Monthly archive

June 2021

June 2021 SDR – Voice for the Defense Vol. 50, No. 5

Voice for the Defense Volume 50, No. 5 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

The Court of Criminal Appeals removed two people from death row this month. But it remains possible that one of them might have preferred to stay there. The Eighth Court of Appeals explores what happens when you mix marijuana with toilet water. Harris County defense lawyers are not letting up on District Attorney Ogg… and this month’s musical reference is brought to you by Madonna. This is my sixth month as SDR editor, and it has thus been a lot of work and a lot of fun! Let me know if you see anything I have missed or that needs more attention.

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

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided. Cases are hyperlinked and can be accessed by clicking on the case name on the online edition.

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

United States Supreme Court

Jones v. Mississippi, 141 S. Ct. 1307 (2021)

Issue. Miller v. Alabama and Montgomery v. Louisiana prohibit a trial court from imposing a mandatory life-without-parole sentence on children who committed their offense while under the age of 18 and may only do so after determining the defendant is permanently incorrigible. Does this requirement (1) impose a duty to make written findings of incorrigibility? (2) impose a duty to make an on-the-record sentencing explanation with an implicit finding of incorrigibility?

Facts. When the defendant was 15 years old, he got into an argument with his grandfather and stabbed him to death. At the time of his conviction, the State of Mississippi required, and the trial judged imposed, a mandatory life without parole sentence. This sentence was reversed when the Supreme Court handed down Miller v. Alabama, 567 U.S. 460 (2012), which provided that the Eighth Amendment prohibits mandatory life-without-parole sentences for defendants under the age of 18. The Mississippi Supreme Court ordered new sentencing and instructed the trial judge to exercise discretion in selecting an appropriate sentence. The trial court heard argument on why not to impose life-without-parole, then, acknowledging its discretion, imposed a life-without-parole sentence. The instant appeal pertains to the trial court’s failure to make a specific fact finding that the child is “permanently incorrigible.” According to the defendant, this factual finding is mandated by Montgomery v. Louisiana, 577 U.S. 190 (2016).

Holding. (1) No. Neither Miller nor Montgomery requires an explicit factual finding that a child is permanently incorrigible prior to imposing a life-without-parole sentence. They explicitly state the contrary. “Miller mandated only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a life-without-parole sentence.” “Montgomery then flatly stated that Miller did not impose a formal factfinding requirement and that a finding of fact regarding the child’s incorrigibility . . . is not required.” Incorrigibility is not an “eligibility factor” akin to cases involving potential insanity or lack of intellectual disability where the court must make specific findings of eligibility for death sentencing. Incorrigibility is a mitigating circumstance akin to individualized mitigating circumstances which must be considered in capital cases which are done without the requirement of factual findings. (2) No. Defendant’s argument that pronounced on-the-record findings is required to assure actual consideration of incorrigibility assumes a distinction which does not exist. “But if the sentencer has discretion to consider the defendant’s youth, the sentencer necessarily will consider the defendant’s youth, especially if defense counsel advances an argument based on the defendant’s youth.” Neither Miller nor Montgomery requires recorded findings. Again, this is akin to the consideration of individual mitigating circumstances in a death sentence case where the fact finder does not need to articulate their rationale. The Defendant has a lot of good arguments for why he shouldn’t be sentenced to life-without-parole and he should present them to the state legislature or the governor.

Concurrence (Thomas, J.). The majority reaches the correct result through a strained reading of Montgomery and Miller. “If Montgomery is correct about the existence of a concrete class of offenders who—as a matter of fundamental constitutional law—are categorically exempt from a sentence of life without parole, then there must be a determination as to whether Jones falls within that protected class. Otherwise, the “line” Miller ostensibly drew . . . between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption is more fanciful than real.” The Court should either follow Montgomery, “[o]r we could just acknowledge that Montgomery had no basis in law or the Constitution.” Thomas would do the latter and allow states to execute more children because that is their prerogative.

Dissent (Sotomayor, J.). “In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of those rare children whose crimes reflect irreparable corruption. Even if the juvenile’s crime reflects unfortunate yet transient immaturity, he can be sentenced to die in prison.” This is contrary to the explicit holdings of Miller and Montgomery where the court determined the rule, a substantive rule, for which mere sentencing discretion provides inadequate protection. “How low this Court’s respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the ‘rule of law,’ ‘critical to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.’” Ramos v. Louisiana, 590 U.S. —- (2020)(opinion of Kavanaugh).

Comment. Some have found Justice Kavanaugh’s authorship of this opinion ironic after he presented himself as the poster child for how a person can change after high school when he faced a senate confirmation focused almost entirely on conduct as a young man.

Fifth Circuit

United States v. Navarro-Jusino, 993 F.3d 360 (5th Cir. 2021)

Issue. Is a sentence 87 months above the sentencing guideline range unreasonable for a defendant who stole $500,000 from a victim through a fraudulent investment fund, who caused his victim exceptional hardship, and who minimized his conduct in an allocution by describing his conduct basically as bad business decisions?

Facts. Defendant defrauded his victim and stole his $500,000 of life savings through a fake investment fund. The victim was forced to sell his possessions and to live in government housing. Defendant pleaded guilty, and during sentencing the victim gave a victim impact statement. The trial judge asked what the victim wanted, and the victim’s response was “I hope he gets enough where . . . I’ll feel justified in your sentencing.” The trial court informed the parties he was considering an upward variance (an above-sentencing-guideline sentence) and asked for argument. The defendant addressed the court and characterized his crime as “misusing funds and making a mistake, by mingling business with personal on that account,” he explained that he invested the money in a gym that failed and concluded his statements by promising to pay the victim back. The government challenged the defendant’s minimization as just a different version of fraud – investing the victim’s money in something he didn’t authorize. The trial court sentenced the defendant to 120 months (an 87-month upward variance).

Holding. No. An above-guidelines sentence is unreasonable if it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors. The defendant is correct to characterize his 87-month variance as large, but it was justified. His conduct devastated the victim and he tried to minimize his crime, “essentially pure theft,” as a mistake and as bad business decisions. This is enough to justify the upward variance of 87 months.

Comment. This is a short read for any client who thinks it’s a good idea to use their allocution to explain what really happened in their case.

United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021)

Issue. Now that prisoners may file their own motions for compassionate release through the First Step Act, is a U.S. district court bound by the U.S. Sentencing Commission’s pre-First Step Act policy statement regarding Bureau of Prison (“BOP”) compassionate release motions when the compassionate release motion is filed by a prisoner, instead?

Facts. Defendant filed a request for compassionate release describing the prison in which he was held as “a cauldron of disease and death” during the COVID-19 pandemic. He indicated that one in four inmates at FCI Elkton has been infected with COVID-19. He also indicated that he had been infected, taken to a hospital to recover, and now fears reinfection as an at-risk inmate with a weakened immune system. The district court pointed to a pre-First Step Act policy statement of the U.S. Sentencing Commission to determine it did not have jurisdiction to consider the prisoner’s motion for compassionate release.

Holding. No. First, the trial court did have jurisdiction. Statutorily mandated factors for consideration in the exercise of judicial discretion are not congressional delineations of district court jurisdiction. To the extent the trial court would have applied the same rationale in considering the merits of the prisoner’s compassionate release motion under 18 U.S.C. § 3582, the trial court further erred by relying on a pre-First Step Act policy statement by the U.S. Sentencing Commission. Congress has provided that compassionate release is appropriate where: (1) extraordinary and compelling reasons warrant such a reduction, (2) such a reduction is consistent with applicable policy statements issued by the Sentencing Commission, and (3) such a reduction is appropriate after considering the factors set forth in 18 USC 3553(a) (factors of consideration for discretionary sentencing). Congress delegated to the Sentencing Commission the obligation to define “extraordinary and compelling reasons.” The Sentencing Commission has seen fit to do so only once, and during a time when only the BOP could bring a compassionate release motion. In that statement, the Sentencing Commission explained that extraordinary and compelling reasons could include: (A) medical conditions, (B) age, (C) family circumstances, and (D) other reasons. But, again, his policy statement explicitly applied to motions brought by the BOP. The First Step Act changed this dynamic by allowing a prisoner to file a compassionate release motion under certain circumstances. This is what occurred here. And because this was a prisoner motion and not a BOP motion, the Sentencing Commission’s policy statement is irrelevant. On remand the trial court should consider the merits of the defendant’s motion based on the normal factors of judicial discretion in sentencing under 18 U.S.C. § 3553 and statutory guidance for compassionate release under 18 U.S.C. 3582.

Comment. On remand, this motion will most assuredly be denied as there does not appear to be much that a trial court would logically consider in absence of the Sentencing Commission policy statement.

United States v. Huerta, No. 20-50343 (5th Cir. Apr. 21, 2021)

Issue. Can a U.S. district court apply the four-point sentencing guideline enhancement applicable to possession of a firearm “in connection with another felony offense” when a defendant is convicted of possession of a firearm as a felon, but evidence showed the defendant’s possession coincided with uncharged conduct indicative of drug trafficking?

Facts. Police responded to a called about a person with a gun at the Super 8 Motel and found the defendant to be that person. They also discovered several associates of the defendant to have guns and drugs in their possession, as well. One associate indicated that he and the defendant had come to motel to inquire about their purchase of 15 pounds of methamphetamine. One individual, who had not come to the motel with the defendant, and her associate was found to be in possession of 81.6 grams of methamphetamine.

Holding. The sentencing guideline enhancement for possession of firearm “in connection with another felony offense” applies where the firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia. In considering this enhancement the district court may consider “(A) all acts and omissions committed, aided, abetted, [etc], willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity . . . all acts and omissions of others that were . . . reasonably foreseeable in connection with that criminal activity.” USSG § 1B1.3(a)(1). The defendant came armed with the tools of the trade of drug trafficking and was found with a firearm near 81.6 grams of methamphetamine discarded by her associate near another associate who had nearly $10,000 in cash. Although the associate who possessed the methamphetamine did not come to the motel with the defendant, the defendant came to the motel to engage in conduct pertaining to drug trafficking. This was sufficient to justify the four-level enhancement.

Texas Court of Criminal Appeals

Martin v. State, No. PD-0563-19 (Tex. Crim. App. 2021)

Issue. When firefighters put out a stovetop fire and observe drugs and guns in the course of ventilating an apartment, do exigent circumstances and community caretaking justify police entry to keep firefighters safe from the drugs and guns?

