Monthly archive

July 2021

July/August 2021 SDR – Voice for the Defense Vol. 50, No. 6

Voice for the Defense Volume 50, No. 6 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

An old phrase that tormented attorneys who immerse themselves in the nuances of expunction law is: “the arrest is the unit of prosecution for an expunction,” meaning that all offenses arising from the same arrest must be expunction eligible or none are. The Supreme Court has yet again chipped away at this notion this month in Ex parte R.G.P.G. In Houston, a couple of really smart prosecutors do their best Bill Clinton impression and feign bewilderment about what a person could possibly mean by using the word “snitch” when they insist on having a lawyer present before doing whatever it means to do that. Other than that, just some run-of-the-mill hard-hitting sig-decs this month!

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

Caniglia v. Strom, 141 S.Ct. 1956 (2021)

Issue. Does Cady v. Dombrowski’s community caretaking doctrine, which permits an officer to enter a vehicle and secure an unattended firearm, also permit an officer to enter a home to secure a firearm?

Facts. This is a civil lawsuit filed in response to law enforcement entering petitioner’s home and seizing his weapons. While arguing with his wife the day before, petitioner placed a handgun on the table and asked his wife to “shoot him and get it over with.” The next day officers came to the home to conduct a welfare check. Officers suggested that petitioner admit himself to the hospital for a psychiatric evaluation. Petitioner agreed on the condition that officers not enter his home and seize his firearms. They promised. Then they took his firearms. Petitioner sued the officers for a violation of the Fourth Amendment. The district court granted summary judgment in favor of the officers and the First Circuit affirmed. Both courts cited Cady’s community caretaking exception.

Holding. No. “What is reasonable for vehicles is different from what is reasonable for homes.” At the very core of Fourth Amendment protections is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6 (2013). The holdings below go far beyond anything this court has ever authorized. “True, Cady also involved a warrantless search for a firearm. But the location of that search was an impounded vehicle—not a home—‘a constitutional difference’ that the opinion repeatedly stressed.” Citing Cady, 413 U.S., at 439.

Concurrence (Roberts, C.J.)(Breyer joins) A warrantless entry into a home is justified when there is a “need to assist persons who are seriously injured or threatened with such injury.”

Concurrence (Alito, J.) Petitioner glosses over some important questions this court might ultimately have to address: (1) the State’s ability to effect “a short-term seizure conducted for the purpose of ascertaining whether a person presents an imminent risk of suicide;” (2) “the so-called ‘red flag’ laws that some States are now enacting” which allow officers to get a court order to seize guns to prevent their use for suicide or infliction of harm on innocent persons, and (3) the ability of police to enter a home to determine whether a person is in need of help.

Concurrence (Kavanaugh, J.) It is important to note that officers would have the authority to enter a home to assist someone in need of aid.

Comment. It’s nice to see the court pushing back against the rampant expansion of community caretaking exception justification.

Fifth Circuit

United States v. Torres, 997 F.3d 624 (5th Cir. 2021)

Issue. Without offending the Sixth Amendment, can a trial court prohibit counsel from communicating with his client during an overnight recess occurring in the middle of the defendant’s trial testimony?

Facts. At 7:09 P.M. during the second day of trial, the State presented its final witness and rested. Counsel for the defendant informed the court that the defendant wished to testify and that he anticipated that direct examination would take several hours. The trial court proceeded with the defendant’s testimony but ultimately declared an overnight recess at 8:03 P.M. At that time, the district court issued a sequestration order prohibiting the defendant from speaking to any person, including counsel, during the recess. Counsel requested clarification and the trial court sternly admonished counsel that he was prohibited from speaking with his client. 

Holding. The propriety of denying the defendant access to counsel in trial exists on a spectrum. In Geders v. United States, 425 U.S. 80, 91 (1976), the Supreme Court found a 17-hour overnight recess too long of a period to bar counsel from communicating with client. In Perry v. Leeke, 488 U.S. 272, 284-85 (1989) the Supreme Court found that a prohibition on conferring with counsel during a short recess of only a few minutes did not violate the Sixth Amendment. Here, the 13-hour prohibition falls
“squarely within the Geders rule; that is, a trial court may not bar a testifying criminal defendant from all communication with his attorney during an overnight recess.” This is plain error, reviewable without an objection. The circumstances of the error are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”

Comment. At 9 P.M. on a Monday, I finished this summary by reading the final paragraph of this case in which the court gives us a 7-P.M.-was-probably-a-good-time-to-stop-working-for-the-day type commentary. Touché.

Texas Supreme Court

Ex parte R.P.G.P., No. 19-1051 (Tex. 2021)

Issue. Is expunction eligibility for a single offense contingent on expunction eligibility for all offenses arising from the same arrest?

Facts. Petitioner was arrested for DWI. During that investigation officers found marijuana. Petitioner’s DWI was dismissed after completion of pretrial diversion. Petitioner pleaded guilty and was placed on deferred adjudication for the marijuana charge. When petitioner attempted to expunge the DWI, the State opposed the “partial expunction request” on the basis that not all offenses arising from the arrest were eligible for expunction—the marijuana charge was still non-expungable. The State claimed and the court of appeals agreed that the expunction statute is arrest based and not offense based.

Holding. No – not in cases involving only misdemeanors. In cases involving only misdemeanors a defendant may expunge as many offenses which are eligible for expunction regardless of whether another misdemeanor case arising from that arrest is expunction-eligible. “Article 55.01 is neither entirely arrest-based nor [entirely] offense-based.” The legislature defined expunction eligibility in the case of dismissal, non-filing, and pretrial diversion as scenarios where the charge did not result in conviction and for where no probation was ordered for the offense. The use of “the” in referring to “the offense” and “the charge” reflects the legislature’s intent to tie expunction eligibility to a single offense and not all offenses arising from the arrest.

Dissent (Bland, J.). “The object of the statute is the expunction of ‘all records and files relating to the arrest,’ not some records.” The majority opinion creates bureaucratic problems associated with partially redacting arrest information from a person’s record. 

Comment. This is opinion is a gamechanger. But it is limited to only misdemeanor offenses. The Court reaches this distinction based on the juxtaposition of language in Article 55.01(a)(2)(A): “regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with commission of any felony offense arising out of the same transaction for which the person was arrested. “The juxtaposition between the singular language used for misdemeanors and the plural language used for felonies demonstrates that an offense-based interpretation applies to misdemeanors while an arrest-based interpretation applies when more serious crimes—felonies—are involved.”

Texas Court of Criminal Appeals

Ramirez v. State, No. AP-77,084 (Tex. Crim. App. 2021)

Issue. The defendant confessed to and was convicted of orchestrating a gang-robbery-shootout-murder. He now wishes to conduct DNA testing on a pair of hats left at the scene by shooters. Can he show these purportedly exculpatory mystery hats sufficiently useful to him that it would warrant post-conviction DNA testing?

Facts. Defendant was convicted and sentenced to death for his involvement in the robbery and murders of rival gang members. The evidence at trial showed that Defendant directed the activities of his gang who broke into a home, ransacked the place, then killed most of the occupants. Defendant had a gang tattoo that matched that of the gang responsible for the murders. The two gangs involved had “green lights” with respect to members of the opposite gang (they could kill one another without asking permission from command structure). Defendant confessed to his involvement in the murders including directing the activities of his co-defendants. Defendant’s confession was corroborated by a surviving witness who indicated that the man giving orders wore a hat which he dropped at the crime scene. The jury applied the law of parties to convict the defendant. In the instant post-conviction proceeding requesting DNA testing, the defendant presented evidence from a co-defendant and fellow gang member indicating that the defendant was not the person giving orders and that the individual who took off his hat was named Lenny. He also presented arguments that his confession following the murder was false – in support citing evidence and argument presented in his previous writ of habeas corpus.

Holding. No. Several statutory conditions must be met before a defendant is entitled post-conviction DNA testing. Relevant here: (1) “identity was or is an issue in the case,” and (2) that the defendant “would not have been convicted if exculpatory results had been obtained through DNA testing.” Tex. Code Crim. Proc. art. 64.03(a). The defendant incorrectly relies on Article 64.03(b) for the proposition that the trial court may not consider his confession in resolving the second issue: whether he would have been convicted in a trial with the benefit of DNA testing. Article 64.03(b) only prohibits the trial court from considering a defendant’s confession in determining whether “identity was or is an issue in the case.” The defendant also incorrectly asserts that the trial court was required to accept the veracity of the affidavit submitted by his co-defendant and fellow gang member. “Testimony from an accomplice which exonerates a defendant without exposing the accomplice to further criminal liability is to be viewed with suspicion.” The defendant has failed to show that his confession was false and has failed to show how DNA testing excluding him as an individual wearing a hat would have been useful to him at trial. He was convicted under the law of parties and whether he was one of the hat-wearers or not, he was part of a gang robbery resulting in multiple murders.

Spielbauer v. State, No. PD-0245-20 (Tex. Crim. App. 2021)

Issue. Must a trial court dismiss a potential juror for cause based solely on that potential juror’s answer to a jury questionnaire?

Facts. The venire summoned for defendant’s non-death capital-murder trial responded to a questionnaire. The questionnaire asked whether prospective jurors had heard about defendant’s case and had already formed an opinion about his guilt or innocence. Six veniremembers indicated they had. The trial court questioned these veniremembers and two of them renounced their written answers indicating that they responded to the questionnaire mistakenly. On this basis the trial court declined to remove these two jurors for cause.

Holding. Texas Code of Criminal Procedure Article 35.16(a)(10) provides a challenge for cause when “there is established in the mind of the juror such a conclusion as to guilt or innocence of the defendant as would influence the juror in finding a verdict.” The Code continues by indicating that once the juror admits such an opinion would influence his or her verdict, “the juror shall be discharged without further interrogation by either party or the court.” However, “a questionnaire answered before voir dire will not by itself support a challenge for cause . . .” Questions answered in a questionnaire are not part of formal voir dire. “They may be a useful tool, but questionnaires are no substitute for the human interaction inherent to voir dire and essential to the trial court’s evaluation of a juror’s suitability for jury service.”

Comment. Before reaching the merits, the trial court first considered the appropriateness of the State arguing a new and distinct legal theory from that which was raised in the Court of Appeals. The court declined to impose existing error preservation requirements on the State “Given that our preservation rules are intended to protect the trial court’s judgment from reversal based on arguments never heard by the trial court, we answer this threshold issue in the negative: The State’s arguments are not foreclosed from our consideration.” “The rules of preservation are judge-protecting rules.” This new rule overrules a 30-year-old precedent set in Rochelle v. State, 791 S.W.2d 121 (Tex. Crim. App. 1990).

Petetan v. State, No. AP-77, 038 (Tex. Crim. App. 2021)

Issue. (1) was a death-sentenced defendant entitled to a pre-trial determination of his intellectual disability? (2) Was the jury’s finding of no-intellectual-disability legally sufficient? (3) was it factually sufficient?

Facts. Defendant was convicted of capital murder for killing his wife. In response to a special issue, the jury rejected the suggestion that the defendant was intellectually disabled and ineligible for the death penalty. Several experts testified on behalf of the defendant that he had significantly subaverage intellectual functioning with childhood and adult IQ scores which ranged from 52 and 74. The State presented no expert witnesses but instead focused on conflicting implications raised by his school grades, human interactions, and occasional employment.

Holding. The State cannot execute a person who is intellectually disabled. The Court of Criminal Appeals initially decided this case prior to the United States Supreme Court twice reversing the Court of Criminal Appeals in the similar case of Moore v. Texas. 137 S.Ct. 1039 (2017). In Moore the Supreme Court found that the Court of Criminal Appeals unduly relied on judicially crafted standards which focused on the defendant’s abilities rather than the defendant’s disability and which required the defendant to show that his deficits were not related to a personality disorder. After twice reversed in Moore, the court reconsidered the instant case in order to apply more appropriate clinical standards for intellectual disability. “Concerning the sufficiency of the evidence regarding the jury’s rejection of his intellectual disability claims, we apply contemporary clinical standards—the framework set forth in the [American Psychiatric Association’s] DSM-5—for assessing intellectual disability.” The burden of proof falls to the defendant to show by a preponderance of the evidence that he has subaverage intellectual functioning and significant limitations in adaptive skills such as communication, self-care, and self-direction—both manifest before the age of eighteen. Intellectual disability is in the nature of an affirmative defense and “[a]ffirmative defenses may be evaluated for legal and factual sufficiency.” (1) No. the law does not require anything more than a consideration of intellectual disability during sentencing. (2) Yes. There was conflicting evidence presented regarding the defendant’s abilities as a child and his educational achievements; conflicting evidence presented regarding the defendant’s social abilities; and conflicting evidence presented defendant’s practical skills such as cooking, cleaning and managing day-to-day tasks. There was at least a scintilla of evidence to support the jury’s rejection of intellectual disability. (3) No. Evidence contrary to the jury’s verdict greatly outweighs that which supports it when viewed in a neutral light. It is improper under Moore to allow the jury to reject clinical conclusions in favor of their lay-person opinions of the defendant’s adaptive strengths. “Expert after expert diagnosed Appellant with mild intellectual disability . . .” “We therefore conclude that the jury’s rejection of Appellant’s intellectual disability claim was clearly wrong and manifestly unjust.”

Dissent (Keller, J.). The Defendant’s medical evidence was flawed, the defendant’s non-medical evidence was biased and unreliable. Some evidence suggested the IQ scores fell above the range for intellectual disability. There was evidence of the defendant’s malingering, deception, and fakery. The State should kill him according to the jury’s verdict.

Montelongo v. State, No. PD-0202-19 (Tex. Crim. App. 2021)

Issue. To preserve error, must a defendant who timely filed a motion for new trial and requested a hearing also object to the trial court’s failure to hold a hearing?

Facts. A jury convicted defendant of Attempted Capital Murder and Continuous Family Violence and sentenced him to 99 years and 10 years, respectively. Defendant timely filed a motion for new trial and requested a hearing. The trial court initially set, but then cancelled, a hearing. The trial court never reset the new trial hearing and never ruled on defendant’s motion. As a result, the motion was denied by operation of law. In the intermediate appellate court, defendant argued that the trial court abused its discretion in failing to hold a hearing on the motion for new trial. The intermediate appellate court rejected this argument and held that the defendant had not preserved error because the defendant did not: (1) attempt to reschedule, (2) attempt to obtain a ruling, and (3) object to the trial court’s failure to rule.

Holding. No. “To avoid forfeiting a complaint on appeal, the party must let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in a position to do something about it.” A defendant’s obligation of a timely objection is to object at the earliest opportunity or as soon as the grounds for the objection become apparent. “When do the grounds for the objection—that the trial court failed to hold a hearing on the motion for a new trial—become apparent?” A trial court has not “failed” to hold a hearing until the trial court can no longer hold a hearing. Unlike other trial court errors, when a motion for new trial is overruled by operation of law, “the grounds for objection become apparent at a time when the trial court is unable to do anything about it.” It would be improper for the trial court to fix its error upon the defendant’s objection after its plenary power expires (75 days after sentence imposed).

Dissent. (Slaughter, J.) Dissenting without opinion.

Johnson v. State, No. PD-0561-20 (Tex. Crim. App. 2021)

Issue. Does the combination of the following circumstances rise to the level of reasonable suspicion: unusual activity, secretive behavior, dark parking lot, vague representation by an officer that the place is where crimes sometimes occur?

Facts. A police officer became interested in the defendant when it appeared to him the defendant was attempting to avoid other people. The officer ultimately detained the defendant and articulated the following reasonable suspicion: the fact that the defendant was not parked near other vehicles, that it was after midnight, that the lot was known for “a variety of criminal activity,” and that the defendant and his passenger moved when he shined a spotlight into defendant’s vehicle. In response to these observations, the detaining officer turned his emergency lights on, parked 10-15 yards away, and approached the defendant’s vehicle on foot. The intermediate court of appeals reversed the trial court’s denial of defendant’s motion to suppress.

Holding. Yes. “Assuming, without deciding, that a seizure did occur, we agree with the State that Sergeant Cox had reasonable suspicion.” Unusual activity related to a crime is sufficient. Seven facts supported reasonable suspicion in this case: (1) an inference that the lot had significant association with criminal activity, (2) the officer’s opinion that it was unusual to be sitting in a parked car in that lot after midnight, (3) at least one person was inside the vehicle after midnight, (4) that person was awake, (5) the vehicle’s exterior lights were off, (6) the vehicle’s interior lights were off, and (7) the vehicle was parked away from other vehicles. “The unusual and secretive behavior of the occupants of Appellant’s vehicle at least gave rise to an objectively reasonable suspicion that some sort of crime was being committed or contemplated.”

Dissent (Walker, J.) These facts do not present reasonable suspicion. The court derives reasonable suspicion from the fact that the defendant was not acting as an innocent person would. “But what one might expect of an innocent person is no way to judge whether a stop is supported by reasonable suspicion.” “It seems to me that, in order to uphold the detention in this case, the Court has to resort to stereotypes about light and dark, day and night, good and evil.”

Comment. Exercising the right to privacy is by its very nature “secretive behavior.” I always have a hard time with cases that find that “being private” is a factor in overcoming the right to privacy. Certainly, the activity here is “unusual” but I don’t see where it is tied to criminal activity.

Hammack v. State, No. PD-0636-19 (Tex. Crim. App. 2021)

Issue. Is formal notice service of an order pertaining to child custody an element of the offense in an Interference with Child Custody prosecution?

Facts. CPS suspected defendant was abusing his daughter. A CPS investigator went to the defendant’s home to investigate, and the defendant promptly ordered the investigator off the property. Two CPS investigators came back the next day with a court order. The investigators identified themselves and informed the defendant that the order gave them custody of his daughter. Defendant became aggressive and ordered them to leave. The CPS investigators complied, but later picked the daughter up from school and held her at the local CPS office. Investigators called defendant to inform him again about the court order and what was occurring. After the call, the daughter escaped. In their search for the child, CPS investigators and police discovered the defendant at his mother’s home where he was attempting to enter the attic. They could also hear voices coming from the attic. CPS left the home without further investigation after the defendant became confrontational and his mother withdrew consent to search. Evidence showed that a few days later defendant took his daughter to Oklahoma where she married her eighteen-year-old boyfriend.

Holding. Penal Code § 25.03(a)(1) provides:

(a) A person commits an offense if the person takes or retains a child younger than 18 years of age:

(1) when the person knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.

Appellant’s argument that he could not know about the “express terms” of the order without service of the order is unpersuasive. The statute merely requires the defendant to know of the express terms he purportedly chose to violate. This case is unlike Harvey v. State, where the court interpreted notice requirements in the context of a protective order violation (“VPO”). In Harvey, the court determined the VPO statute to require formal notice and service as elements of the offense because all orders under the VPO statue require the satisfaction of specific notice and service requirements before such orders become “binding.” Here, “[t]here is no indication that the statutory service requirements of a particular child custody order must be incorporated into the terms of the offense.” Section 25.03 does not list provisions of the code defining custody orders, “it only refers generically to a ‘judgment or order, including a temporary order, of a court disposing of the child’s custody.’” Because Section 25.03 provides for a culpable mental state (knowingly), there is no need to resort to the notice or service requirements particularized statutory methods for notice and service. 

Dissent. (Keller, J.). Defendant was told that CPS was awarded custody but not “sole custody.” The CPS investigators merely guessed that defendant knew this fact. There is no evidence that he did.

Comment. The court also rejects defendant’s argument that, absent service of the order, he has the right to distrust the information conveyed to him by the CPS investigators. At least in this context, where multiple CPS investigators continued to convey information to him and police became involved in a search for the child.

Ex parte Andrus, No. WR-84, 438-01 (Tex. Crim. App. 2021)

Issue. Did the following failures of trial counsel constitute harmful deficient performance in a capital murder case: failure to conduct a mitigation investigation, failure to present mitigation evidence, accidentally bolstering State’s witnesses, and failure to investigate the State’s aggravating evidence?

Facts. This case is decided after remand from the Supreme Court of the United States (SCOTUS). The Court of Criminal Appeals (CCA) previously rejected the defendant’s ineffective assistance of counsel writ citing failure to show deficient performance in a one-sentence opinion. SCOTUS considered the defendant’s new evidence and reversed on the “tidal wave of information . . . with regard to mitigation” which “revealed a childhood marked by extreme neglect privation, a family environment filled with violence and abuse.” This included: (1) the violent neighborhood defendant grew up in, (2) the lack of a father figure, (3) the physical abuse endured by him and his siblings by their various, (4) the abuse committed by his siblings’ various fathers against his mother, (5) an incident involving one sibling’s father raping another one of defendant’s siblings, (6) his mother engaging in prostitution and drug dealing from the home, (7) parents who were constantly high, (8) defendant stepping into the role of head of the household and assuming responsibilities of cooking, cleaning and educating his siblings (9) defendant’s diagnosis with affective psychosis. SCOTUS also found some reasonable mitigating circumstances surrounding the state’s aggravating evidence, such as young age, suicidal behavior, and adverse reactions to psychotropic drugs.  In consideration of this evidence, SCOTUS remanded the case and instructed the CCA to consider harm.

Defendant’s offense involved an attempted carjacking where he shot and killed two people and wounded another. The State presented evidence of a violent and aggressive past. Defendant had two juvenile adjudications, one for drug possession and the other for solicitation of aggravated robbery. He was ultimately confined in the Texas Youth Commission for these offenses. The month prior to committing the instant capital murder, the defendant committed a particularly violent aggravated robbery. During his various periods of confinement, he was aggressive, threatening, and violent toward staff. He also admitted to being a member of a street gang. At trial, defendant testified to his upbringing by a drug-dealing mother and lack of any real adult supervision which led to his life of crime and drug use. He also indicated that he had given his life to God and was ready to make a change.

Four concurring judges in the CCA’s original opinion in this case described their thoughts on some of defendant’s new mitigating evidence. The concurring opinion characterized the new evidence as duplicative of what was presented by him and his family members or as “double-edged” evidence which could have been used both as mitigating and aggravating (in particular evidence of a history of abusing and killing animals that defendant’s mitigating expert would have been required to admit). This, combined with the significant aggravating evidence, did not warrant a finding of harm, according to the concurring opinion.

Holding. No. SCOTUS requires the CCA to consider “the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweigh it against the evidence in aggravation. A finding of prejudice requires a reasonable probability that at least one juror would have struck a different balance regarding Applicant’s moral culpability.” SCOTUS’s assumption that the CCA did not consider prejudice is incorrect. Nonetheless, the CCA articulates its rationale in this new opinion: “the mitigating evidence offered at the habeas stage was relatively weak in that it was not specific to Applicant, was contradicted by other evidence, or overlapped evidence heard by the jury, and because the aggravating evidence was strong.” [17 pages of critical analysis of defendant’s new evidence followed].

