Monthly archive

May 2021

May 2021 SDR – Voice for the Defense Vol. 50, No. 4

Voice for the Defense Volume 50, No. 4 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Props are due this month. Jason Niehaus of Denton defended the Michael Morton Act in a case that should be added to all of our form requests for discovery under Article 39.14 of the Code of Criminal Procedure. Allison Clayton of Lubbock, and Lane Haygood of Odessa added their touch as drafters of the Texas Criminal Defense Lawyers Association Amicus Curiae brief. Several cases this month involve interpretations of the SCOTX Emergency Orders Regarding the COVID-19 Pandemic (just in time for the end of the pandemic)(knocking on all of the wood). Other than that, just some Boyz II Men trivia to look out for here. Enjoy!

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

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

Sincerely,
Kyle Therrian

United States Supreme Court

Torres v. Madrid, 141 S. Ct. 989 (2021)

Issue. Does a Fourth Amendment seizure occur when the police shoot at a person evading arrest?

Facts. Officers were serving an arrest warrant at an apartment complex. Officers observed Torres standing with another person near a vehicle in the parking lot. Officers determined neither Torres nor the companion were the target of the warrant. Officers tried to speak with Torres as she attempted to drive away. One officer attempted to open her door. Torres was experiencing methamphetamine withdrawals and thought the officers were carjackers. As she sped away, officers fired their guns at her 13 times striking her twice and paralyzing her left arm. Torres sued the officers under 42 USC 1983 claiming a deprivation of her constitutional rights and that the officers “applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment.” The district court granted summary judgment in favor of the officers. The Tenth Circuit affirmed, indicating “no seizure can occur unless there is physical touch or show of authority and that such physical touch (or force) must terminate the suspect’s movement or otherwise give rise to physical control over the suspect.”

Holding. At common law, an officer’s application of physical force, of any amount, with the intent to apprehend was sufficient to find a seizure exists, also known as “the mere touch” rule. The Court finds no principled reason to find that shooting a person—a greater intrusion—does not constitute a seizure. The rule announced by the court is narrow. “In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force.”

Texas Court of Criminal Appeals

Watkins v. State, No. PD-1015-18 (Tex. Crim. App. 2021)

Issue. Where in Article 39.14 of the Code of Criminal Procedure the legislature mandates the prosecution’s disclosure of “evidence material to any matter involved in the case,” does the legislature mean what it says?

Facts. Defendant was sentenced to 70 years confinement as a habitual felony offender. In the punishment phase of trial, the State entered 34 exhibits comprised of “booking records, pen packets, and judgments of prior convictions for enhancement and other extraneous offenses that Appellant had committed.” Defendant had previously made two requests pertaining to this evidence: (1) a request for notice of State’s intent to offer extraneous offenses, and (2) a discovery request pursuant to Texas Code of Criminal Procedure Article 39.14 (“Michael Morton Act”), wherein he requested “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case.” The State provided notice but did not produce to the defense any of the extraneous offense evidence until they introduced it at trial. At trial, the prosecutor argued that he did not believe Article 39.14 applied to punishment. The trial court initially sustained an objection to the punishment evidence but then reversed its decision. On Appeal the State conceded that Article 39.14 applies to punishment evidence, but proof of extraneous offenses is not “material to any matter involved in the case.” The court of appeals agreed and explained that the Court of Criminal Appeals had interpreted the phrase “material to any matter involved in the case” prior to the Michael Morton Act amendments as meaning “there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.” According to the court of appeals, this interpretation survived the 2013 Michael Morton amendments.

Holding. Yes. “Material” means the same thing as “relevant” and the prosecutor’s duty to disclose material evidence extends to evidence of guilt, punishment, and numerous subsidiary issues. Here the punishment evidence proving previous convictions was material to the punishment. “[W]e construe the amended statute as adopting the ordinary definition of ‘material.’ Evidence is ‘material’ if it has ‘some logical connection to a consequential fact.’ Whether evidence is ‘material’ is therefore determined by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial.” Prior to the enactment of the Michael Morton Act, the Court of Criminal Appeals often held that Article 39.14 did not provide a general right to discovery and “[t]he decision on what was discoverable was left to the discretion of the trial court.” But the newly amended Article 39.14 exists against a considerable backdrop which informs the court’s interpretation of “material.”

The wrongful conviction of Michael Morton inspired the legislative amendments to Article 39.14 in 2013.

The wrongful conviction of Michael Morton was achieved by a prosecutor’s wrongful withholding of exculpatory evidence.

The Michael Morton Act was a comprehensive overhaul of criminal discovery practice.

The Michael Morton Act broadened the duty to disclose evidence which is ordinarily discoverable under due process and Brady v. Maryland.

The Michael Morton Act abandoned the requirement of a court order to obtain discovery.

The Michael Morton Act expanded the list of discoverable items and the number of people from whom evidence is discoverable.

The Michael Morton Act provided for an ongoing duty to disclose evidence even after the disposition of the case in the trial court.

The Michael Morton Act expanded the traditional due process / Brady v. Maryland duty to disclose.

“Nothing in the text suggests that the character of the evidence should be judged solely in relation to its consequential effect on the ultimate issues of guilt or punishment.” The defense need not make the case for good cause to the prosecution when demanding evidence, and the disclosure obligation exists notwithstanding a prosecution’s evaluation of defense theories and how that evidence might fit into the defense’s case. Despite this clear duty, harm analysis still remains a viable excuse for the State when they get caught not disclosing evidence.

Dissent (Keller, J.) The legislature rejected the use of the word “relevant” in the most recent amendments to Article 39.14 and used the term “material” which was previously interpreted by the Court to be limited to outcome determinative evidence. The Legislature could not have meant “material” to have meant “relevant” under these circumstances.

Dissent (Yeary, J.) Agrees with Judge Keller, but writes to emphasize that legislative intent should not be the end-all of statutory construction. “[T]he word ‘material’ simply means ‘material.’”

Comment. Kudos to appellate attorney Jason Niehaus of Denton, and TCDLA Amicus drafters Allison Clayton of Lubbock and Lane Haygood of Odessa. Update your form 39.14 requests with this case.

Najar v. State, No. PD-1049-19 (Tex. Crim. App. 2021)

Issues. (1) In a motion for new trial, is a trial court afforded “almost total deference” when it resolves uncontroverted defense-facts against the defendant? (2) Is a jury’s consideration of a siren heard outside the courthouse the type of evidence which can be used to impeach the jury’s verdict because it constitutes an “outside influence improperly brought to bear upon any juror?”

Facts. A jury convicted the defendant of evading arrest. He argued at trial he could not hear or see the police until they were directly behind him. After the trial, defense counsel learned from a juror that the jurors “heard a siren outside of the building, they made assumptions about the case based on that siren, and it affected their deliberations.” Trial counsel moved for a new trial on the basis of the jury’s consideration of an outside influence and presented affidavits sworn by trial counsel in support. When trial counsel admitted the affidavits counsel stated “I think the State agrees with the factual basis of that affidavit, which is, this conversation with the jury took place. . . .” The prosecution responded: “[t]hat’s correct.” Counsel requested findings of fact from the trial court, but none were made. The Court of Appeals reversed the trial court’s denial of defendant’s motion for new trial.

Holding. (1) Yes. An old since-recodified statute provided that a judge shall hear evidence and determine the issue presented in a motion for new trial when the State takes issue with the “truth of the causes set forth in the motion for new trial.” Somehow courts developed a corollary to this rule: that when the matter is uncontested, the trial court must accept the factual assertions as true. Texas Rule of Appellate Procedure 31(b) removed the State’s duty to controvert the truth of the allegations. “A trial court is not bound to believe a particular fact unless it is conclusively established.” (2) No. Texas Rule of Evidence 606(b) does not permit the juror testimony to impeach a verdict absent two exceptions. One exception is testimony “about whether an outside influence was improperly brought to bear on any juror.” Because no juror was responsible for the sounding of the siren and the siren was not intentionally broadcast to impact the jury’s deliberation, it was not “brought to bear” on their deliberations. It just happened.

Comment. Appellant noted that the State failed to argue in the trial court that Rule 606(b) limits jury deliberation evidence. The Court explains that an appellee need not preserve arguments for appellate purposes because rulings are upheld under any supportive theory. The Court explains, “[p]reservation rules are ‘judge-protecting’ rules.” None of this is wrong, but we should just get rid of this justification. We didn’t enter a social contract and create a criminal justice system in order to protect the interests of lawyers who ascend to the judiciary. Rules of Appellate Procedure which mandate the citizen lose his or her appeal based on unlitigated legal theories should be limited in scope and tailored to litigant fairness (not judge fairness). If the unlitigated issue indisputably reaches the same result on the known facts, and the defendant would unlikely produce new outcome-determinative facts if given an opportunity, then it would seem warranted to uphold a ruling based on so many better justifications such as judicial economy or harm analysis.

Brown v. State, No. PD-1292-19 (Tex. Crim. App. 2021)

Issue. Does dishonesty to a process server and a prior assault against the same victim constitute sufficient facts to find that the defendant waived his right to confrontation of the alleged victim in his assault case via the doctrine of forfeiture by wrongdoing?

Facts. Defendant was charged with assault family violence by strangulation and had once been previously convicted of assaulting the same victim. Defendant set his case for trial which resulted in a DA investigator attempting to serve a subpoena on the alleged victim at the victim and defendant’s mutual home. Defendant answered the door and said that he and the victim had split up, hadn’t seen her for a long time, and didn’t know where to find her. The investigator would later find pictures of the victim and the defendant on Facebook hanging out during the period of time the defendant indicated he hadn’t seen her. Ultimately the investigator was able to locate the victim at the mutual home and serve the victim with a subpoena. The victim did not show for trial. The State convinced the trial court to admit hearsay statements of the victim made on the day of the arrest under the exception to Sixth Amendment confrontation whereby a defendant waives his or her right to confrontation by procuring the witnesses unavailability through wrongdoing. The court of appeals found that defendant’s deception which thwarted the attempt at serving the subpoena constituted sufficient wrongdoing under the rule.

Holding. No. The Common Law doctrine of forfeiture by wrongdoing, codified by Article 38.49 of the Code of Criminal Procedure, provides that a defendant waives and forfeits his right to confrontation when, through his wrongful conduct, he procures the unavailability of a witness. The doctrine requires conduct that is calculated to prevent a witness from testifying and there must be a causal connection between the witness’s unavailability (decision not to testify) and the defendant’s conduct. The Court highlights cases from multiple states which hold that the causal connection is far closer to tort law’s requirement of proximate causation rather than but-for causation. Here, the fact that the defendant lied to an investigator about the alleged victim’s whereabouts and continued living with her during the pendency of his case was not sufficient evidence to satisfy the forfeiture by wrongdoing doctrine. “[N]o one has pointed to anything Appellant did during his post-offense, pretrial period that might have influenced Hutzelman’s decision, and in fact, there is no evidence that Appellant did anything to try exert such influence.”

Dissent (Yeary, J.) Would hold the misleading conduct sufficient wrongdoing to satisfy the doctrine, but questions whether the State has shown that the witness was truly unavailable. Would send the case back to the court of appeals for further analysis on this issue.

Comment. A witness isn’t unavailable until compulsory process has failed. If a defendant wishes to preserve error in the denial of compulsory process, he or she must follow a three-step process to preserve error: (1) seeking a writ of attachment, which the trial court must deny; (2) showing the court what the witness would have testified to; and (3) demonstrating that the witness’s testimony would have been relevant and material. Shouldn’t the State have to follow this process, at a minimum, before extinguishing a person’s constitutional right? Both the majority and the dissent have good points on whether the defendant’s wrongful conduct constituted sufficient wrongdoing under the doctrine of forfeiture by wrongdoing. The overwhelming majority of Texas cases on the issue, however, involve threats or violence directed at a witness.