Facts. Firefighters responded to a small stovetop fire in defendant’s apartment. During efforts to ventilate the apartment firefighters observed in plain view: (1) a torch, (2) little plastic baggies, (3) an unmarked jar of pills, (4) a glass object with some residue inside it, (5) numerous lighters and/or butane lighter fluid, and (6) multiple firearms. Concerned for their safety, the firefighters contacted law enforcement. When law enforcement arrived, firefighters indicated that they would be unable to finish ventilating the apartment until police performed a “safety check.” The responding officer entered the apartment without consent and performed a protective sweep to check for threats. During the protective sweep the responding officer observed the same items observed by firefighters. He also observed a baggie with a white crystal-like substance. Moments later, narcotics officers arrived, and they too went into the apartment to see all the things. The narcotics officers applied for and obtained a search warrant leading to the discovery of methamphetamine. Appellant filed a motion to suppress arguing that the fire had been extinguished, the apartment had been fully ventilated before the officers’ arrival, and the exigency had subsided.

Holding. It is an exception to the warrant requirement that “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. Kentucky v. King, 563 U.S. 452 (2011). A fire creates an exigency, and that exigency does not end “with the dousing of the last flame.” “[W]here fire or police officials enter a structure during or in the immediate aftermath of a fire to conduct legitimate duties connected to the original exigency of the fire, no search warrant is required. Here the exigency was ongoing. The fire chief informed the responding officer of “various safety concerns that had arisen while firefighters were still working on the scene” and asked for a safety check. Objectively, and from the officer’s vantage point, the safety check was necessary to assist firefighters in their completion of ventilating the apartment. The Court declined to extend the “step into the shoes” doctrine where an officer may step into the shoes of the firefighter who observed contraband and then seize that contraband. The court of appeals expanded this doctrine to the present scenario where the officer stepped into the shoes of the firefighter not to seize evidence, but rather to make an observation for the purpose of preparing a search warrant. The Court also declined to invalidate the search warrant based on the argument that it was completed by a much-later-arriving narcotics officer who entered seemingly without justification and made his own observations. When excising from the warrant affidavit that officer’s observations, the affidavit still contained probable cause. 

Comment. This is a logical result, but it blurs the lines of exigent circumstances and community caretaking exceptions. There are two elements to the exigent circumstances exception: (1) exigency and (2) probable cause. If the State does not adequately establish both probable cause and exigent circumstances, then the warrantless entry will not withstand judicial scrutiny. Guitierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Community caretaking on the other hand permits an officer to conduct community caretaking functions, “totally divorced from the detection, investigation or acquisition of evidence.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706 (1973). An exigency may inform the necessity of community caretaking, but an exigency by itself does not justify warrantless search and seizure.

Curlee v. State, No. PD-0624-20 (Tex. Crim. App. 2021)

Issue. Does a playground on the premises of a church and surrounded by a chain link fence constitute a “public” playground for the purposes of a drug-free zone enhancement to a drug possession charge?

Facts. Defendant was visiting a friend at the jail when a series of events lead to a vehicle inventory search producing methamphetamine. The jail parking lot where the vehicle was parked was located 547.38 feet from a church with a playground. The playground was surrounded by a chain link fence with some locked gates some unlocked gates. Defendant was convicted of possession of a controlled substance in a drug free zone (a playground). His challenge to the sufficiency of the evidence focused on whether the playground was “open to the public” as required by the statutory definition. The playground in question was on the premises of a church, was surrounded by a chain link fence, with some locked gates and some unlocked gates.

Holding. A playground for purposes of a drug-free zone enhancement must be “open to the public.” Whether a playground is fenced-in is not dispositive of this analysis. Nor is the existence of locks on gates. The apparent expectation of the playground owner when objectively viewing the property is dispositive. Fences and gates inform the analysis. “Absent other evidence, the presence of a fence tends to show that the playground is closed to the public. If other evidence is presented showing, directly or circumstantially, that the fence serves a purpose other than keeping the public out, the fence may be probative evidence tending to show that the playground is ‘open to the public.’” Here, multiple gates were locked, including the gate adjacent to the public sidewalk. The Court was unpersuaded by several of the State’s arguments and theories:

    • Analogies to the definitions of “public” under the trespass and burglary statutes.
    • The police officer’s lay witness but conclusory opinion that the playground was open to the public.
    • The open welcoming nature of churches (mini-comment: this made me laugh).
    • The attractive nuisance doctrine.
    • Legislative history suggesting the intent of the legislature was to enhance possession of drugs in places “where children are known to gather.”

Concurrence (Keller, P.J.). The court digs too deep. Would hold that public playgrounds are open to the public and private playgrounds are not open to the public.

Dissent (Yeary, J.). The cops said it was open to the public. The exhibits showing locked gates were taken after the offense. The evidence was not monolithic, and the jury was free to determine this playground was open to the public.

Comment. I’m picturing a prosecutor lamenting this loss; crumpling up trial exhibits and throwing them into a fire while comforting himself with the memories of a simpler time—finding solace of the nostalgic melody of Madonna’s “This used to be my Playground.”

This used to be my playground [enhancement] This used to be my childhood dream
This used to be the place I ran to
Whenever I was in need of a friend
Why did it have to end?

Madonna, This Used to be my Playground (Sire Records, 1992).

Becerra v. State, No. PD-0804-19 (Tex. Crim. App. 2021)

Issue. Does trial counsel waive objection to the participation of a thirteenth juror in deliberations by failing to object when the alternate juror entered the jury deliberation room unbeknownst to trial counsel?

Facts. The bailiff discovered that the alternate juror had entered the jury deliberation room and participated in jury deliberations. Further hearing showed that the juror also voted with the other jurors on their verdict. The trial court removed the juror, admonished the remaining jurors to disregard his participation, and to resume deliberations. Defendant moved for a mistrial which the trial court denied because he failed to object at the moment the juror entered the room (before anyone knew that the juror had entered the room). The jury returned a guilty verdict 40 minutes later.

Holding. Article V, Section 13 of the Texas Constitution and Articles 33.01, 33.011, and 36.22 of the Code of Criminal Procedure prohibit an alternate juror to participate in deliberations with the jury as a thirteenth juror. The defendant need only object when a violation comes to his or her attention. “Requiring otherwise would compel a defense attorney, after closing arguments, to follow the jury outside the courtroom, through doors, hallways, and perhaps other architectural features depending on how the particular courthouse is designed, finally reaching the jury room door for the purpose of counting the number of jurors before the jury begins deliberations.”

Comment. When the trial court informed counsel that he had to object to the fact before he knew about it, counsel said “well there goes another waiver on my part.” I feel ya’ brother. We all do.

Martinez v. State, No. PD-1215-19 (Tex. Crim. App. 2021)

Issue. Is a confession sufficiently attenuated from statutorily deficient warrantless arrest when the surrounding circumstances show that the police arrested the defendant in the middle of the night, cuffed him when he requested counsel, and the defendant reengaged in interrogation seemingly in response to his unlawful arrest?

Facts. Defendant was 18 years old and suspected of involvement in a murder. Investigators came to his home in the middle of the night and took him to the police station for interrogation. Defendant’s mother informed him that she would get him a lawyer to represent him during interrogation. After reading defendant his Miranda rights, defendant invoked his right to an attorney. Officers immediately arrested him, without a warrant, and cuffed him to a bench in a holding cell. 15 minutes later, while handcuffed to a bench in a holding cell, defendant decided he would tell officers details about his involvement in the murder. At a hearing on defendant’s motion to suppress, officers testified vaguely that they believed they had probable cause without defendant’s statements. Defendant testified he was terrified, he didn’t know what was going on, and he thought his lawyer was on the way when he decided to reengage in the interrogation. On appeal, the State conceded that the arrest of the defendant did not meet the statutory requirements for warrantless arrests under Chapter 14 Code of Criminal Procedure. The court of appeals determined that the defendant’s confession was sufficiently attenuated from this statutorily unlawful arrest.

Holding. No. “Even when a statement is found to be voluntary under the Fifth Amendment, its admissibility under the Fourth Amendment must still be considered.” Here, the arrest was illegal—it failed to satisfy the pre-requisites of warrantless arrest under Article 14. To determine whether a confession is “sufficiently attenuated” from an illegal arrest, four factors apply: “(1) the giving of Miranda warnings, (2) the temporal proximity of the arrest and the confession, (3) the presence of intervening circumstances, and (4) the flagrancy of the official misconduct.” Citing, Brown v. Illinois, 422 U.S. 590 (1975). The court of appeals misapplied the third factor (finding defendant’s re-initiation of interrogation a significant circumstance) and the fourth factor (finding lack of flagrancy in violating a mere Article 14 statutory arrest requirement and not a constitutional one). The record here shows that the defendant was motivated to reengage in interrogation by the fact that he was arrested for murder. Defendant’s arrest was unlawful and surrounded by flagrantly abusive misconduct. The existence of probable cause can attenuate the egregiousness of police misconduct, but here the only evidence of probable cause flows from statements by the accused that were rendered ineligible for consideration by virtue of his unlawful arrest. Defendant’s arrest and handcuffing to a bench immediately upon his invocation of counsel and the middle-of-the-night circumstances “seemed designed to cause fear, surprise, and confusion for the purpose of getting a confession.” Because it was a result of misconduct, defendant’s act of reengaging was not of his own free will and not an intervening circumstance.

Ex parte Riles, WR-11,312-01 (Tex. Crim. App. 2021)

Issue. Must a death sentence be reversed because the jury did not receive a separate mitigation instruction regarding the Defendant’s mental health.

Facts. This is a fourth post-conviction writ of a death row inmate who raised an insanity defense at trial. He presented evidence at trial from family members detailing his mental illness and schizophrenia. The jury sentenced him to death, without receiving a mental health mitigation instruction. Before the State could kill him, he was found incompetent, and the Court of Criminal Appeals stayed his execution.

Holding. Yes. Penry v. Lynaugh requires that a jury receive a separate mitigation-focused instruction regarding mental health when called for by the evidence. 492 U.S. 302. This did not occur in the instant case. Habeas is granted and the sentence of death reversed.

Dissent (Slaughter, J.). Removing Riles from death row violates his personal autonomy. Riles has been living on death row for forty years, incapable of execution due to his incompetence. There is no indication that, with his diminished capacity, Riles has knowingly consented to representation of an attorney trying to reverse his sentence of execution. “While I recognize that mentally incompetent applicants deserve zealous representation and it seems unfair if they are unable to obtain such representation because they lack the capacity to give informed consent, it nevertheless is highly improper and potentially violative of personal autonomy to permit litigation to proceed when it is unclear whether an applicant has any awareness whatsoever of the filing or of its possible consequences.” Riles might prefer to stay on death row with the hope this court never finds him competent enough to kill than face the alternative of going back to Harris County Jail and bounce back and forth between the jail and the state hospital. Riles might also prefer to stay on death row than be released and potentially be jobless or homeless.

Comment. Umm . . .

Ex parte Garza, No. WR-78, 113-01 (Tex. Crim. App. 2021)

Issue. Did counsel render ineffective assistance of counsel by delegating the duty to investigate punishment evidence to the defendant’s mother and failing to uncover substantial evidence of childhood trauma and mental health issues?