Dissent (Newell, J.). “The United States Supreme Court unquestionably made mistakes regarding this Court’s original order denying post-conviction relief in this case.” Justice Alito pointed this out in his dissent, but the SCOTUS majority didn’t care. SCOTUS, unpersuaded by the CCA’s previous denial is likely to be unpersuaded by this more articulated denial which flies in the face of SCOTUS’s characterization of the evidence in this case.

Comment. I don’t think the CCA liked getting reversed here. “We did not set forth our reasons for denying habeas relief, but we are not aware of any constitutional requirement to do so.” This statement speaks loudly. This is not a mea culpa, the CCA  appears to frankly disagree with SCOTUS requiring them to provide the 17 pages of analysis it now provides in the instant opinion on remand. That statement is followed by “Nevertheless, in an abundance of caution, we now set forth our reasoning . . .” I do believe Judge Newell will be correct in the end. 

Williams v. State, No. PD-0477-19 (Tex. Crim. App. 2021)

Issue. Is a defendant required to identify evidence in the record supporting a lesser-included instruction to preserve error in its denial?

Facts. A jury convicted the defendant of continuous trafficking. Evidence at trial showed that he managed “adult escort” services on backpage.com, specifically those of an adult woman and a 16-year-old girl. This scheme lasted more than a year, during which the backpage.com ads were paid directly by the woman and the girl with one limited exception. During a 16-day period, the defendant paid for some of the ads. Despite the suggestion raised by the backpage.com billing records, substantial evidence showed that Appellant managed this trafficking scheme. But his theory was that he didn’t. Defendant testified and explained that he had no idea that these girls were even escorts, that they must have set up the backpage.com ad themselves, and that other incriminating evidence was the product of coincidence. The trial court denied defense counsel’s request to instruct the jury on the lesser-included offenses “trafficking, compelling prostitution, prostitution, and . . . simple assault.” When asked by the trial court, counsel could not point to any evidence in the record supporting his requests for lesser included offenses. The trial court denied the request. However, the court of appeals reversed based on the suggestion raised by 16 days backpage.com billing attributed to the defendant. According to the court of appeals this constituted “more than a scintilla of evidence from which a rational jury could conclude Appellant was guilty of only trafficking and not continuous trafficking [occurring for more than 30 days].”

Holding. Yes, unless the evidence is obvious. Defensive instructions are subject to the ordinary rules of procedural default. “Requests for lesser-included instructions, like requests for defensive instructions, frequently depend upon trial strategy and tactics, so they are not considered the law applicable to the case.” To preserve error on jury charge error, counsel must either present objections in writing or dictate them into the record. To preserve error on omitted lesser-included offenses, the defendant must point to evidence in the record supporting the proposed instruction unless the evidence is obvious. “A defendant who files or dictates a laundry-list of objections to the charge must also specify the legal or factual reasons why he believes himself entitled to such special instructions.” Defendant’s theory at trial was he committed no offense. As such, facts supporting the lesser-included offenses were not obvious to the trial court.

Dissent (Yeary, J.). No rule or case requires a defendant to cite factual support on top of citing the legal support for a requested jury instruction.

Comment. As much as I loathe when ultra-technical error preservation rules are used as a mechanism to condone an unfair trial, I don’t believe this is one of those circumstances. I agree with the majority that this was a he-did-it versus he-didn’t-do-it case. But if this counsel-must-point-to-the-evidence rule is to be employed going forward, I do hope to see plenty of cases where courts find that that defense counsel’s failure is excused by the obviousness of evidence in the record.

Ex parte Jones, No. PD-0552-18 (Tex. Crim. App. 2021)

Issue. Does the previous 2017 version of Texas’s revenge porn statute violate the First Amendment?

Facts. Defendant was charged with “Unlawful Disclosure of Intimate Visual Material” under Texas Penal Code Section 21.6(b). The indictment, which tracked one of several ways the statute criminalizes conduct, alleged that he did:

Intentionally or knowingly without the effective consent of [A.B.], hereafter styled the complainant, intentionally disclose visual material, namely, photograph, depicting the complainant with her naked genitals exposed, and the visual material was obtained by the defendant under circumstances in which the complainant had a reasonable expectation of privacy that the visual material would remain private, and the disclosure of the visual material caused harm to the complainant, namely, embarrassment, and the disclosure of the visual material revealed the identity of the complainant, through accompanying or subsequent information provided by the defendant.

Holding. No. “Section 21.16(b) is content based on its face” because it targets a particular kind of visual material—that which depicts intimate parts or sexual activity. Content-based regulations must be narrowly tailored to serve a compelling government interest. Protecting an individual’s sexual privacy is a compelling government interest. Narrow tailoring is the more difficult question in this case. Section 21.6(b) prohibits disclosures “only under certain privacy-invading circumstances—where the depicted person: (1) has not consented, (2) has a reasonable expectation of privacy, and (3) is identified.” The literal text of the statute, however, only requires that a defendant act intentionally with regard to the disclosure. This suggests that the defendant is strictly liable for all other circumstances which makes the disclosure a crime. Strict liability raises serious constitutional doubts when the government seeks to regulate speech, “therefore, it is incumbent on the Court to read the statute to eliminate those doubts so long as the statute is reasonably susceptible to such a construction.” Here the Court can presume the legislature did not intend to punish inadvertently disclosing sexually private material. Accordingly, to eliminate unintended overbreadth, the court holds “that the statute only covers the intentional disclosure of sexually explicitly material by third parties when that third party (1) obtained the material under circumstances in which the depicted person had a reasonable expectation that the image would remain private; (2) knew or was aware of but consciously disregarded a substantial and unjustifiable risk that he did not have effective consent of the depicted person; and (3) knowingly or recklessly identified the depicted person and cause that person harm through the disclosure.

Comment. The legislature amended the statute in response to the court of appeals holding finding the statute unconstitutional, it now requires far more in terms of mens rea, but it does not include the culpable mental state grafted onto the statute by the court regarding the act of identifying the depicted person. This issue may still be live.

1st District Houston

State v. Negrete, No. 01-19-00357-CR (Tex. App.—Houston [1st Dist], May 4, 2021)

Issue. Is the statement “I don’t want to snitch without a lawyer” an unambiguous invocation of the right to counsel?

Facts. Police interrogated the defendant about a murder. The defendant moved to suppress the interrogation alleging that officers violated his Fifth Amendment rights by failing to honor a request to have counsel present during interrogation and by coercing his confession by threatening criminal charges against his family members. The only evidence presented to the court in a hearing on the motion to suppress was a videotape of the interrogation.

After reviewing the videotaped recording, the trial court listed the “three statements [by appellee that it] found invoke[ed] [the right to] counsel.” The first statement by appellee, which occurs about thirteen minutes and ten seconds into the videotape recording, was: “I don’t want to snitch without a lawyer.” (Internal quotations omitted.) The second statement by appellee, which occurs about nineteen minutes into the videotaped recording, was: “What about my lawyer right there.” (Internal quotations omitted.) The third statement by appellee, which occurs about twenty minutes and forty seconds into the videotaped recording, was: “I want to make sure that I am going to be benefitted. That’s why I need a lawyer.”

Several times the officers also threatened to arrest defendant’s family members who they knew had nothing to do with criminal activity.

The State asserts that appellee’s statement, “I don’t want to snitch without a lawyer,” was not an unambiguous invocation of his Fifth Amendment right to counsel because the word ‘snitch’ is informal or slang and “it is not exactly clear when a criminal defendant snitches,” thus making the term “snitch itself ambiguous. (Internal quotations omitted.) Further, appellee’s statement only indicated that his “desire for an attorney [was] condition[ed] on when he snitche[d],” and it was not a blanket request for an attorney.

Holding. Yes. Law enforcement “may not conduct a custodial interrogation of a suspect who has requested the assistance of counsel.” Ambiguous and equivocal statements about counsel are insufficient to invoke the right or warrant suppression of statements resulting from continued interrogation. But the invocation does not require the expression of magical words. “Appellee’s statement was an unambiguous and unequivocal invocation of his right to counsel, and it is not unlike the statements made by the defendants in other cases in which courts have held that the defendant clearly invoked his right to counsel.” The State’s argument that the defendant’s request was conditional or not framed as a request is unpersuasive.

Comment. A different result would have been reached by the shameless Louisiana Supreme Court which once pretended to find ambiguity in the statement, “I want my lawyer dog.” That court found a reasonable person could not determine whether such an expression meant the suspect wanted the assistance of a real human lawyer or the assistance of a dog with a license to practice law. State v. Demesme, 228 So. 3d 1206 (La. 2017). I thought about discussing the professionalism of the State’s argument in this case to make sure I wasn’t being unfair. I quickly noticed they cited the Demesme case and now I have spent more time deleting not-nice snark-commentary than I have drafting an actual summary of this case.

Alternate Comment (Erin Therrian, SDR Wife). What if the detectives were big Harry Potter fans, I can see how that would be confusing for them?

Goliat v. State, No. 01-19-00904-CR (Tex. App.—Houston [1st Dist.] May 11, 2021)

Issue. Is a trial court required to re-open punishment evidence for counsel who learned from a State’s punishment witness that the victim has favorable things to say about the defendant?

Facts. A jury convicted defendant of two counts of aggravated sexual assault against a child for sexually abusing his girlfriend’s daughter who was 11 years old. Evidence showed that defendant bribed and badgered the victim to engage in sexual conduct. The victim became suicidal and eventually shared the facts of his sexual abuse. Defense counsel did not present evidence during guilt-innocence. Defense counsel did not present evidence during punishment. Defense counsel stipulated to six prior adjudicated offenses. Defense counsel did not challenge evidence of several unadjudicated offenses. The State presented the testimony of the victim’s mother (defendant’s former girlfriend) who told the jury that the victim did not want to hurt the defendant, see him suffer, or spend the rest of his life in jail. In her opinion, her daughter had been brainwashed by the defendant. Before closing arguments and reading of the punishment charge, defense counsel moved to re-open the evidence to present punishment testimony from the victim regarding her feelings about punishing the defendant. The trial court denied counsel’s request to re-open the evidence. The State argued in punishment that, among other things, there was no “mitigating evidence, anything that would make you feel sorry for him.” The jury sentenced the defendant to 65 years.

Holding. No. A trial court’s refusal to reopen evidence is reviewed for an abuse of discretion. The Code of Criminal Procedure requires the trial court to “allow testimony to be introduced at any time before the argument of a cause is concluded if it appears that it is necessary to a due administration of justice.” Tex. Code Crim. Proc. art. 36.02. Evidence necessary to a due administration of justice is evidence that would materially change the case in the proponent’s favor. Defendant contends that the victim’s plea for leniency is “unique testimony for which there is no substitute and would carry great weight with any jury.” However, here, the jury had already heard the victim testify in guilt-innocence that she still cared for the defendant and the victim’s mother testified in punishment that she did not want to hurt him or spend life in prison. Because the jury heard the evidence from other sources, there is no basis to conclude that the testimony would materially change the case in the proponent’s favor.

Comment. If you can think of a reason to not call punishment witnesses in an Aggravated Sexual Assault of a Child case, then you have a better imagination than I do.

Flowers v. State, No. 01-18-01059-CR (Tex. App.—Houston [1st Dist.] May 27, 2021)

Issue. When a judge believes he has given the minimum punishment allowed but is wrong about the minimum punishment, may an appellate court reform the judgment to reflect the true minimum punishment?

Facts. Defendant pleaded guilty to Possession of Controlled Substance 4 Grams or More but Less Than 200 Grams in a Drug Free Zone (enhanced again by one prior felony). Counsel, prosecutor, and trial judge all agreed that the effect of the drug-free zone enhancement increased defendant’s minimum punishment to 15 years. They were wrong. On appeal the State and defendant agree on this much—that the minimum punishment for an offense so-enhanced is 10 years. When defendant expressed shock at the severity of his sentence and in particular that the Drug Free Zone enhancement also required the judge to sentence him concurrently with a separate charge to which he pleaded, the trial court expressed that it had sentenced the defendant to the minimum punishment allowed by statute. On appeal, Defendant requests a sentencing modification to 10 years imprisonment – the actual minimum allowed by statute.

Holding. No. The Rules of Appellate Procedure permit reformation of judgment to “speak the truth when the matter has been called to its attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). An appellate court may modify a trial court’s judgment when the record indisputably reflects an error which is correctible by reference to information on the record. “But the record must supply us with the information necessary to show both that a modification is warranted and the particular modification that is warranted.” Here, the trial court expressed that it had sentenced the defendant to what it believed was the minimum punishment, but the record does not reflect that the trial court would have sentenced the defendant to even less if it had known that less was possible.

Comment. The court provides a great summary of scenarios where it is appropriate to modify judgments or correct errors:

    • court costs and fees;
    • deadly-weapon findings;
    • the defendant’s name;
    • the offense of conviction;
    • appeal waivers;
    • the defendant’s plea to enhancement allegations;
    • enhancement-allegation findings;
    • family-violence findings;
    • period of community supervision;
    • fines;
    • the imposition of court-appointed counsel’s fees;
    • credit for time served;
    • the degree of felony of the offense of conviction;
    • conflicts between the trial court’s oral pronouncement of punishment from the bench and the written judgment;
    • the defendant’s plea to the indicted offense;
    • the identity of the person to whom the defendant must pay restitution; and
    • conflicts between the punishment assessed by the jury and the punishment stated in the trial court’s judgment.

2nd District Fort Worth

McBurnett v. State, No. 02-19-00418-CR (Tex. App.—Ft. Worth, May 6, 2021)

Issue. (1) Does a passing, unsolicited reference to the defendant’s pretrial incarceration sufficiently impair a defendant’s presumption of innocence that a mistrial is warranted? (2) Is a defendant who is intoxicated when he commits a sexual assault entitled to a jury charge on temporary insanity?

Facts. Defendant was convicted of raping his former girlfriend’s daughter. On the date of the offense, defendant was living in a hotel and the victim and his former girlfriend’s cousin were visiting him. Defendant was intoxicated and, after sending the cousin away, he raped the victim. She later gave birth to a child at age 13. The State showed through DNA evidence that it was 2.2 billion times more likely the child was his than someone else’s. An investigating officer testified at trial that he collected the defendant’s DNA sample while he was incarcerated in the Tarrant County jail, which drew an objection and request for mistrial from the defendant. The trial court sustained the objection, denied the mistrial, and instructed the jury to disregard.

Holding. No. “the present case involves a single brief, unsolicited reference to the defendant being in jail.” This objectionable comment was cured by a prompt instruction to disregard. It did not constitute the type of impairment on the presumption of innocence presented in cases where the defendant is forced to appear in trial wearing shackles or jail clothing. No. Voluntary intoxication is not a defense to the commission of a crime. However, a defendant has the right to introduce evidence of temporary insanity by virtue of intoxication in punishment mitigation. A defendant is entitled to a jury instruction whenever some evidence supports it. But in this context, there must be more than evidence of mere intoxication. The intoxication must overcome the defendant’s ability to distinguish right from wrong. The question is not whether the conduct lacks a rational explanation other than intoxication. The defendant must make a showing that he did not know that sexual assault was wrong. Because he did not do that here, the evidence did not warrant the jury instruction.

Flores-Garnica v. State, No. 02-20-00016-CR (Tex. App.—Ft. Worth, May 13, 2021)

Issue. (1) The law defines a “motor vehicle” in the context of a DWI prosecution as “a device in, on, or by which a person or property is or may be transported or drawn on a highway . . .” Does an ATV, which legally may not be operated on a highway, satisfy this definition if no evidence suggests it was actually operated on a highway? (2) When the trial court judicially notices and admits into evidence statutes which are probative of evidence rebutting the defendant’s theory, must the trial court provide an instruction pursuant to Texas Rule of Evidence 201(f) explaining that jurors may accept or reject the noticed statutes as conclusive? 

Facts. Defendant drove his Polaris ATV in a convenience store parking lot, ran into the store to get a twelve-pack of beer, got back onto his ATV, and sped down street/private drive back to his closed-to-the-public mobile home park. Officers stopped, investigated, and arrested defendant for driving while intoxicated. A jury convicted defendant in a trial focused on whether: (1) any of the places he drove constituted a public highway, and (2) whether the ATV constituted a motor vehicle. The trial court took judicial notice and provided or read to the jury in the form of evidence several Transportation Code statutes which were probative of arguments rebutting the defendant’s theory. Defendant requested and the trial court declined to instruct the jury under Texas Rule of Evidence 201(f), a provision which instructs that the jury could choose to accept or reject the noticed statutes as conclusive.

Holding. (1) Yes (see question presented). “Without citing any authority, Flores-Garnica strictly defines ‘may’ in the motor-vehicle definition to mean ‘is lawfully authorized to’ as opposed to ‘is physically capable of.’” The court rejects this “narrow construction of the statute.” Because an ATV is physically capable of transporting a person or property on a highway, it meets the definition of motor vehicle regardless of whether the defendant truly operated it in such a manner. (2) No. “Under Rule 201(f), when a court takes judicial notice of an adjudicative fact ‘in a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.” Adjudicative facts are the facts that must be established by evidence relevant to an ultimate matter and not subject to any controversy. The statutes at issue, admitted as evidence, are not adjudicative facts but rather legislative facts. Legislative facts are those having relevance to overall legal reasoning and the lawmaking process and need not be proven by evidence, nor are they governed by Rule 201. The statutes at issue here were not unique to this case nor were they necessary to the jury’s determination whether the defendant drove a motor vehicle (even though tangentially related to the defendant’s theory of the “may be transported” legal impossibility). In essence all the court did here was tell the jury the law, but did not tell the jury that these judicially noticed laws necessarily applied to this case. 

Comment. “May” either means legally permissible or physically possible. The court criticizes the defendant for choosing a definition which supports his acquittal without citing support for his choice. The court makes the alternative choice which supports affirming a conviction. The court does not cite any support for its choice.

3rd District Austin

Whillhite v. State, No. 03-18-00766-CR (Tex. App.—Austin, May 27, 2021)

Issue. Can the court of appeals entertain a void conviction argument raised for the first time on appeal from a revocation of deferred adjudication probation?

Facts. Defendant pleaded guilty to and was placed on deferred adjudication for sexual assault of a child and online solicitation of a child. In a subsequent revocation hearing the trial court sentenced the defendant to 75 years on each offense. The defendant appealed but his counsel filed an Anders brief alleging no meritorious grounds for appeal. Defendant filed a pro se petition for discretionary review with the Court of Criminal Appeals and the case was remanded on grounds that appointed counsel should have presented argument on the unconstitutionality of the online solicitation statute as determined in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)(Online Solicitation statute facially overbroad). With the appointment of new appellate counsel, defendant now makes such arguments.

Holding. Yes. Whereas a defendant normally loses the ability to raise issues pertaining to his initial plea in the context of a later revocation proceeding, “under the ‘void judgment’ exception to this rule, a defendant appealing the judgment after his guilt is adjudicated may collaterally attack the original deferred-adjudication order if the order was void.” Similarly, a defendant may raise for the first time on appeal—without raising first in the trial court—the issue of a void conviction arising from a statute that is facially overbroad.  Because defendant’s conviction is based on an unconstitutional statute, it is void and the court must render a judgment of acquittal.

4th District San Antonio

Ex parte Treviño, No. 04-20-00544-CR (Tex. App.—San Antonio, May 19, 2021)

Issue. (1) Do the Rules of Evidence apply in a bond revocation hearing? (2) Can the fact of an arrest alone provide a basis for no-bond order under Article 1, Section 11b of the Texas Constitution (no-bond order authorized in family violence case when a magistrate determines a defendant violated a condition of release related to victim or community safety)?

Facts. Defendant was arrested for aggravated assault with a deadly weapon upon his wife. His bond was set at $20,000. Defendant posted his amount and was released. Eventually several conditions were placed upon his pretrial release. He was prohibited from going near his wife’s apartment and prohibited from injurious contact with family members. The State filed a motion to revoke defendant’s bond after, according to their allegations, he went to his wife’s apartment, sexually assaulted her, and choked her until she passed out. As proof in the hearing to set new bond, the State offered offense reports, arrest affidavits, and hearsay testimony. The trial court considered this evidence over the defendant’s hearsay objections. The trial court ordered defendant held without bond.

Holding. (1) Yes. Texas Rule of Evidence 101(e)(3)(C) specifically provides that the rules of evidence apply in “hearings to deny, revoke, or increase bail.” (2) No. “Texas Constitution article I, Section 11b contemplates a hearing to deny bond to an accused pending trial.” The fact of the arrest alone does not establish the truth of the violation.

Romo v. State, No. 04-19-00772-CR (Tex. App. San. Antonio, May 26, 2021)

Issue. Does a video displaying nude pre-pubescent girls participating in a nudist beauty pageant shot in purported documentary fashion satisfy the requirement of “lewd exhibition of the genitals” essential to a child pornography conviction? 

Facts. Defendant was convicted of continuous sexual abuse of a child, indecency with a child, and possession of child pornography. The significant issue presented involves the issue of child pornography. During the investigation of the sexual abuse, police discovered a DVD titled “Nudist HDV” in the defendant’s office at the Food Bank where he worked. The DVD depicted young girls participating in a nude beauty competition.

Holding. No. “the meaning of the undefined statutory phrase ‘lewd exhibition of the genitals’ is a matter of law’ that we review de novo.” Citing State v. Bolles, 541 S.W.3d 128, 134 (Tex. Crim. App. 2017). In Bolles, the Court of Criminal Appeals borrowed from United States v. Dost to guide their determination on whether depictions of nude children are “lewd.”636 F. Supp. 828 (S.D. Cal. 1986). The Dost non-exclusive factors for consideration include:

    1. Whether the focal point of the visual depiction is on the child’s genitalia or pub area;
    2. Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
    3. Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
    4. Whether the child is fully or partially clothed, or nude;
    5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
    6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

The video begins with a disclaimer that it is intended to portray nudist life, is not sexually oriented or adult in nature, and claims to be documentary and educational material. The video focuses mainly on pre-pubescent girls and depicts no pre-pubescent boys. There are a few adults depicted. The cameraman focuses only on the faces as he talks with the girls before a beauty pageant. The setting is outside in a grassy picnic area. There is no sexual activity depicted, everyone is behaving casually. Accordingly, “the evidence is legally insufficient to support a finding that the video depicts a lewd exhibition of the genitals.”

Dissent (Alvarez, J.). The suspiciously over-enthusiastic label on the DVD reads “100 percent genuine, fully-legal nudist documentary, Miss Jr. Teen Beauty Competition.” Several children have tan lines. Several children have shaved or partially shaved pubic hair. The cameraman intentionally keeps their nudity within the frame. The video is in French but the disclaimer seems to be intended for an American audience, promising no federal laws are violated. There appears to be no purpose to the film except to show naked girls. This is more akin to child pornography cases involving voyeurism than those typically analyzed under the Dost factors.

