, .bin, .tar, etc. These file types contain many raw folders and files such as database files that contain the digital information on the cell phone. Special forensic software is needed to open these files. These files cannot be opened in a way that can be understood by most attorneys. It takes specialized training and knowledge to understand their contents. A trained and qualified examiner uses the extraction software to examine the cell phone data. An especially important file type created by an extraction is .pas files which are project session files used by Cellebrite to store the work performed by the examiner (i.e., the “bench notes” of a forensic extraction). Another example of a propriety storage file type that may be encountered is .xfc files created by X‑ways which is a computer forensic program in widespread use in the industry.

Most lawyers do not have a background in digital forensics. Therefore, lawyers may not intuitively understand the many forms of digital forensic data that may present in our cases. Since lawyers may not understand the nature of the data, we also may not understand that there is often more extracted evidence in possession of law enforcement than we receive from the State via typical discovery disclosures.

In many cases, the State still provides discovery of cell phone extraction data in the form of a .pdf, Excel, or Word document. A document in one of these formats may or may not contain active links that take the reader to further information about the cell phone extraction. If the document does contain active links, the active link often does not work or links to a page that reads “file not found.” These .pdf, Excel, and Word documents are typically prepared by the law enforcement agency that conducts the cell phone extraction.

When the State turns over cell phone reports in .pdf, Excel, or Word format, they are only providing a fraction of the data in law enforcement possession. Due to the limitations of these formats, the State is not providing a valuable trove of files containing potentially exculpatory information. When the State provides discovery in this limited format, they are potentially violating C.C.P. art. 39.14 and Brady. This is because many of the formats used by the State to provide digital discovery omit valuable categories of digital files.

Due to the limited knowledge of most lawyers of file types generated by a cell phone extraction, it is likely that prosecutors do not know they are not turning over all of the data generated by law enforcement. Since the relevant law enforcement agency is using a format for providing the data that seems to satisfy the State, it may not occur to the law enforcement agency that they are not putting the prosecutors in a position of being able to provide full discovery.

As defense attorneys, we have the task of educating the prosecution, law enforcement, and the courts as to the existence of this additional data. We have the task of demanding that the prosecutor seeks this data from law enforcement; or more commonly, the task of petitioning the court to order the State to inquire of law enforcement as to the existence of this additional data.

Other ways that a complete set of data from a device is not provided to the defense attorney arises where law enforcement has not performed a complete extraction of the device (i.e. their original extraction criteria only sought certain file types and omitted others) and where law enforcement used out‑of‑date extraction software to perform the extraction. There are many different methods for extracting data from digital devices such as cell phones and computers. Law enforcement agencies and individual forensic examiners conduct different levels of extraction and also employ extraction software that may not be completely updated in their extraction capabilities. Even if a forensic examiner uses up‑to‑date extraction software at the time of the original extraction, later versions of the extraction software often make it possible to retrieve more date from the device via an extraction performed with the updated extraction software.

Thus, a subsequent forensic examiner can discover more data from an earlier extraction by analyzing file types that were not previously extracted. It is also possible to perform a “re‑extraction” of the original device with fully updated extraction software to reveal additional files and data. (If a cell phone extraction was performed as little as a year ago, the extraction software used by the law enforcement agency has likely been updated 12‑15 times by the manufacturer.) This additional data may contain exculpatory or mitigating information.

This same scenario occurs with the extraction of data from a computer. Not only are the formats used by the State to provide discovery limited in their ability to provide a complete set of data; but subsequent extraction software updates make a more complete extraction possible.

Defense counsel should engage a trained and qualified digital forensic expert to assist in evaluating any discovery received from the State. The expert can determine from the discovery provided whether file types and data have been omitted. Expert assistance will enable defense counsel to obtain and evaluate additional data.

To obtain this data, defense counsel will likely need to make an additional discovery request of the State and/ or request to take possession of the device in question to perform another extraction. Although the State has a duty to provide all of the potentially exculpatory, mitigating, and impeaching evidence in the possession of law enforcement, they often do not understand how this evidence could have been omitted from discovery.

Defense counsel should make their filing in the form of a request for additional discovery which puts the onus directly on the State to comply. Filing a motion that requires court intervention may be necessary in the event that the State does not voluntarily comply with the request. Counsel can also file a joint request and motion seeking further evidence.