Facts. Habeas applicant was sentenced to death for a gang-v.-gang robbery turned murder. He presented evidence in this writ of habeas corpus that his attorneys at trial were ineffective for not conducting adequate punishment investigation. The applicant presented evidence showing his first attorney did not conduct any mitigation investigation and his second attorney delegated the duty to investigate to his mother who called some witnesses and arranged their meetings with the attorney. The various failures of counsel, as alleged, included: not hiring a mitigation expert, not hiring an investigator, not hiring a mental health expert for investigation, not gathering social history documents, not uncovering incidents of significant and complex childhood trauma, not reviewing available psychological evaluations conducted in his teens. According to the applicant he suffered an extremely traumatic childhood with serious mental health disorders. Applicant presented substantial evidence corroborating his claims. Applicant also presented evidence showing most of this information was contained in readily available documents at the time of trial. Trial attorneys presented affidavits indicating that their punishment strategy was to show that applicant, as a captain in his gang, planned a drug robbery which resulted in trigger-happy gang members shooting and killing other rival gang members. This, according to the trial attorneys, together with the fact that the applicant was not present at the shootings, mitigated his culpability. Trial attorneys stated they interviewed applicant and his family members and reviewed the prosecutor’s file which included psychological and medical evaluations. Through their investigation they saw no evidence of childhood trauma or mental health disorders, but they also made minimal or no inquiry into the matter. Applicant’s lead attorney indicated that he did not feel the case required much mitigation in light of the defense he intended to pursue.

Holding. Yes. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Wiggins v. Smith, 539 U.S. 510 (2003). Here, counsel relied almost completely on the applicant’s mother to conduct a mitigation investigation. She told a story of applicant’s upbringing in a light favorable to herself. Nobody investigated on applicant’s father’s side of the family. Counsel plowed forward after mother failed to produce school records and after several red flags presented in psychological and medical records contained in the State’s file. Counsel’s open-ended questions of family members in group settings were not sufficient to develop mitigation evidence. No evidence suggests that either counsel was qualified to decide for themselves whether applicant had mental illness or dysfunction without the expert assistance. “[A]n attorney’s failure to uncover and present voluminous mitigating evidence at sentencing is not a reasonable tactical decision where counsel has not ‘fulfilled their obligation to conduct a thorough investigation of the applicant’s background’” Citing Wiggins. Applicant was prejudiced by trial counsel’s failure. However, “[t]his is a close case.” “Trial counsel’s punishment case was underwhelming.” There is a stark contrast between the voluminous evidence of childhood trauma now before the court and that alluded to by trial counsel in opening but not proven. The jury may have been persuaded by evidence of applicant’s PTSD, his chronic depression, his suicidal ideations, and his Fetal Alcohol Spectrum Disorder.  On the other hand, aggravating evidence including criminal and disciplinary history and gang leadership was substantial, but the balance of considerations favor granting relief.

Dissent (Keller, J.). The mitigating evidence not presented at trial but shown now does not overcome the significant aggravating evidence. “If the evidence Applicant has now presented is enough to entitle this gang-leading, lifelong-criminal, murderer of six to a new punishment hearing, it is hard to imagine it being insufficient in any case.”

Ex parte Mallet, No. WR-90, 986-01 (Tex. Crim. App. 2021)

Issue. Did defendant establish his actual innocence sufficient to merit habeas corpus relief?

Facts. [None stated in the majority opinion].

Holding. Yes.

Concurrence (Richardson, J.). Detective Gerald Goines of the Houston Police Department committed perjury in this case and in others. Based on the detective’s expense reports and testimony of other officers, there is compelling evidence that this purported pre-arranged drug-buy with the defendant never occurred. It is also telling that Detective Gerald Goines invoked his Fifth Amendment privilege against self-incrimination in a connected case. “While Applicant did enter a guilty plea, this Court has explained that ‘[t]he decision to plead guilty . . . may be influenced by factors that have nothing to do with the defendant’s guilt.” “A police officer’s deceit, perjury, and continued wrongdoing lie at the heart of this case. This Court’s precedent and complete lack of evidence here demand actual innocence relief. Anything less will subject Applicant to further unfair treatment, including but not limited to potential enhancements on other charges and difficulties obtaining employment. As the final arbiter of criminal cases in Texas, this Court cannot stay silent in the face of such unmistakable injustice.”

Comment. Should dirty cops be named in appellate opinions? Judge Richardson appears to believe they should. So do I.

Allen v. State, No. PD-0203-19 (Tex. Crim. App. 2021)

Issue. (1) Is the statutory prohibition against dual convictions for a Continuous Sexual Abuse of a Young Child and an individual sexual offense of the same child occurring in the same period a prohibition tethered to the time-period of continuous abuse alleged in the indictment? (2) Was it appropriate for the court of appeals to try and make both convictions work by shortening the period of continuous abuse based on an intervening period where abuse happened out-of-state?

Facts. Defendant was convicted of Continuous Sexual Abuse of a Young Child (COA affirmed), Indecency with a Child by Contact (COA affirmed), and Indecency with a Child by Exposure (COA reversed). The State alleged the Continuous offense occurred between October 1, 2009 and August 15, 2012. The State alleged the Indecency by Exposure occurred on October 1, 2012. The State alleged the Indecency by Contact occurred on September 25, 2009. The State showed at trial that defendant made his step-daughter touch his genitals over his clothes about once a month until Summer of 2009 before the family moved to Iowa. The abuse escalated to digital penetration, but this occurred in Iowa. The family moved back to Texas in 2011, and defendant made the victim touch his genitals over his clothes a couple more times and then the abuse stopped. The court of appeals found no evidence in the record to support Indecency by Exposure. The court of appeals also modified the trial court’s judgment to reflect what it believed the accurate offense date for Indecency by Contact—December 2011 (instead of the October 2009 offense date entered by the trial court). Because this placed the Indecency by Contact offense within the period of Continuous Sexual Abuse alleged by the State, both the State and the defendant filed motions for rehearing arguing that the conviction as reformed violated double jeopardy. Instead of changing the individual indecency by contact offense date a second time, the court of appeals issued a substitute opinion indicating that the Continuous Sexual Abuse offense was confined to the period of time between 2008-2009.

Holding. (1) No. The statute criminalizing Continuous Sexual Abuse of a Young Child provides:

(e) A defendant may not be convicted in the same criminal action of an [individual sexual offense] the victim of which is the same victim as a victim of the [Continuous Sexual Abuse offense] unless [individual sexual offense]:

(1) . . .
(2) occurred outside the period in which the offense alleged under [the Continuous Sexual Abuse provision] was committed; or
(3) . . .

The phrase “was committed” controls. It does not matter whether the individual sexual offense occurred inside or outside the period of time alleged in the indictment. “We hold that in determining whether a defendant may be convicted for a continuous abuse offense and an [individual sexual offense] in the same criminal action and against the same victim, the proper consideration is whether the evidence shows the [individual offense] occurred outside the period that the continuous abuse offense was committed.” (2) No. “The court of appeals improperly excluded the December 2011 incident from the continuing abuse period.” The fact that the family moved to another state where abuse continued and then only a little bit of abuse occurred on their return to Texas does not break the “continuous” nature of the abuse—much of which occurred in 2008-2009 and some of which occurred in December 2011. This was “the same long, continuous offense.” Thus, the conviction for the individual offense falling within the proven continuous period violates the statutory prohibition. The individual sexual offense conviction—Indecency by Contact—is vacated.

Comment. The TDCAA summary on this same case indicates that this is not a double jeopardy case but merely a violation of Penal Code § 21.02. I would think it is both. Under a double jeopardy analysis, legislative intent controls whether a person can be convicted under two separate provisions for the same conduct. The double-dipping in this case being explicitly prohibited by the Penal Code it is both a violation of both the statute and the Constitution.

Harrell v. State, No. PD-0985-19 (Tex. Crim. App. 2021)

Issue. Does the corpus delicti rule which prevents convictions based on confessions to imaginary crimes require the State to prove the identity of the driver in the DWI case with non-confession evidence?

Facts. A 911 caller reported a minivan driving erratically. The caller followed the minivan to a gas station, told the dispatcher where the vehicle parked, relayed the license plate information, but did not describe the driver. When police arrived minutes later, the engine was off, defendant was in the driver seat with the seatbelt buckled, and two intoxicated passengers in the back. Neither passenger implicated the defendant, but the defendant admitted he had been driving.

Holding. No. “In cases involving extrajudicial confessions when ‘beyond a reasonable doubt’ is the burden, not only must the evidence be legally sufficient under Jackson but also it must tend to show the corpus delicti of the offense.” The corpus delicti rule requires the court to look at non-confession evidence to determine whether there is evidence that ‘essential nature’ of alleged offense was committed. “The purpose of the corpus delicti rule is to prevent convictions based on confessions to imaginary crimes.” Here, the court of appeals erred in using the corpus delicti rule to render acquittal based on the lack of non-confession evidence establishing the defendant was the driver of the minivan. Identity of the driver is not part of the corpus delicti of a DWI. The fact that the non-confession evidence tended to show that someone in the minivan was operating the vehicle when 911 was called and defendant—later determined to be intoxicated—was discovered in the driver seat with the vehicle turned off was sufficient corpus delicti of DWI.

Miranda v. State, No. PD-1340-18 (Tex. Crim. App. 2021)

Issue. Where a teacher admitted to sexually assaulting three of his students over the course of a year, but the State only presents corroborating evidence at trial he sexually assaulted two of them, may the State maintain their conviction in the case of the third student under the “closely-related offenses” exception to the corpus delicti rule (prohibiting convictions based on confessions to imaginary crimes)?

Facts. Defendant, a high school teacher and coach, admitted to the school’s investigator that he had sex with PV, KR, and IG. At trial, the only victim to testify was KR. IG’s father testified about a love letter he found from defendant to his daughter. The jury acquitted the defendant of charges relating to IG, but convicted on charges relating to PV and KR, including the charges of sexual assault pertaining to each minor. The court of appeals reversed the convictions pertaining to PV pursuant to the corpus delicti rule requiring some corroboration of the defendant’s extra-judicial confession.

Holding. Yes. The corpus delicti rule is a sufficiency of evidence rule pertaining to a defendant’s extra-judicial confession. It requires evidence corroborating a defendant’s confession sufficient to show the “essential nature” of the offense is somewhat more probable than it would be with defendant’s confession alone. One exception to the strict application of the corpus delicti rule arises when the defendant is charged with multiple, closely-related offenses. In this scenario, the corpus delicti rule is not applied in an individual case if the corpus delicti is shown in some of the cases. The Court of Criminal Appeals has applied the “closely-related offenses” exception only once previously in Miller v. State, 457 S.W.3d 919 (Tex. Crim. App. 2015). Miller involved a series of offenses spanning 27 days. The court of appeals declined to apply the exception in the instant case because defendant’s conduct spans nearly a year. However, temporal relationship is not the only consideration in this analysis. “The sine qua non of the inquiry is whether the relationship between the crimes is sufficiently close to avoid admitting a confession for a crime that did not occur.” Here the evidence showed that the defendant engaged in a course of conduct involving the use of his position of authority and grooming female students. He used the same tactics and modus operandi in each offense. “[W]e are satisfied that the offenses are sufficiently closely related to alleviate any concern that the crimes against P.V. were never committed.”