In re State ex Rel. Ogg, No. WR-91,936-01

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

Facts. This is the appeal of the 14th District Court of Appeal opinion authorizing trial courts to suspend the State’s authority to demand a jury trial during the pandemic. The facts from the previous SDR are copied here. Kim Ogg is the Harris County District Attorney. Ogg filed petitions for writs of mandamus and prohibition challenging a Harris County court at law judge’s authority to conduct a bench trial without the consent and waiver of jury trial by the State. The defendant had moved for speedy trial on his misdemeanor charges following removal from a pretrial intervention (or pretrial diversion) program. The defendant requested a trial before the court (bench trial) because jury trial was prohibited under the current orders of the Texas Supreme Court regulating court proceedings during the COVID-19 pandemic. In his request for a bench trial, the defendant requested the trial court waive the requirements of Texas Code of Criminal

Holding. No. The Supreme Court Emergency Orders (and the underlying statute permitting such orders) give trial courts the authority to modify deadlines and procedures. The orders presuppose a pre-existing power or authority over the proceedings. Here, the trial court’s authority to preside over a proceeding as the fact-finder is not a mere procedural matter. The trial court and the court of appeals improperly used the Supreme Court Order to enlarge the trial court’s jurisdiction to try a case without a jury and without the State’s consent.

Comment. I sang praises of the defense attorneys involved in this case when they won at the court of appeals. I still do. Bench trials are the natural pandemic-era solution to a careful balance between health and public safety and the Sixth Amendment right to a speedy trial. The fact that this person’s offense and background initially merited admission into a diversion program but then his case became a tooth-and-nail fight all the way to the Court of Criminal Appeals certainly lends credence to the appearance that the district attorney made this case personal. I don’t know if it would be fair to weigh against the State this purely optional appellate litigation into the “reason for the delay” prong of a Barker v. Wingo speedy trial dismissal argument, but, quite literally, the only reason this person cannot not have a speedy trial is because the State prohibits it.

Barrett v. State, No. PD-1362-18 (Tex. Crim. App. 2021)

Issue. Is bodily-injury assault a lesser-included offense of occlusion assault (strangulation/impeding organ)?

Facts. These are consolidated cases involving the prosecution of “occlusion assault” (strangulation). Both defendants were denied a lesser-included instruction at trial on bodily-injury assault.

Holding. No. The relevant statutory definition of a lesser-included offense provides: an offense “established by proof of the same or less than all the facts required to prove the offense charged.” Tex. Code Crim. Proc. art. 37.09. A two-step analysis is used to determine whether a lesser-included instruction is appropriate: (1) compare the elements of the purported lesser-included offense (defined by the allowable unit of prosecution) with the statutory elements of the charged offense (defined by the allowable unit of prosecution), and (2) determine whether there is some evidence that would permit the jury to find the defendant guilty of only the purported lesser-included offense.

[T]he allowable unit of prosecution for occlusion assault is impeding the breathing or circulation of blood. An injury other than impeding is established by different or additional facts than those required to establish impeding, so bodily injury assault that results in a non-impeding injury is not an included offense of occlusion assault.”

* * *

Impeding is a “form of bodily injury.” Marshall v. State, 479 S.W.3d 840, 844 (Tex. Crim. App. 2016). Since the statute specifies impeding, it excludes other injuries. Impeding is exclusive of other injuries in the same way that a square is exclusive of other rectangles: A square is a rectangle, but other rectangles are not squares; specifying ‘square’ excludes non-square rectangles; and specifying “impeding” excludes non-impeding injuries.”

Unlike assault offenses with aggravating factors (i.e. upon a public servant or using deadly weapon) you cannot excise the conduct of occlusion and leave the offense of assault remaining. Occlusion is the gravamen of the offense. The court overrules by implication. Irving v. State, 176 S.W.3d 842 (Tex. Crim. App. 2005). In Irving the court provided that a lesser-included offense must involve the same alleged manner and means as that contained in the charging instrument. The Irving analysis is faulty because non-statutory manner and means are not the unit of prosecution, their nonproof would not give rise to a material variance at trial, and therefore should not restrict theories of lesser-included criminal conduct.

Concurrence and Dissent (Yeary, J.).

“I simply cannot agree that, as a matter of law, simple assault may never be a lesser-included of ‘occlusion assault.’” You can’t commit an occlusion assault without first causing bodily injury. You can apply pressure to the throat or neck and fail to impede breath or blood and still have committed an assault.  Judge Yeary declines to join Judge Keller’s dissent. Judge Keller would hold that bodily injury assault would include all physical injuries sustained in an assaultive transaction. Judge Yeary is inclined to hold that every punch, kick, or pinch is an individual assault.

Dissent (Keller, J. joined by Walker and Slaughter, JJ.).

Bodily injury includes all physical injuries sustained in a single transaction. Occlusion is not the unit of prosecution. Family violence assault appears in the assault statute among a list of things that make an assault extra bad. If the court holds that the other four in the list do not constitute separate and distinct offenses, then family violence cannot constitute a separate and distinct offense. Occlusion is a subsection of the family violence aggravator. It appears parallel alongside another subsection for prior convictions. A prior conviction is clearly an aggravating element. So to must be occlusion.

Comment. Which of the following are not a methodology of defining elements of an offense:

(a) a hypothetically correct jury charge
(b) a theoretically well-crafted indictment
(c) allowable units of prosecution
(d) eighth-grade grammar tests
(e) ninth-grade grammar tests
(f) sixth-grade spelling bee
(g) gravaminas
(h) gravmen
(i) boys2men

Although technically incorrect, we will award points to anyone who answered: “ABCBBD.”

Harbin v. State, No. PD-0059-20 (Tex. Crim. App. 2021)

Issue. Was it proper for the court of appeals to require the application of the 1994 statute for sudden passion in a case of resentencing for an offense committed in 1991?

Facts. Defendant was granted a new punishment trial after successfully showing in a writ of habeas corpus that the prosecution failed to disclose mitigating information about the victim’s psychiatric history and defense counsel’s failure to sufficiently investigate and present mitigating evidence. At the time of defendant’s initial trial, the Penal Code permitted conviction for voluntary manslaughter in lieu of murder when sudden passion is found. The legislature repealed this option and replaced it with a jury option to sentence a defendant convicted of murder to a second-degree punishment range instead. This repeal occurred in 1994, after defendant’s offense date.

Holding. The legislature made the sudden passion statute prospective only. The Court of Appeals’ granting of a new trial to require the retroactive application the sudden passion statute was in error. The rule of retroactive application of newly announced U.S. Supreme Court decisions in the context of habeas proceedings is inapplicable here because this is not a habeas case, and the rule was not handed down from the U.S. Supreme Court.

Flores v. State, No. PD-0064-20 (Tex. Crim. App. 2021

Issue. When a defendant conceals an electric drill and causes someone to believe it is a gun, has he used or exhibited a deadly weapon?

Facts. Defendant was convicted of aggravated robbery by virtue of his use or exhibition of a deadly weapon. Defendant used an electric drill he concealed sufficiently to cause the store clerk he robbed to believe he had a gun. At trial, store clerk testified that the defendant never attempted to strike her with the drill or made any such threats that he would utilize a drill to cause her harm. The lead detective testified to all the ways a drill could be used as a deadly weapon. However, surveillance showed no such use by the defendant. 

Holding. No. Determining whether sufficient evidence supports a deadly weapon finding requires a two-step process: (1) whether the object in question could be a deadly weapon under the facts of the case, and if so, (2) determine whether the deadly weapon was used or exhibited. The court of appeals erroneously analyzed the first step as an issue of whether the drill could be used as a deadly weapon in the abstract. Because any object could qualify as a deadly weapon, it is meaningless to focus on the nature of the object. “[I]t is only the manner of the defendant’s use or intended use that provides any meaningful limitation to the broad statutory definition.” Defendant’s use of the drill was to threaten a shop owner by causing fear that he possessed a gun. No evidence support that he used or intended to use the drill in an actual deadly manner such as bludgeoning or stabbing with the drill bit.

Dissent (Hervey, J.).

Reasonable minds could differ on whether the defendant was close enough to bludgeon the store clerk with the drill. This is enough under Jackson v. Virginia.

Dissent (Keel, J.).

“Appellant intended to intimidate, manipulate, and steal from his victim, and he accomplished his objectives by brandishing a menacing-looking object that turned out to be a drill.” He indicated he would hurt the clerk if the clerk did not comply.

Comment. This is a tough call. I agree somewhat with the Keel dissent. But there is something to be said about the fact that the legislature did not define a deadly weapon as “anything that in the manner of its use or intended use is capable of placing another in fear of death or serious bodily injury.”

Carter v. State, No. PD-0575-19 (Tex. Crim. App. 2021)

Issue. To qualify as a synthetic drug under Penalty Group 2-A a substance must have certain components appearing in certain positions in a chemical compound. When the State presents testimony of an analyst who concludes that a substance satisfies the requisite compound structure, but doesn’t testify to the identify or positioning of specific components, has the State sufficiently shown that a substance in question is a synthetic drug?

Facts. Defendant operated smoke shops in Lubbock County and sold a leafy substance called “Chilly Willy.” In 2014 he received a letter from the Lubbock County District Attorney warning him that Chilly Willy was synthetic marijuana. In response, Defendant sent his Chilly Willy to a lab for testing (a DEA certified lab according to his briefing to the court). The DEA certified lab determined that Chilly Willy did not contain “fluoro-ADB” the relevant compound which purportedly has a prohibited chemical structure making it a synthetic drug. The State’s laboratory found otherwise, and the defendant was prosecuted. At trial, the State presented expert testimony through a controlled substance analyst. After testifying to his lab’s methodology for testing Chilly Willy, the analyst testified that he concluded that Chilly Willy contained fluoro-ADB. The analyst neither indicated what components were contained in fluoro-ADB nor their positioning in the chemical compound. The jury sentenced the defendant to 90 years.

Holding. “We conclude that, when looking at all of [the analyst’s] testimony, a rational trier of fact could reasonably infer that his analysis established that fluoro-ADB satisfied the criteria of Section 481.1031(b)(5): that indazole (The core component) was substituted at the 1-position to any extent, and substituted at the 3-position with carboxamide (the link component) attached to methoxy dimethyl oxobutane (the group A component)—even though he did not explicitly say so.” The analyst testified that fluoro-ADB contained indazole, carboxamide, and methoxy dimethyl oxobutane. When the analyst responded in the affirmative to the defense question “[a]nd that’s what makes a compound, the place where the molecules are stuck, correct?” the analyst effectively communicated to the jury that the molecular position of those components made it a synthetic drug prohibited under Penalty Group 2-A. The jury could rationally infer that the analyst looked at the compound and found the components to be in the necessary positions.

Comment. I have a serious problem that a DEA certified lab told this man that his substance was not a synthetic drug and now he is in prison for 90 years. This opinion, and the summary, are a tough read. Basically, the statute requires the existence of specific components in specific positions in a chemical compound. This opinion allows juries to trust that the expert saw the components in the right spots without explicitly stating it.

Holoman v. State, No. PD-1339-18 (Tex. Crim. App. 2021)

Issue. May the State prove a prior conviction for purposes of enhancing a class A assault family violence to a felony assault during the punishment phase of trial?

Facts. The State charged the defendant with assault family violence by strangulation / occlusion. The State only proved a misdemeanor assault at trial. At the punishment hearing, the State requested, and the trial court agreed, to use one of defendant’s prior assault family violence charges to enhance defendant’s offense to a third-degree felony. Defendant objected to the use of the prior assault conviction to enhance the jury’s conviction from a misdemeanor to a felony. The State conceded that ordinarily, such a fact is jurisdictional and must be proven during trial. But the State argued that their pleading of an alternative jurisdictional element (strangulation/occlusion) absolved them of proving the prior conviction during guilt-innocence. In essence, the prior assault was no longer jurisdictional by virtual of the strangulation pleading.

Holding. As it pertains to prior convictions, legislative intent determines whether proof of such fact constitutes an element of the offense or merely a punishment issue. Ordinarily, prior convictions are punishment facts. But courts also look to several factors in making this determination. Whether the enhancing provision appears within the same subsection as the primary offense is relevant. Whether the enhancing language uses a phrase such as “if it is shown on the trial of . . .” is relevant. However, in all cases where the fact is one necessary to confer jurisdiction on the court, the fact must operate as an element of the offense. There are two ways to enhance a misdemeanor assault family violence to a felony: a prior conviction for the same offense, or strangulation / occlusion. The court rejects the State’s invitation to adopt a complicated standard for this unusual case – a standard makes the treatment of a prior conviction as elemental dependent on whether they have the ability to allege the alternative jurisdictional fact of strangulation / occlusion.