Another facet of cell phone forensics that is becoming more prevalent is law enforcement’s use of a device called GrayKey. GrayKey is a forensic access tool that extracts encrypted or inaccessible data from mobile devices. GrayKey is currently only available to law enforcement. By employing GrayKey, law enforcement officers are able to access locked mobile devices. These writers are aware of a couple of North Texas law enforcement agencies that are employing GrayKey. The use of GrayKey to access a locked or encrypted mobile device should be attacked on Fourth and Fifth Amendment grounds. In discovery motions, defense attorneys should request and move for discovery revealing and detailing the use of GrayKey.

An additional discovery request should ask for:

1. First instance copies of all files and data produced during any method of extraction of any mobile digital device, cell phone or SD card; including but not limited to any .tar files, .zip files, and any .bin files.
2. The request or motion should also ask for .pas files and any project session files used to store the work performed by the examiner (i.e., the “bench notes” of a forensic extraction).
3. First  instance copies of all forensic image files generated from a computer extraction; including but not limited to .E01, .EX01, .AD1, .DD, .001, .AFF, .CTR formats of any device that may have been imaged into these formats such as computer hard drives, thumb drives, or memory cards.
4. First instance copies of any and all information, files, and first instance and/or original metadata about the use of “GrayKey” or any other spyware program employed by law enforcement to access any digital device in the case.
5. Any and all other evidence and information held by law enforcement in connection with this case that has not previously been provided to the defense through discovery.

“First instance” means the original extraction file or files generated by the original examiner or exact copies thereof. Later copies of an extraction file or files could be altered by file compression or by the limitations of a subsequent proprietary viewer.

“Metadata” is simply data about data. For example, an image file will contain metadata that describes how large the file is, the color depth, the image resolution, and when the image was created. Metadata is important in the forensic realm because it is often how a digital file can be authenticated.

Third Chair Digital Forensics LLC has drafted a subsequent discovery motion carefully setting out the above requests in formal discovery language. A copy of the motion appears at the end of this article and will be available in the TCDLA motions bank.

Endnotes

1. The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 437–38, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995); Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006).

NO. _______

THE STATE OF TEXAS                            IN THE             JUDICIAL

VS.                                                                 DISTRICT COURT OF

_______________                                              ______ COUNTY, TEXAS

DEFENDANT’S REQUEST AND MOTION FOR ADDITIONAL DISCOVERY AND PRESERVATION OF EVIDENCE

TO THE CRIMINAL DISTRICT ATTORNEY OF                               COUNTY, TEXAS; AND TO THE HONORABLE JUDGE OF SAID COURT (IN THE EVENT THE STATE FAILS TO COMPLY):

Undersigned Counsel for Defendant having been provided some discovery in this case under Texas Code of Criminal Procedure art. 39.14, requests further compliance with said article from the State of Texas.

Counsel’s review of the materials provided thus far reveals that several additional items are likely in possession, custody, or control of the State of Texas or a law enforcement agency and are, therefore, discoverable under art. 39.14, but have not yet been provided to Defendant by the State of Texas. Article 39.14 specifies that the Defendant shall be allowed to inspect, electronically duplicate, copy and photograph said items; and that the State may provide electronic duplicates of said items to Defendant. The State of Texas has an on-going obligation to timely furnish discovery under this article.

The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 437–38, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995); Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). It is irrelevant whether suppression of favorable evi- dence was done willfully or inadvertently. Harm, 183 S.W.3d at 406.

Similarly, under the Texas Disciplinary Rules of Professional Conduct Rule 3.09(d) a prosecutor in a criminal case is required to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . .” Rule 3.09(d) is broader than Brady because the materiality element of the Brady line of cases does not apply to Rule 3.09(d). Schultz v. Comm’n for Lawyer Discipline, 2015 WL 9855916 at *2 (Texas Bd. Disp. App. 55649, December 17, 2015). A failure of a prosecutor to disclose evidence under Rule 3.09(d) is a vio- lation of Texas Disciplinary Rules of Professional Conduct Rule 3.04(a) which makes it a disciplinary violation to unlawfully obstruct another party’s access to evidence. Id. at *4.