Concurrence (Yeary, J.). “Today the Court continues along a jurisprudential course of extending, yet again, a court-invented common-law exception to the court-invented common-law doctrine known as the corpus delicti rule . . .” Jackson v. Virginia is the standard for sufficiency. “I would exercise our prerogative to simply jettison [corpus delicti].”

Comment. Judge Yeary made it clear last month in his concurrence in Ex parte Thomas that stare decisis is not a particularly high priority. But, how far does a fidelity to a philosophy of judicial restraint which abhors court-invented rules go? Complex and unforgiving rules of error preservation and harm analysis which sometimes unjustly penalize the accused are “court-invented rules.” The same which can be said about corpus delicti can be said about waiver of error which occurs when trial counsel fails to move for a mistrial after a sustained objection, doesn’t object using the right words, or whose objection is overruled but fails to request a running objection. “Neither Texas statutes nor any recognized constitutional principle of due process or due course of law requires the rule.” Food for thought.

Loch v. State, No. PD-0894-18 (Tex. Crim. App. 2021)

Issue. Is a defendant’s plea involuntary when the trial court fails to admonish him on immigration consequences where evidence strongly corroborated guilt and the instant conviction probably didn’t make him any more susceptible to deportation than he already was?

Facts. Defendant pleaded guilty to murder before a jury and was sentenced to life imprisonment after a jury trial on punishment. The trial court only gave defendant perfunctory pre-plea admonishments and completely omitted any reference to the possibility that immigration consequences could arise from his conviction. At the time he entered his plea, defendant had six prior convictions, including Aggravated Assault with Deadly Weapon, Burglary of Habitation, and Neglect of Child. Defendant stipulated to these prior convictions in the punishment trial. Penitentiary packet evidence also reflected that immigration had previously filed an ICE detainer against him in Florida in 2005. The record was unclear what ever came of the government’s previous attempt to deport the defendant.

Holding. No. Texas Code of Criminal Procedure Article 26.13(a)(4) requires the trial court, prior to accepting a guilty plea, to admonish the defendant that a conviction could result in potential immigration consequences. However, the failure to give such an admonishment is subject to harmless error review. This analysis is informed, but not controlled by the “fair assurance” rule. “The Court has said in the past that the important question . . . is, considering the record as a whole, do we have a fair assurance that the defendant’s decision to plead guilty would not have changed had the court admonished him?” A “fair assurance” inquiry looks to: (1) whether an appellant knew the consequences of his plea; (2) the strength of the evidence of an appellant’s guilt; and (3) an appellant’s citizenship and immigration status. Here, the evidence of defendant’s guilt was quite strong—multiple witnesses testified that defendant had confessed to them. And the existence of multiple prior felonies probably means that the defendant is not “appreciably more susceptible to deportation now than he was before he entered his guilty plea in the instant case.” Despite the trial court’s failure to admonish the defendant, the other considerations weighed sufficiently in favor of finding a fair assurance that defendant’s decision to plead guilty would not have changed with the benefit of proper admonishments. The trial court’s failure to admonish the defendant was harmless.

Comment. I guess that answers my previous question.

1st District Houston

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

2nd District Fort Worth

James v. State, No. 02-19-00427-CR (Tex. App.—Ft. Worth, Apr. 22, 2021)

Issue. (1) In a family violence prosecution may the State detail a history of violence between the defendant and the victim without violating Texas Rule of Evidence 404(b) (prohibiting use of crimes and other bad acts to show character conformity)? (2) Is detailing the history of violence by the defendant upon the victim substantially more prejudicial than probative? (3) Is a social worker sufficiently qualified to testify as an expert on the cycle of violence when that social worker has never met the victim, never published or reviewed scholarly articles on domestic violence, never testified as an expert, and does not provide counseling to domestic violence victims and rarely meets with them in her profession? (4) When a domestic violence victim has been consistent in her accusation, is present for trial and testifies, and has not recanted, is expert testimony on the “cycle of violence” relevant?

Facts. Defendant was convicted of Violation of Protective Order and a felony Assault Family Violence. At trial, the State introduced extraneous offense evidence over defendant’s objection. The victim’s sister testified that she had seen indications of abuse in the past, that the defendant broke out her front door and windows to get into her home where her sister had sought shelter and had once discovered her with her hands and feet bound by the defendant. The officer responding to the forcible entry testified to confirm the police department’s investigation into the sister’s allegations matter. Another officer testified regarding an occasion where the victim had flagged him down in a gas station and sought help getting away from the defendant. And yet another officer testified to a previous incident involving the defendant punching the victim in the temple multiple times at a restaurant. The victim testified about the escalation of verbal, emotional, physical and extreme sexual abuse she suffered during her relationship with the defendant. She testified that the defendant forced her to become addicted to crack cocaine and forced her to steal things to sell for drug money. The victim shared specific instances of conduct detailing her experiences with the defendant. The State also introduced expert testimony on the “cycle of violence” and “power-and-control wheel” over defendant’s objection.

Holding. (1) Yes. Texas Code of Criminal Procedure Article 38.371 permits either party to offer evidence of relevant facts and circumstances to determine whether a family violence offense occurred, “including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.” Article 38.371 acts as an additional non-character-conformity purpose for which evidence of other crimes and bad acts is admissible under Texas Rule of Evidence 404(b). (2) No. The court applies the Gigliobianco v. State factors when considering a challenge to the trial court’s 403 balancing: (1) probative force, (2) need for evidence, (3) tendency to suggest decision on improper basis, (4) tendency to confuse or distract, (5) tendency that the jury will give undue weight, (6) time consumption. 210 S.W.3d 637. Here the evidence was probative because it was all in close time proximity to the alleged offense, showed the defendant’s intent, and rebutted his theory of fabrication. Because no one witnessed the instant offense there was a particularized need to show other similar offenses that were witnessed. The seriousness of the other bad acts (rape, sodomy, torture) did pale in comparison to the offense of prosecution and may have suggested an improper decision by the jury, but this problem was cured by a limiting instruction. There was no suggestion that the evidence misled the jury or caused undue delay. (3) Yes. Despite the deficiencies noted by the defendant, the domestic violence expert had a master’s degree in social work, was the director of various departments of a domestic violence victim advocacy organization, had worked with approximately 1,000 domestic violence victims, taught “domestic violence 101” and other courses, and indicated that she understood the cycle of violence and power-and-control wheel. This is good enough to satisfy the requirements of expert qualification under Rule 702. (4) Yes. “James’s arguments that the evidence is not relevant are unavailing. He cites no authority for the proposition that experts can testify about domestic violence only when the victims refuse to testify, recant, or reunite with their abusers.” Here the evidence was relevant to show the dynamics involved in all of the bad things that the defendant did to the victim over time.

Comment. Although the evidence in this case seems to strongly suggest that the victim was in a cycle of domestic violence, and the cycle of violence testimony offered relevant value to the prosecution, the precedent of allowing cycle of violence experts becomes problematic in much weaker prosecutions. It is common to see a domestic violence expert offered to clean up the testimony of a legitimately discredited complaining witness, or one who didn’t even testify. Here, the defendant makes a novel argument that a victim who testifies, and who has never recanted or changed his or her story, renders cycle of violence evidence irrelevant. That makes sense to me. Here, the cycle of violence evidence provided a lot of expert evidence to help jurors contextualize defendant’s other bad acts and crimes and put even more undue focus on the offenses which the defendant was not charged with. The court validates this problem as a pro and not a con.

Fuller v. State, No. 02-20-00101-CR (Tex. App.—Ft. Worth, Apr. 29, 2021)

Issue. When the State causes 34 months of delay waiting on DNA testing and a defendant asserts speedy trial rights but ultimately acquiesces in trial resets, is a defendant’s right to speedy trial denied?

Facts. Defendant was convicted by a jury of capital murder. The facts at trial showed the defendant and co-defendant entered the home of the victim in the evening of October 9, 2016, shot and killed the homeowner and a guest, then returned the next day, seemingly to clean up the scene. A car chase ensued following the defendant’s flight from the victim’s home on the second day and the defendant was captured. On him was a firearm matching the caliber of the bullets used to kill the victims and $4,000 in cash. After his arrest, the defendant made several inculpatory statements on jail phone calls during the pendency of his case. The case then proceeded as follows:

    • December 2016 – indicted
    • December 2016 – State and defendant announced ready for trial
    • November 2017 – potentially favorable defense witness died
    • May 2018 – first trial setting (without objection from defendant)
    • March 2018 – State discovered untested DNA and requests continuance
    • Unknown – second trial setting
    • November 2018 – defendant demanded then withdrew speedy trial demand
    • February 2019 – third trial setting
    • February 2019 – DNA testing incomplete State and defendant announced not ready
    • March 2019 – defendant reasserted his desire for speedy trial
    • March 2019 – State represented DNA testing will be complete by July 2019
    • October 2019 – fourth trial setting
    • July 2019 – State represented DNA testing would be complete by August 2019
    • October 2019 – defendant requests continuance based on newly provided evidence
    • March 2020 – fifth trial setting
    • February 2020 – defendant urged motion to dismiss for speedy trial violation

Holding. A speedy trial claim is analyzed pursuant to the Barker v. Wingo factors: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of right, (4) prejudice. 407 U.S. 514. The court found the three years of delay more than adequate. The State was to blame for 34 months of delay due to unreasonable delays in DNA testing, but the Defendant was to blame for 6 months of delay due to the need to evaluate undisclosed evidence. The delay attributed to the State was mere negligence and not willful delay by the prosecution. Defendant’s assertion of the right is murky. On several occasions he demanded a speedy trial, but then never urged a ruling, never objected to the trial court’s failure to rule, and acquiesced multiple times to the trial court’s reset. The defendant could not claim prejudice from the loss of a witness in 2017, prior to any demand for speedy trial. Nor was the fact that this witness could offer one inconsistency in the case particularly important. Defendant was recorded confessing to his girlfriend and the evidence was damning.

Comment. The opinion is internally inconsistent. The court notes in its analysis of prejudice how damning the non-DNA evidence was. Then the court finds that the delay by the prosecution to wait on the seemingly unnecessary DNA evidence was mere negligence. If the non-DNA evidence was damning, then the need to wait on DNA evidence was minimal or non-existent. This is the definition of willful delay: “I choose to delay because I want to put a little cherry on top of this prosecution.”  