Comment. Shouldn’t the result in this case be an acquittal according to the Court of Criminal Appeals Decision in Barrett v. State decided only 3 weeks prior which provides that Simple Assault Family Violence is not a lesser included offense of Assault Family Violence by Strangulation/Occlusion?

Ex parte Thomas, No. WR-89, 128-01 (Tex. Crim. App. 2021)

Issue. Should the Court continue to require adherence to the requirements of Moon v. State, that juvenile courts make “factually supported, case-specific findings” when waiving jurisdiction and transferring prosecution to district court, when those requirements are neither statutory nor constitutionally mandated?

Facts. Defendant was 16 when he committed capital murder. After defendant reached the age of adulthood, the juvenile court waived its jurisdiction and transferred the case to district court where defendant was prosecuted as an adult and plead guilty to the lesser offense of murder. The juvenile court did not include in its transfer order any “factually-supported, case-specific findings” which now, decades later, are required by case law to bestow jurisdiction on the district court. 

Holding. No. In Moon v. State the Court held that an order waiving juvenile jurisdiction must be accompanied by “factually-supported, case-specific findings,” otherwise the order is invalid. 451 S.W.3d 28 (Tex. Crim. App. 2014). According to Moon, without such an order, the district court never acquires jurisdiction. To successfully transfer and bestow jurisdiction on a district court, the juvenile court must satisfy only the terms of the statute. Moon is a court-made requirement not mandated by statute or United States Supreme Court precedent. The statutory obligation of the transferring court is to merely state the statutory reasons for the waiver, not any case specific factual findings upon which they rest. In Kent v. United States, The United States Supreme Court held that due process guarantees a juvenile the right to a hearing and an order stating reasons for the transfer to adult court. 383 U.S. 541 (1966). “But Kent’s ‘reasons requirement for juvenile-transfer orders did not impose the ‘show your work’ rule that this Court came up with in Moon.”

Comment. The opinion concludes with some strong language about stare decisis. “Our resolution of the cognizability issue in this case has implicitly overruled Moon. Stare decisis principles do not prevent us from doing so explicitly. True, this Court should not frivolously overrule established precedent. But stare decisis is not an inexorable command.”

Concurrence (Yeary, J.). Concludes with even stronger language about stare decisis. “The Court is right to overrule Moon . . . . I would not hesitate over the decision to do so on account of the court-made doctrine of stare decisis, which is compelled neither by constitution nor statute.” “There may well be other reasons to afford due respect and defference to judicial precedents. But judicial precedents are not ‘the law itself’ . . .”

Another Comment. What is happening to stare decisis?

1st District Houston

Howard v. State, No. 01-19-00083-CR (Tex. App.—Houston [1st Dist.] Mar. 23, 2021)

Issues. (1) When officers have a subjective investigative intent, does a knock-and-talk investigation violate the Fourth Amendment by virtue of invading the privacy of a defendant’s curtilage? (2) Would a reasonable person believe they were under arrest, and thus subject to Miranda, when officers wearing body armor and with hands on their guns gesture for a person to come out of their home to talk about their suspicion of drug activity? (3) When officers conduct an unconstitutional protective sweep of a home and discover drugs which amplify their motivation to obtain a search warrant, is their subsequently obtained search warrant relying only on pre-protective-sweep facts unconstitutionally derived from an improper search? (4) When a warrant authorizes with the support of probable cause a search for marijuana, but also authorizes searches for multitude of other things without probable cause, is the good authorization severable from the bad authorization? 

Facts. Special agents with the Department of Public Safety approached the front door of defendant’s home to perform a knock-and-talk investigation. While at the door with the defendant and his house guest, agents smelled marijuana. Defendant admitted there might be marijuana in the home. Agents requested, but were denied, consent to search the home. Agents sought counsel from the Harris County District Attorney’s Office and were apparently advised to enter the home to conduct a protective sweep. During the protective sweep agents discovered marijuana and ecstasy. Then, following the protective sweep, agents obtained a warrant, asserting only those facts they had learned prior to conducting the protective sweep referencing only the odor of marijuana and defendant’s admission. The magistrate authorized in his warrant a search for marijuana, other narcotics and illegal substances, scales, narcotics packaging material, and drug paraphernalia. With this warrant in-hand, officers searched the home for marijuana but also found other drugs in plain view. 

Holding. (1) No. Absent express orders such as “no trespass” officers may enter upon residential property following the usual path to the front door to conduct a knock-and-talk investigation without offending the Fourth Amendment. (2) No. The officers asked permission to talk; they eventually took their hands off their weapons when they realized the defendant was not a threat; their guns were never drawn; the questioning was done outside; defendant was not handcuffed or transported to another location; there were no threats; defendant was never compelled to answer their questions about drug activity. (3) No. While the exclusionary rule requires suppression of “both primary evidence obtained as a direct result of an illegal search or seizure, as well as derivative evidence acquired as an indirect result of unlawful conduct,” the independent source doctrine absolves police of suppression when the evidence they discover is derived “separate and apart from any illegal conduct.” Here, the police are absolved of suppression if they would have sought and obtained a warrant without the observations they made through an illegal protective sweep. The record supports this conclusion; officers testified they planned to get a warrant as soon as they had evidence of the odor of marijuana and defendant’s admission. These were the only facts they relied on to obtain the warrant. The unconstitutional protective sweep is irrelevant. (4) Yes. Unlawful warrant authorizations may be severed from the lawful ones. Severing may not be appropriate where the main thrust of the warrant is a general search and there are a few minor items meeting the particularity requirement. But here, the warrant lawfully authorized a search for marijuana – not a minor item.

Concurrence (Goodman, J.). Writes separately to condemn the dishonesty of one of the police officers who stated in his warrant affidavit that he believed he would discover “marijuana, firearms, [and] other narcotics and illegal substances” based on the odor of marijuana smelled from outside the house. “[H]e failed to mention that he had actually seen ‘other narcotics and illegal substances’ inside the apartment during the illegal search.” It was simply illogical for this officer to conclude that he would find other drugs based on the smell of marijuana – he knew there would be other drugs and gave a misleading indication why he had that belief.

Comment. Ends-justify-the-means policing is often whitewashed by ignoring troubling but legally immaterial conduct of the police. Justice Goodman often does as much as he can within the confines of judicial restraint to call out those who treat the criminal justice system as an obstacle to catching and punishing the bad guys.

2nd District Fort Worth

Redmond v. State, No. 02-19-00381-CR (Tex. App.—Ft. Worth, Mar. 25, 2021)

Issue. (1) When the defendant advances a theory that he did not assault his wife and denies having assaulted his extra-marital girlfriend, may the State introduce an email from his extra-marital girlfriend detailing his abuse? (2) May the State impeach a testifying defendant with unadjudicated offenses identical to the single offense he admits committing on direct examination with the impression that it was an isolated incident? (3) May the State admit lots of hearsay evidence as long as the declarant testifies at trial?

Facts. Defendant stabbed his wife in the neck and brutalized her until she nearly died. Eventually, he relented to cries by his wife and his son to take his wife to the hospital. While en route, they detoured to a fire station to receive quicker medical attention. As the victim exited she promised to tell everyone her injuries were an accident and the defendant admonished “don’t make me kill you.” Once in the ambulance with medics and an investigator, she pleaded for help and for law enforcement to save her son from her husband. In a four-hour standoff, SWAT surrounded defendant’s home where he had returned with their son. After defendant emerged from the home with their son, officers entered and learned that defendant had cleaned the crime scene. At trial, the defendant advanced a theory that the two had engaged in mutual combat and the victim was fabricating a story to gain child custody. In addition to the victim telling her story from the witness stand, the State showed, through hearsay, that her statement remained consistent when told to the SWAT officer, the paramedic, and the investigating officer. The trial court allowed the State to admit a video of the victim’s initial report as well as a medical report containing the victim’s statements. The State was also granted permission to explore two lines of extraneous offenses: an abusive relationship with an extra-marital girlfriend, and his history of bank robberies. When questioned on these issues, the defendant gave a false impression that his affair did not end violently, and robbery was an isolated indiscretion. The State introduced extraneous evidence in response: an email from the girlfriend detailing abuse and photographic evidence of him robbing a bank more than once.

Holding. (1) Probably not. Here it was okay because the only objection raised was whether the evidence was proper under Texas Rule of Evidence 404(b). Here the hearsay email was introduced to rebut a defense theory and prove intent – both permissible non-character-conformity uses for extraneous offenses. The defendant did not object to hearsay at trial and only intertwines hearsay arguments into his briefing. (2) Yes. Normally, a witness cannot be impeached with unadjudcated offenses, but an exception to this general rule applies when a defendant testifies and leaves a false impression on direct examination. The State cannot open the door for itself or manufacture the false impression. Here the defendant’s direct examination testimony that he committed a bank robbery as a “crazy decision” brought on by “a perfect storm of events” at
‘the lowest point” in his life left a false impression with the jury that this was an isolated incident, and the State was permitted to correct this false impression. Such evidence was not impermissible character-conformity evidence under Texas Rule of Evidence 404(b). (3) Yes. But the rule of hearsay is eviscerated by the rule of harmless error in most cases. “The improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged.” Here the declarant in each hearsay statement, the victim, also testified to the same statements while on the witness stand. In addition, the defendant failed to object or continue to object on numerous occasions where other statements by the declarant-victim were admitted through the testimony of other witnesses.

Comment. The real problem with the State eliciting testimony from other witnesses showing the victim told them the same thing she is saying on the witness stand is bolstering under Rules 608 and 613. However, here, the defendant swung the door open by calling the victim a liar.

3rd District Austin

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

4th District San Antonio

Ex parte Carter, No. 04-20-00396-CR (Tex. App.—San Antonio, Mar. 17, 2021)

Issue. (1) Does an intermediate appellate court have jurisdiction to hear an appeal from a motion to increase bail? (2) Does an intermediate appellate court have jurisdiction to hear a writ of habeas corpus? (3) Is Appellant’s bail set unreasonably high?

Facts. Defendant’s bail was initially set at $15,000. The trial court, at request of the state, entered an ex parte order increasing bail to $400,000 without affording the defendant notice, a hearing, or an opportunity to be heard. Defendant filed a writ of habeas corpus raising two grounds for his illegal confinement: (1) that it was ordered without due process (notice, hearing, opportunity to be heard), and (2) that his bail was set at an unreasonable amount. The trial court held a hearing on the writ of habeas corpus and reduced bail to $200,000.

Holding. (1) No. “[W]e do not have jurisdiction to consider an appeal from an in interlocutory pretrial order granting a motion to increase bail because such jurisdiction has not been expressly granted by statute.” (2) Yes. We do have jurisdiction to consider an interlocutory appeal from a denial of a writ of habeas corpus. (3) No. The trial court considers factors in setting bail. First are statutory factors: (1) assure appearance, (2) not an instrument of oppression, (3) nature and circumstances of the case, (4) ability to make bail, and (5) safety of the victim and community. Next are case law factors: (1) the nature of the offense and potential sentence, (2) ties to the community, (3) length of residency, (4) employment history, (5) criminal history, (6) previous bonds and compliance therewith, (7) aggravating circumstances. Evidence presented by the state was sufficient to show that the bail amount was necessary to assure appearance at trial and protect the community.

Comment. The court is wrong to refuse jurisdiction over a writ of habeas corpus challenging pretrial confinement without due process. The court disposes of the defendant’s issue by creating a legal fiction that he appealed from the trial court’s order to increase bail. He did not. He filed a writ of habeas corpus challenging the constitutionality of his confinement, he stated two reasons why his confinement was unconstitutional (no due process, and bail too high). The court readily acknowledges they have interlocutory jurisdiction to consider final rulings on writs of habeas corpus. The trial court denied relief under the writ of habeas corpus and the defendant filed an appeal pursuant to Texas Rule of Appellate Procedure 31.1 (“when written notice of appeal from a judgment or order in a habeas corpus or bail proceeding is filed . . . ). The defendant’s denial of due process may have been mooted or rendered harmless by the subsequent hearing, but this is now a published opinion which confuses the law.