The State of Texas can only except requested items from discovery under the “work product” rule when the requested item contains only comments by the attorney concerning his trial strategy or opinions of the strengths and weaknesses of the case. The United States Supreme Court has described the work product doctrine as sheltering “[a]t its core … the mental processes of the attorney, providing a privileged area within which [an attorney] can analyze and prepare his client’s case.” Washington v. State, 856 S.W.2d 184, 187 (Tex.Crim.App.1993)(quoting United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975)). Material that reflects the attorney’s personal thought processes is “core work product” and receives absolute protection, while other materials, such as documents, reports, or memoranda compiled by the attorney or his agents and communications made in anticipation of litigation or trial are “other work product” and receive qualified protection. While the work-product doctrine protects the communications of parties, attorneys, and agents, the underly- ing factual information is not protected. For example, descriptions of potential witnesses and statements that would reveal whether the party had spoken to potential witnesses are not work product and are discoverable. Pope v. State, 207 S.W.3d 352, 358 (Tex. Crim. App. 2006). If counsel’s efforts do not create or enhance the substantive information, that information— or the form in which it is preserved—does not become protected work product. That is, facts that are divulged or exist inde- pendent of the attorney or his agents are not protected, but statements or documents that set out their thoughts concerning the significance of these facts or the strategic conclusions that the attorney or his agents draw from them may well be protected. Pope, 207 S.W.3d at 358-9. For example, a recording of a statement made by a witness is discoverable unless it contains only comments by the attorney concerning his trial strategy or opinions of the strengths and weaknesses of the case. Cullen v. State, 719 S.W.2d 195, 198 (Tex.Crim.App.1986).

Additionally, the government is constitutionally required to preserve evidence that might be expected to play a signifi- cant role in the suspect’s defense. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).

Undersigned counsel knows from experience and through consultation with experts in the field that there are many different methods for extracting data from digital devices such as cell phones and computers. Different law enforcement agencies and different forensic examiners conduct different types of extractions and also employ extraction devices that may or may not be completely up to date in their extraction capabilities.

Due to these variations, it is possible for another expert to extract more data from a device than by another, earlier ex- traction. It is also possible for a subsequent examination of the original data to reveal additional data and information. These later examinations may discover exculpatory and/or mitigating information not discovered in an analysis of the original extraction.

In order to perform a subsequent analysis of the extraction, a forensic expert needs access to first instance copies of the files created during the extraction.

For purposes of this request and motion “first instance” means the original extraction file or files generated by the original examiner or exact copies thereof. Later copies of an extraction file or files could be altered by file compression or by the limitations of a subsequent proprietary viewer.

The Scientific Working Group on Digital Evidence defines “metadata” as “data, frequently embedded within a file, that describes a file or directory, which can include the locations where the content is stored, dates and times, application specific information, and permissions.” For example, an image file will contain metadata which describes how large the file is, the color depth, the image resolution and when the image was created. Metadata is important in the forensic realm because it is often the means by which a digital file can be authenticated.

The original data, information and evidence sought to be discovered and/or preserved consists of:

1. First instance copies of all files and data produced during any method of extraction of any mobile digital device, cell phone or SD card; including but not limited to any .tar files, .zip files, .bin files, and any .pas files (project session files used by Cellebrite to store the work performed by the examiner).
2. First instance copies of all .E01, .EX01, .AD1, .DD, .001, .AFF, .CTR acquisition files generated during any method of extraction or imaging of any computer hard drive or thumb drive;
3. First instance copies of any and all information, files and first instance and / or original metadata pertaining to the use of “GrayKey” or any other spyware program employed by law enforcement to access any digital device in this case;
4. Any and all “case notes” whether written or electronic created by any law enforcement agent whether or not included in any supplemental report; and
5. Any and all other evidence and information held by law enforcement in connection with this case that has not previously been provided to the defense through discovery.

WHEREFORE, PREMISES CONSIDERED, the Defendant hereby requests that the Court grant a hearing on this Re- quest and Motion in the instant cause; and that subsequent to the hearing of said Request and Motion that the Court ORDER that the State of Texas provide the individualized items to the Defendant.

Respectfully submitted,

S.B.O.T. No.                                  