3rd District Austin

Navarro v. State, No. 03-19-00278-CR (Tex. App.—Austin, Apr. 29, 2021)

Issue. (1) Does a trial court err by explaining reasonable doubt in its charge as a standard which does not require the prosecution to prove guilt beyond all possible doubt? (2) Is a defendant entitled to an accomplice witness instruction in a prosecution for engaging in prohibited but compelled sexual conduct with his daughter?

Facts. Defendant was convicted of sexually assaulting his older daughter when she was a child and convicted of prohibited sexual conduct with his younger daughter when she was 17 years old. Testimony showed that the defendant physically and psychologically abused both daughters throughout their childhood and that they acquiesced to his assault in fear. The trial court explained reasonable doubt in its jury charge by telling the jury that the prosecution did not have to prove its case beyond all possible doubt. Absent from the charge was a discussion about the accomplice witness rule’s prohibition on convicting a defendant based solely on the testimony of an accomplice. The defendant neither objected to the reasonable doubt explanation nor the purported omission of the accomplice witness rule from the jury charge.

Holding. (1) No. Although precedent from this Court previously found reversible error in a case involving the inclusion of an identical not-all-possible-doubt instruction, the precedent has been implicitly overruled by the Court of Criminal Appeals in Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004). Woods explicitly sanctioned the use of a not-all-possible-doubt explanation of the beyond-a-reasonable-doubt standard. Even independently of the Woods decision, the court would not find that the “definition” constituted an improper comment on the weight of evidence as the defendant characterizes it. The Court of Criminal Appeals has declined to find that a trial judge improperly comments on evidence absent the trial judge singling out a particular piece of evidence for special attention. Here the trial judge did not single out any evidence, but merely explained the reasonable doubt standard. (2) No. The accomplice witness rule prohibits conviction based on the testimony of an accomplice witness without some additional evidence tending to connect the defendant to the offense. A person who consents to incestuous intercourse is an accomplice witness. Bolin v. State, 505 S.W.2d 912 (Tex. Crim. App. 1944). However, if the intercourse is the result of force, threats, fraud, or undue influence, there is no accomplice relationship. Here, the evidence showed that the defendant was psychologically and physically abusive toward his daughters and that they lived in fear of him. Although Defendant’s younger daughter was 17 years old at the time the intercourse occurred, evidence did not establish that she was an accomplice because she did not engage in the intercourse voluntarily.

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

Osorio-Lopez v. State, No. 16-18-00197 (Tex. App.—Texarkana, Apr. 23, 2021)

Issue. Can a criminal defendant represent himself pro se in a competency trial?

Facts. After a six-month period of competency restoration, the trial court found the defendant competent to stand trial based on a psychiatric evaluation. Three days prior to trial, counsel filed a motion to withdraw indicating his inability to communicate with the defendant. In a hearing on the motion to withdraw, the defendant remained fixated on the fact that counsel did a bad job representing him previously in Ft. Worth. Neither counsel nor the trial court could convince the defendant that his present counsel was a different person than the one about which he was complaining. Nonetheless, the trial court denied the motion to withdraw and proceeded to trial. Following voir dire, trial counsel filed a motion for continuance, again citing an inability to communicate, and made a new request for a competency evaluation. The trial court denied both requests, proceeded to trial, and got reversed in an opinion where this court abated the instant appeal with an order conduct a retrospective competency trial. On remand, the trial court permitted the defendant to proceed without counsel after the defendant made several confusing statements which were variations of the following: “I want to be my own judge, my own attorney to listen to the rules to see if I’m competent for that to return under oath.” In the competency trial, the trial court admitted the competency evaluation indicating that the defendant was competent to stand trial. The trial court heard testimony from the defendant’s translator who indicated that defendant’s behavior was a product of his Honduran culture. And finally, the trial court heard testimony from the elected district attorney who indicated that from his observations he believed the defendant was competent. The defendant had two questions for the district attorney: “are you competent to say in court that you were accusing me with Mr. Michael that was in Fort Worth when he had the last court in Fort Worth?” and “Are you competent here to stand here to say that you were competent to say that I had a hearing in Fort Worth, a hearing there in Fort Worth?”

Holding. No. The Sixth Amendment and Article I Section 10 of the Texas Constitution guarantees the right to counsel in criminal proceedings, including competency hearings. A defendant similarly has the right to self-representation after certain strict admonishments. However, that right to self-representation is inapplicable to a competency trial. The trial court was not in error to permit counsel to withdraw, but new counsel should have been appointed.

Comment. I wonder if the district attorney forgot that the pro se potentially incompetent defendant got a chance to cross-examine him after giving Leslie Nielsen-esque “nothing to see here move along” direct examination testimony.

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

David v. State, No. 08-18-00059-CR (Tex. App.—El Paso, Apr. 12, 2021)

Issue. (1) Is a person’s mere presence in a locked bathroom where drugs have been dumped into the toilet sufficient to hold that person criminally responsible for the act of tampering with evidence? (2) Does mixing marijuana with feces and urine by throwing it into the toilet and not flushing constitute “alter” for the purpose of tampering with evidence?

Facts. Narcotics agents obtained a no-knock warrant for defendant’s hotel room. After making entry they discovered two individuals and they could hear the defendant in the locked bathroom shuffling around. They forced the bathroom door open and discovered defendant fully clothed standing between the shower and the toilet. Officers observed what appeared to be marijuana in the toilet but declined to collect it. Officers neither collected the marijuana nor the toilet water and instead claimed the marijuana was contaminated with urine and fecal matter.

Holding. No. In a tampering with evidence prosecution the State must prove that the defendant altered, destroyed, or concealed evidence while knowing an investigation was in progress or that an offense had been committed. The act must be done with intent to impair its use for subsequent investigation or proceeding. Here, the State charged the three individuals inside the hotel room with the same tampering offense. No officer observed anyone throw the marijuana into the toilet. All three individuals had access to the bathroom. Officers did not hear flushing while the defendant was in the bathroom despite ample opportunity for the defendant to have flushed. Officers did not know how long the marijuana had been in the toilet, but they did know the defendant had only been in the hotel room for a matter of minutes prior to their execution of the search warrant. (2) No “We have not uncovered any case that has found marijuana mixed with water, albeit toilet water, has modified the marijuana and rendered it useless.” And here the State failed to present expert testimony to indicate this is the case. “Common sense tells us that water does not necessarily alter everything it touches.” The cops just didn’t want to pick it out of the gross toilet. This does not meet the definition of “altered.”

Comment. Is this what Snoop Dogg meant by “real sticky-icky-icky?”

9th District Beaumont

Dugar v. State, No. 09-19-00098-CR (Tex. App.—Beaumont, Apr. 7, 2021)

Issue. Is an officer objectively reasonable in conducting a maintain-a-single-lane stop when he observes a driver fail to maintain a single lane but does not observe anything unsafe about it.

Facts. Defendant was stopped for at 1:40 AM for straddling two lanes. The arresting officer who conducted the traffic stop testified that no other vehicles were on the road and given this fact, the defendant’s drifting across his lane did not pose a danger to anyone. Defendant moved to suppress the resulting DWI investigation arguing that the Texas Transportation Code’s requirement to maintain-a-single-lane provision is not violated until a lane divider is crossed and it is done unsafely. Tex. Transp. Code § 545.060(a).

Holding. Yes. In a plurality opinion, the Court of Criminal Appeals interpreted Texas’s maintain-a-single-lane statute as a law which is violated when either: (1) a driver does not maintain a single lane, or (2) when a driver changes lanes when conditions are not safe to do so. Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016)(plurality opinion). Because this is merely a plurality opinion, and the intermediate courts are split on what proof is required to establish a maintain-a-single-lane violation, the relevant question is whether the stopping officer was reasonable.

Comment. The court discusses its own precedent in Erhart v. State, 9 S.W.3d 929 (Tex. App.—Beaumont 2000). In Erhart the court unequivocally stated that the maintain-a-single-lane statute requires proof of failure to maintain a lane and unsafe conditions. The court cites this fact, taken together with the fact that the Court of Criminal Appeals subsequently did nothing to disrupt the Erhart holding as proof of muddy waters. This is confusing logic.

10th District Waco

In re Fields, No. 10-21-00066-CR (Tex. App.—Waco, Apr. 7, 2021)(not designated for publication)

Facts. Defendant, a TDCJ inmate, needs paperwork for his pro se post-conviction defense and the trial court won’t give it to him. He filed this mandamus.

Holding. Denied.

Concurrence (Gray, C.J.). Defendant is requesting the search warrant and blood alcohol report used to convict him. He claims they were not provided to him in discovery prior to his conviction. He has asked the district clerk, he has asked the district attorney, and he has asked the district judge (who is now a justice on this court of appeal). He has offered to pay for copies. “In sum, this mandamus proceeding appears to involve about a dollar’s worth of copies and postage. Yet here we are.” “The former trial court judge is now a justice on this court and was required to recuse himself from participating in this proceeding. Thus, this Court had to assign another justice to sit as a member of the panel to decide this proceeding. At a minimum, the cost will likely be about 500 times what the copies and postage would have been. And yet, based on this petition and record, we cannot compel anyone to provide Fields with the copies of the two documents he has been trying to get for over a year. There has to be a better way than this for an inmate to get copies related to his prosecution and incarceration.” Fields is not entitled to mandamus relief. “But that ruling does not stop my plea. Would someone, anyone, please provide Fields a copy of the two documents?”

Comment. I generally will always write about courts neglecting the requests of pro se post-conviction litigants.  

11th District Eastland

Barron v. State, No. 11-19-00125-CR (Tex. App.—Eastland, Apr. 15, 2021)

Issue: (1) Can a defendant negate or justify her offense of tampering with evidence through evidence showing she reasonably believed that the evidence she concealed (dead bodies) was evidence of a justifiable murder (committed in self-defense)? (2) Is the defense of renunciation appropriate where a person who concealed evidence tells the police where to find it before they know an offense was committed?

Facts. Two men dressed in black and wearing ski masks came to the door of defendant’s trailer. Her husband attacked them on sight, stabbing one in the face and neck and shooting the other. They both died. Defendant and her husband concealed the bodies under their trailer, cleaned up the dirt around the area where they bled, cleaned the trailer with bleach and water, hit bloody rags behind a shed, and put the gun in a pizza box. After taking the evening to sober up, defendant and her husband turned themselves into the police. Defendant informed the police where they could find the bodies and other hidden evidence. Independent of her interview, other officers discovered all the hidden evidence and both of the dead bodies.