Comment. I agree with Justice Alvarez, “the artifice is apparent and not at all natural.”

5th District Dallas

Nawaz v. State, No. 05-19-00092-CR (Tex. App.—Dallas, May 11, 2021)(not designated for publication)

Issue. When the State alleges in two indictments indistinguishable acts and injuries, does double-jeopardy prevent a conviction for both: (1) Injury to a Child – Serious Bodily Injury, and (2) Injury to a Child – Serious Mental Deficiency?

Facts. Defendant was accused of inflicting serious head injuries to his two-month-old daughter. She was taken to the hospital with abnormal breathing, vitals, and blood oxygen. CT and MRI scans revealed brain bleeds, hematomas, contusions, and neck ligament damage. According to physicians, these were all indicative of trauma from some sort of external whipping-like force. Appellant and his wife had no explanation for their daughter’s injuries. A pediatric ophthalmologist concluded that she had suffered retinal hemorrhaging and would not regain vision. A child abuse pediatrician determined that the injuries would result in developmental delay and permanent loss of mental function. The State prosecuted defendant for: (1) Injury to a Child Causing Serious Bodily Injury With Deadly Weapon (hands), and Injury to a Child Causing Serious Mental Deficiency With Deadly Weapon (hands).

Holding. Yes. The Blockburger test for double jeopardy permits a conviction for two similar offenses when each provision requires “proof of a fact which the other does not.” Texas applies a modified Blockburger test described as the “cognate-pleadings approach.” See Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008). “Under the cognate-pleadings approach adopted by this Court, double-jeopardy challenges should be made even to offenses that have different elements under Blockburger, if the same ‘facts required’ are alleged in the indictment.” Id. Overlying these tests is the legislative intent—“the Blockburger test cannot authorize two punishments where the legislature clearly intended one.” Ervin v. State, S.W.2d 804, 807 (Tex. Crim. App. 1999)(providing factors for interpreting the legislature’s intent).

Both convictions fall under the same penal code section. The relevant statutory subsections are phrased in the alternative or disjunctive. They all carry the same punishment range. Each indictment lists the identical manner and means of committing each violation. The indictments do not list distinct incidents of injury. The facts required for conviction in each indictment were exactly the same. Injury to a Child is a result-of-conduct offense and the State neither alleged nor proved distinct injuries that the defendant inflicted. “Because it is the child’s injury that defines the offense, the State may not obtain two convictions against a defendant for causing the same injury.”

Comment. The State has requested additional time to prepare a petition for discretionary review with the Court of Criminal Appeals. The issue appears to be one of first impression, however, the Fifth Court of Appeals notes that the Court of Criminal Appeals has analyzed this statute in related ways. In particular, in Villanueva v. State, the Court of Criminal Appeals addressed whether a defendant could be prosecuted for Injury to a Child for both an “act” and an “omission” and concluded “it was conceivable—so long as the State could prove that two separate and discrete incidents occurred on that day comprising two violations of the statutorily defined offense.” Citing Villanueva, 227S.W.3d 744 (Tex. Crim. App. 2007).

6th District Texarkana

State v. Bronson, No. 06-20-00135-CR (Tex. App.—Texarkana, May 26, 2021)

Issue. Does the Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster which permit trial courts to extend certain deadlines allow a trial court to grant “shock-probation” (suspension of a partially executed prison sentence) after its statutorily defined 180-day jurisdiction expires.

Holding. No. Citing In re State ex rel. Ogg, 618 S.W.3d 361 (Tex. Crim. App. 2021) the court held that shock probation jurisdiction could not be enlarged.

7th District Amarillo

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

Campbell v. State, No. 10-19-00191-CR (Tex. App.—Waco, May 19, 2021)

Issue. Is it harmful error to allow a jury to convict a person of murder by giving them four definitions of murder, one of which is not murder? 

Facts. The defendant strangled the victim to death. The two were friends and the defendant paid the victim for sex. The defendant testified at trial that the victim “engaged in erotic asphyxiation during sex.” In the application portion of the jury charge, the jury was instructed to convict the defendant “if they found beyond a reasonable doubt that he 1) intentionally caused the death of Wright, 2) knowingly caused the death of Wright, or 3) with intent to cause serious bodily injury, committed an act clearly dangerous to human life and caused the death of Wright.” In the abstract portion of the jury charge, the court defined intentionally as:

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

The defendant objected and argued that “intentional murder is a result of conduct offense and that the charge was in error because it defined intentionally as it relates to both the ‘nature’ of his conduct as well as the ‘result’ of his conduct.”

Holding. The court assumes without deciding that Murder is a result-of-conduct offense and that it was erroneous to define “intentional” to include “nature of his conduct” language. A court will not reverse on objected-to jury charge error on the basis of theoretical harm – the defendant must have suffered actual harm. Here, the jury was charged on both knowing and intentional conduct. The jury was also given the option of finding that the defendant intended serious bodily injury that was clearly dangerous to human life. Because thee defendant cannot show the  jury utilized the erroneous definition, the defendant cannot show harm. Plus, the State’s evidence was really good evidence.

Dissent (Gray, C.J.). “Appellant choked Jade. Jade died as a result. Did appellant intend the result? That was one option in the charge available to the jury. There were at least five different ways, manner and means, that would allow an affirmative answer to that question.” “But the charge included an admittedly erroneous definition of ‘intentionally’ that allowed the jury to convict the appellant if he intended to choke Jade.” This erroneous definition allowed the jury to find him guilty of murder based on conduct that does not constitute murder. If this were a civil case, we’d reverse it.

Comment. Chief Justice Gray is correct. You cannot hold a person to proof of harm that is impossible to show. “If the jury is charged on both a proper and improper theory of liability . . . the error in the charge is harmful because the party is unable to know, and therefore unable to show on appeal, that the answer is based on the improper theory.”

Rodriguez v. State, No. 10-18-00253-CR (Tex. App.—Waco, May 20, 2021)

Issue. Must a defendant who made a pretrial discovery request pursuant to Texas Code of Criminal Procedure Article 39.14 move for a continuance mid-trial to preserve error when the State attempts to admit undisclosed evidence?

Facts. Defendant was convicted of hindering apprehension of a fugitive because she lied about the presence of a fugitive in her home when police came looking with an arrest warrant. At trial the defendant objected to testimony about a warrant because it had not been produced pursuant to defendant’s discovery request in compliance with Texas Code of Criminal Procedure Article 39.14. The State argued that they did not possess the warrant because it was in the custody of the district clerk, and that disclosure was not required because the district clerk is not under contract with the State.

Holding. Yes. [T]he record reflects that appellant did not request a continuance in response to the State’s proffer of the Lopez arrest warrant. In other words, appellant had the opportunity to avoid the prejudice and impairment but chose not to. Therefore, we hold that appellant has waived her article 39.14(a) complaint in this issue.”

Concurrence (Gray, C.J.).The error was harmless, but “I respectfully disagree that a motion for continuance should be required to preserve error of this issue.” The resolution of this case is “critical to whether the adoption of the Michael Morton Act is going to have any lasting meaning for the fair and efficient prosecution of criminal trials in Texas.”

Comment. No one should be surprised that I agree with Chief Justice Gray here again. Error preservation rules are judge-made rules and in this arena of prosecutors not doing what they are supposed to do, we add extra rules on top of the normal error preservation rules required in other contexts. I hope appellate counsel files a petition for discretionary review in this case.

11th District Eastland

Yoda v. State, No. 11-19-00191-CR (Tex. App.—Eastland, May 6, 2021)

Issue. Must an officer have training or expertise to render an opinion which informed his reasonable suspicion that an individual was speeding, potentially as much as 15-25 miles per hour over the speed limit?

Facts. Defendant was convicted by a jury of felony habitual Driving While Intoxicated and received an enhanced sentence of 35 years. This came after the trial court denied defendant’s motion to suppress challenging the arresting officer’s qualifications to determine he was speeding. The arresting officer observed the defendant cross in front of him moving at what he believed was a high rate of speed. The officer indicated “it took me a while to catch up and that he had to accelerate to approximately 73 miles per hour to catch up to Appellant.” He estimated defendant was traveling 60-70 miles per hour in a 45 mile per hour zone. The arresting officer admitted he lacked certification to activate and use radar, that he was not authorized to issue speeding tickets for this reason, and that he has no specialized training for estimating the speed of a vehicle crossing his path. The arresting officer testified that he based his conclusions about defendant’s speeds based on his own personal driving experiences.

Holding. “Experienced drivers may form and express a lay opinion about the speed of other vehicles they observe on a roadway based on the objective facts they describe, and depending on the facts the witness articulates, the facts described may be sufficient for a court to allow a lay witness to express a lay opinion about another vehicle’s speed.” Defendant’s criticisms are unpersuasive: (1) that speed was not measured by radar or pacing, (2) that no evidence showed defendant was passing vehicles going the speed limit, (3) that the officer lacked training in estimating speed, and (4) that the officer had no scientific method for gauging speed. These criticisms go to the weight that the trial court should choose to give to the officer’s testimony, a determination which must be given almost total deference. Guestimating that someone is speeding by four or five miles per hour might be suspect, but estimating that a person is speeding when appearing to be driving at twenty miles over the speed limit is within the capabilities of an experienced driver. Moreover, an actual speed is not necessary to making a determination that a person is speeding. It is an offense to “Drive at a speed greater than is reasonable and prudent under the circumstances then existing.” The posted speed acts only as prima facie evidence that greater speeds are not reasonable and prudent. If an officer believes, independent of the posted speed limit, that a person is driving at a speed not reasonable and prudent, that officer is justified in conducting a traffic stop.

Comment. “Suppress or suppress not. There is no try.” PDR has been filed because “these are not the rulings you are looking for.”  

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

Salinas v. State, No. 13-19-00504-CR (Tex. App.—Corpus Christi-Edinburg, May 13, 2021)

Issue. (1) does a vehicle owner have a subjective and objective expectation of privacy in a USB drive found in his vehicle by technicians performing maintenance at the request of the owner? (2) Did vehicle technicians commit Breach of Computer Security by looking at files on the USB drive and thus trigger Texas’s exclusionary rule (applicable to both state actors and private citizens)? (3) Did the police unlawfully perform a confirmatory search after technicians informed them that the USB drive contained child pornography?

Facts. Defendant dropped his truck off at the dealership to receive service on a check engine light, the air conditioner, and a problem with the glove compartment. The two technicians working on the vehicle discovered a USB drive in the vehicle and decided to plug it into one of their computers to see what they could find. They found child pornography. They called the police. Initially, they lied about their reasons for looking through the defendant’s USB drive, but they ultimately settled on a story in which they were both curious whether they would find any music on it.  The police performed a confirmatory search to discover the child pornography themselves.

Holding. (1) Yes. The defendant demonstrated his subjective expectation of privacy by hiding his files on a USB drive. The defendant’s expectation was not diminished by dropping a vehicle off for service that was totally unrelated to the USB drive. Because the defendant had a property interest in the USB drive, did not give permission to access it, and the accessing the USB drive by technicians was outside of the scope of the repairs he requested, his expectation of privacy was also objectively reasonable. (2) No. The USB drive must be a “computer” before the actions of the technicians constitute “Breach of Computer Security.” A “computer” is defined as “an electronic, magnetic, optical, electromechanical, or other high speed data processing device that performs logical, arithmetic, or memory functions by the . . . and includes all . . . storage . . . facilities that are connected or related to the device.” Under this definition, a USB drive is not a computer because it only stores data. It does not perform data processing. Had the USB been connected to a computer, then it might have fallen within that definition’s concept of devices that are “connected or related to the device.” But here it was merely sitting loosely in a door compartment.  (3) No. The private search doctrine, an exception to the warrant requirement, provides that the Fourth Amendment is inapplicable to a search or seizure, even an unreasonable one, conducted by a private individual not acting at the direction of or participating with the government. Law enforcement may examine evidence that a private party has unearthed and made available. Here, when the technicians accessed the child pornography, they obliterated the defendant’s expectation of privacy. “Therefore, there was no Fourth Amendment violation when the officers searched later.”

Comment. There is nuance here that is ignored. Of course police can view what has been put on display by a private citizen’s search. But the private search doctrine isn’t one which diminishes expectations of privacy as suggested by the court, it merely exculpates the police from the wrongfulness of the search. Here, when the private citizen went to the police and said “look what I found,” all that could be seen was a piece of plastic and metal that could be plugged into a computer. The police had to conduct an independent search to discover what had been previously discovered by the technicians. The Court’s rationale is no different than holding that the police may enter and search a person’s home upon a report from a former houseguest that they saw marijuana inside a sock drawer. They can’t do that, so they shouldn’t be able to do this.  

14th District Houston

Hart v. State, No. 14-19-00591-CR (Tex. App.—Houston [14th Dist.] May 13, 2021)

Issue. (1) Was trial counsel ineffective by not moving to suppress video evidence which he believed was obtained unlawfully but lacked factual support to substantiate his belief? (2) Was trial counsel ineffective by declining the trial court’s offer to include sudden passion in a punishment charge based on his  incorrect understanding of the law?

Facts. Defendant shot his daughter’s abusive boyfriend in front of his home. Defendant had surveillance cameras on the front of the house which captured defendant’s confrontation with the boyfriend and the shooting. The video was the foundation of the State’s case. They obtained it through a broadly worded consent form executed by defendant’s wife allowing officers to seize “any and all letters, papers, materials and other property, which they desire.” Defense counsel represented to the trial court that defendant’s wife did not know what she was signing, but also represented that he did not have evidence to support a suppression of the video. After the jury convicted the defendant, the trial court crafted a jury charge on punishment. During this process, the trial court offered an instruction on sudden passion to the defendant. Counsel rejected this offer.  He stated that he did not believe the facts supported it after reviewing case law.

Holding. (1) No. Evidence did not support the suppression. Counsel thought defendant’s wife might have been confused by the consent she had provided. However, defendant’s wife testified in punishment and never stated she was confused. The consent forms were clear. Officers gave her plenty of time to sign it. (1) Yes. “[T]his is not a situation in which Hart’s counsel elected to pursue an alternative defensive strategy instead of seeking a sudden-passion instruction. The decision to decline the trial court’s offer was not strategic. Counsel explicitly stated that he believed the law did not permit such an instruction under these facts. He was wrong. At least some evidence showed that the defendant was acting out of “terror or rage, or both” at his daughter’s boyfriend returning to the home to abuse his daughter. Some evidence also showed that he lost his capacity for cool reflection. The jury sentenced the defendant to 30 years, but they might have otherwise found themselves limited by the lesser sentencing range of 2-20 years under a sudden-passion finding.

Dissent (Wise, J.). “The majority eviscerates any discretion that seasoned criminal defense attorneys may exercise to pursue one defensive strategy over another. I must respectfully dissent.” “If the record in this case reveals anything about counsel’s reason for not requesting a sudden passion instruction, it is that counsel affirmatively considered the merits of requesting the instruction and rejected it.” Sudden passion did not fit with counsel’s theory of the defendant as “a considerate family-man who wanted to protect his daughter from a persistent problematic boyfriend.”

Comment. It is a stretch for the dissent to convert “Q: As you’ve discussed with the State, you don’t believe the facts support it; is that correct? A: That is correct, Judge. I went through about six pieces of case law, and there was one that was directly on point and it just—it wasn’t supported by the facts.” Into: “No, its not that I don’t think the defendant is legally entitled to the instruction, it’s just that it doesn’t fit with my theory of the case.”

Moore v. State, No. 14-19-00466-CR (Tex. App.—Houston [14th Dist.] May 18, 2021)

Issue. Did the trial court improperly comment on the weight of the evidence by offering hypotheticals corroborating a complaining witnesses’ account when that witness was under cross examination about the truthfulness of her allegation?

Facts. The jury convicted the defendant of Assault Family Violence. The evidence at trial was “he-said / she-said.” The complainant said that the defendant pinched her nose, covered her mouth, pushed her face into the couch for fifteen seconds. During cross-examination, the trial court repeatedly came to the rescue of the complainant by “fabricating hypotheticals in support of the complainant’s account.”

[DEFENSE COUNSEL:]                  And again, 6:28:46 [a.m. on the video], here we go again, light is—
[THE STATE]:                                   Objection, Your Honor, to the relevance of where the cell phone light is.
THE COURT:                                     I’m hoping you’re going to go somewhere with this. Where is the relevance?
[DEFENSE COUNSEL]:                  The relevance, Your Honor, is if she’s being attacked from behind by [appellant] and she’s presumably the only one holding the cell phone and it’s remaining in relatively the same place, it’s inconsistent.
THE COURT:                                     It could be on a table or something over there.
[DEFENSE COUNSEL]:                  Well, but it does move, Your Honor. It does move in the video.
THE COURT:                                     Maybe shook the room or the table or something—
[DEFENSE COUNSEL]:                  Judge, I object to the commentary on the evidence—
THE COURT:                                     I’m just saying, I don’t understand where you’re going with this.
[DEFENSE COUNSEL]:                  I object on the Court’s commentary as it comments on the weight of the evidence.
THE COURT:                                     You—you keep asking her that. You’ve asked her this question so many times.
[DEFENSE COUNSEL]:                  Well, I understand the Court’s position; but I object to what the Court has now said to the jury. I object to it and I ask that it be stricken from the record.
THE COURT:                                     It will be stricken from the record. It’s just rhetorical. But please ask a question and get an answer and let’s move on.
[DEFENSE COUNSEL]:                  And I ask that the jury be instructed to disregard.
THE COURT:                                     And please disregard my statement.
[DEFENSE COUNSEL]:                  Thank you, Your Honor.

Holding. Yes. Texas Code of Criminal Procedure Article 38.05 provides:

In ruling on the admissibility of evidence, the judge shall not discuss or comment on the weight of the same or its bearing on the case . . . nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.”

A comment on the weight of evidence occurs when the trial court: (1) makes a statement that implies approval of the State’s argument, (2) indicates disbelief in the defense’s position, or (3) diminishes the credibility of the defense’s approach to the case. Here the trial court’s invented factual scenarios implied approval of the State’s case in a way that made the trial court “an advocate for the State.” This was improper comment on the evidence under Article 38.05. Because the defense’s theory was that the complainant orchestrated and fabricated an assault, the State’s case hinged on the complainant’s credibility and the trial court’s commentary weighing in on this ultimate issue was harmful and given the pivotal nature of the testimony, the limiting instruction did not sufficiently cure this harm.

Comment. Kudos to trial counsel for preserving this record under fire. It took three objections to get the trial court to stop inventing hypotheticals before the trial court ultimately ruled on the objection. Then, as he should have, he asked for a limiting instruction and requested a mistrial.

Memories of TCDLA’s First President

March 10th, 2020 -This is a Veteran’s Day story. When I was a young guy just out of law school, I went to work as an assistant district attorney for Les Proctor here in Travis County, Texas.

One of the first cases I tried before a jury along with John Allen, first assistant, who became ill during the trial and had to be put to bed, resulted in a loss. Proctor was furious and called me into his office. He asked for an explanation, and I had none. He stated to me that the reason the case was lost was because, “You look funny.”

I had been shot up in Korea, and my facial countenance was not the best in the West.

“I want you to wear one of your medals as an explanation,” he said.

“No, sir” said I, ready to resign.

Bob Smith, chief trial attorney, joined in: “Next case we’ll try it together and I’ll wear one of mine.”

Proctor ordered it, and after a lot of discussion, I agreed. So, Bob and I wearing a medal button in our suit lapels, tried an enhanced theft case before a jury, and we promptly lost. Proctor, being a veteran Marine, Smith being veteran Air Force, and I were then in agreement that medals were not the answer and I went on looking funny… probably should have become a personal injury lawyer.

 

March 19th, 2020 -Another story about the sleepy town-city Austin, Texas, in the late 1950s. Mostly university, government, and stores along Congress Ave. and East 6th St. But with three whore houses nestled in the South Congress area – one of them run by herself, the great Mrs. Hattie Valdez. The population of Austin as time moved forward increased as did its moral and religious awareness and pressure was brought through various grand juries to do justice and padlock them. Proctor, the DA, assigned this to me, and I promptly did justice through injunctive action, closing them down. During this operation, I learned that Hattie operated several houses throughout the state and treated her girls who rode the circuit as her daughters. When I later became an assistant attorney general, public pressure, then at its zenith, demanded the attorney general take action and close down the whore houses throughout the state. This really fell within the jurisdiction of the various district and county Attorneys, but for some reason most of them were reluctant to do so. So, armed with the Texas Rangers in the various venues, I charged. Reenter Hattie Valdez. On the day I was to appear in district court in one of the east central counties, to padlock one of her houses, I received a phone call from Hattie asking if she could bum a ride with me to the county since she was to appear in court. She said that we would only have to make one stop to pick up the linens in the house to be padlocked, and that is another story…

 

March 20th, 2020 -The Criminal Bar of Austin Travis County in the middle ‘50s was relatively small – Paul Holt, Perry Jones, Roy Martin, Bill Yelderman, Vic Rogers, John Brady, Wright Stubbs, Arthur Mitchel, Jack Darrouzette, and a few others. The civil lawyers, with rare exception, seldom ventured into the criminal courts. There were only three district courts: 53rd, 98th, and 126th. Judge Jack Roberts, a prior DA, presided over the 126th. Charles Betts the 98th and J. Harris Gardner the 53rd. The  defense lawyer seldom won a jury case. The great Warren Court decisions Miranda, Escobedo, Mapp, Malloy v. Hogan, Murphy v. Waterfront, and Massiah had yet to be decided. The poor defense lawyer went into battle blind, no discovery, not entitled to see his client’s confession or rap sheet. Such was the case when Roy Martin, one of the better lawyers in the system, appeared before Judge Roberts and a jury defending some poor devil charged with the inglorious offense of theft of edible meat (a chicken) carrying a possible punishment of two years to life if convicted.

Now, Roy was not known for his quiet demeanor nor his acceptance of what he considered to be an out-and-out deception by others. When he talked to you in what he considered a normal voice, he could be heard for at least 200 feet around him. Thus was the case when a police officer was testifying for the state. Roy’s client had insisted and again told Roy that he had no prior police arrest record except for minor traffic cases. A defendant’s prior arrest record, unless he took the stand and testified or put his character in issue, was not admissible before the jury. Roy, when it was time for cross examination, said “Now, Officer, you know my client has no criminal record. You have the police report on that. Read it if you will.”

The officer looked astounded, and putting on his glasses began reading, “Theft, theft, burglary, theft, burglary.”

Roy turned to his client and said in what he assumed was a whisper, but could be heard in the next courtroom, “You son of a bitch.”