Law Offices of                               
(Not a Partnership)

Address
City, Texas
Zip Code
Phone
Facsimile
Email

ATTORNEY FOR DEFENDANT

Many lawyers have focused on a defendant’s right to a speedy trial given the moratorium on jury trials amidst the COVID‑19 pandemic. This, of course, makes sense as we consider our clients in custody or those on bond awaiting their day in court so that their lives may regain a semblance of normalcy. Clients behind bars are essentially sitting ducks during the spread of this potentially deadly disease and clients on bond often must subject themselves to risk of exposure while appearing in court or attending pre‑trial supervision appointments.

While the right to a speedy trial is a critical and ever important one, another right deserves consideration: the right to a fair trial before a jury of one’s peers. As the supreme court of Texas has made special exceptions to the suspension of jury trials and as some small counties are conducting trial business as usual, the impact of COVID‑19 on the venire panel cannot be disregarded. Like so many things, the populations most effected by the spread of the virus are minorities, which are already woefully absent from most jury panels.

Empaneling a jury of the defendant’s peers is not a novel problem. Nearly any defense attorney can tell you that you might see some people of color on a jury panel, but it won’t be very often. In trial preparation, we must always be cognizant of how the facts and circumstances of the case will be perceived through the lens of a jury that we know will more than likely be older, richer, and whiter than our clients.

A jury of one’s “peers” is one that consists of members that look like the defendant or, at least, represents the makeup of the community in which the trial is held. This is critically important because diversity in the jury panel allows for people with different ideas and experiences to evaluate the evidence for proof beyond a reasonable doubt. In places where the turnout of potential jurors is already low and trends wealthy and white, achieving a representative jury on a good day can be a monumental task. In the COVID‑19 era, that monumental task becomes Herculean.

The heightened impact of COVID‑19 on the makeup of jury panels is twofold: (1) the virus’ impacts are greater in minority communities; and (2) the economic challenges that exist due to the virus create barriers to participation for some citizens, but not others.

To the first point, people who identify as Hispanic or Latino make up an estimated 39.7% of the population of Texas and around 39.9% of the diagnosed COVID‑19 cases. However, this demographic group represents more than half (56.1%) of COVID‑19 deaths.¹ With more than 16,000 Texans dead from the virus, this number represents several thousands of potential jurors of color lost without factoring in the deaths of potential jurors from other groups of color. The collateral consequences of this imbalance are important too, as citizens who are responsible for the care of sick relatives may not be available to secure alternate care for their loved ones and, more importantly, those caring for sick relatives pose a risk to the whole panel, courthouse staff, judges, and counsel due to their exposure to the virus. To   the   second   point,   citizens   that    would    likely bring the sought‑after diversity to the venire are more unavailable than their wealthier and older counterparts.² This characterization goes beyond race and limits the number of citizens available for jury duty within different socioeconomic strata. 44% of all workers aged 18 to 64 are considered low‑wage workers. Black and Hispanic/Latino workers are overrepresented in this population, and low‑wage workers are also disproportionately female. By definition, these workers are in a precarious financial situation than mid‑ or high‑wage workers. Many workers in this type of category are the primary breadwinners in their homes and the loss of wages to participate in jury duty would be catastrophic.

The COVID‑19 crisis has exacerbated the risks associated with being a low‑wage worker. The number of people who have lost their jobs have skyrocketed at the same time many low‑wage workers have been deemed essential. Parents with children are now trying to juggle virtual learning and childcare whilst also trying harder than ever to figure out how to pay the bills. They cannot afford to miss a single day that is not moving toward that end.

These issues are only a few of the many intersectional ways this crisis has impacted the makeup of jury pools as well as our community at large.

So, what can we do?

Of course, the entire system needs work. It is typical in some counties for somewhere around 70% of potential jurors summoned to fail to appear for jury service.³ One of the easiest ways to increase the diversity of the jury pool is to increase the size of the pool itself and gain attendance from potential jurors from underrepresented populations. On a practical level, there are things that defense attorneys can do in both these times and in times where there is no pandemic.

The first thing to remember is to always make note of how the jurisdiction picks juries. Each county is different and, chances are, that each court in each county is a little different, too. The way Harris county numbers jurors for selection and the way Hays county numbers jurors is vastly different and relying on what you know from one county or another can result in favorable jurors ending up on the chopping block rather than in the jury box. In my practice, we make an effort to go by the court where trial is going to be held to get a seating chart and speak to the staff about how the particular judge goes about picking a jury. If an in‑ person visit is not available, we try to reach out to the staff via phone or email or will try to find local counsel to speak with and gather information on the procedure.