Holding. No. “[J]ustification defenses only apply to conduct for which the defendant is currently being prosecuted.” The defendant here was not prosecuted for murder, she was prosecuted for tampering with evidence of the murder. She cannot avail herself to justifications which would apply in the murder case. “As a matter of law, self-defense does not change the nature of the underlying conduct—murder. . . . Further, that the underlying offense may be justified is of no consequence in determining whether the defendant had knowledge of its commission.” Self-defense is a confession and avoidance defense, meaning the offense, albeit justified, still occurred. No. The defense of renunciation applies only to criminal attempt. A criminal attempt occurs where an affirmative act rises to the level of more than mere preparation that tends but fails to effect the commission of the intended offense. “[A]n actor engaging in a criminal attempt may abandon her criminal conduct at any time before performing the last proximate act tending to effect the commission of the offense.” With this in mind, defendant’s logic is circular. She “cannot assert that her conduct only constituted attempted tampering because she renunciated . . . while simultaneously contending that the law of renunciation applies because her conduct only constituted attempted tampering.” Here, the defendant had fully completed the act of tampering by concealing bodies under the trailer. She could have abandoned her conduct only at a point before the bodies went under the trailer.

Comment. The court seems to indicate that a renunciation defense is only appropriate where the state charges a defendant with an inchoate offense such as criminal attempt and not where the evidence at trial shows a criminal attempt of the greater charged offense. I don’t follow the logic.

Templeton v. State, No. 11-19-00192-CR (Tex. App.—Eastland, Apr. 30, 2021)

Issue. (1) Is the requirement of jury unanimity violated by the common jury charge language permitting the jury to convict on an offense date occurring between the statute of limitations and the alleged date of offense? (2) Can the state present hearsay evidence under the excited utterance exception when the declarant is reporting an incident that occurred several days prior to the utterance?

Facts. Bruised and beaten, defendant’s girlfriend and her son fled to her parents’ house who lived six blocks from her home. When she arrived, her parents noticed both had been crying, were sweating profusely, and were out of breath. They noted bruises and lacerations on their daughter’s face, both her eyes were swollen, and that she was holding her neck. At trial “[o]ver hearsay objection [her father] testified that she told him that Appellant, her boyfriend, had threatened to kill her and [her son].” The father added that he was told that the defendant had beaten her and put his knee on her neck, holding her to the floor. Police were called and a responding officer conducted interviews. The responding officer testified that he was told by the victim that she had been assaulted a few days prior. But at trial the victim testified that the defendant’s ex-girlfriend beat her up and that her parents refused to accept this explanation when she told them and instructed her to tell the police that the defendant had assaulted her. The victim’s father added that he had listened in on a butt-dial phone call from his daughter where the defendant was telling the victim that his abuse was none of anyone’s business.

Holding. (1) No. Unanimity “means that each and every juror agrees that the defendant committed the same single specific criminal act.” Ngo v. State, 129 S.W.3d 198 (Tex. App.—Eastland 2004). Unlike in Ngo where the defendant was charged with three offenses and the court’s charge permitted the jury to convict by a general verdict if it found any of those offense had been committed, this case involved a single alleged offense. Although the date of offense was disputed at trial, this did not give rise to a scenario where the jury was presented with “alternatives upon which the jury may base its verdict.” (2) Yes. An excited utterance must meet three requirements in order to qualify as an exception to hearsay: “(1) the ‘exiting event’ should be startling enough to evoke a truly spontaneous reaction from the declarant; (2) the reaction to the startling event should be quick enough to avoid the possibility of fabrication; and (3) the resulting statement should be sufficiently ‘related to’ the starting event, to ensure the reliability and trustworthiness of that statement.” McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim. App. 2008). The startling event may trigger a spontaneous statement relating to a much earlier incident. The fact that the purported event the declarant was reporting happened days prior and under circumstances where she was no longer in the defendant’s presence do not matter. She was crying and exasperated when she made the statement, and the statement was purportedly triggered by the defendant’s death threat. This was good enough.

Comment. There is not much guidance on where the outer limits of McCarty lie. Certainly, there has to be an event that is too stale to excitedly utter.  

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

State v. Yakushkin, No. 14-20-00256-CR (Tex. App.—Houston [14th Dist], Apr. 22, 2021)

Issue. (1) Does the Harris County District Attorney have authority to represent the State in appeals from county-level criminal courts in Harris County? (2) Must a criminal information be accompanied by an affidavit sworn by the officer who brought the allegation to the attention of the district attorney?

Facts. The court consolidated several appeals raising the exact same issues. In each the defendants raise issues pertaining to the sufficiency of the sworn complaint accompanying the State’s information. One alleged that the State’s complaint was not sworn by a credible person, the rest alleged that the allegations contained in the complaint fail to establish probable cause or meet the requirements of the Code of Criminal Procedure. Defendants challenged the Harris County District Attorney’s authority to file appeals on behalf of the State in appeals from the Harris County criminal courts at law.

Holding. (1) Yes. Harris County has both a county attorney and a district attorney. The Texas Constitution provides “the respective duties of the District Attorneys and County Attorneys in such counties [shall] be regulated by the Legislature.” Tex. Const. art. V sec. 21. Texas Code of Criminal Procedure Article 2.01 gives authority to the district attorney to represent the State in appeals from district courts but is silent on who has the authority to represent the State in appeals from county courts. Defendants contend that in this silence, the duty to represent the State fell to the State Prosecuting Attorney and that Harris County DA’s notice of appeal is defective. However, Texas Government Code § 43.180 empowers the Harris County District Attorney to represent the state “in criminal cases pending in the district and inferior courts of the county” and grants “all powers . . . relating to criminal matters . . . that are conferred on district attorneys in the various counties and districts.” This provision, taken together with Texas Code of Criminal Procedure Article 44.01 which authorizes “the prosecuting attorney” to file an appeal grants the Harris County District Attorney authority to file appeals arising from the county criminal courts. (2) No. Texas Code of Criminal Procedure Article 15.05 requires that an affiant swear out a criminal complaint. Article 21.02 requires the accompanying affidavit be sworn by “some credible person.” The defendants point to Article 2.04 of the Code of Criminal Procedure which requires the complaint reduced to writing and “sworn to by the complainant.” Defendants indicate that this should be done by the police officers submitting the case to the district attorney. However, no statutory authority supports the position that the complaint referenced in Article 2.04 must be the same document as the affidavit referenced in Article 21.02. Typically, they are, and typically the affidavit referenced in Article 21.02 is in the form of the complaint, but this is not statutorily mandated. “Accordingly, we hold that article 21.22 imposes no requirement that the person signing the affidavit referenced in that article be the person who first reported the alleged offense to the district attorney.”

From the Hooterville Courthouse

Years ago, a rural lawyer – we will name him Bobby – had a client from Dallas who was charged with DWI in a small West Texas county. The case was unfortunately a true loser so he worked out an agreement with which the client could live. Time came to have the plea so Client X made the long drive the night before. Court was scheduled for 1:00. The County Judge was not a lawyer. She was someone Bobby knew well and liked, so he stuck his head in her office about 12:45. “Is the Judge here yet?” he asked. Answer: “No, her daughter had a baby this morning, she’s gone and won’t be back for a few days.” What the heck to do? Here Bobby’s client is, 7 hours from home after having taken off work, and never wants to set foot in West Texas again. Well, never fear, when it’s rural Texas there is ALWAYS a solution. When the County Attorney arrived, Bobby explained the problem and the County Attorney said, “No problem, let’s just go into the court. WE WILL DO IT WITHOUT THE JUDGE.” The client was in near shock. “Shut up, just play along!” Bobby said.

The County Attorney pulled out the plea papers and everyone signed, all the while with the client twitching nervously. The County Attorney approached the empty bench and said, “If the Judge were here, she would ask you if you are Client X who is charged with DWI, are you Client X ?” The client stared at Bobby in disbelief. “Dammit, play along I said,” Bobby whispered. “This whole thing is so messed up it can’t possibly be used against you in the future; it’s probably not valid for any purpose whatsoever.” Admittedly Bobby was guessing, but thought it was a pretty good guess (waive worries aside). So on they went. “Now if the Judge were here she would ask you if you are sane and competent…” The darn thing went like that all the way through! They concluded with, “She would tell you to be a good citizen and she would wish you luck. She would say we are adjourned.” Bizarre? No kidding! Luckily the client never got another DWI that Bobby knows of so he didn’t have to stand good on his commitment of “…don’t worry…” Bobby still shakes his head over it. Was he right? Professor Pat Metz will probably say Bobby was as nuts as the client and the County Attorney. But what can you do? Client says, “I ain’t comin’ back,” the prosecutor doesn’t care if the plea is any good, and appellant lawyers now can speculate and have fun with this one. Only in the Hooterville Courthouse!

Submitted by Tip Hargrove, San Angelo.

Recover 101, an Introduction to “Working” a 12-Step Program

TCDLA’s Attorney Wellness Committee is holding 12-Step meetings via Zoom at 5:15 on various Wednesdays. We hope to make the meetings more regular, probably every other week. We ask that those who want to participate reserve a seat at the table by preregistering so they can receive a Zoom link for the meeting. The meeting isn’t restricted to a specific type of recovery. In fact, it is an open meeting so attendees don’t have to be practicing a program of recovery. Willingness to grow is what makes these meetings a success for groups and for individuals.

Participants who want to maintain their anonymity can do so by not activating the video component of the Zoom program. In order to maintain complete anonymity, you will want to modify the screen name that is associated with your account.

What is a 12-Step Meeting?

A 12-Step meeting is a meeting of people, most of whom are “working a program of recovery.”

Programs of Recovery include:

  1. Alcoholics Anonymous;
  2. Narcotics Anonymous;
  3. Overeaters Anonymous;
  4. Cocaine Anonymous;
  5. Debtors Anonymous;
  6. Co-Dependents Anonymous; and many others.

A 12-Step meeting is described generally as a discussion among a group of people who seek relief from a pattern of behavior which has resulted in consequences which are not acceptable, or, if acceptable in the past, are no longer acceptable. Often the meeting will begin with the reading of a meditation chosen by the group. The reading is chosen for its potential to encourage a discussion of a topic likely to develop insight into the behavior or circumstances which may underly engaging in maladaptive behaviors. After the reading, one person starts the discussion by sharing thoughts that the reading brought to mind or by sharing their emotional status as it relates to their pursuit of recovery. The next speaker may be sitting next to the first speaker or may be selected in any one of several fashions. Each speaker elaborates on how the reading or the other attendees’ comments effected them. Attendees are free to “pass” if they don’t wish to share. The meeting usually gives all attendees an opportunity to share or ends at a certain, pre-arranged time. The meeting usually closes with a prayer or moment of silent meditation.

Why a 12-Step Meeting?

It is probably clear from the list of applications of the 12 steps that they are applied to many and diverse problematical behaviors and ways of thinking. A surprising element of the usefulness of the steps may be that, in most cases, the cessation of the maladaptive behaviors which bring us into the room is not the basis for the recovery sought. “Our liquor was but a symptom.” Alcoholics Anonymous (The Big Book) p. 64. Anxiety and fear commonly cause the behavior we are trying to end. That is to say that our thinking makes us sick!