 

March 24th, 2020 -Just before the 1900s, there were more Sheltons in Travis and Williamson Counties than most large families. Born to that clan were Polk, Emmett, and Earl Shelton who, according to Emmet, became lawyers for their own protection. Practicing law in the 1950’s, Polk was known for his success in the criminal and domestic Courts, Emmet was a leader in Texas politics, and Earl was the scholar. In 1956, the district attorney’s office along with the grand jury room, the jury dormitory, and the court library were on the fifth floor of the Travis County Courthouse. The courthouse, built in the 1930’s, was crowded, and my office (cubicle) was open and abutted the library where Earl kind of lived, researching the law and regaling me with the most interesting stories of the practice of law by the Shelton family in early Texas. Being a Yankee, and new to Texas – having been here for only the last seven years – I could not get enough of his colorful and educational stories. I remember him saying, “Back in the old days , when the Shelton’s were so numerous you couldn’t count them and some you weren’t even sure you were related to, one was falsely accused and convicted in Williamson County of some type of offense despite the efforts of a distant Shelton lawyer. On the day of the hanging, about 50 well-armed Shelton men arrived on horseback and presented themselves before the gallows outside the Williamson County Courthouse. The hanging was called off, the defendant was freed, and justice was done. I told Earl he should write a book, but he never did. Emmet, however, presented me with about 10 tapes recording much of his experiences in Texas politics, particularly those involving the state and county conventions during the Shivers and Daniel years, but that is another Texas lawyer story…

 

March 25th, 2020 -There were not any woman lawyers in the district attorney’s office until very late in the 20th century. In fact, there were very few woman lawyers in Travis County. I recall that in one of our courts in 1960, a female lawyer appeared at docket call wearing long pants and was summarily ordered by the judge to leave the court until she properly dressed. However, this did not mean that women did not have influence or make substantial contributions to the running of the Travis County District Attorney’s Office. In 1956, there were four male Assistant DAs and one female secretary. All of the lawyers worked weekends and late hours. Proctor, the DA, was a bachelor, the rest of us had families and it was hard to be absent husbands and parents. This was particularly true on change-of-venue cases since we had jurisdiction to prosecute state officers and were called upon to try cases in counties far away from Austin. Finally, in 1958, we went from four assistants to six and four female secretaries.

I say secretaries but the first to be hired was an Austin debutant member of the Junior League, beautiful and single and very proper. She had much influence on the selection of the other three ladies Proctor hired. All debutants, all Junior League, all UT graduates with varying degrees from art to history, all beautiful and proper and, as it became evident, all dedicated to the success of the Office of District Attorney. They were in effect better at running the office than we were. But this was not to last. One of them became a successful lawyer, married an astrophysicist, and traveled all over the world where he lectured in various colleges on mathematics. One married a renowned Hollywood actor who excelled in his profession and is still doing so. One married a lawyer who played a great part in changing world affairs in Washington, and one married a young man who with her became an outstanding entrepreneur. All four of them at different times effected the decisional process of the DA’s office, but that’ another lawyer story…

 

March 27th, 2020 – As a Massachusetts Yankee, Korean War transplant, then a University of Texas undergraduate and law school alumnus exposed to quiet sophisticated beautiful Austin in the 1950’s, I soon learned that there was a strong belief in Austin that Sam Houston was right that Texas should not have seceded from the union in the 1860s. Most of the people who lived in Austin in the ‘50s were born there or at least in Texas and had a strong pride in the fact that they were Americans, and most certainly Texans. The strength of that pride was evident in how they lived, governed, and interacted with each other…which brings me to the law of the west or maybe of East Texas as it existed in some counties in the 1960s. Texas was governed by the 1925 Penal Code. This was not to change until the Supreme Court decisions, the amendments to the procedural code in the ‘60s, and the enactment of a completely new penal code in 1974. In 1962, the Billy Sol Estes Case was tried on-change-of venue from Pecos County several hundred miles away to Smith County (Tyler).

The prosecutors were R.B. McGowan, district attorney of Pecos, and Weldon Holcomb, district attorney of Smith County. I was there as chief of law enforcement division assistant attorney general assisting them. John and Hume Cofer of Austin were defending. The case ultimately became the seminal case before the U.S. Supreme Court on television in the courtroom. Estes was charged in a three-count indictment under the 1925 Penal Code with various types of theft involving anhydrous ammonium tanks and financial institutions, a simple and boring prosecution complicated by the intrusion of multiple television cameras, coaxial cables, and shotgun mikes in the Smith County courtroom, which of course brought forth numerous objections by the defense. John Cofer: “Your Honor, we object. These cameras along with their created pre-trial publicity violate the defendant’s rights to a fair trial guaranteed to him by the Sixth and Fourteenth amendments to the Constitution of the United States.”

The judge: “Overruled….We are trying this case under the Texas Constitution, not the United States Constitution.”

Whoops, the Supreme Court of the United State agreed of course with the Cofers. And the law of the west (or east) did not prevail. I should have agreed  with the Cofers, but when asked by the judge what the state’s position was, I said cowardly, “Whatever the court desires” – words of infamy to be regretted throughout my lawyer career but that’ s another Texas lawyer story…

 

March 28th, 2020 – I wish that I could say, like many of my friends, that I had since childhood always wanted to be a lawyer. Fact is, my wish was to be a soldier but my service in the Korean War made this impossible, and when the Army kicked me out, I began searching for another profession. The doctors at Brooke Army Hospital advised me against becoming a doctor, saying that if I lost the remaining eye, I would not be able to even diagnose measles. They suggested the law.

“There’re plenty of blind lawyers.”

At that time, although I was a captain and close to five years in the Army, I was still only a high school graduate. The lawyers I knew about in Worcester were highly respected and well-educated people. While on leave in Worcester, waiting for severance, I told my dad I didn’t think I was smart enough to be a lawyer. He suggested I visit with Judge Meagher, a newly appointed superior court judge and a family friend. The judge was very kind and invited me to sit in and watch one of the great Boston lawyers, Paul Smith, defend three armed-robbery defendants to be tried in his court the following day.

This was in 1951 supposedly in advanced Massachusetts. I arrived, and after sitting at the back of this very large majestic courtroom, saw the three defendants – young 17-year-olds – handcuffed sitting in a cage in the middle of the courtroom. The jury had previously been picked, the opening statements were made, and the district attorney began questioning his first witness, a big police sergeant. sitting in the witness chair. At some point during the cross examination of the officer, things got hot, and before anyone knew what was happening, Mr. Smith picked up a chair and threw it at the witness. The courtroom was cleared, and I found out later that all three defendants were acquitted. This obviously had some effect on my decision to become a lawyer and to be licensed not only in Texas but also in Massachusetts.

Years later, Paul and I became good friends through our association in NACDL and in trying a case in the Commonwealth of Massachusetts but that’s another lawyer story…

March 28th, 2020 – One of the great things about Texas is its politics, particularly as it relates to prosecutorial or judicial office. You don’t need the permission of any political machine or appointive authority, you just announce, pay the filing fee, and run in the primary of one of the two political parties. You of course have to have the legal qualifications to do so. In 1961, Les Proctor decided not to seek re-election as District Attorney of Travis County but instead to run for attorney general. Tom Blackwell, then county attorney, immediately announced for the office of district attorney, leaving the office of county attorney up for grabs.

I had been prosecuting and doing the so-called Lord’s work, away from home, all over the state and now I felt it was time to reap the harvest. But should I leave this cushiony $13,000-a-year job with the attorney general? Two hours before the deadline, I filed in the Democratic Party primary for the office of county attorney. Three others had already filed: CJ Taylor, a highly respected Austin assistant city attorney, Frank Hoagland, a wealthy well-known private lawyer, and Wally Shropshire, ex-FBI now a lawyer in private practice. Two of us ended in a runoff, Wally and myself. It was obvious from the start that I was the underdog, an outsider. All of the liberal coalitions endorsed Wally. I had the newspaper endorsement and some of West Austin. Wally’s slogan was, “We don’t need anybody from Boston telling us who to prosecute in Austin.” He had two other powers going for him: his lovely wife Doris Shropshire, a true hard-working campaigner, who several years later was elected to the office of county clerk; and his beautiful 10-year-old son who appeared on TV with his dad, saying, “I want to help,” and playing his guitar singing, “Oh where have all the flowers gone.” The election was over before it began. “Where have all the votes gone?” For every two votes that I got, Wally got three. So began Frank Maloney, Attorney at Law – $50 a month office on the sixth floor of the Capital National Bank Building in Austin. I did not know it then but losing that election was the best thing that could have happened to me . Here I was, in 1962, the Warren Supreme Court, and a broke lawyer, but that’s another lawyer story…

PS: Proctor, having made his reputation by prosecuting many state officials, was beaten by past speaker of the house Waggoner Carr and Austin lawyer Tom Reaveley. Carr won in the runoff and Reaveley later became a 5th Circuit federal judge. Proctor became a member of the new Austin law firm of Proctor, Maloney, and Fullerton.

March 29th, 2020 – It is embarrassing and hurtful remembering those times when super ego controlled your life.

Such was the time when I appeared as an assistant DA against a classmate who did not practice criminal law and who was appointed to defend a man charged with theft of an auto enhanced in the charge with two prior felony theft convictions, making a life sentence mandatory if convicted. I will not name my classmate as he wants to forget that he ever appeared as a defense lawyer in a criminal case. He was one of the cleverest men I ever knew and became a great Texas philanthropist, leaving millions to a Texas town and to the college in that area many years later. This was his first trial in any court and about my 10th as a prosecutor. During the voir dire of the jury panel, he told them about the defendant’s two prior convictions. This was a surprise, because the jury was not allowed to know about those priors unless the defendant was convicted by them of the primary offense and only then at the punishment phase of the trial. Both the judge and I thought my classmate had made a terrible mistake and the judge cautioned him and asked if he wanted a mistrial. No, he wanted to continue. After selection of the jury during recess, I immediately offered a plea deal of 10 years waiving the enhancement count. I was afraid any conviction would be overturned on Sixth Amendment grounds, inadequate counsel. No deal, he said.

The evidence produced by me clearly and without question showed that the defendant stole the 1960 Ford in a wealthy neighborhood in north Austin and wrapped it around a tree near the courthouse where he was then arrested. Adding insult to injury, he testified that the reason he stole the car was that he was late reporting to his parole officer on the day of his arrest. There was no evidence to support this assertion by the defense, other than the fact that he was late for his appointment by a month. After the case was received by the jury, my classmate and I left the court and went downstairs to Nellies for a cup of coffee. Before she could take our order, the court bailiff appeared and advised that the jury had reached a verdict and the judge was waiting for us. I felt sorry for my classmate and tried to comfort him, telling him he should not take this to heart.

A verdict after 10 minutes. Unheard of. They couldn’t have even selected a foreman in that time. We arrived back in court, the sheriff brought the defendant in, and the jury was seated and asked by the court if they had reached a verdict. “We have, Your Honor,” and handed the verdict form to the bailiff to be delivered to the judge. After the judge had studied the verdict form, he handed it to the bailiff to be redelivered to the foreman. “The defendant will please rise. The foreman will read the verdict.”

The foreman stood and with a commanding voice read: “We the jury find the defendant…NOT GUILTY.”

 

March 30th, 2020 – The general public of Texas and elsewhere, those who consider themselves in the know, feel that the Attorney General of Texas is in control of all of the district attorneys, the prosecutors, and has criminal jurisdiction throughout the state, i.e., a super, super DA. Nothing could be further from the truth. In fact, the AG has no criminal jurisdiction, and absolutely no control of the district attorneys. Why this is a belief is explained by perhaps a comparison with the federal AG office and its control over the United States attorneys. The fact is that the people of Texas have a strong belief in local government, without any interference or control by Austin. Enter Will Wilson, a powerful, courageous, successful prior district attorney of Dallas County in the late ‘40s, a Supreme Court of Texas Justice in the ‘50s, and soon to be Attorney General of Texas in the late ‘50s and early ‘60s. Seeking the office of attorney general, he ran on the platform that he could curb crime and punish criminals severely. He was elected overwhelmingly. The situation involving crime in Texas had changed, effected by the Vietnam War, the use of drugs by young people, the sexual revolution, and other forces, all of which brought about a change of living and views of many Texans and the rest of the country. Wilson headed an AG office of over 100 lawyers but few were trained in the field of criminal law.

His office was organized to advise and represent the various divisions of state government and take on the massive job of condemnation for highway growth. The condemnation lawyers comprised most of his office. Without criminal jurisdiction, all he could do was offer assistance to the various district attorneys around the state but with what? He had a division which he inherited from his predecessor euphemistically called the criminal division. It had one chief, Riley Fletcher, a competent prior district attorney who had in his division seven lawyers, none of whom had ever been in criminal court and all of who had worked as house counsel in various state offices like game and fish, liquor control, comptroller’s office, etc.

Wilson’s first assistant strongly disagreed with his boss on the duties of the attorney general, Leonard Passmore, a remarkable lawyer in all phases of law, politically knowledgeable, savvy about the ways of Texans, a rural Texan along with Byron Fullerton, the number-two man in the AG’s office and another rural Texan, both with uncommon good sense, placated their boss and convinced him to relieve poor overworked Riley Fletcher and assign him elsewhere, thus allowing the office to do its job as the legal representative of state agencies. For a short time at least. But too much was happening and Wilson felt he was needed rightly or wrongly to get involved. Billy Saul Estes, deviational drilling in the East Texas field, gambling and the slot machine, Maceo Brothers in Galveston, removal of the sheriff and prosecution in Jefferson County, investigation of the District Attorney of Bexar County. Enter Frank Maloney from the Travis County District Attorney’s Office, newly appointed assistant attorney general and now super new chief of the law enforcement division. But…that’s another story, or many other stories, about lawyers in Texas…

 

March 30th, 2020 – There existed some highly respected lawyers in Austin in the ‘50s. The law firms were small and excelled in the various fields of civil law. Perhaps the most powerful politically was the Clark Thomas firm. Mr. Ed, as he was referred to, was Lyndon B. Johnson’s mentor and lawyer from the time L.B.J. was elected representative of the 10th Congressional District in the ‘40s all the way through L.B.J.’s presidency. There were other law firms in Austin, excellent ones representing clients from all over the world, but none of the big law firms from Houston. Rumor had it that Mr. Ed just wouldn’t allow it, but that was the civil law bar.

The criminal bar was another animal altogether, barely getting by in some instances, but independent – one or two small firms, but usually in competition with each other for the few clients who needed representation in the courts. Paul Holt and Perry Jones had the majority of cases, half of them non-paying clients. You might say they were, along with the other criminal bar members, the unofficial public defenders long before Gideon v. Wainwright. In the ‘50s, only the poor were prosecuted for the property crimes and the drug offenses, i.e., “only the poor, the minorities, committed crimes.”

The Vietnam War, university student disruptions, youthful drug use, LSD, speed, marihuana, the sexual revolution – all of this changed the practice of criminal law. The criminal lawyer became a desirable commodity, the better ones sought after by disappointed parents of their offspring.

And the court system changed, too. Additional courts were created throughout the state; Travis County received a new criminal district court, relieving the three district courts of their criminal jurisdiction . The judge, his Honor Mace B. Thurman.

As crime increased, the criminal bar exponentially increased. The new firm of Proctor, Maloney, and Fullerton always ready to “inherit the wind,” reaped the harvest primarily because of its “vast experience.” Ah, that is another lawyer story…

 

March 31st, 2020 There were some great district attorneys of Travis County over the years, all different from each other, influenced by the law of the time, the assets they had, the people they served, and the political desires of the community. Some were more effective or less effective than others in different requirements of the office. The ones most familiar to me are people I had dealings with during my practice. Governor Dan Moody, who as district attorney of both Travis and Williamson Counties, convicted and cleared the state of the Ku Klux Klan, is probably the most famous. My dealings with him came long after when I was third chair as assistant DA and he was defending the son of a person who had been of great help to him as a young lawyer. This was a rare thing for him at an advanced time in his career as a prominent civil lawyer. He was impressive even then in the courtroom.

Jack Roberts, later a district judge and then a federal district judge, gave me hell every time he could while I was working for Proctor and then again when I was in private practice before him in federal court. Proctor respected him and valued his advice. There is a story about him that when he was the district attorney prosecuting in the old two-story-high ceiling 126th District Courtroom on the west side of the courthouse, he timed his closing arguments before the jury to be at around three p.m. just as the sun came through the upper window, spotlighting him. He would intone, “Give this jury a sign, oh Lord.” Both he and Paul Holt served together as Army investigators arresting deserters and draft dodgers during the war.

I really know very little about Bob Long. Les Proctor defeated him in a hotly contested race. I do know that Sam Kimberlain, an ex-Marine and fine lawyer, was one of his assistants and thought very highly of him.

I suspect that I probably am prejudiced about Proctor. He hired me right out of law school and taught me how to practice law ethically and correctly. His belief was that each case depended on fact and law and its disposition should be governed by that and not personality. He believed that if a prosecutor followed the law, he could not be correctly criticized. He tolerated no infraction of the law by his people; if that occurred, it brought about immediate dismissal, no excuse. He was highly respected and often honored by the district attorneys around the state. In my 60 years of practice, I know of very few who could approach his excellence as a lawyer.

Robert O Smith. What can I say. I cut my teeth as a defense lawyer against him, defending numerous kids, drug cases, killings, defendants charged with multiple student killings, politicians, Muslims, and numerous others. He was a Proctor clone, honest, efficient, and fair…one of the best.

Tom Blackwell was the last of the full time in-court prosecutors. He was tough and had some pretty good assistant DAs – people like Phill Nelson and others. Ronnie Earl, Emile Limberg, the first woman district attorney, and Margaret Moore each presented Travis County with new and different directions. The office became metropolitan in size. Victims’ rights became a serious factor, and more emphasis on office administration rather than court room ability, but that is another lawyer story…

 

March 31st, 2020 – I graduated from law school in 1956. I was not a great student but passed the bar exam along with two of my friends taking it as a preparation for the future exam, thinking we would not come close to passing since we still had a semester left in law school. Because of this fortunate event, I was able to volunteer time to the Travis County District Attorney’s Office during my senior year, which ultimately led to my being hired at graduation. Which brings me to the question, “What happened to a law school graduate in the ‘50s? How did he start off and try to become successful?”

First, not all graduates of law schools want to become lawyers; my classmate Chauncey Depew Leake was one person who had come to law school from Wall Street and wanted to return there, which he did, making his millions in venture capital. Secondly, those who did become lawyers, if their grades were in the top 10 percent, went to the large law firms and if they put in enough billable hours, made partner and ultimately retired rich like several of my classmates. Some of my classmates went to work for the state and never left. Some, like another classmate Harry McPherson, went to Washington, became a senior adviser to the president, wrote a book, and ultimately became successful in a Washington practice. But the majority of us in 1956 went home and hoped for the best as sole practitioners or with another lawyer in some type of law.

I think it was as it is today. Unfortunately, law school graduates, even after passing the bar, are not really capable to act as lawyers. We learn from casebooks and texts how to think like lawyers and some have some experience, but are we ready? Some states like New Jersey require a one-year internship before you can do lawyering on your own.

It was not until 1977, in Bates v. St Bar of Arizona that the Supreme Court of the United States held the prohibition against advertising by lawyers was unconstitutional. So, in 1950, how did the sole practitioner in criminal law get proficient and attract clients?

There was never any type of law that I wanted to practice except criminal law. I was told that in order to learn, I should become a prosecutor; make my mistakes on the state’s time, not while defending some poor devil. I learned that a legitimate way to advertise was to run in an election for a lawyer’s job. Charlie Tessmer, a successful criminal lawyer in Dallas, told me to lecture on law wherever and whenever I could and to write papers and a book, which I did. The best thing though was teaching at the University of Texas as an adjunct professor from 1962 to l980, the required 4-hour course initially until my practice would not allow me the time and then a seminar every other semester on state or federal criminal law. This was really fortuitous, because in the early ‘60s, the Earl Warren Supreme Court began a new era in the field of constitutional criminal law with its decisions on the Fourth, Fifth, Sixth and Fourteenth Amendments a subject that had to be taught in the law schools and was very important in the defense of criminal cases, particularly in search and seizure and confession cases. Soon, I was overwhelmed with new cases since I was teaching the subject.

An additional method of getting known was difficult and time-consuming – becoming active in state, local, or specialized bar work, interacting with your fellow lawyers. This I did by reluctantly becoming president of the Texas Criminal Defense Lawyers Association in 1971 and happily becoming president of the National Association of Criminal Lawyers in the late ‘80s. Referrals from other lawyers is an important source of clients.

Of course, this was all good, but to put food on the table, you had to try cases and have some type of success in the courtroom. Some of my classmates became great trial lawyers, also some of the great trial lawyers in Texas – Percy Foreman, Warren Burnett, Richard Racehorse Haynes, Emmet Colvin were all sole practitioners. But that is another lawyer story…hopefully about someone else…

PS: No one gets to be successful in this field without a hell of a lot of help from others and sometimes we hog the credit…

 

APRIL 1st, 2020 – It seems like I should be driving my 1993 Jeep out of my garage at Cape Cod today as I did last year. My sailboat Defiance is already back in the water at its mooring ready to sail the seas of Nantucket Sound. At age 92 I can have these happy-day thoughts, hoping that there will be more soon, yet realizing that we are now experiencing a different world presenting severe challenges and heartbreaking events.

There was a minister, Carl Marney, in Austin who had a TV show in the ‘60s called These Things Too Will Soon Pass. He often lectured to the police during their training; some believed him, some were not too happy and more cynical about the future.

Those were happy times in Austin in the ‘50s; before the turmoil of the ‘60s; before the horrors of the Vietnam War, the riots and marches of students, the strong counter measures against them by the police and authorities, the War on Drugs, and young people being caught up in all of this.

The City of Austin, with more pedestrians than automobiles parading along the “drag,” presented kind of an undisturbed laconic atmosphere with a kind and considerate people a happy place to practice law. On the downside, there were underlying race problems, but they had yet to be exposed. The Civil Rights movements, Jack and Bobby Kennedy, Martin Luther King, were to bring us to new horizons in the ‘60s. But in the ‘50s, the Korean War, the Cold War seemed to be problems not of too much concern and like Miss Scarlet , “We’ll think about that tomorrow.”

In the district attorney’s office, outside of a few murders on the east side, some small pot possessions, and a few misdirected politicians, our biggest problems seemed to be out-of-wedlock pregnancies and child support complaints. The out-of-wedlock pregnancy seduction complaints usually were solved by grand jury marriages where the grieving mother of her pregnant daughter complained to the district attorney, who then presented the matter to the grand jury who subpoenaed the miscreant offender, gave him a choice of prosecution for seduction or marriage, and then marched him and the new bride-to-be to the justice of the peace, who waived the license and performed the short version marriage ceremony (free of charge). Being very Catholic about this, because I was the designee to present these cases to the grand jury, the secretaries in the office soon dubbed me “Marrying Sam.” Child Support was a different matter and because the law at that time put jurisdiction enforcement of failure to pay crimes in the various district attorneys’ offices along with maintaining the collection trust fund, it consumed much of the time and efforts of the office. It was a political nightmare, but that’s another lawyer story…

 

APRIL 1st, 2020 – “Yesterday is dead and gone and tomorrow’s out of sight, and it’s sad to be alone. Help me make it through the night.” Kris Kristopher’s wonderful song, “Help Me Make It Through the Night.”