The next tool that attorneys can use is the jury shuffle. Often when picking a jury, there are people of color there, though they are notably underrepresented in the pool, and often are seated in unfavorable positions. A shuffle can give a defendant a chance at getting someone who looks like them or shares similar life experiences.

Third, lawyers can add an argument about a defendant having the right to a jury of the defendant’s peers to their motions for continuance. Many defense attorneys have been filing motions to continue on the basis of the pandemic’s effect on a defendant’s ability to have a fair trial. Defense counsel should, however, make sure to note these demographic challenges in addition to the concerns regarding safety, attorney‑client communications, evidentiary challenges, etc.

Finally, counsel should always remember that the characteristics that result in a jury that more closely resembles the defendant are intersectional. This means that there are often multiple things to look for in a juror that will allow for them to more closely relate to your client or be representative of the community as a whole. If there are no potential jurors of the same race on the panel, then root out those of similar socioeconomic status or life experience. While the pandemic rages on, it is obviously not safe to gather a large group of potential jurors right now and trials are still suspended until the infection rates are more under control. We can only hope that once it is deemed safe to hold trials again, many of these exacerbating factors will be alleviated and our clients can all be on the receiving end of the true justice they deserve.

History

Effective September 1st, 2019, the Texas Driver Responsibility Program (“DRP”) was repealed and replaced by Transportation Code 709.001. Previously under the DRP, those convicted of a DWI in Texas were required to pay a surcharge. The surcharge amount was $1,000 per year with the exceptions of the surcharge being $1,500 per year for a second or subsequent conviction within 36 months; and $2,000 for a first or subsequent conviction if it was shown that the blood alcohol content of the person was .15 or more at the time of analysis. This surcharge was not to be assessed for more than three years.

The New Code

However, under the Transportation Code 709.001, a new ‘superfine’ was to be imposed. The code states:

TRAFFIC FINE FOR CONVICTION OF CERTAIN

INTOXICATED DRIVER OFFENSES. (a) In this section, “offense relating to the operating of a motor vehicle while intoxicated” has the meaning assigned by Section 49.09, Penal Code.

(b) Except as provided by Subsection (c), in addition to the fine prescribed for the specific offense, a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated shall pay a fine of:

(1) $3,000 for the first conviction within a 36‑month period;
(2) $4,500 for a second or subsequent conviction within a 36‑month period; and
(3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

(c) If the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court shall waive all fines and costs imposed on the person under this section.

(d) A person must provide information to the court in which the person is convicted of the offense that is the basis for the fine to establish that the person is The following documentation may be used as proof:

(1) a copy of the person’s most recent federal income tax return that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;
(2) a copy of the person’s most recent statement of wages that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or
(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:

(A) the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;
(B) the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786;
(C) the medical assistance program under Chapter 32, Human Resources Code;
(D) the child health plan program under Chapter 62, Health and Safety Code; or
(E) the national free or reduced‑price lunch program established under 42 S.C. Section 1751 et seq.

Added by Acts 2019, 86th Leg., R.S., Ch. 1094 (H.B. 2048), Sec. 14, eff. September 1, 2019.

A Change, Not a Change

At first glance, this Code seems to mimic the previous DRP as far as an additional financial requirement on DWI cases. However, there are some significant differences and legal issues. First, the law does not have any transition language that would extend the DRP. Therefore, those charged with a DWI before the September 1st, 2019 date would no longer be affected by the repealed DRP.

Additionally, there is a strong argument that the new transportation code would not be applied to any DWI charged before the September 1st, 2019 due to a violation of Ex Post Facto laws prohibited by the Texas and United States Constitution. An ex post facto law is one that: (1) punishes as a crime an act previously committed that was innocent when done; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts greater punishment than the law attached to the criminal offense when committed; or (4) deprives a person charged with a crime of any defense available at the time the act was committed. Peugh v. United States, 569 U.S. 530, 538‑39, 133 S. Ct. 2072, 186 L. Ed. 2d 84 (2013); Collins v. Youngblood, 497 U.S. 37, 41‑44, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002); Ex parte Davis, 947 S.W.2d 216, 219‑20 (Tex. Crim. App. 1996); Grimes v. State, 807 S.W.2d 582, 583‑84, 586‑87 (Tex. Crim. App. 1991).