It is said that there are many promises in the Big Book of Alcoholics Anonymous which are brought about by 12-step principles. The promises are the result of “working the steps,” and becoming engaged in the work of the program of recovery. The most well-known collection of promises are found on pages 83 and 84 of the Big Book. This section of the book reads,

“We are going to know a new freedom and a new happiness. We will not regret the past nor wish to shut the door on it. We will comprehend the word serenity and will know peace. No matter how far down the scale we have gone, we will see how our experience can benefit others. That feeling of usefulness and self-pity will disappear. We will lose interest in selfish things and gain interest in our fellows. Self-seeking will slip away. Our whole attitude and outlook upon life will change. Fear of people and of economic insecurity will leave us. We will intuitively know how to handle situations which used to baffle us. We will suddenly realize that God is doing for us what we could not so for ourselves.”

Who should attend?

If you are currently working a program of recovery which uses one form or another of the Twelve Steps, you are encouraged to bring your recovery to this venue. If you would like to be a part of a 12-step program of recovery and have not tried it yet, we would love to have you. As you may know, or are likely to come to know, there are gifts that each of us give each other when we attend meetings. One gift we receive at meetings like this is the welcoming knowledge that we are not alone. I am usually unable to guess what I need from a meeting and have even less awareness of what I have to give to another attendee and that is when the magic happens.

What can we look forward to?

  • A community of caring people.
  • A group comprised of people who go way beneath the surface to discover how they really feel and why they make the choices they make.
  • A collection of friends that you may not have known before the meeting, but who you come to esteem and respect at depth almost immediately.

Watch for invitations to the meetings on the TCDLA listserve and make your reservations early. I hope to see many of you as we seek to “trudge the road of happy destiny” and learn to accept ourselves.

*I don’t claim to have any particularly deep understanding of any program of recovery, including the program of Alcoholics Anonymous. This is true despite having attended between 3 and 8 meetings per week for a little over 26 years. I have been told that “there are no experts in Alcoholics Anonymous” and I believe that to be the truth both generally and specifically of me.

All You Need to Know: A Texas License to Carry Holder’s Rights While Traveling to Another State

I am a License to Carry Holder in the state of Texas and have been one for over 15 years. Since I obtained my License to Carry (“LTC”), I have had no problem renewing my license. In fact, most of the time I conceal carry in Texas. Moreover, I have flown to other states with my firearm. When I travel to another state, I check my firearm in at the airport according to airport protocol. This process involves me placing the unloaded firearm in a hardback carrier, which is inside a locked piece of luggage with an information card I was required to complete. I had never had any issues traveling to and from another state with my firearm until my return from vacation in New York back to Texas before the pandemic.

I attempted to check in my firearm at LaGuardia Airport for my flight back to Dallas. Upon attempting to do so, a Southwest Airlines attendant notified the NYPD officers stationed at the airport. The officers confronted me about possessing a handgun in New York City. They asserted that it was illegal under New York law to possess a handgun in New York. I politely informed the officers that my right to legally possess a handgun did not expire simply because I was traveling through New York City. I then stated that I was departing from New York City, thus passing through New York City, which is no different than if I was in possession of a handgun “driving through” New York. More importantly, Texas has authorized me to carry a gun in public and this right was not extinguished just because I was passing through New York City. Finally, the officers agreed to let me check my bag with my gun and fly back to Dallas, but only after insisting I go through some additional security measures and threatening me with arrest.

While I am thankful and fortunate that this encounter did not escalate further, I realize that other people may not be as fortunate, but more importantly, they may not be as well informed about their Texas LTC rights. I succeeded in deescalating the situation and walked away unharmed because I knew my rights as a Texas LTC Holder. Had I not known my rights, this situation may not have ended the same way.

Texas is a “shall issue” jurisdiction in regard to obtaining a LTC. “Shall issue” means that “[s]tate law that provides that, upon completion of specified requirements, a law-abiding person shall be granted a permit to carry concealed firearms.”1 In order for a person residing in Texas to obtain a License to Carry a Handgun, a person must satisfy the requirements listed in Tex. Gov’t Code § 411.172.2 Indeed, Tex. Gov’t Code § 411.172(a) states a person is eligible for a license to carry a handgun if the person:2,3

(1) is a legal resident of this State for the six-month period preceding the date of application under this subchapter or is otherwise eligible for a license under Section 411.173(a); 
(2) is at least 21 years of age;
(3) has not been convicted of a felony;
(4) is not charged with the commission of a Class A or Class B misdemeanor or equivalent offense, or of an offense under Section 42.01, Penal Code, or equivalent offense, or of a felony under an information or indictment;
(5) is not a fugitive from justice for a felony or a Class A or Class B misdemeanor or equivalent offense;
(6) is not a chemically dependent person;
(7) is not incapable of exercising sound judgment with respect to the proper use and storage of a handgun;
(8) has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or equivalent offense or of an offense under Section 42.01, Penal Code, or equivalent offense;
(9) is fully qualified under applicable federal and state law to purchase a handgun;
(10) has not been finally determined to be delinquent in making a child support payment administered or collected by the attorney general;
(11) has not been finally determined to be delinquent in the payment of a tax or other money collected by the comptroller, the tax collector of a political subdivision of the state, or any agency or subdivision of the State;
(12) is not currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests;
(13) has not, in the 10 years preceding the date of application, been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony; and
(14) has not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174 (Application).

Currently, thirty-five states honor a Texas LTC, including Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Iowa, Kansas, Louisiana, Michigan, Montana, Nevada, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah, Vermont, and Virginia.4 However, four of these states- Colorado, Michigan, Florida, and South Carolina- will only recognize a residential Texas LTC.5 For instance, in Florida, Fla. Stat. § 790.015 states that a Florida nonresident may carry a concealed firearm while in Florida so long as the nonresident (a) is at least 21 years of age; (b) holds in his or her immediate possession a valid license to carry a concealed weapon or concealed firearm issued to the nonresident in his or her state of residence; and (c) is a United States resident.6 There are fourteen states that do not honor a Texas LTC: California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, Washington, and Washington D.C.7 However, people holding a LTC from California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, and Washington may carry in Texas.

Media Relations Committee: Who We Are, What We Do, and Why it’s Important

Hi, I’m Lisa Greenberg, and I’m so excited to co-chair this committee with the brilliant John T. Hunter from San Antonio. We want to tell you what this committee is about, what we do, and why it matters to all the members of the Texas Criminal Defense Lawyers Association.

As criminal defense lawyers, we tend to have a love/hate relationship with the media. The media has generally been unhelpful in educating the public about the facts of our cases or in helping prospective jurors keep an open mind. However, in a democratic society the media serves a very important role. It educates voters on issues they may care about at the polls. This is what elected officials care about most. 

Many times, in courtrooms, egregious offenses, constitutional violations and unfair conduct may occur at the hands of elected officials such as judges, district attorneys and local sheriffs. However, without the media, the public may not know or care about such issues. The media gives us an outlet to reach large numbers of people and can inform them on key issues that are important to us. The media can also act as a watchdog to keep these occurrences from happening regularly or let elected officials know they are being watched.

The Media Relations Committee is made up of a large number of criminal defense attorney members in the State who can be the eyes and ears of our Organization on occurrences in local courtrooms, jails, etc. that may need some attention from the media and, in turn, scrutiny from the public.This committee is one of the largest that TCDLA has, with members from all areas of Texas to ensure every area is covered in case such an event occurs.

One of our tasks is to make sure we have an up-to-date database of media outlets so that when we vote as a committee to issue a press release, we can send the release out quickly to media contacts directly for coverage. We intend to maintain relationships with reporters, news bloggers, and other media sources to be able to access such contacts quickly and get a response. The second main task of our committee is to draft and send news releases. We will direct news releases to the public in a manner where the information is digested quickly and understood, and also rallies the support in the desired manner.

The third task of our organization is to follow up with reporters. Once interest is peaked with a news media outlet, there are bound to be questions or requests for comment. We need to make sure as an Organization our voice is heard loudly and clearly on issues that affect us, our clients, and their rights. We will try to have a point of contact for each area, or a person to direct inquiries to, who can answer these questions clearly and in a manner benefiting our cause.

The media has always been a double-edged sword for many of us in criminal defense. However, in the age of quick information, constant media headlines, and breaking news blaring at us from all different angles, it is important that our Organization has a committee designed to deal with important issues and have our say to the public about the many issues we are facing in our courtrooms, jails, and workplaces.

Biases. We All Have Them. What Are Yours?

Tired, stressed and with limited time, I hurry into my local grocery store to grab a few items for dinner. As I approach the checkout lines, hoping to find a relatively short one, I see a 5-year-old child flailing on the floor. Her mother is right next to her –and so is the candy display. What are your thoughts? I immediately thought, “This mother needs a firm hand to get control and discipline the child. Otherwise, this spoiled rotten child will grow up to be my client in about 15 years.”

While getting into my vehicle, in a rush to get home, I notice the mother and child getting into their minivan.  More importantly, I notice the autism awareness sticker on the back window. I stop in my tracks. Rather than a spoiled child, or lack of parenting skills, what I witnessed was an autistic meltdown, brought on by overstimulation, that sent the poor child into a tailspin.

How much did your biases play a part in your thinking in the child scenario? A bias is a preference for or against an individual or group that interferes with or influences fair judgment. My bias was about bad parenting or bad behaviors in a child. It clouded my judgment, causing me to see the situation as that of a bad parent or a bad child. 

What Are Biases?

We all have biases. It takes vulnerability to acknowledge these biases. Biases can be both conscious and unconscious. Implicit biases are biases that are unconscious, so they can be hard to spot. Implicit biases are unconscious attitudes and stereotypes, also known as implicit social cognition, that affect our understanding, actions, and decisions in an unconscious manner. They can be seen manifested in all areas of life including the criminal justice system, workplace, school setting, and in the healthcare system.

What Can We Do About Our Biases

How do we address our unconscious biases? Consider the following questions from the website Love Has No Labels: Have you ever avoided sitting next to someone in public because of your perception regarding their race, religion, or ability? Have you ever justified using offensive language because a friend told you it does not bother them? Do your three best friends look like you? Have you ever joked around and told someone to “stop acting like a girl”? Have you ever referred specifically to someone’s race when it was not necessarily relevant (e.g. “a black doctor” or “Latina lawyer”)? Have you ever assumed a person’s stance on social issues based on their religion? Have you ever ruled out certain neighborhoods as places you might live or send your kids to school based on the neighborhood’s demographics?

I regretfully admit I have done all of these. The good news is, I can eliminate my own implicit biases through awareness and action. So can you. 

How do our biases affect our work within the criminal justice system?  There are financial, racial, sexual, gender, and religious biases that permeate the criminal justice system. Have you ever had a prosecutor make a better offer to a codefendant who had a retained lawyer? Is there an implied bias that the person who can retain a lawyer is a better person than the one that has a court appointed attorney? As a court appointed attorney, I demand the same plea bargain that the retained attorney received, thereby doing my best to equalize the playing field.