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

Joe v. State, No. 10-18-00221-CR (Tex. App.—Waco, Mar. 3, 2021)

Issue. In a theft of cargo prosecution, is the element of possession sufficiently proven by showing a person connected his semi-truck to a trailer but has not completed several other steps required to a complete connection to the trailer?

Facts. A mattress manufacturer placed a shipment of mattresses into a shipping container inside of a trailer in their shipping yard. On the night in question, the warehouse supervisor for the mattress manufacturer witnessed the defendant hook his blue Volvo semi-truck up to the trailer with the company’s mattresses. He was not supposed to be taking possession of the mattresses. As the defendant was completing the steps necessary to hook his semi-truck to the trailer (connecting the air lines), he got caught and did not complete the process.

Holding. Yes. Connecting the semi-truck to the trailer is a sufficient act of possession to prove theft of cargo despite the need for further steps to complete the connection and drive away with the cargo. “It is irrelevant to our analysis that appellant was unable to move the trailer “even an inch.”

Dissent (Gray, C.J.). Taking possession of a trailer with a semi-truck is a multi-step process which involves: “1) fifth wheel positioned properly and the locking pin closed; 2) connection of air lines as necessary to release the brakes; 3) connection of the electrical plug to have the required trailer lights; and 4) some would argue, lifting the legs/jacks/levelers. This process was not completed. This is attempted cargo theft.

Comment. The legal equivalent of the Dez Bryant catch-no-catch; except the NFL has better defined rules for possession.

Busby v. State, No. 10-18-00262-CR (Tex. App.—Waco, Mar. 3, 2021)

Issue. Can a defendant attack the legitimacy of his prior conviction used by the State at trial for enhancement purposes?

Facts. Defendant was charged with assault family violence enhanced with a prior conviction for assault family violence. At trial, the State presented a certified copy of the defendant’s prior assault family violence conviction indicating that the defendant pleaded guilty to the prior offense. Defendant presented the testimony of the prior complainant at trial who indicated that the prior assault was not an assault.

Holding. No not here. This amounts to a collateral attack on the prior judgment. A defendant can collaterally attack a prior conviction used for enhancement “only if the earlier conviction is void or tainted by a severe constitutional defect.” The law distinguishes between collateral attacks which merely show insufficient evidence and attacks demonstrating the previous conviction is based on a complete lack of evidence. Only challenges to prior convictions based on a complete lack of evidence are cognizable. Here, there is more than a complete lack of evidence. The defendant pleaded guilty to the previous conviction, which presents some evidence that he committed the previous offense.

Concurrence (Gray, C.J.). A defendant should never be allowed to collaterally attack a prior conviction in the context of a trial involving enhancement by a prior conviction.

Comment. This court uses Court of Criminal Appeals precedent pertaining to collateral attacks in the revocation context and applies it in the context of a trial. In the revocation-collateral-attack line of cases, the defendant is assigned a higher burden than he would have in a habeas corpus proceeding. But the Court of Criminal Appeals also provides “[n]othing prevents the probationer from filing an Article 11.08 or 11.09 writ application after the State has filed a motion to revoke, and nothing prevents the trial court from considering the application along with the State’s motion to revoke probation. Jordan v. State, 54 S.W.3d 783, 786 (Tex. Crim. App. 2001). So, in the context of revocation, a strict “complete lack of evidence” comes with a safety valve: “unless you have a pending writ of habeas corpus.” How does that work here, in the context of trial?

11th District Eastland

Lira v. State, No. 11-20-00148-CR (Tex. App.—Eastland, Mar. 25, 2021)

Issue. Do the Supreme Court’s COVID-19 Emergency Orders authorize a trial court to conduct a plea hearing by videoconference over objection of the defendant who invokes his right to an in-person plea in open court?

Facts. The judge made the defendant do his plea by Zoom over his objection.

Holding. No. Citing to Ogg, briefed earlier in this S.D.R., the Court noted that the Supreme Court Emergency Orders authorize courts to modify only procedural rights, not substantive rights. Texas Code of Criminal Procedure Article 1.13 mandates that a waiver of jury trial rights occur in-person unless specifically waived by written consent.

Comment. Same facts and outcome in Huddleston v. State, No 11-20-00149-CR (Tex. App.—Eastland, Mar. 25, 2021).

State v. Watson, No. 11-19-00082-CR (Tex. App.—Eastland, Mar. 31, 2021)

Issue. (1) Does a trial court abuse its discretion by choosing to believe a defendant’s testimony establishing an ownership interest in the thing searched (in order to establish standing) during a motion to suppress hearing and simultaneously choosing to disbelieve contrary statements made by the defendant at the time of the search? (2) May law enforcement conduct a protective sweep because they knocked on a door until it came ajar?

Facts. Law enforcement received a request to assist an individual in retrieving items of personal property from a room the individual rented from a homeowner. An officer met the individual at the home and knocked on the door several times until it “came open.” The officer then completely opened the door and decided to “clear” the residence by going room-to-room to “insure that nobody else was left inside the room behind the door or whatever.” Officers discovered defendant in one of the bedrooms and removed him. Once removed, and after 20 seconds of loitering in the room, the Officer discovered drugs and paraphernalia. The defendant challenged the legitimacy of conducting a protective sweep of the residence. The trial court granted defendant’s motion to suppress. 

Holding. (1) No. The trial court is the sole trier of fact and the trial court’s resolution of conflicting statements won’t be disturbed on appeal. (2) No. A protective sweep is a “quick and limited search of premises, incident to an arrest [or who are lawfully present in a residence] and conducted to protect the safety of police officers or others.” A protective sweep is permitted only when “justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.” The State argues on appeal that the individual who contacted police to retrieve belongings from the home implicitly consented to their entry and, once inside, officers were justified to conduct the protective sweep. However, “consent to enter the residence, without more, does not provide consent to search the entire residence or objects therein.” Moreover, the officer’s articulated reason for entering the home was because the door was ajar. The officer did not articulate any belief that a person would be inside who presented danger to officers. No other theory of consent provided by the renting individual, implied or otherwise, authorized the search of a bedroom unrelated to the reason officers were present at the home.

Comment. I have made the mistake of routinely accepting the lawfulness of a protective sweep without considering whether there is a legitimate articulable suspicion of danger. I think many officers do, too. 

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

Cisneros v. State, No. 13-19-00652 (Tex. App. –Corpus Christi-Edinburg, Mar. 4, 2020)

Issue. (1) Do double jeopardy prohibitions prevent the State from convicting a defendant on counts of continuous sexual abuse together with unrelated or non-predicate sexual assault counts? (2) When the legislature defined continuous sexual abuse as “two or more acts” regardless of whether those acts are “committed against one or more victims,” did the legislature intend to prohibit multiple convictions when the State proves two or more acts committed each against two or more victims?

Facts. Defendant is convicted of multiple acts of sexual assault, each against two different children.

Holding. (1) Yes. Under Penal Code § 21.02(e), the legislature expressed:

A defendant may not be convicted in the same criminal action of [sexual assault offense] the victim of which is the same victim of [continuous sexual abuse] unless the [sexual assault offense]:

(1) is charged in the alternative;
(2) occurred outside the period in which the [continuous sexual abuse] was committed; or
(3) is considered by the trier of fact to be a lesser included offense of the offense of the [continuous sexual abuse].

The Court of Criminal Appeals has stated the clear legislative intent is “to disallow dual convictions for the offense of continuous sexual abuse and for offenses enumerated as ‘acts of sexual abuse’ when based on conduct against the same child during the same period of time.” This is true, even when the State does not use the relevant sexual assault conviction as a predicate offense to the continuous sexual abuse conviction. Based on this legislative intent, the offenses are the same for purposes of a double jeopardy analysis.  (2) No. Using grammar and syntax, the court determines the unit of prosecution to determine whether two charges of conviction are the same or separate offenses. Within the same statute the legislature provides that “a defendant may not be charged with more than one count [of continuous sexual abuse] if all of the specific acts of sexual abuse that are alleged to have been committed are alleged to have been committed against a single victim.” The corollary to this provision, then, is true, “a defendant may be charged with more than one count of continuous sexual abuse if multiple acts of sexual abuse are alleged to have been committed against each of multiple victims.”

State v. Ruiz, No. 13-13-00507-CR (Tex. App—Corpus Christi-Edinburg, Mar. 11, 2021)

Issue. Is a warrantless blood draw justified under exigent circumstances and probable cause when the driver of a vehicle involved in a collision flees the scene and is later discovered by police unconscious, unresponsive, and smelling like alcohol?

Facts. This case is on remand from the Court of Criminal Appeals after consideration of the United States Supreme Court’s opinion in Mitchell v. Wisconsin, ___ U.S. ___, 139 S.Ct. 2525 (2019). Defendant was the driver of a vehicle in a motor vehicle collision. When officers arrived, they discovered an empty vehicle with exploded Bud Light cans inside.  Witnesses indicated the defendant fled the scene. Officers found him in the exact location where witnesses indicated he fled.  Defendant smelled like alcohol, and he was unconscious, unresponsive, wouldn’t open his eyes, and unphased by EMS sternum rubs.

Holding. In Mitchell v. Wisconsin the U.S. Supreme Court indicated “the exigent-circumstances rule almost always permits a blood test without a warrant” in cases where the driver is unconscious and therefore cannot be given a breath test. An exigency exists when: (1) blood alcohol content is dissipating, and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. “Both conditions are met when a drunk-driving suspect is unconscious . . .” Mitchell at 2537.

Comment. The officer testified that it would not have been feasible to get a blood warrant as only two officers were on duty or that it would have taken her 2-3 hours to get one. A blood warrant can be faxed or emailed, but the officer testified that in Gonzales County there aren’t procedures to do this. The Court here accepts unspecified general “other police duties” which had to be done in the same night as satisfaction the pressing-needs requirement. It sounds like there is an argument that the exigency is one of law enforcement’s own making. Longstanding precedent provides that law enforcement cannot create their own exigencies. This is at least food for thought.

14th District Houston

Wiggins v. State, No. 14-20-00076-CR (Tex. App.—Houston [14th Dist.] Mar. 16, 2021)

Issue. Does the assignment of a senior judge to preside over a defendant’s trial violate the Texas Constitution when the elected district judge is not “absent,” “disabled,” or “disqualified from presiding?”

Facts. Defendant’s case was tried before a senior judge assigned by the regional administrative judge “for the primary purpose of hearing cases and disposing of any accumulated business requested by the court.”

Holding. Defendant relies on the last paragraph of Article V, § 7 of the Texas Constitution: “The legislature shall also provide for the holding of District Court when the Judge thereof is absent, or is from any cause disabled or disqualified from presiding.” However, nothing in the text indicates the legislature lacks additional authority to enact legislation allowing the assignment of judges to sit even when the elected judge is not absent, disabled or disqualified.

Comment. Expressio unius. Fellow nerds, are you with me?

Perales v. State, No. 14-19-00236-CR (Tex. App.—Houston [14th Dist.] Mar. 25, 2021)

Issues. (1) Can the State satisfy the element of solicitation of “an individual” when an adult detective poses as a fictional individual for purposes of an online solicitation of a minor sting operation? (2) Is a showing by the defendant that law enforcement created ambiguity regarding the age of a fictional individual sufficient to shift the burden to the State to disprove entrapment beyond a reasonable doubt in an online solicitation of a minor case?

Facts. Defendant started a conversation on the Plenty of Fish dating app with a user named Jennifer who identified herself as an 18-year-old. As the conversation progressed, Jennifer disclosed that she was actually only 16. Defendant acknowledged this fact and proceeded to discuss detailed plans for sexual intercourse. Jennifer suggested that defendant come over and meet her at her parent’s house. Defendant agreed. While en route, defendant told Jennifer that he felt like he was being set up, told her she sounded older than 16, and told her he was suspicious that Jennifer was a detective. Defendant was ultimately undeterred by his correct instincts. Jennifer was a detective. The defendant was arrested on arrival.