I am not necessarily a gregarious person, and I enjoy being alone…sometimes. This period of hibernation is presenting me with a lot of time to be alone and in order to get through it, I have decided to drag up some of my memories of old lawyer friends or stories about them, with the hope that neither they nor their estates will bring suit against me.

Percy Foreman: One of the best with national stature, impressive. In a crowded room, all 6’4” of him, with his huge head, would command the attention of all. Proctor and I were retained by the wife and the brothers of a cardiovascular surgeon from Boston who was in Austin to become a partner in the practice of surgery with an Austin surgeon. Apparently, the Boston doctor became violent and suffered a nervous breakdown upon arriving in Austin.

I arranged to have him arrested on a sheriff ’s warrant and conveyed to the Austin State Hospital for examination. Under the law at that time, if two psychiatrists certified he was mentally ill and a danger to himself or others, he could be detained for treatment. However, absent consent he was entitled to a jury trial in county court within seven days. On the day of trial, in walked Percy Foreman with two beautiful women, one on each arm. The case went on for three weeks before a jury and County Judge Watson, who was not a lawyer. That produced a strange situation: The lawyers would make evidentiary objections and then decide between themselves how to rule. The jury found that the doctor was mentally ill but not dangerous to himself or others. The case produced national press and a picture of Percy and myself in the New York Times, where Percy is calling me the dumbest lawyer in the country. A week after the trial, Percy called me on the phone asking me to please get the good doctor out of his office where he had been camped since his release. Percy and I tried several cases after that on referrals to and from each other. I was always impressed by his abilities.

Other great lawyers: Richard Racehorse Haynes, Warren Burnett, and many more who I tried cases with, but that’s another lawyer story…

 

APRIL 2ND, 2020 – The poor prosecutors in Texas and elsewhere during the ‘60s and early ‘70s had it tough. Not only did the Supreme Court unload on them with the decisions of Mapp, Miranda, Escobedo, et al, but the Fred Erisman State Bar committee successfully got the legislature to enact a new code of criminal procedure, which encompassed all of the case law of the Supreme Court and more. In the late ‘60s, they had had enough. The Keaton Committee was eagerly preparing a penal code based on the very liberal MPC of the American Law Institute as Florida, Indiana, New York, and California had already enacted, and that coupled with drug use and the rise in crime throughout the state, brought forth a cry of pain and injury by the various district attorneys and their need for help.

The district and county attorney’s association, the sheriff’s association, and other state and local law enforcement groups massed together to form a powerful lobby and as a thunderous herd descended upon an already citizen-plagued legislature swamping them with draconian-type law enforcement legislation. Enter the about-to-be-newly-formed Texas Criminal Defense Lawyers Association, organized in Dallas during the State Bar Association Convention in 1971 through the efforts of Tony Friloux of Houston and Phil Burleson of Dallas, both of whom had a large group of followers at this hastily called organizational meeting at the Dallas Petroleum Club and both of whom felt rightly that he should be president. Since most of the outstanding criminal law lawyers of the state were there, you could say the place was overloaded with egos all with their own ideas and strongly backing either Friloux of Houston or Burleson of Dallas. Soon both came to the realization that neither could be president at that time and they wanted the association to exist, so they agreed that they should elect an interim president now, Friloux becoming president the next year in Houston, and Burleson assuming the presidency the following year at the bar convention in Dallas. But who should we vote in as president now? We all looked about the room in search of the most innocuous person….Ah, Frank Maloney. No, said I. I was already saddled with too much. The trial of a state senator scheduled next month, the trial of the speaker of the house the following month, and other trials piling up. Yes, you will, said Emmet Colvin, Tony Friloux, and Phil Burleson, and my overwhelming ego said yes. Wow, to be a president of something. I went back to Austin, expecting the association dues to start, hired a young Harvard Law graduate Bill Reed to be executive director, rented an office in the Brown Building for him, and I resumed practicing law. The association became a great success with over 300 dues-paying highly selected lawyers in the first year. More about this later and the hard-working lawyer presidents who followed…

PS: The association was not meant to be a good-old-boys’ group as NACDL was at that time, nor was its purpose just to protect against draconian enactments. This was part of it, but its purpose was also education through seminars, helping each other in practice, amicus assistance, and interaction with each other throughout the state. Its first board drafted bylaws and the corporate charter to be filed with the secretary of state. The board membership was composed of a who’s who of predominant lawyers throughout the state: Foreman, Haynes, Colvin, Tessmer, Semaan, Burleson, and Friloux just to name a few.

 

APRIL 2ND, 2020 – There are times when it is complete agony in the trial of a case because of the counsel representing a co-defendant, but there are also times when it is a joy, not only because of their astute handling of the matter at hand, but because of their affability. Several lawyers whose personality provided that joy and who I tried cases with come to mind, but the one who stands out above all the rest is Richard “Racehorse” Haynes. I say this because I was forced to share the same motel suite with him in Abilene for a month defending the speaker of the house and two others on an accusation of conspiracy to accept a bribe, which had been transferred on change-of-venue motion by the state from Austin (the so called “Sharps Town Case”).

The case resulted in convictions, but probation and subsequently dismissals. The case was highly publicized both before during and after the trial. The state’s theory was that Frank Sharp had arranged for loans to the speaker, the lieutenant governor, and the governor from the Sharps Town Bank (loans that were not to be repaid), so that they could buy stock in National Bankers Life Insurance Co. at a low rate, a corporation he owned, and he did this in order to get legislation increasing the amount of the insured capacity of his bank. Neither the governor nor the lieutenant governor were indicted, there was never any legislation introduced in the senate, and the governor never agreed to the purchase of the stock. Had the case been tried in Travis County, and if a fair jury was acquired, it might have resulted in an acquittal, but not in Abilene.

The real issue was whether there was an agreement that the loans were not to be repaid. There was no credible proof offered of this or whether Sharp convinced them that the value of stock would increase as it was doing and that the legislation was sound. (In later years, the legislation sought was enacted and became law.) The case required the lawyers being in close contact. One morning at breakfast, I was disturbed by a suggestion of tactics by counsel of one of the co-defendants and proceeded to criticize him. This prompted Richard to say, “Kindly old professor, you take yourself too seriously.” Words and advice I try but seldom am successful in remembering. Haynes was memorable. He kept me laughing each morning and night and probably sane. After the trial, we spent a couple of days crying over the conviction, sailing on my boat and getting drunk. Richard and I shared the lead in the case. This was a mistake. It should have been Haynes all the way. But I had just won the Senator Bates case before a jury in Corpus Christi and had convinced myself that I was “hot stuff.”

PS: We lawyers could tell numerous laughable stories about “Race.” He was one of the most successful trial lawyers of his day and until his recent death…

 

APRIL 3RD, 2020 – Warren Burnett was the epitome of a defiant tiger, a smart one at that. Emmett Colvin, who knew him well, said the guy was born with a book and always had one in his hand thereafter. He was born and raised in Virginia, moved to Texas where he became rich in Midland-Odessa practicing primarily personal injury law, but – and here is what made him the lawyer to go to – he never turned away from a just cause regardless of the money, the strength of the opposition, or the belief that it just couldn’t be won. The problems of the ‘60s and ‘70s, the underdog student activists, the Vietnam War, the fight against what he believed to be a top-heavy state bar unfair and uninterested in activist endeavors of the bar for improvements in the law for the poor, the under privileged, this is what made him famous. Where there was a rebellious meeting to correct a wrong, Warren would be there. He never took a note during trial but was totally ready for his cross examination of witnesses, which was always brilliant.

My first but not last contact with Warren was at the San Antonio Bar Convention or rather outside of the building where it was being held where Warren, at about age 40, was leading a riotously large group of law students who were demonstrating against the state bar on the commons before the Alamo. It was quite a show reminiscent of the great Texas struggle for independence. In the ‘70s I had tried to get him to be more active in the TCDLA production of the new penal code but he said he was too busy in his practice and would probably dislike it anyway. He was right in some ways because, among other things, the 1974 code did away with the requirement of strict construction of its meaning. The legislature in 1970 had rejected the Keaton Committee Code, thus allowing more participation by the prosecutors in the new version enacted as the 1974 Code. Warren never forgave me for this, blaming that “academic Maloney” for this grievous error.

Tony Friloux referred a case to me that he felt needed multiple counsel, finally convincing Burnett to join the defense, allowing Friloux to withdraw. Trying a case with Warren was an experience, a surprise every minute. Warren and I, together with Gerry Goldstein, a well-known San Antonio attorney who represented one of the conspirators, were together for several weeks in federal court before newly appointed federal Judge William Sessions. The case involved several murders in Mexico, fraud, and a so-called “soldier of fortune,” a government witness. The jury had a strange but attractive woman as one of its members and she kept pulling her skirt above her knees during the time Warren was cross examining the “soldier of fortune.” This and other conduct by her caused the foreman to seek audience with Judge William Sessions who, with our consent, offered to excuse her. Warren objected and so she was retained, fortunately or unfortunately depending on how you looked at it. During their deliberations, EMS appeared: Apparently, she had broken the foreman’s finger. The jury convicted Goldstein’s client but hung on our client 11 to 1 for conviction. We were told it was the attractive woman who was the holdout for acquittal all because she could never convict a client of that “handsome Warren Burnett.” Sessions was furious with us and ordered the case to the Waco division to be retried the following Monday…

PS: I was then fired by the wife of the defendant for reasons left unsaid, but Sessions would not release me until Warren, who was intentionally late, finally appeared, having flown in his own piper cub through a snowstorm, and resumed the defense. The case after a one-day trial resulted in a conviction and a sentence of what amounted to life.

 

APRIL 4TH, 2020 – Several months ago, I attended the funeral of one of the better judges who had served on the Texas Court of Criminal Appeals, our Supreme Court for criminal matters. Although we had never been close colleagues on the court, I respected him not only for his keen mind but for his ability to be correct in his decisions. Many of the people who spoke at his funeral remembered him as a strong law enforcement attorney in the prosecutorial division of the attorney general’s office helping various district attorneys around the state. He had been a district attorney before going to the attorney general’s office and before being elected to the court some 12 years before. I was struck by these comments and, in my feelings for him, wanted to correct the impression that was being, what I thought, erroneously given but I didn’t speak and I am thankful I did not disturb those thoughts of the people who spoke as they did. I think they would have misunderstood how hard it is for a judge, as it was for Judge Charles Campbell, to do what all judges have to do, and some never do, and that is put their disciplines of the past on a shelf in order to become impartial and this is particularly true of discretionary review judges, the judges on all supreme courts of each state, and the Supreme Court of the United States.

Judges wrestle with this problem on most of the review cases that come before them because in those cases they are forced to choose between conflicting case law or no case law at all. Judge Campbell and I were from different recent disciplines, and I valued his views and quite often he convinced me to change my view as I caused him to change his. This made us both better in what we did. An example of my respect for him is evidenced by his authorship of Kelly v. State, a case that changed the whole law on the admissibility or lack thereof of so-called expert testimony. True, it was fostered by two Supreme Court decisions, but there was need to also reinterpret a Texas statute and enlarge on the Supreme Court mandates. Judge Campbell showed by that opinion and other opinions by him what a true judge is. He was impartial and correct. I have other stories about judges, but that’s for the future…

PS: President Nixon coined the phrase, “We want judges who will follow the law, not make it.” If every certiorari Judge, every discretionary review judge followed that mandate, few if any reviews would be granted, and there would be no interpretation of conflict or of non-existent law, every issue needed to be decided would remain undecided or sent back to the executive branch, or legislative (congress) branch, contrary to Marbury v. Maddison or McCullough v. Md., leading to the destruction of the separation of powers doctrine. It would be an interesting question of which would grasp the power first; a tug of war between the legislative and executive branches of government…

 

APRIL 4TH, 2020 – Every Friday night at a local bistro in Dallas County, two famous lawyers would hold court and entertain an enraptured audience of lawyers eager to soak up the wisdom of these two while imbibing in a touch of the bitters. Charlie Tessmer and Emmet Colvin were the two and deserving of this admiration would be an understatement of their abilities and successes both in state and federal Court. (As an aside, in my opinion, if either had defended Jack Ruby, Ruby probably would have been acquitted.) Emmet, from Arkansas, first came in contact with Charlie when Emmet was an assistant district attorney for Henry Wade of Dallas County. Wade set the paradigm for zealous prosecution throughout the State of Texas. His office had promulgated several rules for successful prosecution that were removed because they violated every rule of due process you could think of, particularly in jury selection. Although Emmet and Wade remained friends, he soon realized that heavy prosecution was not his bag and that he should resume defending in federal court. Charlie and Emmet formed a partnership with Charlie handling state defense, and Emmet federal, and were soon accomplishing outstanding professional and ethical work that was recognized by others. After several years though, the partnership dissolved in a friendly way with each continuing their successful practice – in state for Charlie and federal court for Emmett. He felt he was overly successful, until, he said, “The Feds discovered the law of conspiracy.”

In the ‘60s and early ‘70s, Emmet and I and our families developed a strong relationship that would go on until his death in Fairfax, Virginia, where he had retired. He should have received more recognition for helping TCDLA get going because he was instrumental in helping Phil Burleson in its organization in Dallas. It was there that we began our association in helping each other in the trial of several federal cases including the first RICO conspiracy case tried in Texas. That case involved a kickback scheme with purchases of IBM equipment by Southwestern Bell. Along with employees of Bell, several lawyers and two ex-FBI agents were indicted and all tried in one gigantic trial before Sarah Hughes, the famous judge who had sworn in L.B.J. as president directly after Jack Kennedy’s assassination in Dallas. Judge Hughes was not a happy camper and treated the defense lawyers, her clerk, and the jury harshly, at one point holding a juror in contempt for being late. At the time of trial, a young lawyer, David Botsford, was in the employ of Emmet and played an important part in the trial. We represented a lawyer who previously had been a law student of mine who had unwittingly been caught up in the scheme. Suffice it to say our client, primarily due to the efforts of Emmet and David, was acquitted. Several side events: Besides the heavy drinking at the Playboy Club, which kept us sane, there was an event which involved the good Judge Sarah who, along with Emmett (between marriages), was a bachelor. One morning, halfway during the trial, Judge Hughes scheduled an in-chambers conference for the following day at eight a.m. At the conference, she announced with a twinkle in her eye, “Emmet, today is bachelor’s day.” The conference then ended without any other business as does this story but with many to follow about the great Emmet Colvin…

 

APRIL 5TH, 2020 – In 1982, a jury in Washington, D.C., under D.C. law as opposed to federal law, found John Hinckley not guilty by reason of insanity of the attempted assassination of President Ronald Reagan. The District of Columbia law contained a volitional incapacity test as opposed to a pure right and wrong test on the issue. The verdict of the jury created a national outrage resulting in hearings before the United States Senate Judiciary Committee where the jurors in that case were subpoenaed to testify and various so-called experts on the insanity law and me also testified on some 10 bills offered to modify or do away with the insanity defense, I guess because I had tried several insanity defense cases or because I had published as an adjunct professor on the issue, or because NACDL asked me to, but probably because my ego insisted that I do so. I appeared representing NACDL. At any rate, having written out my opening statement, I traveled to Washington at my own expense, I testified before Senators Spector, Heflin, and Thurmond. During my testimony, I was interrupted by a quorum call, asked if I should wait, was told by Senator Heflin, “Sure if you want to flap your lips some more?” The only positive thing that I liked about my testimony was that I gave them hell for subpoenaing the jurors and questioning them on their verdict. What a waste of time.

Jerry Gold of Cleveland, Ohio, a past president of NACDL, and an attorney of national repute, a guy who I traveled with all over Europe in the ‘80s, along with some great lawyers on a people-to-people tour, was the legal hero in a book written about the “Mad Murderess of Shaker Heights” by one William L. Tabac because Jerry successfully defended her on an insanity defense. The case was in 1965 and Ohio law was much like the D.C. law was in 1982, but different from Texas law. All three laws encompassed a test dealing with right or wrong but D.C. and Ohio had the volitional incapacity test also. The book was not published until 2018, but Jerry’s accomplishments were widely known. He rather than I should have been the guy testifying. I considered myself an expert on the insanity defense, being the designated authority in the DA’s office in the ‘50s, and having never lost a case involving that defense. The reason was that all defendants who were considered insane by the state psychiatrist were by agreement found insane. No Texas lawyer including myself knew how to try an insanity defense case at that time.

However, when I became a defense lawyer and having observed others in the ‘60s, I utilized the insanity defense in every case I could, in all capital cases, and even in a federal conspiracy-to-kidnap case and several others. I can say that unfortunately none of my defendants were found insane , but none of them were executed all because the evidence offered on the insanity issue explained what made them tick and as my good friend Racehorse Haynes would teach, “You gotta humanize the defendant.”

 

APRIL 6TH, 2020 – Every middle-size town has at least one or more lawyers who are so universally liked, politically active, and extremely able , that they can occasionally push the envelope in their desire to help their clients, with conduct not particularly important or necessary, or which does not matter anyway…or is just plain laughable. To be this kind of lawyer , and have a successful practice, you’ve got to be loved and respected, but more importantly, you have to be just damn good. Such was Roy Q. Minton of Austin. A fighter pilot during the Korean War, he attended and graduated from the University of Texas Law School in 1961, spent a year with his friend Charlie Burton as an assistant DA in the Travis County District Attorney’s Office, working for Tom Blackwell, and ultimately was recognized as having outstanding abilities by Perry Jones , leading to the formation of the Austin firm of Jones Minton and Burton in 1963.

Anyone who is charged with a crime wants a lawyer who believes in them , a lawyer who will fight for them and win. Perry Jones was that type of lawyer, as were Minton and Burton . Together they had a large and successful practice representing people from all environs charged with every type of crime, creating a very large following. As the years went by, the young lawyers involved in criminal law, anxious to emulate them in the practice, would gather in “the little red brick school house,” as their office at 1000 Guadalupe was called, for a beer or two on Friday evenings after court to gather pearls of wisdom from Roy and Charlie. Since the firm of Proctor Maloney and Fullerton was also engaged in the practice of law at that time , Roy and I became vocal competitors. As Roy would much later say, we had a love-hate relationship. I think, and I am sure Roy would agree , it probably was more hate than love. I knew Roy was a fighter and we sometimes ended up with each other’s clients fostering the belief that the two firms were at each other’s throats. It is also true that each time Roy had a speaking engagement, he would spend an inordinate amount of time saying something about Frank Maloney, but what was not known was that there was some cooperation and one or two referrals between us. There are a lot of stories that are told about Roy; he was the type of lawyer by his actions or imagined actions stories followed and were memorialized. But here is one true story.

He could pick a jury and convince them about as well as any lawyer I ever knew.

PS: Roy is at home today with his lovely wife Barbara, having taken early retirement. His firm with Sam Bassett, Perry, David Minton, along with others are there in the “little red brick schoolhouse” at 1000 Guadalupe still as active and productive as though Roy was still at the helm…

 

APRIL 8TH, 2020 – This is a difficult time for families, a season usually culminating in the happiness of Easter Sunday, and without the fear of this Easter week. I am reminded of how the military celebrates all of the various religious holidays for those who are on post or in combat areas and of how conscientious the military is in protecting and fostering those religious beliefs. This is a soldier story about a 23-year-old lieutenant who graduated West Point in 1948 and also of a Catholic Chaplin, and their friend, another lieutenant…all of whom had been in Japan in the 1st cavalry for a year just preceding the invasion of South Korea, and who were then sent to Korea in June of 1950 to defend at the Nactong River defense line.

Just before that, in April or May at Camp Drake, Japan, the Easter and Passover season was celebrated by each company of the Regiment, 7th cavalry, with Protestant, Catholic, and Jewish services, followed by wonderful feasts in greatly decorated mess halls. The young lieutenant and the Chaplin had, for several months, been carrying on a dialogue about religion, the lieutenant not necessarily being convinced and seriously doubting his own faith. This doubt was to change two months after being in Korea. But the young lieutenant, wanting to believe, was killed while leading his unit during an assault. His body had to be abandoned, leaving him the only casualty there. The Chaplin insisted that the lieutenant’s body be recovered. Three volunteers and the lieutenant’s friend went up into the hills and recovered his body. The Chaplin and friend then took the lieutenant to grave registration a few miles away in Teague. At that time in Teague, at the top of a hill was a beautiful and serene-looking Catholic church whose pastor was Korean and could only converse with the Chaplin in Latin. They agreed and the church bells rang, the people came, and Charles Frederick McGee, class of 1948, on that afternoon, had his Catholic mass.

 

APRIL 9TH, 2020 – When as now I have an inordinate amount of time to sit at my favorite place and think back on the events that channeled the direction of my life in the legal world, my thoughts are of the people who I owe so much to. Lawyers, nonlawyers, assistants, and others. The people I worked with in my profession. In the district attorney’s office, Les Proctor, Bob Smith, Bob Towery, David McAngus, Phil Sanders, Jo Betsy Llewallen, Carol Corley, Ann Swenson. Neilyn Griggs Maloney. In the attorney general’s office, Will Wilson, Lenorad Passmore, Harry Nass, and Byron Fullerton. In private practice, Mary Ann Barton, Gwen Montgomery, Rose Snyder, Ken Houp, David Botsford, Phil Nelson, David Reynolds, John Yaeger, Belinda Wright, Mary Golder Robinson, Sarah Wolk, Tom Black, Doug Hearne, Jack Stayton, Charlie Babb, Neilyn Griggs Maloney, Phil Joseph. At the Court of Criminal Appeals, Judges Sam Clinton, Charles Campbell, Marvin Teague, John Onion, Leon Douglas, Charlie Baird, Morris Overstreet, Truman Roberts, Mike McCormick. Assistants there Carolyn Denero, Belinda Wright, and of course Valarie Strauss. (The research attorneys of all the judges) At the law school, Dean Page Keaton, Professors George Stumberg, Fred Cohen, Corwin Johnson, Millard Rudd, Joe Witherspoon, T.J. Gibson, Bob Dawson, Dean Charlotte. I n professional organizations, TCDLA: Bill Reed, Phil Burleson, Tony Friloux, Jo Keagan, Richard Haynes, Warren Burnett, Emmet Colvin; NACDL: Paul Smith, Morris Schenka, Al Kriger, Mike Bender, Terry McCarthy, Bruce Lyons, Emmett Colvin (help in everything I did). There most certainly were others but these fill my thoughts when I venture in to my legal world activities. There are stories that could fill several books about them and help I received from each one of them…

 

APRIL 12TH, 2020 – I want to say something about judges. First of all, not all judges have the same job. Some are “trial judges” and some are “appellate” or “ Supreme Court Justices (discretionary review)”. Secondly, not all are elected in either partisan or nonpartisan elections; most in this country are appointed by various methods by the governors or in the federal system by the president confirmed by the Senate.