Confusion in the Courts

Initially there was quite a bit of confusion within the courts on the application of the repeal of the DRP and the implementation of Code 709.001. However, in most jurisdictions, this is now settled that any DWI charged before September 1st, 2019 would have fallen under the now repealed DRP and no surcharge would be assessed. All DWIs charged after the September 1st, 2019 date would fall under the new code.

Interpretation of the New Code 709.001: Final Convictions

There are significant differences with the Transportation Code from the DRP that are invaluable to the defense. First, examine under section (b), “a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.” For many years under Texas law, “finally convicted” meant:

Ex parte  Pue, 552 S.W.3d 226, 230–31 (Tex. Crim. App. 2018).

Under Tex. Gov. Code § 311.023 and Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017), extratextual factors that may be considered in interpreting a statute include: (1) the object sought to be attained by the Legislature; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and (7) the title or caption, preamble, and any emergency provision.

When “finally convicted” language was added to Chapter 49 of the Penal code, it is presumed the legislature is aware of Pue, as well as other areas of the law using the same phrase.

“We presume the Legislature is aware of relevant case law when it enacts or modifies statutes. A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it. Language in a statute is presumed to have been selected and used with care, and every word or phrase in a statute is presumed to have been intentionally used with a meaning and a purpose.” In re Allen, 366 S.W.3d 696, 706 (Tex. 2012).

Therefore, only a “probated sentence [that] turn[s] into a final conviction [by] probation [being] revoked” is a “final conviction” subject to the mandatory fines.

This interpretation of a final conviction is in line with the Texas District and County Attorney’s Association’s reading of the statute. Hence, most jurisdictions appear to be following suit with this interpretation and only applying the ‘superfine’ to cases with jail/prison sentences and not for probation. Probation only being a final conviction if the probated sentence is revoked.

Interpretation of the New Code 709.001: Section (c) Findings of Indigency

According to Section (c), if the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court SHALL waive all fines and costs imposed on the person under this section.

Section (d) of the code clearly defines the requirements that MUST be provided to the court to establish that the person is indigent. These conditions are included in the article above. Following is a standardized motion to waive the fine imposed by the code due to indigency.

Conclusion

We have seen the end of the DRP. Any DWI case that occurred prior to September 1st, 2019 will not be affected by Transportation Code 709.001 ‘superfines.’ Moving forward, ‘superfines’ should only be imposed on those whose DWI convictions are found to be final either through a jail/prison sentence or through the revocation of their probation.

If a ‘superfine’ is to be imposed, the defense may be able to meet the requirements to be found indigent. The defense must provide documentation to the court under section (d) of 709.001. If the court finds the defendant indigent, then the court must waive the fine imposed by the statute.

CAUSE NO.                                            

MOTION TO WAIVE IMPOSITION OF FINE FOR CONVICTION OF CERTAIN INTOXICATED DRIVER OFFENSES UNDER TEXAS TRANSPORTATION CODE 709.001

COMES NOW DEFENDANT, in the above-styled and numbered cause and moves the Court to waive any and all fines under Texas Transportation Code 709.001. Under Section (c), if the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court shall waive all fines and costs imposed on the person under this section.

The Defendant offers as proof of their indigency the following information for this Court: (INSERT FACTS HERE)

           The Court has made an affirmative finding that Defendant is indigent.

(1) a copy of the person’s most recent federal income tax return that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;
(2) a copy of the person’s most recent statement of wages that shows that the person’s income or the per- son’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or
(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:

(A) the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;
(B) the federal special supplemental nutrition program for women, infants, and children autho- rized by 42 U.S.C. Section 1786;
(C) the medical assistance program under Chapter 32, Human Resources Code;
(D) the child health plan program under Chapter 62, Health and Safety Code; or
(E) the national free or reduced-price lunch program established under 42 S.C. Section 1751 et seq.

Other documentation presented to this Court. (See attached Affidavit of Defendant)

WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court, after consideration of the attached documentation, grant Defendant’s Motion and waive all fines and costs imposed on the person under this section of Texas Transportation Code 709.001.

Respectfully submitted,

Attorney for Defendant