Holding. (1) Yes. “The statute is meant to permit police officers to pose as minors to intercept sexual predators.” (2) No. Entrapment requires a showing that the defendant was actually induced to commit a crime by the persuasiveness of police conduct, and (2) the persuasion was such as to cause an ordinarily law-abiding person of average resistance to commit the offense. Here the State presented evidence, through the detective posing as a minor, that ordinarily individuals would disengage in conversation once learning the age of the fictitious individual she posed as. Because the defendant failed to show he was objectively induced, the defendant did not adequately raise the defense of entrapment, and thus the burden never shifted to the State to disprove beyond a reasonable doubt.

Rodgers v. State, No. 14-19-00216-CR (Tex. App.—Houston [14th Dist.] Mar. 30, 2021)

Issue. (1) Does it mean anything when an officer says: “you are not arrested right now, you are detained?” (2) does the act of perpetuating a false identity constitute a refusal to identify under the Failure to Identify statute?

Facts. Despite the possible variations of the crime of failure to identify established by the facts of this case, defendant was prosecuted for failure to identify as a fugitive (while under custodial arrest). Defendant was detained by a loss prevention officer at Wal-Mart. When an officer arrived, he requested defendant’s name. Defendant gave a fictitious name. The officer testified at the moment of Appellant’s false identification he was not under arrest, but rather detained. The officer’s body camera video shows that after this exchange, and while the officer was searching defendant’s pockets, defendant asked why he was being detained. In response, the officer informed the defendant he was not under arrest. The officer then read defendant his Miranda rights in order to interrogate him about the theft. Mid-interrogation, loss prevention officers alerted the officer to the discovery of stolen property in defendant’s backpack. The officer confronted defendant about lying, ordered him to sit down, and reiterated he was not under arrest and instead merely detained.

Holding. (1) No. At least it was not significant here in a failure to identify as a fugitive case where the burden is on the State to establish a lawful arrest. When it is clear to a suspect that an officer has gained probable cause and then steps up his tone, demeanor, and commands, the admonishment of “you are not arrested right now, you are detained” would not lead a reasonable person to believe the officer’s assertion is an honest one. (2) Yes. Here, the court declines to accept Defendant’s post-Miranda silence as an act of refusing to identify, given that he had previously given a false name. Providing the officer with a correct name at this juncture would have been self-incriminating. However, defendant’s comments perpetuating the charade of a false name after being placed under arrest was sufficient evidence to sustain a conviction of Failure to Identify as a Fugitive while under custodial arrest.

Dissent (Spain, J.). He eventually identified himself during the purported criminal transaction. That was good enough to negate the offense.

Comment. We’ll let’s see if this logic holds up in a suppression hearing where the police fail to read a future suspect their Miranda rights. Something tells me this goose sauce will not taste as good on the gander.

 State v. Temple, No. 14-20-00388-CR (Tex. App.—Houston [14th Dist.], Mar. 30, 2021)

Issue. Do the Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster which permit trial courts to “modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order” allow a court to grant shock probation (order probation after having served partial sentence) after the trial court’s 180 deadline to exercise such jurisdiction expires?

Facts. The trial court granted shock probation on a drug case two weeks after the trial court’s 180 post-sentence jurisdiction expired. The court cited the Supreme Court order permitting the suspension or modification of deadlines.

Holding. No. Pursuant to this month’s Court of Criminal Appeals decision in In re State ex rel. Ogg, a trial court may not use the Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster to grant itself jurisdiction where there would otherwise be none.

Comment. During this time in the pandemic—February through April of 2020— most of the government went on total shutdown without a clear plan for operation. In most jurisdictions, inmates were not being transferred between jails and prisons, nor were they being brought to court. The State argued in their briefing that physical presence is not required to grant shock probation. It is hard to tell whether the ball got dropped, or the pandemic prevented the resolution of this matter within the trial court’s 180-day post-sentence jurisdiction. This issue could potentially be resolved with a writ of habeas corpus, but the defendant is (or was) serving a ten-year sentence on a drug offense. He is likely on parole already. According to TDCJ’s offender lookup – he is not currently in TDCJ custody. So, the tree falling in the forest doctrine remains intact.

Ex parte Fusselman¸No. 14-20-00549-CR (Tex. App.—Houston [14th Dist.] Mar. 30, 2021)

Issue. Is Texas’s child pornography statute facially overbroad for any of the following reasons: (1) because it punishes the possession of pornography involving 17-year-olds who are adults for purposes of engaging in sexual conduct? (2) because it expands the definition of forbidden content beyond that explicitly accepted as child pornography by the United States Supreme Court? (3) because it prohibits possession of images depicting minors engaging in simulated sexual conduct?

Facts. Defendant was charged with possession of child pornography and filed a pretrial writ of habeas corpus raising a facial challenge to the First Amendment legitimacy of Texas’s child pornography statute.

Holding. A statute is facially overbroad and violates the First Amendment if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” The government must justify content-based restrictions on speech by showing the prohibition is narrowly drawn and serves a compelling state interest. (1) No. That a 17-year-old can consent to sex “does not compel the conclusion that the same child can consent to participate in pornography.” Pornography is exploitative and the State has a compelling interest in protecting children from exploitation. Possession of child pornography is not an offense against the child, but rather an offense against the “public decency and order.” Like in the case of prostitution, a public decency and order offense, a prostitute’s consent to sexual conduct does not make the conduct legal. Sister courts have applied similar logic to reject challenges raised against the criminalization of sexual performance by a child which sets the relevant age of a minor at “younger than 18.” (2) No. “the crucial question is on whether the depiction is lewd . . .” Osborne v. Ohio, 495 U.S. 103 (1990). The fact that the Texas statute prohibits lewd exhibition of body parts not specifically contemplated by the Supreme Court in cases where it has analyzed statutes pertaining to lewd exhibition does not render it unconstitutionally infirm. (3) Virtual child pornography (adults who look like minors or computer-generated images of minors) is protected speech. However, the Texas statute does not prohibit virtual child pornography or depictions of individuals who appear to be minors. The Texas statute, instead, prohibits possession of material that depicts an actual child involved in simulated sexual acts.

Strike Force is Not Just For Young Lawyers

I am fortunate. I’m not headed to jail right now. Given a trial date of November 30, and firmly believing we could not receive a fair trial under present circumstances, we filed an edited version of TCDLA’s COVID-19 continuance motion. It was summarily denied without discussion, and a second emergency motion was filed raising the issues that an expert witness was unavailable and that my co-counsel on the case is a severe asthmatic who could not and would not participate until he’d be able to get a vaccine for this virus.

The trial was moved to December 7. I knew that, if ordered to go to trial under COVID restrictions, I could not do my job up to my own standards, and I would not agree to go forward. I would have to commit contempt of court and risk jail, because I could not allow my client to be convicted due to my reluctance to anger the court. With some trepidation, I started to prepare myself for being convicted of contempt.

I contacted the Task Force, and several stellar members—Mark Thiessen, president of the Harris County Criminal Lawyers Association, Nichole Hochglaube, and Mark Bennett all stepped up. Mark Thiessen and Nicole both appeared via Zoom at the emergency continuance hearing, and made their presence known. Knowing lawyers of this caliber had my back was critical in my going forward and insisting that this case could not be tried, and a jury simply could not be selected, under circumstances in which the face of every venire member and witness was concealed. The trial was continued—until April 2021—in the belief that a vaccine can be provided by that time.

I’ve been doing this for more than 30 years now, and I still find the Strike Force to be an essential resource when the going gets tough. None of us can do this work without, occasionally, having to take a stand that risks our becoming the defendant, instead of the defender. And when that occurs, knowing that we’re not alone is invaluable.

Free Speech in Texas

What is speech? What makes a restriction content based? What is substantial overbreadth? Can a substantially overbroad content-based restriction on speech ever satisfy strict scrutiny?

The answers to these questions may become clearer any Wednesday now. The Court of Criminal Appeals is currently considering four overbreadth challenges to the constitutionality of different penal statutes. These challenges may, before this article is published, change the face of free-speech law in Texas.

Meanwhile, this article will provide a broad overview of challenges to content-based restrictions on speech.

Vagueness vs. Overbreadth

First Amendment challenges to content-based restrictions come in two forms: vagueness and overbreadth.

Vagueness

A statute is void for vagueness under the First Amendment if:

  • A person of ordinary intelligence cannot know what is forbidden;
  • There are no determinate guidelines for law enforcement; or
  • The law is not sufficiently definite to avoid chilling protected expression.

Take, for example, Texas’s harassment statute, section 42.07 of the Texas Penal Code. The harassment statute forbids certain speech intended to “harass, annoy, alarm, abuse, torment, or embarrass” another. Expression is chilled not only by the statute’s threat of conviction (because a jury might find that the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass) but also by the threat of arrest (because a police officer might think the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass) and the threat of prosecution (because a prosecutor might think the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass).

Courts assume that when dealing with statutes such as sexual assault of a child, which restrict non-speech conduct based on the actor’s intent, a jury can reliably read an actor’s mind.

But speech is special—the Free Speech Clause itself is proof of that. Society does not have the same interest in preventing the chilling of non-speech conduct that it has in ensuring that protected speech is not chilled.

Even assuming that a jury can reliably read a speaker’s mind, section 42.07 risks chilling speech because whether a person will be arrested or prosecuted for his speech depends not on a jury’s mindreading, but on a police officer’s and/or a prosecutor’s.

A person might beat the rap and not the ride, but the ride is expensive and no fun and for the ordinary speaker, both the threat of the ride and the threat of the rap can chill speech. A restriction criminalizing speech based on the speaker’s intent “…blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.” See Thomas v. Collins, 323 U.S. 516, 535 (1945). Under Texas Penal Code section 42.07, it is the threat of prosecution, and not only the threat of conviction, that will likely cause a speaker to hedge and trim.

The speaker who does not intend to annoy has no way to know that his words will not be misinterpreted. He is at the mercy of the inferences of others who might not wish him well. A distinction based on the intent of the speaker or the speech’s effect on its listeners “…offers no security for free discussion.” See Fed. Election Com’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 468 (2007) (external citation omitted).

Overbreadth

The First Amendment overbreadth doctrine is also intended to prevent restrictions chilling protected speech, but it is not dependent on a lack of clarity. While vagueness is about the person knowing what a statute forbids; overbreadth is about what the statute actually forbids. When it comes to speech, the vagueness argument is basically that speakers can’t determine whether  constitutionally protected communications are prosecutable under the statute at issue. The overbreadth argument is that protected communications are, in fact, prosecutable under the statute but should not be.

Lawyers often confuse vagueness with overbreadth. If a statute seems to restrict protected speech—if it could be used to restrict a real and substantial amount of protected speech—it is not vague, but overbroad.

The Court of Criminal Appeals itself has shown a lack of clarity regarding the difference between vagueness and overbreadth: “[The defendant’s] argument, as we understand it, is that § 42.07 is overbroad on its face because its inherent vagueness makes it unclear whether it prohibits a substantial amount of protected speech.” See Scott v. State, 322 S.W.3d 662, 665 fn.3 (Tex. Crim. App. 2010) (abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)). That is not the argument; that is not what overbroad means.

A content-based restriction that clearly restricts only unprotected speech is valid. A content-based restriction that leaves in doubt whether protected speech is punishable or not is vague. A content-based restriction that clearly restricts a real and substantial amount of protected speech (in relation to its legitimate sweep, the unprotected speech it restricts) is overbroad.

Protected speech is speech outside all recognized categories of historically unprotected speech. States are not free to invent new categories of unprotected speech; they must provide evidence of a longstanding tradition of restricting speech in that category.

So, the overbreadth argument is that the statute, regardless of how ambiguous it might be, forbids speech that is not unprotected.

Returning to the example of Texas Penal Code section 42.07 harassment, while the vagueness argument is that speakers can’t determine whether their speech will be construed as intended to harass, the overbreadth argument is that even speech that is intended to harass (not to mention “annoy, alarm, abuse, torment, or embarrass”) is not unprotected speech, so that the statute by its terms restricts a real and substantial amount of protected speech.

You can see how there might be interplay between these two arguments: one approach courts have taken to save overbroad statutes from overbreadth is to interpret them narrowly—to impose on the Legislature’s words a narrower meaning than the common or legal definition gives them.