Thirdly, being a judge does not mean that we are fungible. Fourthly, a basic tenant of any judiciary is its independence from political pressures. Is there a problem in Texas? Are we getting the best judges? Are elections the best method of selection? With the exception of municipal judges, Texas elects all of its judges statewide and locally but with obvious problems. This long history has produced the factual ammunition mandating change. Over the years, several state bar committees headed by the various chief justices of this state , composed not only of lawyers but including journalists , business people, academicians, and members of other professions, have recommended a different method of selection.

Bills have been introduced in the legislature but all have been defeated primarily because of special interest groups. A common belief is that it would not be democratic if we didn’t elect our judiciary. But most, including lawyers who should know, do not have the slightest idea who they are voting for either in the primary or the general election. How many of us can name one judge of the nine-member Supreme Court or the nine-member Court of Criminal Appeals or of the 14 Courts of Appeals , or of any of the trial courts, county or district ? Campaigns cost money, TV, communication media, traveling in this huge state; where does it come from?

Mostly from lawyers. The public is shaken as they should be by this. It almost sounds like bribery. In the general election, people vote for judges by their party. History shows us that by this method, we have elected some terrible judges and it takes four or six years to get rid of them if we ever do. What is the solution? At the very least, take us out of partisan elections. If we have to be elected, let us run as independents. We cannot endorse a party platform, we have no business saying we can. The justices of the Supreme Court, the Court of Criminal Appeals, and the intermediate appellate courts should be appointed by the governor from a council recommended number of the best, confirmed by the Senate, who will then run against themselves after six years, i.e., “Should X be retained”

The trial judges, since they would be running in county local elections and therefore screened and known, could run as independents and, if elected, after four years run against themselves, i.e., “Should X be retained?” If no, then a new election is held. The above is the recommended solution of the various research committees and is utilized by many states. It is not a perfect solution, but it is better than what we have.

I ran for an open seat on the nine-member Court of Criminal Appeals in the Democratic primary, runoff, and against a Republican judge from Dallas in the general election in 1989. I was elected to a six-year term. At that time, Texas was a Democrat-oriented state as it had been since the Civil War. This changed so that in 1996 when I ran, against my better judgment and the advice of others including my friend Ann Richards, for re-election and as the only in-office statewide Democrat, I along with most Democrats suffered ignominious defeat by the Republican takeover of the state. (I was endorsed by every newspaper in the state except the Lubbock Avalanche Journal, had a 10-to-1 vote in the bar poll, and even some Republican help. I campaigned all over the state. My Republican opponent never left his office, did not campaign, did nothing except announce as a Republican.)

PS: I have to admit that after my defeat, I was not too unhappy. I sat as a visiting Judge in most of the 14 Courts of Appeals for a couple of years by assignment of the Supreme Court, and then by assignment to the various trial courts in Dallas, Houston, San Antonio, El Paso, Austin, etc., all very enjoyable. During this time, I continued to teach at the law school and was of-counsel to a great Houston-Dallas-Austin law firm that allowed me to do this, retiring in 2012. The Republican Party during those years captured the judiciary. If you wanted to be a judge, you ran against a Democrat. The Republicans elected several people who became embarrassments to them and fought hard to get rid of them with partial success in the next election cycle. Conversely in some Democrat areas where appointments were made of excellent Republican judges , they were defeated in the next election cycle because they were Republicans. I wish that I could add a little humor to this, but there is nothing funny about an inadequate method of selecting the third branch of government.

 

APRIL 12TH, 2020 – Another story about Percy Foreman. When oil controlled rough and tough Houston, and the authorities were trying, in some instances illegally, to put a lid on the crime rate, the best lawyer in the state was Percy Foreman and he ruled the roost.

Recognized throughout the country for his flamboyant behavior and success before juries, he was literally hated by every law enforcement agency within the state including the Texas Rangers. Particularly the Texas Rangers. And he had a mutual feeling for them and did everything he could to defeat their efforts. Houston was a boom town in the ‘50s and ‘60s and geographically was spreading out all over the place. The newly built Glen McCarthy Shamrock Hotel seemed to attract celebrities and Percy quite often was seen having breakfast in its beautiful dining room because at that time he held possession of a suite of rooms there.

The rangers during one of their important statewide investigations suspected Percy of having secreted evidence of one of his clients, who was the subject of their investigation, in his suite of rooms. Three of the rangers went to his suite, pounded on his door, and tried to gain entrance.

“No search warrant, entrance denied!” roared Percy.

This was before Mapp v. Ohio and the rangers were not accustomed to being denied. In fact, the sound of their boots brought fear to the hearts of their suspects. The rangers stood in the doorway perplexed. Percy turned his back to them, dropped his pants, and mooned them, whereupon one of the rangers hit Percy, breaking his nose. The press took pictures of Percy with an exaggerated splint and bandaged nose with captions: “Foreman fights rangers on illegal search.”

A million dollars’ worth of publicity on the fight against tyranny, claimed Percy to his acquaintances…

 

APRIL 14TH, 2020 – Another story about Racehorse Haynes. Although I have no empirical proof, most of the lawyers in the field of criminal law do not like to appear in federal court as opposed to appearing in state court. The reasons vary: The federal system is too hard, too formal, too complex in law and procedure, too nonnegotiable. The overriding reasons: too powerful and not controllable.

The American Bar Association has as one of its stated purposes the job of educating its members in the field of federal practice, no easy job. The ABA, at one of its annual meetings, created a program where four different lawyers out of the presence of each other conducted a live cross-examination of a federal tax agent in a mock federal tax-evasion case , Agent Tadowitz from Baltimore. The judge presiding over the seminar was Judge James Nowlin, Western District of Texas. The U.S. attorney from Chicago representing the government. The four attorneys cross- examining individually: one from Washington, one from San Francisco, Bob Richie from Tennessee, and Albert Krieger from New York and Miami. I was the moderator. Richie and Krieger were outstanding , the other two were adequate but not stars. It was then that I realized I should have invited the greatest cross-examiner of all time to participate: Richard Racehorse Haynes…

Sometime in the ‘70s, Race was defending some poor citizen charged with a federal crime in Judge John Singleton’s federal district court in Houston. He had agreed to defend this person at the request of Jim Kronzer, one of the leading trial lawyers in Houston and a close personal friend of both Judge Singleton and Race. The case ended in a rare conviction for Race and he requested that I handle the appeal, so I got to read the record and from Kronzer got the rest of the story. Each successful cross-examiner has his or her own method of emphasis in cross-examination depending on a myriad of factors.

Race’s method was detail, detail, and detail regardless of the case. He was usually successful in getting what he wanted from the witness, particularly in state court, but this case was before a jury in Judge Singleton’s federal court. During his cross of the principle government witness, an FBI agent, concerning the agent’s entry into the defendant’s home , the agent having testified on direct that there was a key in the door, the following occurred:

Race: You say you had a key.
Agent: Yes.
Race: What did you do with the key?
Agent: I put it into the keyhole in the lock.
Race: Where was keyhole?
Agent: In the door.
Race: Was there a knob on the door?
Agent: Yes.
Race: Was the keyhole above the knob?
Agent: How do I know? I don’t know.
Race: Was the keyhole below the knob?

At which point, without objection from the government–

Judge Singleton: Stop, enough is enough. Move on.
Race: Where was the keyhole?

Judge Singleton excused the jury, held Race in contempt, and stated he would assess the proper punishment at the end of the day. The jury was then brought back and Race resumed his cross examination.

Race: Where was the keyhole?

The judge excused the jury, ordered the Marshall to take Race into custody, and instructed Race that trial would resume the following day and that a night in jail would do him good. The following morning, resuming his cross-examination–

Race: Where was the keyhole?

The trial somehow went to verdict with Race spending three nights in jail and with Kronzer appealing to Judge Singleton to release Race at the end of the trial, which the judge agreed to do, providing Race apologize to the court. Race never did apologize until a chance meeting in front of the Rice Hotel months later. There were other ramifications, but Race’s view was he didn’t like federal court anyway. The fact of the matter is that Race was very, very successful in federal court and always victorious. He and Judge Singleton much later became fast friends and were honored together.

50 Year Member Pieces

Expressing Gratitude

Abner Burnett

The TRLA public defender division has grown from two offices in two counties when I first started with the organization in 2008 to 5 offices serving 14 counties.  It has a sturdy foundation and supremely committed team members, as you may know from having worked with some of them. Nevertheless, I consider it still a fledgling operation. There is plenty of room, need, and opportunity for an incoming director to aspirationally lead the division’s development. 

A public defender program operating as part of a large nonprofit legal aid organization is a model that has served rural communities in South Texas well. As a wraparound provider of legal representation, TRLA’s public defender division has both often succeeded and occasionally struggled. We hope to find a pragmatic visionary that will:

  1. further the development of the division and
  2. strengthen ties to local, regional, and national colleagues in the work of criminal defense practice. 

We will be considering applications from both inside and outside of the organization.

TCDLA has always been a strong supporter of our group. You have always been helpfully responsive when I have checked in. If you know or think of someone that you believe might be a good fit for this position, please feel free to mention it to them and give them my contact information.

Good Will

Jeremy Rosenthal

It was a lonely feeling…even in a jammed courtroom…being at counsel table next to a guy in ankle shackles. His Salvation Army coat and pants I bought him the night before were the nicest things he owned. He was sweating and hadn’t slept or showered in 2 nights. He smelled like the jail – a foul combination of a low-end hospital and high school cafeteria.

The jailer, with his hands on his hips, insisted on hulking feet away from his prisoner for the entire trial “because it’s Judge’s policy.” The judge, the prosecutor, and even the bailiff were so very nice to me — that is, until I began telling them all “no.” Maybe that’s why I wasn’t invited back for coffee any longer in the docket room?

I was scared. Scared I wasn’t up to the challenge, scared I could get in trouble with these people, too, for making them angry, scared maybe I actually live in a country like Myanmar or North Korea where the good guys in uniforms make up the rules as they go along – but above all – I was scared that maybe I was the one who had it all wrong.

Then I went to Laredo, Tyler, Victoria, Waco and all the other places around Texas where I saw an army of lawyers facing identical challenges and conquering these fears every single day. I know I’m not alone. Happy 50th Birthday, TCDLA. You are more critical to everyday liberty, freedom, and the American way of life than you could ever know!

A Labor of Love

Robb Fickman

I have been a criminal defense lawyer for 38 years. For most of that time I have been a member of TCDLA. In 2010, HCCLA started reading the Declaration of Independence in front of the Harris County Criminal Courthouse. We were protesting the abusive judges inside our courthouse.  We all liked the Reading, so it became a local tradition. Not long after that I was having lunch with my friend Gary Trichter. Gary said he liked the Reading and he wondered if it was something that I might want to take state-wide. I liked Gary’s suggestion, so I started encouraging lawyers around the state to create their own local Readings. Pretty soon after that TCDLA agreed to pitch in and help me organize the Readings. In 2016, I arbitrarily decided that we should have a Reading in all 254 counties in Texas. I  put together a group of volunteers from all around the state, and we all pitched in to get an organized Reading in every county in the State. We referred to the group of volunteers as F-Troop. The members of F-troop were: Robert Fickman of Houston, Chuck Lanehart of Lubbock, Kerri Anderson-Donica of Corsicana, Tip Hargrove of San Angelo, David Schulman of Austin, Mary Conn of Houston, Michelle Ochoa of Beeville, Mary Beth Harrell of Killeen, Jim Darnell of El Paso, Jeff Blackburn of Amarillo, Sheldon Weisfeld of Brownsville, Dustin Nimz of Wichita Falls, and Tammy Schmidt Keener of Fredericksburg. During that year we managed to get a Reading in every county in the State. Starting that year, Chuck Lanehart has been my state-wide co-chair. The Readings are a labor of love, and I am proud that TCDLA has adopted this tradition.

 

TCDLA Love

Mark Thiessen

TCDLA is the best thing that ever happened to me because it introduced me to my wife. I was speaking at Prairie Dog in Lubbock. I’d seen her walking around the seminar and knew that I was in big trouble. I couldn’t stop harassing her at the member’s party that Friday night. I remember being quite charming/borderline irresistible. She only remembers that I kept talking about a limo suburban that I had just bought. We drank and laughed a lot. She left and I was smitten. I asked Frank Sellers to give me her phone number because I had some legal questions that I needed to ask her. He reluctantly obliged. Over the next few months, we kept running into each other at TCDLA seminars. Our friendship blossomed into love and the rest is history. TCDLA introduced me to the love of my life, my trial partner, my law firm partner, my best friend, my safety blanket… my everything. We are a TCDLA Strong family.

Thank you, George

Buck Files

On a Saturday night in 2003, Jane Doe stoned two of her children to death and seriously injured a third because she believed that it was God’s will for her to do this. On Monday, after being appointed to represent Jane, I had a meeting with her at the jail. She told me that she knew I was to be her lawyer because she had seen a male deer – a buck – in the pasture as she was waiting for the ambulance to come to her home.

That evening, Dr. Wade French, a licensed professional counselor, interviewed Jane and then called to tell me that we had an insanity defense. On Tuesday morning, I called George Parnham who was urging an insanity defense on behalf of Andrea Yates, a mother who had drowned her children in a bathtub. Although he did not know me from Bim Gump, Mr. Parnham patiently took me through an orientation on the practical aspects of the insanity defense and told me to call Dr. Phillip Resnick, a forensic psychiatrist who is recognized nationally as an authority on infanticide.

After that, it was all downhill. Dr. Resnick agreed to work with me. The Court approved my Ake motion requesting that he be appointed and that his fees be paid. Dr. Resnick came to Tyler and did a recorded interview with Jane and agreed with Dr. French’s conclusion. When the State’s psychiatrists and the court’s psychiatrist interviewed Jane, they would have found her to be sane but for Dr. Resnick’s recorded interview. All testified that Jane met the Texas standard for insanity and a jury returned verdicts of not guilty by reason of insanity in each of her cases.

If Mr. Parnham had not taken the time to answer my call, Jane would be just another inmate in a Texas prison. But that’s what TCDLA is all about — being there to help each other and sharing our knowledge and wisdom with our brothers and sisters. Like the Musketeers of old, we should be all for one and one for all.

Persistence Pays Off

Terri Zimmermann

I represented a female active duty service member charged with using drugs. The unit’s urinalysis program manager made a number of mistakes, including sending a male into the bathroom as the “observer,” telling people not to disclose medications they were taking because “they could address it later if their test was positive,” and leaving urine samples in a desk drawer in an unlocked office for a week before sending them to the lab. When I went to his office to interview him, the door was wide open, but he was not there; I used my phone to take pictures of the office, including the open drawer containing other samples. At the hearing on my Motion to Suppress, I asked that witness about the security of the samples. As expected, he testified he always kept samples in a locked drawer and never left his office unlocked when he wasn’t there. You should have seen his face when I handed him the photos, one by one, and asked him whether they accurately depicted his office — and urine samples. But wait, there’s more…During a recess I called my other witnesses (who were going to testify telephonically) to tell them we were almost ready for them. Several expressed reluctance to testify, despite their enthusiasm the previous week. When I asked what caused their change of heart, they said the prosecutor had just interviewed them and asked whether they really were willing to “stick their necks out” for my client. I took a legal pad and quickly hand-wrote a Motion to Dismiss for Prosecutorial Misconduct (interfering with my access to witnesses). The judge called the lawyers into his chambers. The inexperienced prosecutor, lip quivering but obviously a Seinfeld fan, asked, “Should I not have done that?” We continued with the hearing but the next week the case was dismissed.

How I Almost Went to Jail: The Story Behind the Case of In Re McCann

Patrick F. McCann

Like most good criminal defense stories, this one starts in a bar. Specifically, the Char Bar at 305 Travis in Houston, in the upstairs portion. I was having a drink with the mitigation specialist from the Albert Turner case, who was taking over the direct appeal on that capital murder. Mr. Turner had been sentenced to death. There was still a pending issue of his competency, even after trial. It had been raised in the motion for new trial and as an abatement issue by this very talented lawyer, who eventually went on to become a district court judge.

At the most recent hearing, the trial court, Judge Brady Elliott presiding, had ordered me to turn over Mr. Turner’s file to the newly appointed writ lawyer, James Rytting. The trial court had always believed Mr. Turner to be competent. If this was so, Mr. Turner’s last instructions to me, which were specifically NOT to turn over the files to anyone appointed by the state of Texas, should have been followed. As our mitigation specialist said “You know, this guy has only a few things left in his life he gets to decide now. One of them is what his lawyer should do.”

At that moment, in walked our mutual friend and colleague, Casie Gotro, a gifted lawyer with a keen mind. She heard us tell our tale of woe [Should we give the writ lawyer our file, or not? Who decides?] and drew a long drag on her cigarette. She blew out the smoke and then decisively said, “Amy is right, they are wrong. You need a lawyer. I will be your lawyer, but I will need drinks.” She nodded pointedly at her near empty glass, and I put in an order promptly. She said, “We will file one of those mandamoo things to stop this.” “You mean mandamus?” I asked.  She patted my large head and said “No more thinking for you. That is my job now.”

So, Casie filed a mandamoo petition and a writ of prohibition request with the Court of Criminal Appeals. The day came for my compliance with the judge’s order, and I told him I would respectfully refuse. He told me to report to his bailiff on Friday by close of business. I did, and as I was taking off my belt and putting my wallet in the bailiff’s hands, Casie rushed in with a stay order from the CCA and a briefing schedule for her petition. She was so confident she actually just stood on the petition, and she won, or rather Mr. Turner did.  The CCA decided that the file belongs to the client and absent a finding of incompetence, those instructions were to be followed by the lawyer, even if they might cause the client difficulty. I luckily did not have to go to jail, and I owe that to my friends who encouraged me to stand my ground and helped me defend it.

It is good to have friends who are smarter than you.

We are the Voice of the Powerless

Shane Phelps

After 20 years as a prosecutor, I went into private practice as a criminal defense attorney.  I had some apprehension about making the jump to the other side. In my first felony jury trial as a defense attorney, I was appointed to represent an undocumented immigrant from Venezuela who did not speak English. I met him for the first time, through an interpreter, in the hallway outside the courtroom. He was shackled with his hands cuffed in front of him. As soon as the interpreter explained who I was, my new client grabbed my hands and, through tears, cried, “Please help me; I didn’t do this.” It was clear to me that he felt powerless, helpless, and alone.  He was charged with indecency with a child by contact and when I went through the discovery, I began to believe that he was, in fact, not guilty. No pressure. We picked a jury and tried the case. At the end of deliberations in the guilt/innocence phase of the trial, the judge asked the presiding juror to deliver the verdict of the jury. My client, throughout the trial, wore headphones so that the interpreter could interpret for him what was going on. The presiding juror, facing my client, announced the verdict: “not guilty.” I looked at my client and he appeared confused.  The interpreter told me, “He doesn’t understand.”  I looked at my client and told him, simply, “You’re free.” When it registered with him, he broke down in tears; and so did I. I knew at that time that I had found my life’s work. We are the voice of the powerless. I have been a proud member of TCDLA ever since.

Stearnes vs. Clinton

Chuck Lanehart

If not for TCDLA, four innocent young men may have perished by lethal injection.

In 1987, I was appointed to represent Wayne Stearnes, a young man accused of capital murder. Three other young men faced the death penalty in the same high-profile, drug-related triple-murder case.

My co-counsel, Carlton McLarty, drew the wrath of the DA for interviewing the government’s star eyewitness at her invitation at her home. An hour into the interview, an assistant DA appeared at the residence with police and ended the meeting.

We immediately filed a motion to depose the witness. At the hearing, the DA alleged Carlton violated his rule that defense counsel must “request permission to speak to State’s witnesses.” The judge agreed, ruling Carlton and I lacked experience to represent Stearnes.

The judge fired us!

Stearnes stood defiantly and addressed the court, “I ain’t gonna stand for no shit like this!” The judge responded, “You keep a civil tongue or I will have you up for something besides capital murder!”

That night, 30-plus members of the Lubbock Criminal Defense Lawyers Association gathered to discuss ways to right this intolerable wrong. They passed the hat to fly LCDLA envoys to Austin the next day.

In Austin, LCDLA President Mark Hall and I met with TCDLA Strike Force volunteers. A plan was hatched to file a writ of mandamus. Austin lawyer David Botsford and Lubbock lawyer Ralph H. Brock valiantly litigated the writ with amicus support from NACDL and the NAACP Legal Defense Fund.

In a landmark 1989 opinion, the Texas Court of Criminal Appeals unanimously granted mandamus relief. Carlton and I were reinstated, the judge was disqualified, and Stearnes was soon acquitted at trial. Counsel for the three co-defendants built on our work, and their clients were eventually cleared.

Stearnes vs. Clinton has since been cited more than 100 times in support of a defendant’s right to counsel.

TCDLA Experience

Warren Wolf

I was preparing for my appearance at the U.S. Supreme Court. On a conference call with the likes of Prof. Tony Amsterdam (who argued Furman v. Georgia), Seth Waxman (former U.S. Solicitor General), Dick Burr (national Habeas Assistance Training resource attorney and Bud Ritenour (TCDLA member and co-counsel), I thought we needed to attract Amici to support our case.

I contacted Lisa Wayne (the president of NACDL, who Gerry Goldstein invited to speak at a previous Rusty and I met her then). Lisa put me in touch with Barbara Bergman about an Amicus from NACDL. The State was going to make this a national issue and argue our success would open up a Pandora’s Box across the country.

The consensus of that conference was to keep it local. We decided to try and get an Amicus from the State Bar of Texas. The then current President of the state bar was Buck Files. Our Buck Files, member of TCDLA, the author of the Federal Corner whose picture I saw every month in our Voice magazine. I volunteered to contact Buck.

I had met Buck the previous year when he was running for State Bar President. He came to a TCDLA board meeting; I was on the board that year. He went around the room. He shook my hand and asked me for my vote.

Well, Buck took my call, and I told him our situation. He was able to get the State Bar to pass a resolution approving the writing an Amicus brief. That brief supported our position.

During oral argument Justice Kennedy (who became the 5th and deciding vote) referenced the State Bar brief several times. Justice Breyer cited to the State Bar brief in the majority opinion.

I believe the Amicus brief by the State Bar was crucial in winning the case. But for TCDLA, I would not have met Buck Files. Knowing Buck gave us access to the State Bar of Texas and obtaining that Amicus.

Thank you Buck, and thank you TCDLA.