Have you ever had a judge make a bail or punishment decision based on the orange jumpsuit worn by your client? Is there an implied bias that because someone is in jail and not out on bond they are a bad person and needed to be punished? We can confront and challenge the ruling of the court if we see this disparity. Do not be afraid to point it out.

Have you ever had to talk to a client and explain they would be judged differently due to their race, sexual orientation, religious beliefs? Do not ignore these differences. Everyone else is thinking about it. Discuss these differences with the court and the jury; do your best to demystify and dismantle the prejudices or biases.

Have you ever had to tell a client they will hear the words, “boy” or “little lady” from the bench or prosecutor? Have you ever had to hear these words addressed to you? Tell the Court or the opposing party what you expect to be called. Do not allow them to get away with derogatory language.

It is hard to acknowledge that the world we live has all kinds of biases, stereotypes, and discrimination—and that we unwittingly contribute to them. However, it is a fact. We must acknowledge it. Acknowledging our biases, stereotypes, and prejudices is the first step towards change.

I challenge everyone to take a personal self-assessment, make a personal inventory of your own bias and prejudice, and then make a plan of action of how you want to improve yourself through your thinking. Part of your plan could be reading a book about biases or “blind spots” or talking to your children about biases or stereotypes and how to avoid them. The TCDLA diversity committee can provide a mentor; creating a safe environment to discuss your biases or prejudices. Looking inward and being brutally honest with ourselves is the only way we will be able to reconcile what is happening in our society today with how we can make it better. We must stand together as a legal community to fight against oppression, inequalities, and discrimination. As we continue to grow and reflect as a society and as a legal community, we need to challenge these biases and prejudices when we see them. We will be better advocates against biases by recognizing our own. Keep fighting my fellow warriors and Fight the Bias.

  1. I am a proud parent of an amazing autistic son.
  6. Mahzarin Banaji & Anthony Greenwald, Blind Spot: Hidden Biases of Good People (2013).
  7. Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA Law Review 1124 (2012).

Tips for Avoiding Lawyer Burnout

Having practiced criminal law for over 20 years, I am sometimes asked, “Have you ever felt burned out?” My response is, “it’s not if, but when, and how many times?” If you are going to make the practice of law a lifelong career, I guarantee that you’ll be burned out more than once in your practice. Traditional advice is usually something along the lines of taking a vacation, spending time with your family, investing time in a hobby, exercise, and so forth. The problem with this advice is that it does not deal with the core problem of why you are feeling burned out. You may have a fantastic vacation only to come back to work and feel worse than you felt when you left! You may spend time with your family, but if you are in a horrible mood from work, they may want away from you! You may take up golf, but you may lose your IRA in broken clubs thrown into the water hazard! As we all know, depression can be a significant struggle in our profession. So, what can you do? Here are three tips that have helped me over the years, and I hope they will help you.

Tip #1: Avoid situations that you hate.

This may sound easier said than done… especially when the mortgage is due. However, the cumulative effect of going to court with clients/issues/judges that you despise takes its toll on you over the years. Try your best to flow around these situations. If you hate defending sex crimes, don’t take them. If you’re on the appointment list, ask not to be appointed to these types of cases. If you hate a judge, avoid going to his/her court if possible. If you despise writing appeals, don’t be on the appellate list or take appeals.

Tip #2: Become an authority on cases you like.

This is the flip side to #1. If you enjoy helping first-time offenders getting cases sealed/expunged, try to get your name out as the expungement guru. If you love the science behind determining alcohol concentrations in breath or blood, get the word out in the legal community that this your thing. Write a paper for TCDLA. Give a lecture at a college/bar meeting. Make a YouTube video and add the link to your website.

Tip #3: Seek out help.

I mean seek out legal help. If you have a horrible trial you just can’t get out of, ask a colleague you trust to sit second chair or ask a college/law student to be your assistant. He/she may only be responsible for being a buffer between you and your client. But the emotional support from having a friendly face that is on your side cannot be overemphasized. Feeling like the world is against you when the judge, jury, prosecutor, and sometimes your client can be demoralizing. If you have a legal problem that has you stumped, reach out to a friend, colleague, or TCDLA. If you have a challenging federal case, call the federal defenders in your area. Most people are flattered when you ask them for advice. It makes them feel like you trust their opinion. We all need that from time to time.

In conclusion, I hope these tips have been of some help. We are all comrades in arms and deal with the same type of problems: Austin, Houston, Dallas, Nacogdoches, and everywhere in between. Take care, good luck, and have fun!

Current Issue: June 2021




9 | Recover 101, an Introduction to “Working” a 12-Step Program – By Rick Wardroup
19 | From the Hooterville Courthouse – By Tip Hargrove
21 | All You Need to Know: A Texas License to Carry Holder’s Rights While Traveling to Another State – By Hiram McBeth
23 | Media Relations Committee: Who We Are, What We Do, and Why it’s Important – By Lisa Greenberg
24 | Biases. We All Have Them. What Are Yours? – By Michelle Ochoa
27 | Tips for Avoiding Lawyer Burnout – By Dean Watts


5 | President’s Message
6 | Executive Officer’s Perspective
7 | Editor’s Comment
8 | Ethics and the Law
11 | Chapter & Verse
12 | Federal Corner
14 | From the Front Porch
28 | Shout Outs


4 | CLE Seminars and Meetings
33 | Significant Decisions Report

President’s Message: Michael C. Gross


I am humbled and honored to have been selected to work with all TCDLA members as your incoming TCDLA President for this upcoming year. With all of us working together, we can make this a great year for our outstanding organization. Thanks to Kerri Anderson Donica and Grant Scheiner for your hard work and dedication the last two years in guiding us through the pandemic challenges. What wonderful leadership and fortitude. We have an excellent and resilient organization with members from El Paso to Texarkana and from Booker to Brownsville who continue to amaze me with their dedication to TCDLA even during the pandemic. TCDLA is the largest state criminal defense organization in the nation and continues to lead the way. Our 3,200 members are among the best criminal defense attorneys in the nation. Melissa Schank has been superb as the TCDLA Executive Director, and Melissa and her staff continue to amaze me at how well they keep our more than 40 CLE seminars running smoothly throughout the year. I want to thank all the hard-working TCDLA members who have agreed to act as committee chairs this coming year. We could not continue to provide our members with helpful and useful assistance without our committee chairs and their committee members. Each of our committees works extremely hard and are superstars and deserve our admiration and respect. For instance, as the courts begin to further open up for criminal jury trials, TCDLA will be there for our members as new issues arise and must be addressed to protect the citizen accused. I am always in awe, for instance, at the tireless work from the COVID-19 Response Task Force Committee chairs – Allison Clayton and Nicole DeBorde Hochglaube (and Clay Steadman who paved the way forward as the first chair of this committee). It is amazing to see an email from Allison or Nicole that was sent at 4:00 a.m. for an important issue that arose and needed a quick resolution for our TCDLA members.

Our TCDLA committees will continue to be a vital life line for our members in the coming year. Just last week, I was in a federal criminal jury trial here in San Antonio which used three court rooms and had remote access in the courthouse basement for the public present in the courthouse to watch the proceedings. The public was not allowed in the courtroom where the trial was proceeding because the jury was scattered throughout the gallery during trial rather than in the jury box. Key issues will continue to arise in these jury trials such as the Sixth Amendment right to a public trial and right to a fair cross section representation of the community. While jury trials become more prevalent thereby raising important issues for our members, the Texas legislature continues to address issues that are also important for our members and the citizen accused. I personally witnessed last month the wonderful dedication of our TCDLA lobbyists – Allen Place, Shea Place, and David Gonzalez. These three outstanding individuals were at the State capitol until after 3:00 a.m. on a Tuesday night ensuring that TCDLA interests and the interests of the citizen accused were properly represented in testimony before the Texas House Criminal Jurisprudence Committee regarding stringent bail legislation that had been proposed. What an outstanding job.

With the assistance of our members and committees and staff, I am confident that TCDLA will continue to lead the way for our members to address any concerns that will develop in the coming year. All of this is possible because of how we work together for TCDLA. I thank all of you for this opportunity to work with you and to serve you this coming year as your TCDLA President.

Executive Officer’s Perspective: The End… & a New Beginning


“And in the end, it’s not the years in your life that count.
  It’s the life in your years.”

—Abraham Lincoln

It seems like only a pandemic ago we were here at this exact moment. We come to an end of Grant Scheiner’s presidency of TCDLA and pass the gavel on to Michael Gross. With this, we also thank our board members who have completed their terms and welcome the new members. We also lose Sarah Roland, our Voice editor of the past five years—but gain her as a board member. The Voice editor is a voluntary position requiring 15 to 25 hours a week, editing, gathering stories, communicating with staff and editors. It was such a pleasure to work with Sarah; she will be sorely missed. Jeep Darnell from El Paso, a member of the editorial committee with years of experience, will be taking over the position.

In the past year, our Executive Committee has met virtually at least once a month—for at least 2 hours at a time, if not more—to stay ahead of issues impacting criminal defense lawyers. For all our committees, this year has been quite busy, somewhat unexpectedly given social-distancing guidelines. More than 32 committees met monthly and developed aggressive to-do lists, which members have worked hard to fulfill. The COVID Task Force, for one, proved relentless in defending our members’ right to be safe while representing their clients. The Ethics Committee fielded numerous calls every week. Overall, this year could only be described a success, with everyone working so close together and achieving many great things! Without all of our volunteers, this would not have been possible!

Now we turn to the anxiously awaited Rusty. Whether in person or live-streamed, it is TCDLA’s signature event—the most prominent seminar specifically designed for criminal defense attorneys. And this year, we will be celebrating TCDLA’s 50th anniversary! For Rusty, as we will be doing moving forward, we will continue monitoring CDC Guidelines to ensure the safety of all concerned. Planning must remain fluid, so we hope everyone remains patient and we learn together.

We have tentatively scheduled the next year of TCDLA and CDLP programs. We will continue to operate under a rather conservative budget, dealing with the unforeseen as we begin opening back up. To that end, we have worked hand in hand with David Guinn, our treasurer, and huddled with CDLP Chair Adam Kobs. You can view the resulting list of upcoming events on our website. We will also start offering all TCDLA seminars in their entirety on demand. If you attend a TCDLA seminar, you will be able to view presentations afterwards in the event you missed something. We will also be reorganizing the video section on the website.

Following Rusty, stay tuned for our Trainer for Trainers, Battling the Resistance, and TCDLA/CDLP/TCDLEI Orientation in South Padre Island July 7–10. There we will celebrate the change in leadership with the Grosses in an event that welcomes all families. Perhaps in Padre, incoming President Michael Gross might provide a hint of the lineup for his upcoming President’s Trip to New Orleans February 9–13, 2022. Already on tap (in addition to excellent company, food, and libations) is the seminar “White Collar—Federal and State.” So some Jazz and CLE to look forward to next spring! On to the new year; here we come!