Whether rewriting the statute thus is legitimate or not, doing so can convert a statute that was overbroad into one that is vague. While speakers are expected to be familiar with the words of a statute, they are not likewise expected to have read the cases interpreting a statute. So, the fact that the words of the statute alone do not limit the statute’s reach can make the statute itself vague.

Moreover, in Texas, a charging instrument is drafted and a criminal trial jury is instructed according to the language of the statute; there is no mechanism for incorporating narrowing definitions into an indictment, much less a jury charge. Even a defendant who is familiar with the narrowing of an overbroad statute has no guarantee that he will not still be prosecuted and even convicted for his protected speech.

Facial Overbreadth vs. As-Applied Overbreadth

First Amendment overbreadth challenges to statutes can themselves be divided into facial (or as-written) and as-applied challenges.

An as-written challenge makes the argument that, regardless of whether the speaker’s own speech is protected, the statute restricts (based on its content) a real and substantial amount of speech that is protected. An as-applied challenge to a statute is that the speech for which the speaker is being prosecuted (based on its content) is itself protected (that is, not in a recognized category of historically unprotected speech).

As an illustration, defamatory speech is unprotected. If a person is being prosecuted under a facially overbroad or vague statute, but their speech is for some reason unprotected, they might have an as-written but not an as-applied challenge. If a person is being prosecuted under a valid statute, but their speech is protected, he has an as-applied but not an as-written challenge. And if a person is being prosecuted under an overbroad or vague statute for protected speech, they have both an as-written and an as-applied challenge.

As-written challenges can be made pretrial, through either an application for writ of habeas corpus (which can be appealed pretrial) or through a motion to quash (which can only be appealed after a judgment).

Historically, as-applied challenges could only be made in trial because the facts that must be developed to determine whether speech is protected are the same as the facts that must be developed to determine whether the speech violates the statute. Generally, as-applied unconstitutionality challenges were not cognizable in pretrial habeas.

In the Rick Perry case, however, the Texas Court of Criminal Appeals considered the appeal of the then-Governor’s pretrial habeas as-applied challenge to the Abuse of Official Capacity statute. See Ex parte Perry, 483 S.W.3d 884 (2016). The Perry opinion offers two justifications for the cognizability of Perry’s pretrial as-applied challenge. Presiding Judge Keller’s opinion held that Perry’s challenge was cognizable because Perry’s rights would be “effectively undermined if not vindicated prior to trial.” Id. at 895 (footnote omitted).

It is unclear what rights, other than a governor’s right to exercise his veto power, would be cognizable under this rule. For example, intermediate courts have held that the right to free speech is not a right effectively undermined if not vindicated before trial, but it is not obvious that the chilling effect of a pending criminal prosecution on the accused’s right to speak freely does not effectively undermine that right.

Judge Newell, joined by Judges Keasler and Hervey, suggested a different test for pretrial cognizability—a test that might allow a defendant to terminate the chilling effect of a content-based prosecution without the cost and expense of trial. In Judge Newell’s view, “addressing the constitutional claim because the violation is apparent from the pleadings resolves the matter much more cleanly.” Id. at 924.

The Perry split on this issue appears to be the following: Presiding Judge Keller and Judges Yeary and Alcala for the “effectively undermined” rule; Judges Newell, Keasler, and Hervey for the “apparent from the pleadings” rule; Judge Meyers against cognizability for either reason; and Judges Johnson and Richardson not weighing in on the question.

An as-applied challenge under the Free Speech Clause is appropriate when the statute is not facially overbroad, but the defendant’s own speech is constitutionally protected (that is, not in an unprotected category)—in other words, when the statute restricts some protected speech, as exemplified by the defendant’s, but not a real and substantial amount of protected speech. The lesson of Perry’s uncertainty is that, where the constitutional violation is clear from the pleadings (for example, where the sworn Complaint gives enough detail that the court can tell that the accused’s speech is not in fact within any unprotected category), the accused may be able to pursue an as-applied challenge before trial.

Or maybe not. But what does the accused have to lose?

Plenty to Gain

A continuance can be as good as an acquittal for as long as it lasts. If you file a pretrial application for writ of habeas corpus challenging a content-based restriction either as written or as applied to the speech of the accused and the trial court denies relief, you can appeal to the intermediate court of appeals, and from there to the Texas Court of Criminal Appeals. But what happens to the trial-court case in the interim?

As a practical matter, most trial courts want to see legitimate constitutional questions answered before trial and so will not proceed to trial while a habeas appeal is pending. Whether the trial court may proceed to trial while the habeas appeal is pending is an unanswered question.

There have been recent cases from Austin and Beaumont supporting the proposition that a trial court may proceed, but neither case addressed section 11.32 of the Texas Code of Criminal Procedure which provides that once the defendant has appeared in court on the habeas, “he is no longer detained on the original warrant or process, but under the authority of the habeas corpus” until the habeas has been finally determined. See Tex. Code Crim. Proc. § 11.32. If the “original process” is the indictment or information  and a person can only be tried on an indictment or information, if the person is no longer detained on the original process, it stands to reason that he cannot be tried until the habeas is resolved.

It’s an open question, though, and it’s going to have to be litigated in mandamus when a trial court attempts to put a defendant to trial while a viable free-speech challenge is pending, and then possibly taken up to the Texas Court of Criminal Appeals on a Petition for Discretionary Review (PDR).

Is it Time to Defund TJJD’s State Schools?

“There can be no keener revelation of a society’s soul than the way in which it treats its children.”

Nelson Mandela

Adults can’t be trusted to take care of children placed in their custody in an institutional setting.  At least it seems that way in Texas.  It’s not just the recent problems the Texas Juvenile Justice Department’s (TJJD) state school system, it’s the long and sordid history in this State vis-à-vis delinquent children committed to those state schools.

From its inception in 1949, Texas’ state school system for juvenile delinquents (Texas Youth Development Council, Texas Youth Council, Texas Youth Commission, and now, Texas Juvenile Justice Department) has been fraught with scandal and secrecy regarding the abuse of children it its charge.

In the early 1950s for example, allegations of abuse surfaced at the Gainesville school for girls.  During a habeas corpus hearing, one girl testified about how one man beat her with a leather strap while two other men held her.  The 1960s, under the leadership of TYC director James Turman, saw an FBI investigation of the Gatesville school for physical abuse and denial of routine medical care, another investigation of a guard beating a resident into a coma, and a legislative surprise inspection of a state school where the legislators observed residents with bruises, black eyes and swollen faces.

The 1960s also ushered in a golden era of juvenile rights, with the U.S. Supreme Court deciding cases like Kent v. United States, 383 U.S. 541 (1966) and In re Winship, 697 U.S. 358 (1970).  The seminal U.S. Supreme Court case regarding juvenile rights, In re Gault, 387 U.S. 1 (1967), was published in 1967.h, Gault made it clear that children in the juvenile justice system have basic due process rights under the U.S. Constitution.  Among those rights, which we seem to take for granted today, are the right to counsel and the right to have a hearing.   Despite Gault, juvenile courts in Texas were slow to recognize these rights. 

Morales v. Turman

In 1970, 15-year-old Alicia Morales was working and earning $70 per week.  And like clockwork, her father took all but $5 of it each week.  When Alicia got tired of this and refused to cooperate with her father, he decided to punish her by involving the state.  Alicia’s father, El Paso County’s Chief Juvenile Probation Officer, and the County Judge signed an “agreed judgment” committing Alicia to TYC (Texas Youth Council).  The commitment was done without a hearing and without counsel, contrary to Gault’s mandates.  The reason for Alicia’s commitment: she was deemed to be an incorrigible child.

Because that kind of procedure-less commitment was still common in Texas, a class-action a federal class-action lawsuit was filed, with Alicia being one of the named plaintiffs.  The lawsuit was expanded to include abuse occurring at several of the state schools.  What the investigation uncovered was horrific. 

After a six-week trial, Judge William Wayne Justice entered an emergency interim order granting preliminary injunctive relief.  The injunctive relief included such matters as physical force and solitary confinement.  The order contained 32 findings of fact, including:

  1. Correctional officers at Mountain View presently administer, or have in the past administered, various forms of physical abuse, including slapping, punching, and kicking. One form of this physical abuse, referred to as “racking,” consists of requiring the inmate to stand against the wall with his hands in his pockets while he is struck a number of times by blows from the fists of correctional officers. Other abuse consists of correctional officers administering blows to the face with both open and closed hands.
  2. Tear gas and similar chemical substances have been used by agents or employees of the defendants on Mountain View inmates in situations in which no riot or other disturbance was imminent. One inmate, for example, was tear-gassed while locked in his cell for failure to work; another was gassed for fleeing from a beating he was receiving; and another was gassed by a correctional officer supervisor while he was being held by two 200-pound correctional officers. 17. Most or all of these security facilities contain single rooms or cells in which juveniles are, or have been in the past, locked for periods of time as long as a month or more, with no opportunity to leave the cell except for daily bathing, hygiene, and eating. Many juveniles so confined have little or no contact with casework, medical, or psychological staff during the period of their confinement. 20. Inmates in some security facilities have been forced to perform repetitive, make-work tasks, such as pulling up grass without bending their knees or buffing a floor for hours with a rag. During the pendency of this lawsuit, inmates were permitted to adopt a kneeling posture, rather than a bending posture with unbent knees, for the performance of the grass-pulling.

 Morales v. Turman, 364 F. Supp. 166, 170-172 (E.D.Tex. 1973).-172

Fortunately, major reforms came out of this litigation.  The centerpiece of the reforms came in 1973 with the creation of Title 3 of the Family Code, the Juvenile Justice Code.  Professor Robert O. Dawson was the primary draftsman, and many of the concepts and provisions from then are still found in the code today. 

TYC Scandal 2007

During a Texas Senate Finance Committee hearing on February 1st, 2007, Senator Juan Hinojosa asked TYC’s executive director, Dwight Harris, about sex-abuse allegations at the west Texas state school in Pyote.  There were rumors about sex abuse at Pyote, but this was the first time it was spoken of out loud in a public forum.  This was the beginning of another scandal at TYC.

From December 2003, and continuing through February 2005, Pyote’s assistant superintendent used his position over the juveniles to extract sexual favors from them.  He had the authority to shorten or lengthen a juvenile’s indeterminate sentence at the school.  The superintendent would bring juveniles into his office late at night, at times continuing into the early morning, where he would engage in sex acts with them.  Because of the power imbalance, the juveniles had little choice but to acquiesce, lest their stay at Pyote be extended.

These allegations were bad.  The cover-up of and dismissiveness toward these allegations may have been worse.  Although knowledge of the unusual nighttime visits and general unease about the assistant superintendent’s activities made it up the chain of command, the concerns remained inside the Pyote State School’s administration.  It took two juveniles confiding in a volunteer tutor, who in turn reported it to a Texas Ranger, to get law enforcement involved.

Despite the report to the Texas Ranger, nothing happened for the next two years.  Although there was sufficient evidence to press forward with charges, neither the local county prosecutor nor the U.S. Attorney had any interest in prosecuting.  It wasn’t until the story broke two years later, following Senator Hinojosa’s questions in the Senate Finance Committee, that the allegations were treated seriously.

While the Pyote scandal was unfolding, the U.S. Department of Justice was investigating Evins Regional Juvenile Justice Center in Edinburg for violence occurring at that school.  On March 15, 2007, the DOJ wrote a letter to then-governor Rick Perry to report its findings.  In addition to making findings about juvenile on juvenile violence, the DOJ found “an unacceptably high degree of physical abuse of youths by staff at Evins. We also found a disturbing consistency in the youths’ accounts of the use of unnecessary physical restraint and excessive force by many Evins’ staff.”

Other problems at other facilities soon came to light, such as the superintendent at Ayers halfway house in San Antonio shredding files and Coke County Juvenile Justice Center hiring a registered sex offender as a guard.

In response to these problems at TYC, the Texas legislature passed, and the governor signed SB 103 during that very legislative session.  Additional reforms in subsequent legislative sessions were also enacted.  Those reforms were designed to reduce the number of juveniles committed to TYC and provide for improved safety procedures.