 

The Legacy of Kelly vs. State

Bob Gill

I was a prosecutor back in the late ‘80’s when DNA identification testing first made its way into courtrooms. I was one of the trial prosecutors on the State v. Barry Dean Kelly who we prosecuted for murder. Kelly was convicted and became the first forensic DNA case to make its way through the appellate courts. Eventually, the case set the standard for the admission of novel scientific evidence as Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). While the DNA identification testimony was not actually very important in the trial of the Kelly case, it has become a lynchpin of current criminal law litigation.

We knew at the time of the trial that we were on the cutting edge of DNA forensics and put a great deal of effort into ensuring that the DNA evidence would be admitted, and then stand up on appeal. We knew at the time that the technology would be a great tool for law enforcement and prosecution. We also understood that DNA would benefit any accused who was excluded as a potential donor of the DNA in question. What we did not foresee was the extent to which DNA would be used post-trial to exonerate those who had been and would be convicted of offenses that they did not commit. One of the greatest achievements of the technology has been to exonerate hundreds of inmates across the country and state who would have had no other means of proving their innocence to the level required during the postconviction writ process. 

After DNA identification testimony was accepted by the court, DNA labs began to spring up around the state. Kelly paved the way for the use of this powerful science in the courts. DNA evidence and testimony have now become very commonplace in our courts.

Joe David Childress

Jani Maselli Wood

My first client at my first real legal job.  Back then it was Inmate Legal Services – I was a prison lawyer in 1996. By the time I met Joe David, he was old. He was serving 25 years for a failure to stop and render aid. He had been sentenced as a habitual defender based upon his life sentences from an early career as a cat burglar in the 1940s.

He had some smart trial lawyers (Ken McLean and Mac Secrest) that challenged those 1940s convictions. Prior to Gideon, Harris County defendants were given “stand-by” counsel to waive their rights to a jury trial. Calling upon local lawyer John Cutler, licensed in 1947, he expertly explained the practice for the record. But the Texas appellate courts were A-OK with those Gideon violations.

So, Joe David filed a pro se federal writ. He lost. I was assigned to his unit and he wrote and asked me to handle his Fifth Circuit appeal. My first federal appeal; Joe David told me what law to argue.

And we won. The United States Court of Appeals reversed his sentence because the enhancements violated his Sixth Amendment right to counsel. I was ecstatic driving to the Goree unit to tell him. Joe David and I laughed and made plans. As he walked away, I yelled – “You be good Joe David.”  He raised his fists in the air and said, “They haven’t broken me yet.”

But in actuality – he was broken. And he died before he was released. I showed up at the funeral home with some grocery store flowers. Joe David was laid out on a table; I rested the flowers on the floor beside him.

I was alone.  The funeral director came to me as I wept. He said, “Are you family?  And I told him “Yes.  I’m his lawyer.”

Family

Soloman Monroe

I must admit I was skeptical when I first joined TCDLA. As a brand-new lawyer I was unable to envision how I could ever benefit from such a massive organization or make an impact on such experienced attorneys, some of whom had been practicing longer than I had been alive. Simply put, I was intimidated, fearful, and overwhelmed. As I have come to learn, however, TCDLA is not some massive organization. We are a family.

Sure, at first glance we may appear separated and scattered in our own sections of the state, left to fight our battles alone. But the truth is, we may be on our own, but we are never alone.

We work together for our clients and for ourselves. We educate and instruct each other so we can reach new heights. We fight and bicker but rush to defend each other when attacked. We celebrate the victories and give comfort for the losses. We are there for one another in an emergency, or just there to share a drink.

I may have been too naïve to see it when I first joined. But I am forever grateful to share these experiences with the TCDLA family.

We All Need TCDLA on Our Team

David Botsford

Back in the dark ages — the 1970s to the 1990s — TCDLA was a must less structured organization than it is today. This was particularly true in the amicus and strike force arenas, as the types of guidelines and protocols relied upon today had not yet been enacted. While the goals of both of these committees were identical — helping our members –. Those goals continue to this day, but the efforts of these two committees prior to the advent of the internet were mostly overlooked.

In fact, these two committees, acting more or less as one, have contributed greatly to Texas’ jurisprudence. Stearnes v. Clinton, 708 S.W.2d 216 (CCA 1989), Stotts v. Wisser, 894 S.W.2d 366 (CCA 1998) and Buntion v. Harmon, 827 S.W.2d 945 (1992), established the proposition that appointed counsel cannot be “unappointed” and “kicked off” a case — prior to trial or on appeal — at the whim of the judge or in response to a prosecutorial suggestion that defense counsel’s advocacy is making their jobs more difficult. If you have not read these cases, you should.

These committees also worked together in the “Range Wars” — stemming out of Lubbock and Amarillo — and reinforced the proposition that TCDLA will not stand idly by while our members are assaulted by overzealous prosecutors. Indeed, an amazing opinion by U.S. District Judge Mary Lou Robinson — to the effect that a civil RICO lawsuit filed by representatives of TCDLA (and others) against two elected District Attorneys (and other members of law enforcement) could and should proceed — essentially established the proposition that TCDLA will rise to the occasion and take necessary and appropriate steps when prosecutors and law enforcement corruptly go after innocent defendants and their dedicated counsel.

So too, in the arena of criminal contempt, TCDLA has long stood with its members and has gone above and beyond to protect us all. For instance, in February 1989, George Roland was called to the witness stand by the State in order to allow the State to make a supplemental record in a capital case against Robert Excell White. George proudly and properly asserted attorney-client and work product privileges, refusing to answer the questions. The judge ignored the privilege, held him in contempt, refused to set a bond, and ordered George to report to the Collin County jail no later than 5:00 p.m. that same day. TCDLA was able to file original writs with the COA and the CCA that same day and obtained George’s release that same evening at approximately 6:15 p.m. via an order from the CCA (after the Dallas COA had denied relief). The following day, the process repeated itself as to David Haynes, George’s co-counsel on the capital case. The CCA subsequently set aside all 13 of the contempts entered against George and David.

Even earlier than George and David’s experience, NACDL member Robert Glass was held in contempt for his cross-examination of a snitch during a federal trial in Louisiana. After Glass received the two word verdict, the U.S. District Judge held him in contempt. At Robert’s request, TCDLA filed an amicus, coordinating with NACDL, to support Robert’s appeal of his contempt conviction to the Fifth Circuit. TCDLA’s amicus significantly helped carry the day for Robert with the Fifth Circuit and the unpublished opinion (which I’ve cited on any number of occasions) established that respectful but aggressive cross-examination of a snitch — insinuating that the snitch is trying to curry favor with the prosecution and his sentencing judge — is not contumacious.

Lessons to be learned and followed: Always have TCDLA on your team, as the best offense is a great defense and TCDLA will provide you with that defense. Renew your membership, pay your dues and benefit from the countless ways that TCDLA makes your life easier and your profession more rewarding.

Seemingly Hiding in Plain View

William Wilder

What TCDLA means to me: As a younger lawyer and  even now,   several warriors have   given me invaluable advice and ideas.  Now, in my later years, I offer advice to younger criminal defense lawyers. I am a much better advocate for my clients because of fellow warriors, the Digest and invaluable and timely articles in Voice. I thank God for all of your service, and the countless accused are no doubt grateful.

A DWI Victory: I used to be a county attorney in Edna, Jackson County, Texas. After that, I moved to Bay City, and a man from Ganado (small town in Jackson County) employed me on a DWI. I favor taking county or state highway employees on juries, and we had one. I knew the DPS officer, and that he would testify he did not know much about the breath test, and could be easily cross-examined on this point. The client was a 240-pound salesman who was trying to make a sale to a young man, who had his wife present, that evening in Victoria,  25 miles  away. I engaged a math professor to testify who looked like Santa Claus and was  quite believable. He performed an algebraic equation to show the amount of beer that a 240-pound man would need to drink in order to exceed 0.10 (the percentage of intoxication then). The DA was a math minor and asked my math professor no questions on cross. I engaged a pathologist from nearby Bay City to testify about blood alcohol. He was running late, had an airplane, and flew 45 1 miles to our airport. (The word in town was that Wilder had done hired a big shot doctor from Houston to testify. I never denied it).  The client had taken the couple out for a big buffet dinner, and I had pictures of what they ate. The client drove them all over Victoria after dinner in his Corvette because they had never been in one. Then, during the trial, I asked her if she had a little secret for the jury, and she replied “I am pregnant with our first child”. The customer’s lovely blonde wife (and her husband) testified about my client’s driving them around Victoria, and he had no trouble driving.  In addition, he had driven the 25 mile stretch from Victoria to Edna with no problems. Guess what, not guilty. When talking to the jurors, which included the highway department employee, I asked what the main turning point was to find him innocent, and the highway employee replied, “I know that highway and overpass quite well, and when the DPS officer testified he was parked just over the rise I knew he was lying because there was no room for him to be there!”. So much for my Perry Mason presentation.

Worth the Wait

Heather Barbieri

From the beginning, TCDLA had my heart.  I remember going to my first Rusty Duncan Seminar, and how the staff made me feel so welcome.  Soon after, I started attending the board meetings and, after a couple of unsuccessful attempts, was voted onto the Associate Board.  I was truly honored to be selected. 

TCDLA is not only a prestigious organization, it is a bona fide community.  The moment I realized this was when I found myself trying my first federal trial in Tyler, Texas–alone.  But that isolated feeling quickly subsided as fellow TCDLA brethren and icons, Bobby Mims and Kelly Pace came to my aid.  They took time from their busy schedules to come to my trial, and guide me every step of the way—and they did it because they cared about a scared young TCDLA member who was in the trenches.  That’s when I knew being a member of TCDLA meant I was part of a very special family. 

From that point on, I committed myself to TCDLA, and have reaped the countless benefits of this extraordinary organization.  And if there’s one thing I’ve learned it’s that we gain tremendous rewards when we simply choose to serve TCDLA and its members.

With infinite gratitude, Heather Barbieri

Why TCDLA is Important to Me

Amanda Hernandez

Being involved with TCDLA is by far one of my favorite parts of practicing criminal defense. I continue to learn so much from attending and speaking at seminars and have met friends and mentors that I will never forget. One of my favorite TCDLA memories so far was watching Dick DeGuerin speak at Rusty Duncan in 2016 regarding the Robert Durst case and why we do what we do. Hearing him talk about winning a “losing” case was inspiring and something I always try to remember when I face a challenging case. Attending Trial College and Round Top were also some of my favorite TCDLA experiences that helped me grow as a lawyer and as a person. Recently being selected as an associate editor for the VOICE was also very exciting! The VOICE has always made me feel connected with my colleagues all over the state and I am grateful to have the opportunity to contribute to something so valuable to our membership. I’ll always be grateful to TCDLA and can’t wait to make even more memories through the organization.

TCDLA Teaches You to Win!

Tip Hargrove

Do we actually learn anything at TCDLA seminars that can really help us?

Damn straight we do.

Years ago, as a somewhat experienced lawyer who still needed help, I was appointed on a case involving the death of an infant. The DA had a reputation for ignoring the rules, and the rural Judge tended to let him get away with it. Not long before I was appointed, I had attended a TCDLA seminar. One of the boring looking topics was something to the effect of how to use Pre-Trial Motions to our advantage. The speaker kept emphasizing “get a ruling, get a ruling. Without a ruling your motion is worthless”.

Co-counsel and I filed all the usual motions and, just as the speaker suggested, we included with every filing an order granting the motion. When each motion specifically requesting Discovery was ruled upon, we always requested a ruling and a signed copy of the order.

Trial rolls around a year later. Over and over the DA would offer an exhibit, we would rise, pull out the specific order related to the exhibit and say “Judge on X date you signed an order saying the DA had to provide us that evidence. The exhibit just offered was not provided.” “Objection sustained” again and again.

Finally, at a dramatic moment, the DA was about certain photos that were very damaging to our defense as they documented supposed bruises. I stood, order in hand. Before I could even open my mouth, the DA slammed the photos on the table, yelled “Never Mind!” and sat down in a huff. (Yes, by then the jury was snickering.) After five days in court and two hours of deliberations, the sweet words of NOT GUILTY were read. NOT GUILTY thanks to TCDLA!

Tip Hargrove San Angelo lead counsel, Tom Davidson San Angelo co-counsel.

Grateful

Nicole DeBorde Hochglaube

TCDLA is such a gift!  I have been grateful over the years for the many friendships I have made with some of the most amazing lawyers and human beings on the planet. Wherever your case may take you, there is a TCDLA staff member who can help and a member at the ready, to support you and your client. Whether you need someone to lend them their ear about a case, the practice, a great day or a bad one, you will find one in this amazing group. I have been so fortunate to have had the opportunity to see TCDLA’s Strike Force in action up close.  At a moment’s notice, when a lawyer finds herself in the cross hairs of a court’s ire for zealous advocacy as necessitated by the defense function, the most talented lawyers in the area drop everything to appear on that lawyer’s behalf.  Our members from across the state always stand at the ready without hesitation to offer their substantial knowledge and talent, even when they do not have an abundance to time to spare.  We have had the busiest lawyers take our Strike Force calls for help from the hallway during trial and from the airport between gates.  What an extraordinary thing. I cannot imagine a more wonderful group to have by my side through thick and thin – and the war stories we get to hear along the way are the cherry on top! Thank you for your wisdom and friendship!

Inspiring

Laurie Key

TCDLA, her staff and members, have inspired me both personally and professionally. My first experience with TCDLA was at the 2003 Rusty Duncan Seminar. Bill Wischkaemper, my mentor and “boss”, invited me to the ‘big-wig’ dinner in the wine cellar at Paesano’s. I sat at a table with the Who’s Who of TCDLA. I was inspired. Inspired by their presence. Inspired by their stories. Inspired to break through that (plexi)glass ceiling of mostly all male leadership. I learned one valuable lesson that night: good wine is expensive.

Throughout the last 18 years, I have been inspired by the women of TCDLA. Prior to my joining, TCDLA had exactly 1 female president. We have had 3 since and have 2 more women on the current officer chain. What an absolute inspiration all of these women have been to me, and I have to believe they have inspired countless others. #mytribe

TCLDA staff. Wow! Year after year, these guys pull off the unimaginable. Their support of each of us inspires me to greater heights each and every day.

Cheers to you, TCDLA, and the next 50 years of inspiring others to be their best!

Fifty by Fifty

Kameron Johnson

News story. Deputy shoots unarmed woman several times in the street. My first thoughts were here we go again another unarmed African American shot by police. Despite the recent and ongoing social unrest regarding police misconduct I continued to think that police reform has been more of a current trend instead of an era of systemic change.  Has the movement been more entertainment or true reform?  Then the story gave a name of the woman shot.

Twenty-five years ago, I was a young public defender with the Travis County Juvenile Public Defender.  Our office was small but had been in existence for twenty-five years when we got the call that the Travis County District Attorney was prosecuting an eleven year old child for Capital Murder. Although the Juvenile Public Defender was established in 1971 as the first public defender office in the country dedicated solely to the representation of youth the office was understaffed and underfunded. Indigent defense in Texas was experiencing the same problems as the rest of the country in that it was woefully underfunded. Going against the vast resources of the State of Texas the case was tried in a community that was polarized and divided on the issue of juvenile justice. During the mid and late 1990s terms such as “super predators” “crack babies” and “if they do adult crimes, they should get adult time” persisted. The case of L. M. was no different. The elected District Attorney was quoted in the major Austin newspaper as calling an 11 year old child a “monster” and was committed to “prosecuting her to the fullest extent.”

Twenty-five years ago, I did not have time to stop and think that I was trying a case that would arguably be one of the biggest cases in Texas history. I did not know then that this case would have  coverage in the national and international media as well as have several documentaries made. What I did know was that I had an innocent child who needed help.

During the middle of the trial I was held in contempt of court.  While I was preparing for another fight with the judge two attorneys who I had never met came running into the courtroom sweating and without introducing themselves just said “what happened.?”  Next both just put their hands on my shoulder and said, “we got this.” Those two attorneys were from the TCDLA Strike Force.  At the time I did not know or had even heard of TCDLA.  After about one hour they both emerged from the judge’s chambers smiling and joking with the judge. I do not know what happened or what was said but I had my contempt hearing vacated and continued the trial.  The Juvenile Public Defender received an acquittal on all the murder charges during that trial and after a three-year battle which included making new law which would have an effect on both juvenile and indigent defense cases alike, all charges against that child were dismissed.

I joined TCDLA after my experience with that Capital Murder trial and have been a member ever since. This year marks my twenty-fifth year with the Juvenile Public Defender. We are celebrating our fifty year anniversary as an office along with TCDLA’s fifty year anniversary. Happy 50th birthday Juvenile Public Defender and TCDLA. Fifty years of seeking justice!

TCDLA: More than a Mere Membership

Susan Kelly

It was a dark and stormy night. Well, maybe not stormy, but definitely dark when I was sitting in my car in the parking lot of Bed, Bath & Beyond, answering a call from someone named Lydia Clay-Jackson.

“What can I do for you?”

“I am TCDLA Vice President and want you to serve on the nominating committee for next year’s board of directors.”

“Me? Seriously?”

It was 2011. I had been a TCDLA dues-paying member since 1998 when I quit life as a prosecutor and hung out the proverbial shingle. I loved being a lawyer, and I especially loved being a criminal defense lawyer.  But truthfully, I had not benefitted from, nor seriously been involved with TCDLA until Lydia’s call. I remember the meeting was set on a cold December Saturday at the Crowne Plaza Hotel in downtown Houston. This meeting occurred right in the middle of a knock-down, drag-out, 18-count Aggravated Sexual Assault jury trial that I was battling alongside my husband and co-counsel back in Waco.  The jury deliberations recessed that Friday and were to resume on Monday. Having to drive to Houston at the crack of dawn, I did not immediately read the article in the Waco newspaper describing our agonizing trial. When I finally arrived, I remember looking around the large meeting room at all these strange, intimidating faces and feeling incompetent to play a significant role in determining the leadership of this prestigious organization. But soon, the uneasiness settled, and I found those around me to be warm, smart, funny, and genuine.

After that one December meeting, I became immersed in the TCDLA machine: serving on committees, speaking at events, teaching at trial college, becoming a board member, dodging writing VOICE articles, and enjoying a camaraderie with true friends who were struggling with the same professional issues as I was…and some of the same types of personal issues as well.  I cannot begin to name drop all my TCDLA family members who have been there for me… from answering courtroom life-line calls, to saving me from the sea after a rogue wave devoured and then spewed out my law partnership and marriage into a zillion pieces. And after that, when I would sink back into the abyss, those same people were there, reeling me back, pushing me on, reminding me of my worth as a lawyer-and as a human being. All of this helped to restore my confidence in taking my name back, rebuilding my practice, and zealously serving my clients with pride. I could go on and on, but I am way outside my word limit.  If you want to know more about my specific TCDLA experiences after Lydia’s phone call, this story is to be continued. Such adventures to share!! So, for now, all I can say is, if you get the call to step up to more than mere membership, you might consider not only the impact you could have on others, but the impact it could have on you.

On January 1 of this year, Governor Abbott appointed Susan to serve as the 54th District Judge in McLennan County which exclusively handles criminal cases.

50 Years of Past Presidents

Hon. Frank Maloney 1971-1972
C. Anthony Friloux, Jr. * 1972-1973
Phil Burleson* 1973-1974
George E. Gilkerson* 1974-1975

C. David Evans* 1975-1976
Weldon Holcomb* 1976-1977
Emmett Colvin* 1977-1978
George F. Luquette* 1978-1979

Vincent Perini, President 1979-1980

“This Is a War Story and Homage to Emmett Colvin, One of Dallas’s Great Criminal Defense Lawyers and Seventh President of TCDLA”

In the first decade after the Death Penalty was re-established in Texas in the 1970s, I was appointed (with David Loving), to represent Howie Ray Robinson, a young 22-year-old black man with no significant criminal history, who had been looking for trouble one summer night and found it in a South Dallas bar in the person of an experienced old criminal from out-of-state who offered him, and another sucker, Ernest Benjamin Smith, a chance to make some quick money. The author of this enterprise had a substantial criminal history. He had a car and pistols and proposed that the three of them stick up a convenience store – in this case, a Schepp’s Dairy, where the night clerk, also marked by fate, was an ex-con with a pistol under the counter.

Their fearless leader drove to the convenience store, gave Howie Ray and Smith each a pistol and sent them in –- alone — to rob the store at gunpoint. The tough old clerk behind the counter reached for his gun. Smith tried shooting but said his gun jammed and he yelled, “Shoot him, Howie!” Howie complied. They cleaned out the cash register and fled out to their waiting sponsor in his car with the engine running. The old clerk died.

The older criminal, who had planned the fateful episode, was arrested in his car in possession of the two pistols. His prior criminal experience served him well. He cut a deal with Dallas Chief Assistant District Attorney, Doug Mulder, for identifying and testifying against the two hapless recruits whom he had directed and armed. Mulder offered him a sweet reward for his cooperation, but as a condition, insisted that he pass a polygraph test.

At trial, the older man testified against Robinson, as he had already against Robinson’s accomplice, Smith (who had been convicted and sentenced to death). On cross-examination, the very favorable plea bargain between the witness and the First assistant DA was admissible to impeach the witness, who had everything to gain by performing well for his sponsor. But the assistant D.A., in turn, insisted he be permitted to offer evidence in rebuttal that the witness had “passed” a polygraph test. The judge, Richard Mays, who would become one of Dallas County’s great criminal district judges, at that time was very new to the job. Although refusing my objection to the admissibility of the polygraph, he made it clear how much he hoped I would not cross-examine the witness on that point.

I had been in trials for almost ten years, but never in a capital case. I was tormented that the polygraph testimony would foreordain a guilty verdict. So that night, I needed a mentor. And I was a member of the nation’s very first state association of criminal defense lawyers. I sought help from one of its leaders, Emmett Colvin, whom I called at home.  Emmett did not hesitate: “Damn the torpedoes; full speed ahead!”

The next day the clever old crook testified. I impeached him with his very favorable plea bargain, and the judge admitted evidence of the polygraph test. Robinson was convicted and sentenced to death.

Epilogue: Robinson’s conviction was reversed on appeal because of the polygraph. (The Co-Defendant Smith’s conviction was reversed by the U.S. Supreme Court because of the testimony of “Dr. Death” – Dr. James Grigson.) Robinson was tried again –- twice –- ably represented by Ed Gray. Neither conviction stuck. The State agreed to a plea bargain. In those days before Life Without Parole or “3G” offenses, Robinson soon paroled. One day as he assumed his bench, the Hon. Richard Mays gazed out at the expectant faces before him in the courtroom. In the back, standing, one looked familiar. “Howie?” It was Robinson, come to pay his respects to the man who had sentenced him to death three times.