Post TYC Scandal 2007

More than a decade after the Pyote and Evins scandals broke and legislative changes putatively fixed the problems, problems still exist within the state school system.  Headlines like “Gov. Greg Abbott ask Texas Rangers to investigate sexual abuse at youth lockups,” “Juvenile Justice Department employee arrested for having sex with inmate at Brownwood” and “Texas juvenile prison officer charged with sexually assaulting teenage inmate in his cell” are still all too commonplace.

The DOJ’s Bureau of Justice Statistics, within the last year, released a report on sexual victimization reported by youth in juvenile facilities.  While nationally, an estimated 7.1% of juveniles reported being sexually victimized, three of Texas’ five state schools, McLennan County State Juvenile Correctional Facility, Gainesville State School, and Ron Jackson State Juvenile Correctional Facility, were ranked among the worst in the country.

After seven decades of existence, is the TJJD state school system working?  Or does a radical change need to happen?  Should Texas take a bold step like California governor Gavin Newsome did this summer when he announced he was defunding California’s juvenile prison system?  The funds that would normally have paid for California’s juvenile prisons will instead be redirected back to the local counties.

Physical and sexual abuse of juveniles seem to be woven into the fabric of TJJD state school system.  The past seven decades have shown that. 

Randal Chance, a retired inspector general for TYC, said during the 2007 scandal “TYC has established a dynasty of corruption that condones the mistreatment of youth in its care.”  State Senator John Whitmire, quoted in a December 13, 2019, article from the Texas Observer: “I think the campuses are out of control, the system’s dysfunctional and very dangerous.  I’m frustrated; I don’t know what it’s going to take. My worst fear is that it’s going to take a loss of life or lives to change it.”

Which begs the question: is it time to defund TJJD’s state schools?

A Better Kind of Wake-up Call

This morning I woke up to happy children, a freshly brewed coffee waiting for me and no bedhead.  And then my alarm went off.  I quickly realized I overslept, the kids were extra cranky and no surprise, my car needs gas.  The truth is my mornings begin with some variation of that quite regularly.  Despite the morning rush, I have found that there is one thing that I can do to get myself back on track and set my day up to be a productive one.  It does not cost anything and fits in your pocket. 

At the height of a particularly stressful part of 2018 (I laugh now as it pales in comparison to 2020), I stumbled across an article touting the importance of starting the morning on a positive note.  With just enough free space on my iPhone, I downloaded the free version of “Unique Daily Affirmations,” on the App Store.  It had a little tie-dye vibe to it and the text and fonts are simple and straightforward.  Certainly, this app would be the first to go once storage got tight, but nevertheless I set up my account and decided to give it a shot for a week.  The concept is simple, every morning a positive message appears by holding down a button.  Then you record yourself repeating the affirmation and play it back.  At first, I laughed at the sound of my morning voice which was less than inspiring and bordered on manly.  But, if we are being honest, by the third time I heard myself saying “I have the power to rise above what is expected of me,” I almost believed it.  And then I saw the time and realized the kids would be eating granola bars because we were now extra late to school. 

Day 2: I avoided playing with the settings and ignored my scary morning voice and told myself, “my possibilities are endless,” three times.   

Day 3: Forgot all about the app and remembered midday, right about the time I was looking for a good excuse to stop working on discovery responses.  What do you know, had to tell myself “I challenge, I work hard, I persevere,” three times?  Discovery responses (mostly) completed. 

And so, it has been since.  Most mornings, right after I curse the alarm, I reach for my phone and go to the affirmations app.  It takes me less than a minute to read the short phrase and play it back.  When it is a particularly inspiring phrase, I save it to the favorites tab and hope it will find its way back to me when I most need it.  There have been days when I feel like I am failing at just about everything and I question if I am capable of being a good advocate for my clients.  On these days, I have found that returning to my morning routine can be quite helpful.  I sit at my desk, close my door, and repeat the words of the day to myself three times.  Pro tip: a few deep breaths at the end really drive it home. 

On a particularly damaging day of testimony during my last trial, I skipped the restroom break and pulled out my phone for some words of encouragement.  I ignored all the text messages waiting for me, umpteen emails screaming about the work I was behind on, and went straight for the affirmations app.  “Today I will be proud of who I am,” popped up on my screen.  In that moment, I was most definitely not proud of who I was.  I felt like I was failing my client and his punishment would be life in prison.  I had missed some good shots with the last witness and my cross failed to produce anything helpful to our defense.  I was tired and hungry.  And now, I had skipped my bathroom break to tell myself something I did not believe in that moment.  I put my phone down and slumped into my chair, defeated and with a full bladder.  A few seconds ticked by painfully slow and then I compulsively reached for the phone again.  The app was still open, and the words stared back at me: Today I will be proud of who I am.  In the empty courtroom, I whispered the words to myself three times.  Then another three just for good luck. 

The Bailiff returned, asked if I was ready and then sent for my client and the jurors.  The next witness took the stand and then another.  I can not say that I had a brilliant cross examination or that the State’s witnesses were slaughtered for being self-serving hypocrites, but I did get in a few zingers.  I had gotten into my own head and convinced myself that I was not good enough, but with a few simple words, I had found just enough something in the privacy of my phone to pull me through and get back to defending my guy. 

It sounds cheesy, I know.  And if you are still reading this article, it is probably because you forgot to bring your phone into the restroom.  But hear me out, the loudest voice you will hear is your own.  It is the one that tells us we are either good enough or not.  Too many times, we use our words to undermine ourselves.  How often do you make a careless mistake and then proceed to follow up with, “I’m such an idiot”?  I spilled some coffee on my shirt right before Zoom court today and then called myself a dumbass.  Salt, meet Wound.  These mishaps are human.  Missing a deadline is bound to happen.  The point is that hearing yourself say hurtful things afterwards only magnifies the mistake and makes it harder to get back on track.  We are often very quick to criticize ourselves but slow to praise. 

There are lots of free apps available that promote mindfulness and positive thinking.  Whether you start your day with repeating an affirmation, or repeat a phrase as needed, reminding yourself that you believe in you can have a lasting effect.  Taking a few minutes to say something positive to myself has changed the way I approach my inner conversations.  I find it harder to say, “I’m so stupid,” after making a mistake now.  I am more aware of my own voice.   

I encourage you to turn up the volume on your own voice and speak kinder to yourself.  In the courtroom and in life, you are capable and worthy.  Now say it three times.

Get Back to Where You Once Belonged: TCDLA Declaration Readings July 2, 2021

It is early July. The morning is crisp and cool in the Texas town. Just before 9 o’clock, people converge from all directions, mingling on the shady west lawn of the courthouse square. Nearby, a historic whitewashed gazebo is the meeting place for a dozen or so well-dressed local attorneys.

A young lawyer curls her baby in her arms as an older lawyer shoos his toddler grandson from the makeshift stage. Children seem to be everywhere, running across the expansive grassy space with little American flags. Clerks, judges, and prosecutors file out from the courthouse to join the multitude for the familiar annual patriotic ceremony.

A man stands tall before the gazebo and proudly announces the reason for the gathering. He leads the crowd in the Pledge of Allegiance. “God Bless America” follows, performed by a talented young lawyer in a dazzling blue dress. A few tears are dabbed away.

The lawyers take turns reading the paragraphs of the great document. Some readers are talented orators, powerful advocates familiar to all. Others have lesser voices, but even the small children are silent, spellbound by the majesty of the message.

Another lawyer in a blue dress belts out a rousing rendition of “This Land is Your Land,” with everyone joining the chorus and clapping hands. Kids dance. There are hugs and group photos, interviews from the local media and salutations all around. Everyone is excited to do it all over again next year.

But next year is 2020. The pandemic hamstrings TCDLA’s great tradition of sponsoring local readings of the Declaration of Independence. Many local criminal defense lawyers are able to stage modified readings, mindful of health concerns. It is certainly not the same.

Meanwhile, the pandemic kills more than half a million Americans. What it can never kill is the American quest for liberty. The principles enunciated in the Declaration of Independence are eternal for all Americans.

By July 2021, it seems likely the TCDLA Declaration readings will return to normal. It is a chance for Texas criminal defense lawyers to publicly champion liberty and individual rights.

The founder of this wonderful tradition—Robert Fickman of Houston—will join me in coordinating statewide readings again this year. Those of you who have been involved in the past—you know who you are—will soon be contacted with information about the 2021 readings.

Visit TCDLA.com to see county coordinators. Email  to be added. Watch the 2020 TCDLA Declaration Video.

Please join us in honoring our nation’s most sacred document in the spirit of independence.

COVID-19 and the End of DWI Breath Testing

Think about the ways our society has changed since the onset of the COVID-19 pandemic. What kind of messages do you hear? What do you see? Do you hum “happy birthday” as you wash your hands a hundred times a day? Many people are now wearing masks and gloves for protection from the virus and some even do so when they are alone in their own cars. The Center for Disease Control and Prevention (CDC) has laid out guidelines that recommend us to practice “social distancing” by staying at least six feet away from other people while in public; and we’ve all become familiar with the taped lines in the middle of grocery store checkout lanes that indicate proper spacing. COVID-19 has changed the way our everyday lives look, but I cannot help but think about how all these changes, particularly, are going to impact DWI breath testing.

Our clients have two options when it comes to consenting to the government’s quest to obtain evidence of ethanol in the client’s system: blow or bleed. Many people, me included, are deathly afraid of needles and would opt for the less invasive and much quicker approach of providing a breath sample. For some people, providing a breath sample feels much safer than providing a blood sample, or at least it did in the past. Now, all I can think about is how dangerous the process of taking a sample of a person’s breath has become during COVID – for both the person blowing into the breathalyzer and the officer taking the sample.

Who is our Client?

As we always do with this type of work, must consider whether our clients are immunocompromised, whether our clients are on certain types of medications that may suppress their immune system, and our clients’ lifestyles. Some researchers have found that COVID-19 could be disproportionately affecting people from black, Asian, and minority ethnic communities.1 We also know that the criminal justice system seems to disproportionally target low-income people and black and minority ethnic communities. Many of our clients have little access to healthcare, masks, or gloves. Many of them are not able to work from home or keep their children out of childcare facilities. Some of our clients have recently been forced to be in unsafe settings like hospitals, jails, halfway houses, or homeless camps where they could easily have been exposed to COVID-19 or picked up other diseases that could compromise their immune systems. We know that our clients are living in a fluid, changing world and that many of them are high-risk for COVID-19 exposure, and worse, COVID-19 complications. 

COVID-19

The CDC suggests COVID-19 will infect the human body through the nose, throat, and lungs. These are exactly the areas used to submit a sample into the breath machine. The CDC reports COVID-19 can spread from one infected person to another by respiratory droplets from a person sneezing or coughing. The CDC also reports that aerosolized droplets exhaled by an infected person’s breath may also transfer the disease. Touching or shaking hands with someone who is infected, and touching your mouth, nose, or eyes without properly washing your hands or using a disinfectant will increase the probability of COVID-19 spread.

Breath Testing

Considering how COVID-19 is transmitted between people, how can we possibly justify breath testing at this time? To highlight just how dangerous breath testing is during the current pandemic, let’s walk through the standard process of breath testing.

Breath tests are often administered in a small room with very little ventilation inside of a jail. By design, the officer who administers the test must stand within six feet of the subject providing the specimen. The breath test machine is equipped with an attached tube that has a disposable mouthpiece for each person who will blow into the device. The officer will either hold the tube to the subject’s mouth while the subject blows for a required amount of time, or the officer will instruct the subject to hold the tube themselves.

Where are the safeguards to prevent the spread of COVID-19? Is disposing of the mouthpiece between subjects sufficient to prevent infection? It is likely not. A closer analysis of the process illustrates the ability of the virus to live in the hose of the breath machine and within its chamber. To obtain a “valid” breath sample, each subject is required to blow into the hose of the machine for approximately seven seconds. In these seven seconds, the aerosolized particles of breath and droplets of saliva will enter the tube and stay there. To prevent transmitting the disease from one subject to another, the breath test technician would have to dismantle the machine to completely disinfect it. Considering the number of DWI arrests made on any given day, this does not seem feasible and the spread of COVID-19 could become rampant from only one source of equipment within a community.

In the process of collecting a breath specimen, the breath test operator is at risk for COVID-19 infection just as much as our clients. The more times the operator touches the machine, the more they increase their chances in becoming infected and the potential chain reaction of transmitting the disease to others becomes significant. 

Conclusion

The intent of this short piece was to highlight that an area of evidence collection that has already become technologically obsolete (did you know all they’re really measuring is how much light is passed through when someone breathes into the machine?) is now also extremely dangerous.  Yes, this may mean we will have more blood cases. Yes, I am still afraid of needles. That being said, as a defense attorney, I would rather make the government actually prove a defendant’s blood alcohol content (BAC) through scientifically validated lab testing than allow them to continue pushing cheaper, less accurate, and now dangerous breath tests. I hope this article highlighted the need for reform in this area of the law. Be well out there, and don’t blow.

A Memorial: Roy Minton, 1931-2021

I was an outsider to the Red Brick House when I was asked to join in late 2000. Randy Leavitt and Martha Dickie had inquired and I jumped at the opportunity. Soon thereafter, I was trying a murder case in Georgetown with Roy and realized I had been invited to work with one of the very best to advocate in a courtroom. We succeeded in getting a lesser manslaughter verdict much to the chagrin of John Bradley who took a little steam out of us with a 20 year sentence from the jury. That is one of many predictable stories you might hear from many lawyers who worked with him over the years. He was awesome to watch preparing for trial as much as performing at trial.

Some of the less publicized qualities of Roy Q. Minton: He detested profanity (though he threw in an occasional “god dammit”); He was very liberal politically and he didn’t hesitate to tell the Republicans he represented (often saying, “You need to know, I’m a Democrat – A LIBERAL Democrat!); He adored Barbara – always stopping whatever meeting or phone call to walk her to the car when she came by the office; He doted over his 5 children and loved working with sons in the practice; He was not a fan of organized religion but was a “spiritualist” – often talking to me about those moments where “the invisibles” gave him a helping hand – in and out of the courtroom; He set fees too low – especially in his latter years (Often joking – “There is a point in your career where your rate should go DOWN!”); He and Charlie Burton would sleep on courthouse benches to hustle court appointments in the 60s, when a fee was difficult to get in Austin; He adored his pets – one time stopping a meeting with a high profile client because Barbara was out of town and he had to go feed the dog;  He loved to fly – a former military pilot, he truly enjoyed flying his twin engine Baron;  He had an awesome sense of humor (sometimes, in the middle of trial – he’d look at my worried face and say “You just want to try the easy ones?”); and – despite his reputation as a ruthless litigator/defender – I observed him to be kind and warm hearted, very accepting of people from all walks of life.

For me, this is a moment to pause and be grateful to have worked with him. More importantly, it is a moment to be remember that he taught me more about life than about law.

Attorney-Client Disagreements: Who’s the Decider?

Against the vast resources and authority of the State in an asymmetric adversarial process, it’s easy for a criminal defense lawyer to feel powerless sometimes. But criminal defense lawyers hold enormous power over our clients’ lives. By the time citizens accused engage a criminal defense lawyer or have one appointed, most have already lost a substantial amount of liberty and autonomy. If they aren’t incarcerated, they’re likely on bond or under other restrictions. They’re on the hook to appear for court dates that they didn’t choose. We speak for them in court and in other communications, and we counsel and advise them on what choices and decisions to make in some of the most important situations they will ever face.

There exists a very real risk that we wield our power according to what we believe is in our clients’ best interests, not what our client believes is best. Our duty is to learn and advance the objectives of our clients using the general methods decided by the clients. Tempered by other duties under the law and with our consciences as the touchstone, the law says our clients remain the deciders in all fundamental decisions related to the representation.

As a matter of ethics, the Texas Disciplinary Rules of Professional Conduct outline the categories of decisions on which the client is the ultimate authority in Rule 1.02: “[A] lawyer shall abide by a client’s decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; [and] (3) in a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.”

The rules establish a floor, not a ceiling. Merely because these rights are explicitly listed, it does not follow that the remaining decisions are reserved for the attorney alone. The specific client decisions fundamental to liberty and protected under the Constitution are more expansive, and they may be wildly different from case to case.

Criminal lawyers often think of the objectives of representation in terms of distributive justice, that is, the result—the verdicts and sentences handed down. The client’s autonomy interest, however, extends far beyond the realm of distributive justice and may, in fact, have nothing to do with distributive justice at all. Violation of that autonomy violates substantive rights, to be sure, but it also violates core tenets of procedural justice and undermines the key to maintaining the legitimacy of the legal system.

Being mindful not to impose or infringe upon a client’s autonomy to decide the objectives and methods of representation is even more important for appointed counsel representing people who are indigent. Without the freedom to contract or choose their own attorney, people who are indigent already lack the autonomy of their wealthier counterparts. Telling an indigent citizen accused of a crime “that his lawyer has the power to decide the theory of the defense, and that his lawyer has the power to concede his guilt to lesser-included offenses ‘can only lead [the defendant] to believe that the law contrives against him.’”

When given the sacred duty of protecting one of our fellow citizen’s freedom, we’ll serve them best when we understand freedom entails far more than a trial result or number of years on a sentence. As Lawrence v. Texas explains, “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Another case out of Texas, Roe v. Wade, makes clear that some decisions are so personal that the right to make those decisions is Constitutionally protected by the right to privacy, which is fundamental and “implicit in the concept of ordered liberty,” and the Constitution protects as a fundamental right the ability to make unimpeded decisions about personal matters related to marriage, procreation, contraception, family relationships, and child rearing and education.

The nature of choices belonging to the client without infringing on their fundamental liberties are broad and sometimes abstract. “The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.”

Practice Principle: Know your role (at any given time). We wear many hats, each requiring different considerations.

All of this does not mean that a criminal defense lawyer has no power over representation decisions. In the role of advocate, the lawyer controls trial management matters. The Supreme Court recognizes that ceding some power to the trial lawyer is “a practical necessity.” “The adversary process could not function effectively if every tactical decision required client approval.” In addition to Texas rules in accord, the ABA Criminal Justice Standards for the Defense Function also make clear, “Defense counsel is the client’s professional representative, not the client’s alter-ego. Defense counsel should act zealously within the bounds of the law and standards on behalf of their clients, but have no duty to, and may not, execute any directive of the client which violates the law or such standards.”

The big decisions, however, belong to the client. At the time the Constitution was drafted, “The right to counsel, far from being seen as a means for undermining defendant autonomy, instead was intended, like the other trial guarantees in the Constitution, to provide defendants themselves with a necessary tool for making and acting upon the most well-informed decisions.”

Avoiding conflict in the attorney-client relationship when it comes to the allocation of decision-making authority isn’t always easy; but taking a client-centered approach with a healthy dose of humility can go a long way toward easing tensions with the highly-involved and highly-autonomous client. Taking an approach that recognizes the clients as more than the facts of their case builds trust, which can often lead to the fruitful kind of working relationship that prevents conflict from arising. 

Practice Principle: Be a patient teacher. If you’re having trouble getting through to a client, bring in help from someone who might be able to reach them. It might be family, a colleague, a counselor, clergy, or another trusted agent; but make every effort to make the client’s concerns heard and make every effort to help the client obtain complete and accurate information in a way that they can accept and understand it.

Though criminal defense lawyers are called upon to be zealous advocates for our clients, we also have a duty to fill various other roles in service to our clients. Providing the effective assistance of counsel that the Constitution demands requires it. For even the busiest of trial lawyers, some of the most important work a criminal defense lawyer ever does is entirely off the record, confidential, and never subject to scrutiny by any oversight authority except the lawyer’s own client. While much attention is given to our role as advocate, the role of counselor and advisor to our clients is integral to the guarantees of the Sixth Amendment. This private role gives us the unique task of protecting our clients’ fundamental right to secured autonomy.

A client’s objectives are often placed into conflict with one another. Similarly, a client’s objectives may be tempered and limited by the methods they’re willing to employ to accomplish the objective. The “lifeblood of the law” is respect for the individual. Every individual client is going to have hopes, dreams, aspirations, and a sense of who they are and who they want to be that is unique to the individual. And just as lawyers must use their own consciences as the touchstone for guiding their actions, so too must clients use their own consciences as their touchstones. As counselors, it’s our duty in our role as counselors to help them through the process in ways that exceed mere advocacy.

Practice Principle: A client may have more than one objective of the representation. Objectives of representation are not often as simple as “win at all costs” or “get the lowest sentence possible.”

To use just one example of how competing objectives might present themselves in a concrete way, consider the following hypothetical:

The client refuses to admit guilt to a heinous crime, even though he’s certainly facing a conviction and 25 years if he goes to a jury. If he takes a plea, he’s out on time served with probation. The client’s lawyer informs him of all the risks, shares a candid assessment of the likelihood of going to a jury, and educates the client about the reality of coercive plea-bargaining tactics and about the realities of the trial penalty designed to deprive him of his day in court. But the client simply cannot say he did something he didn’t do. The prosecutor continues to take a hard line and won’t budge with the coercive plea bargaining. The client’s preference is to avoid a trial if at all possible because he doesn’t want the public spectacle and humiliation, and the client is risk averse and is seriously tempted to take the offer regardless of the facts.

Many clients simultaneously desire the objective to maintain innocence and the objective to secure the benefit of a plea bargain in the face of overwhelming evidence or in the face of coercive plea practices. It would be a challenge to find a criminal defense lawyer who was unfamiliar with clients pleading guilty simply to get out of jail, regardless of guilt or innocence.

How can the criminal defense lawyer help the client best meet the client’s competing objectives when the objectives are so incompatible? Educate the client on the possibility of pursuing an Alford plea. If the client decides that’s the best method to achieving his competing objectives, pursue that method of resolving the case.

And certainly, there is no explicitly stated Constitutional right to an Alford plea (yet), and the court may not be obligated to accept an Alford plea or a plea of nolo (yet), but considering the client has a right to personal autonomy and to choose the objective of his defense, it would follow that a client at least has the right to be made aware of an Alford plea as an option to pursue as a possible means to achieve both of his competing objectives—in other words, even if the court is not required to allow an Alford plea, the client has a right to ask.

In Texas, an Alford plea is implemented through a plea of nolo contendere, which has the legal effect of a guilty plea. Though a plea of nolo contendere in Texas has the same effect in the criminal proceeding as a plea of guilty, it is a plea expressly allowed by statute that carries important distinctions from a plea of guilty. A plea of nolo contendere cannot be used against a party in any potential future civil suits arising out of the same accusations. More importantly, a defendant might be able to obtain the benefit of a guilty plea while maintaining innocence and not admitting guilt, which may best achieve the client’s objectives of representation.

We would all do well to remember that the choice on how to plead is not a binary choice of guilty or not guilty. And the choice to admit guilt or concede guilt is a separate and distinct choice from the decision to plead, and it is no less protected by the Constitution. Justice Ginsberg made clear in McCoy v. Louisiana that when it comes to choices about how to plead and whether to maintain innocence or admit guilt, “These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.

When it comes to the “more transcendent dimensions” of liberty under our Constitution, our clients depend on us getting to know them in a concrete way on an abstract level. If we can’t do that with our own clients, what hope do we have of helping the prosecutor, judge, or jury do the same?

Current Issue: May 2021

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Features

9 | Strike Force is Not Just For Young Lawyers – By Paul C. Looney
16 | Free Speech in Texas – By Mark Bennett
19 | Is it Time to Defund TJJD’s State Schools? – By Rubén V. Castañeda
24 | A Better Kind of Wake-up Call – By Savannah Gonzalez
26 | Get Back to Where You Once Belonged: TCDLA Declaration Readings July 2, 2021 – By Chuck Lanehart
27 | COVID-19 and the End of DWI Breath Testing – By Jason Sosa
29 | A Memorial: Roy Minton, 1931-2021 – By Sam Bassett
33 | Attorney-Client Disagreements: Who’s the Decider? – By Matthew Hefti

Columns

5 | President’s Message
7 | Executive Officer’s Perspective
8 | Editor’s Comment
10 | Ethics and the Law
11 | Chapter & Verse
12 | Federal Corner
32 | Shout Outs

Departments

4 | CLE Seminars and Meetings
36 | Significant Decisions Report