Robert Jones 1980-1981
Charles M. McDonald* 1981-1982
Clifford W. Brown* 1982-1983
Thomas Gilbert Sharpe Jr. * 1983-1984
Clifton “Scrappy” Holmes* 1984-1985
Louis Dugas Jr.* 1985-1986

Knox Jones 1986-1987
Charles D. Butts* 1987-1988
Edward Mallett, 1988-1989
James Bobo, 1989-1990
Tim Evans, 1990-1991

Richard Anderson, President 1991-1992

As a puppy lawyer I remember in 1974 V Perini dragging me to join this new organization, TCDLA.  The next year he coerced me in to writing the Ethics outline for the first SBOT Advanced Criminal Law Course for Phil Burleson’s speech.  Both opened doors for which I will be forever indebted.

I remember lean years when the hat was passed at Board meetings to keep the organization financially going.  I remember recruiting new members by going to their office with Tim Evans and Rusty Duncan to get them to sign up. It was always easier to get them to write a check when Jim Bobo went along and blocked any avenue of escape. I remember marveling at Board meetings of the eloquence of a young Gerry Goldstein.

I remember the strategic work by Scrappy Holmes and Frank Maloney to wrestle away the responsibility of educating the criminal defense bar from the SBOT and placing it in the hands of CDLP, ensuring quality CLE for years to come.

I remember attending as a student, rooming with Chuck Miller, the first Huntsville Trial Advocacy course.

I remember, perhaps as not distinctly, the President’s Parties at the Saint Anthony Hotel with the TCDLA Advanced Criminal Law Course ( now Rusty Duncan ), dancing the night away to Rotel and the Hot Tomatoes, then 50 of us showing up a Mi Tierras at 1:30 in the morning for breakfast margaritas. Unfortunately, I don’t remember much from those annual meetings that very same morning.

Mostly I remember how my affiliation with TCDLA, the organization and its members, shaped my legal career and forged lasting friendships.

Gerald Goldstein 1992-1993
David Bires 1993-1994
Ronald Goranson 1994-1995

Bill Wischkaemper, President 1995-1996

One of the best war stories occurred when I was serving on the TCDLA Strike Force. One of our fellow attorneys was subpoenaed to the Grand Jury to produce some photos that allegedly were taken in the Jones County Jail. It seems that some of the prisoners had become friendly with the jailers, and the jailers would let the prisoners out to party from time to time. There was a festive party on New Year’s Eve which possibly involved alcohol, women and marijuana. My client asserted her attorney-client privilege and refused to produce the photos, if there were any. She was held in contempt of court, which was ultimately dismissed. It seems that Anson at one time had an ordinance against dancing which was voided by the ACLU. Texas Monthly had in their Bum Steer Awards the following: There ain’t no dancin’ in Anson, but there’s tail in the jail.

I’ve always been honored to be on the Strike Force as many years ago I had to use their services. My client’s airplane crashed with some illegal substances on board. He called the person he had loaned the plane to and (unfortunately) used his phone credit card to make the phone call. I later got a subpoena for the Federal Grand Jury in Albuquerque to discuss the conversation I had with the person who had borrowed the plane. The Strike Force came to my aid, and the subpoena was quashed and I did not have to testify.

TCDLA has had a major impact on my professional career. My best friends are fellow members. This camaraderie has had a monumental effect on both my professional and personal lives, and I am truly grateful for it.

David Botsford 1996-1997
E. G. Morris 1997-1998
Kent Schaffer  1998-1999

 Michael Heiskell, President 1999-2000

“Reflections on My TCDLA Membership”

My introduction to TCDLA came courtesy of the legendary Tim Evans in 1983 as he was one of the defense counsel in a fraud case I was prosecuting  in U.S. District Judge Robert Porter’s court in Dallas. At the time I was seriously planning to leave my post as an Assistant United States Attorney to enter private practice with two other civil AUSA’s and set up shop in Fort Worth. Tim extolled the virtues of Fort Worth, and being a member of TCDLA, in his usual convincing style. How right he was! It was one of my very best moves, professionally and personally. He also proved it by skillfully walking his client out of the federal courthouse with a “Not Guilty” label on his forehead.

Tim’s guidance on this did not end with simple words during the course of  that trial.  He backed it  up by not only his introductions of me to the Tarrant County crowd of defense lawyers, prosecutors and judges, but  he made sure that I got my application in and encouraged me to sign up for  the  seminars and to  attend the meetings of the  Association.  As a result, I ingratiated myself with TCDLA members and leadership so that I could squeeze every benefit offered and plagiarize every tidbit of trial skill that I could to improve my practice. Along the way, dear, long lasting friendships developed that I continue to cherish. The CLE seminar trips were greatly anticipated and the resulting “Happy Hour” discourse was incomparable-as was the  downing of the “refreshments”. Eventually, I was convinced to  make an effort to  get on the  “officer chain” in order to  work my way up as President  of  this well respected, august body.  I did so with the support of  my dear friends  and colleagues, and ended up wielding the presidential gavel in 1999.  It  was the  turn of the century and I was the  first African American to  hold that gavel. I gleefully accepted the challenge and discharged my duties to the best of my abilities. Since those heady times, I continue to stay as active as I can because my love for this Association will never abate. Not only has my practice thrived as a result, but I became a better person due to  the  authentic and generous relationships that developed with my many TCDLA friends. Long live TCDLA!

Robert Hinton 2000-2001

Betty Blackwell, President 2001-2002

TCDLA was incredibly welcoming 41 years ago when I was licensed to practice law.  Three years earlier, I had been told by none other than Roy Minton that I shouldn’t go to law school because no one was going to hire a woman lawyer.  He was not being unkind, only truly concerned for my future as he was a dear friend of my family even before I was born.  When I decided to open my own office in Austin, TCDLA came in person and asked me to join.  Then shortly after that they asked me to join the board of directors. At my first meeting Weldon Holcomb directed me to a room full of ladies, saying that the Friends of TCDLA were meeting next door.  I soon realized that he didn’t know I was an attorney or that I was on the board.  Much to his embarrassment, Scrappy Holmes and I corrected him. Weldon always made a point of enthusiastically greeting me at each board meeting after that. 

Scrappy decided that if anything was happening in Austin, I need to go as the TCDLA representative.  This opened a huge number of doors for me to see the inner workings of the Legislature, the Governor’s office, the State Bar of Texas and the Court of Criminal Appeals.

In the last 50 years, TCDLA has had made a tremendous impact on the criminal justice system in Texas and my life.

Mark Daniel, President 2002-2003

TCDLA is more than merely an organization. It is a living breathing organism. TCDLA is unquestionably the strongest and most passionate criminal defense association in America.

I joined TCDLA in 1985. I look back over the years and marvel at how my career and my practice have been enriched. I am truly a TCDLA beneficiary.

I have had the privilege of traveling to every corner of this wonderful state and meeting criminal defense lawyers I would have never known but for TCDLA. I have  had the undeniable privilege of trying cases with great lawyers I would have never known but for TCDLA.

I have attended what is  far and away the finest criminal law CLE programs in America. I have learned from others. I have come to understand that seasoned and experienced criminal defense lawyers are the most generous people on earth with the next generation. All a younger member has to do is simply ask. I have stolen ideas from other members of TCDLA and incorporated them into my practice and cases.

I have watched while TCDLA leadership battled valiantly against overreaching legislation, something no individual practitioner could ever hope to  do on their own .I have watched while TCDLA lawyers sprint to stand beside a member who has stumbled into the wrath of an oppressive judge. I have always enjoyed the concept that the individual criminal defense practitioner enjoys the never ending support of this organization and its 3,000+ members.  Because of TCDLA, an individual criminal defense practitioner never stands alone or practices by himself.

Finally, I have been privileged to have the opportunity to give back to the upcoming generation and share with them the lessons I have learned from my experiences. It is an honor to try and make things a little better for those that follow. There is no greater privilege and TCDLA provides the ideal forum.

That is what TCDLA is to me. I am truly blessed.

Cynthia Orr, President 2003-2004

There are many cases past and present that are important to all of us. Each case presents an opportunity to improve the state and federal criminal justice processes. Here are a few folks might recall. Representing Michael Morton resulted in relevance- based discovery in Texas.  Michael taught us about his irrepressible human spirit. He served 24 years and 7 months for a crime he did not commit; yet when he was released, he saw through significant reform in our justice system. He cared about consequences for wrongly hidden exculpatory information.  And so, he also saw through the prosecution and incarceration of the prosecutor who hid that evidence in his case. Hannah Overton also decided to provide service to those who are subject wrongful imprisonment.  After her exoneration, she worked to provide a reentry home for women to reintegrate into society and has even established a re-entry home for women in Mexico who are deported after their release. She continues to advocate for humane conditions in women’s prisons and provides faith-based services to incarcerated women.  In the Cameron Todd Willingham case, Texas executed an innocent man. We continue to fight for the restoration of his good name for his family. I hope the knowledge that our system is imperfect and often is shamefully inadequate will lead us to conclude that we must abolish death as a penalty in Texas. Our imperfect criminal justice system should not meet out irremediable punishment. All of the cases where we continue to strive for exoneration of the innocent and for fair and just results for those accused of crime improve justice and ensure that the Texas and US Constitutions remain living and meaningful. TCDLA promotes these ideals and provides places where we can gather, hone our skills, and stand with each other in the effort.

Daniel Hurley, President 2004-2005

“The Ralph Erdman Debacle”

In 1992, a Lubbock Police Detective, Bill Hubbard, hired me to represent him in an indictment for Falsifying Government Documents.  A very long story condensed, Hubbard had pissed off two West Texas District Attorneys for criticizing “their” medical examiner, Ralph Erdman, who they controlled hook, line and sinker.

Hubbard and partner, officer Pat Kelly, testified in a capital murder hearing in Amarillo, after being subpoenaed by famous Atlanta Capital defender Millard Farmer, that Erdman was a fraud and a cheat and should not be trusted.  Farmer was indicted in Randall county by DA Randy Sherrod for witness tampering and Hubbard and Kelly were indicted in Lubbock by DA Travis Ware for false documents.

Bill Wischkaemper suggested I let Gerry Goldstein take over Hubbard’s case.  I was hurt (it was my career case) but soon came to realize that Goldstein could probably do the job.  They allowed me to come along and carry a briefcase for them.  Captain Goldstein put together a team that included Racehorse Haynes, Cynthia Orr, Chicago Lawyer, Jed  Stone, and the wealthiest law firm in the world, Skadden Arps, for the 1983 Civil rights side.

Judge Mary Lou Robinson summoned us to Amarillo to tell us she would give us a few hours to present our suit to enjoin the prosecution of the aforementioned accused.  An injunction to stop criminal prosecution had been granted two previous times in the U.S. prior to our case.  Captain Goldstein and his team said no problem, we got this, “Hold my beer.”

We began the hearing in an Amarillo winter blizzard that would make Eskimos shiver.  Our two-hour hearing lasted four days.  About one month later Judge Robinson found that the plaintiffs had presented “substantial evidence” that the two DAs had unlawfully and unconstitutionally charged Farmer, Hubbard, and Kelly for exercising 1st Amendment rights and Farmer for exercising his 5th and 6th Amendment duties.

We settled the civil rights claims after all criminal charges were dropped for about $300,000.00.

It’s hard for me to believe that it has been 40 years since I first got to hold Gerry Goldstein’s briefcase.  I will cherish that memory to my grave.

Randy Wilson, President 2005-2006

After over 50 years of combat in the trenches defending the “citizen accused”, I can state without reservation that TCDLA and TCDLEI have been the major contributors to my career. As a Past President and former Chair of TCDLEI, and member of the faculty of the Tim Evans Criminal Trial College for over 28 years, I have had the privilege of meeting, working with, and for not only the “big names” in criminal defense, but also watching the young lawyers grow into competent and devoted criminal defense attorneys.  I have been fortunate to contribute in a small way by my involvement with the two organizations. The young attorneys now are our hope for the future.  We should advise, mentor, and assist them as well encourage them to become more involved with our two organizations.  We should encourage non members to join.  I feel privileged to have been not only an officer but also a member of  TCDLA and TCDLEI and to thank those that have supported me through the years with their advice and counsel.  I composed the following many years ago and thought it might be appropriate to share with our members.

The Advocate

With head held high
Armed with wit and knowledge
He attempts to aid
His fellow man.
With little appreciation
From his peers
He continues his battle
Against intolerance
Injustice, and the unscrupulous
He often sacrifices his own
Goals and desires
To protect his client from such.
His beleaguered figure
Oft marred from previous battles,
Nonetheless, ever-striving to
Protect his client
From the injustices set against
His clients.
His weapons,
The word, his wit and preparation
Always armed,
Ever ready,
For the defense of the citizen accused.

-Randy Wilson

Robert Lerma, President 2006-2007

Craig Jett, President 2007-2008

“The Banditos Defense Team”

In 1983 the Banditos Motorcycle Club and the Banshees Motorcycle Club were rival motorcycle clubs in Texas. The Banditos were considered a “national” motorcycle club with chapters in many parts of the United States, including Texas. The Banshees were considered a regional club with chapters in Texas, Oklahoma and Louisiana.1

On April 30, 1983, members of both clubs attended drag races at a track in Porter, outside of Houston. An altercation between members of the clubs occurred resulting in several Banditos being shot, and one killed. On July 5, 1983, explosive devices were set off at the residences of two members of the Banshees in the Dallas area. Fortunately, no one was seriously hurt. Almost five years later, on March 31, 1988, a federal grand jury returned an indictment charging twenty-three members of the Banditos with conspiracy to make explosive devices that were to be used to retaliate against members of the Banshees. Some of the accused were national officers of the Banditos and others were members of the Texas chapter. The accused Banditos had nick-names like Stepmother, Stubbs, Frio, Sarge, King Crabs, Sir Spanky, Dirty Ed, Crash, Kawasaki John and Pee Wee. The defendants hired or had appointed defense lawyers from Lubbock, Ft. Worth, Dallas, Longview, Tyler and Houston. Some of the lawyers received Harley-Davidson motorcycles for their fees. The defense team included TCDLA presidents-to- be Tim Evans, Bob Hinton, Kent Schaffer, Ron Goranson, Bill Wischkaemper, Richard Anderson, Mark Daniels and Craig Jett; future TCDLA Hall of Fame member George Milner II; future Dallas Bar President Barry Sorrells; and future United States District Judge John Hannah.

On November 7, 1988 the case was called to trial before the Hon. Jerry Buchmeyer, who was well known for his sense of humor. A task force of federal and state law-enforcement had gathered evidence based on information provided by cooperating former Banditos. Many of the defendants were arrested wearing their “colors”, which ended up hanging in the office of the prosecutor. Eight defendants plead guilty prior to trial. Two of those agreed to testify for the government. At trial half of the courtroom was packed with fifteen Bandito defendants and their fifteen lawyers. The cross-examination of one of one of the cooperating Bandito witnesses included a graphic description of his killing of a man in a bar. During cross- examination of a Banshee witness, Kent Schaffer produced a very large photograph of the Banshee that was taken during the altercation at the race track, with his arm extended and something metallic in his hand, which he agreed was not a “Coors Lite can.” It appeared that Kent had solved the murder of the deceased Bandito. At the conclusion of the cross-examination, all of the Banditos gathered around Kent to congratulate him. Kent suggested that his performance might qualify him for membership in the Banditos. The Banditos hesitated, and then explained to Kent that membership in the Banditos required doing something sexual in front of the members. Kent responded, “I just butt—-ed a Banshee, isn’t that good enough?” It wasn’t.

After three and a half weeks of trial the government rested. The defendants made a Rule 29 motion for an instructed verdict contending that the government had not proved that the defendants had the deliberate, knowing and specific intent to join the conspiracy and accomplice its purpose. Rather than suffering an instructed verdict, the government filed a motion to dismiss the indictment, with prejudice, as to six defendants. The motion was granted. Two of the defendants were acquitted by the jury. The remaining seven defendants were convicted. One of those defendants was allowed to stay out of jail on bond during his appeal because the judge knew there was Bruton error, which required, and resulted in, reversal of that conviction. He was not retried.

One of the Banditos, DJ, was a skilled illustrator, and made drawings throughout the trial. Judge Buchmeyer noticed and took an interest in the drawings. The judge was later presented with copies of the illustrations. There was also a t- shirt for the Banditos Defense Team, designed by Sue Benner (wife of this author), a photo of which accompanies this article. We heard later that one of Judge Buchmeyer’s law clerks rode a motorcycle into a restaurant where the judge was having breakfast.

The Banditos trial was a great experience for the defense lawyers, young and not so young. We learned how to cooperate, and the value of cooperation among defense lawyers and defendants. We learned to appreciate and learn from our co- counsel. We learned how to look after the interests of our client and at the same time, not to harm other defendants, which benefitted all of the defendants. We started, or cemented, long personal and professional relationships that we value to this day. The  spirit of what we learned started with TCDLA, and I believe continues as TCDLA continues.

H.F. Rick Hagen, President 2008-2009

When I first started practicing criminal law, over thirty years ago, there was virtually no discovery.  Prosecutors could operate with a closed file.  What I called “bedtime story discovery” was common.  The prosecutor could read you the file, or a portion of it, but was not required to give you a copy.  Defense lawyers did not get police reports or witness statements until the trial started, after the witness testified, with the jury watching.

The most significant change in criminal law the last fifty years is the Michael Morton Act.  During my term as TCDLA President in 2009, I was a strong advocate for discovery reform.  At that time, I advocated for reciprocal discovery.  I honestly believed we would never be allowed access to the prosecution’s file without giving something up ourselves.  The leadership of TCDLA after my tenure proved I was wrong.

Another significant change is how society views law enforcement.  Not too long ago a significant percentage of the population would blindly accept that law enforcement could do no wrong.  Eyebrows were raised when wrongful convictions were occasional.  The eyes of society are wide open now that wrongful convictions are common.

Law enforcement abuses seem to make headlines on a weekly basis.  Our law enforcement officers must be better trained, especially in how to deal with a person in a mental health crisis, and regarding the use of force.  TCDLA must continue to advocate for the protection of individual freedom and reform. 

I have been fortunate during my career and enjoyed my fair share of acquittals and favorable punishment outcomes.   I will never forget Rusty Duncan telling me that if I wanted to have any kind of success practicing criminal law that I had to join TCDLA.  Growing up my heroes were cowboys.  Today, my heroes are members of TCDLA.

Stanley Schneider, President 2009-2010

“Racehorse Haynes and the Levenworth Art Colony”

In 1980, after the Cullen Davis trials, Richard “Racehorse” Haynes was the most famous lawyer in America. Imagine my excitement when he invited me to work on a federal bank robbery case in Spokane, Washington representing Bubba because Bubba wanted me to be Haynes’ “go-fer”. I will never forget my first meeting with Bubba and Haynes. As I was ushered into Haynes office, Bubba proudly pointed to a painting on the wall and telling me that he painted it while in prison for a bank burglary when Haynes had first been his lawyer. Little did I realize the significance of that painting. Bubba surrendered to authorities and was promptly released from custody as Haynes argued to a federal magistrate that Bubba was not a robber but a burglar. I traveled to Spokane to meet the prosecutor and began our investigation. We learned that a guy named Joe, after a grant of immunity, told law enforcement that Bubba and a guy named Sunny flew to the Northwest where they stole cars and robbed the three banks in three different cities. After the robberies, they would hike into the surrounding mountain wildernesses to hide. According to Joe, after a few days, he would pick them up and drive them to an airport for their return to Houston. The story seems feasible because Joe, Sunny and Bubba spent a number of years together in a federal prison. An FBI agent called the three men members of the Levenworth Art Colony because of their hobby in prison.

When he heard the details of the informant’s deal, Haynes proclaimed Bubba’s innocence because of Bubba’s health would have prevented him from hiding in the woods. Haynes instructed Bubba to search his personal and business

records for evidence that he was in Houston when the robberies occurred. Bubba presented us with witnesses and documents proving that on the day of Spokane robbery, he had moved his mother by ambulance from a nursing home in Galveston to a nursing home in Deer Park. There were documents relating to his movements in Houston for the dates of the other robberies. Except for being in jail, Haynes could not have been presented with more perfect alibi defenses. We filed the required notice of alibi which listed the identity of our witnesses and presented the supporting documentation. The witnesses were quickly interviewed by the FBI. A couple of weeks later, the prosecutor called. He said that the judge wanted to know if video depositions were taken of the alibi witnesses, could we try the case the three days before Thanksgiving. I remember laughing and saying something like: Haynes is going to cross each of your three snitches for three days a piece and the trial is going to last three weeks. The call quickly ended. The following week I was notified that the charges were dismissed. The dismissals seemed hollow because I wanted to try the case with Haynes. And, I also thought there were facts missing from the story… Little did I know. Years later, I learned the backstory. The members of the Levenworth Art Colony had carefully crafted a scheme involving four men not three. The success of their plan depended on three things:

  1. Bubba’s relationship with Haynes;
  2. Bubba’s iron clad alibis; and
  3. Racehorse Haynes was the greatest trial lawyer in America.

The four men knew that if successful, no one would be convicted. And the plan worked.

William Harris, President 2010-2011

The True Meaning of TCDLA”

We were asked to write of an example of the meaningful moments of out TCDLA experience. I do not think so much of what has been contributed to my skills as an attorney, although much has, but rather of the friendship and the feel of family that comes from actively belonging to this great organization.

In January of 2019, my wife, Ann Abbe, suffered a massive stroke. In June she was in a long-term acute care hospital in Fort Worth. She seemed stable so I traveled down to San Antonio for the Rusty Duncan.  My first day was interrupted by a call from the hospital that she had been moved back to intensive care. I rushed back and it was obvious that she was failing.  Two days later she died surrounded by family.

The service was on Thursday of the following week.  At the visitation on Wednesday evening, I arrived to be greeted by four of my friends from Lubbock, who had driven straight through to attend the visitation that evening. At 8:00 p.m. they climbed back in the car and drove back to Lubbock. There were many others from my TCDLA family who attended that evening or who were present for the funeral the next day. However, I single these out because they came the farthest to support me. I cannot express how much I appreciate the support of all of my TCDLA family.

We do a lot to educate lawyers, support them when they are unfairly attacked, and try to influence the powers that be in ways that promote the welfare of our clients.  We are not the most popular of lawyers and the law is not the most popular of professions. But like a good family, despite some disputes, we support each other.  That, I believe, is TCDLA’S greatest contribution to our members.

 

Gary Trichter, President 2011-2012

“Reflections as a Cowboy Lawyer”

As I reflect upon TCDLA’s 50th Anniversary, I also reflect both upon my own 41 years in the practice of criminal defense law and my approximately 50 years in the criminal justice system.  There have been many changes in that system since I have been involved in it, some good & some bad, and for the most part, I have witnessed that TCDLA’s involvement has brought about many good changes.  However, just like in our government, where we need to be forever vigilant in protecting constitutional rights, we must also be forever vigilant in protecting both the primary mission, defending the accused, and in protecting the membership of our organization.  In particular, I see the greatest danger to TCDLA as not being from some outside threat, but rather, from an inside threat!  That threat has already raised its evil head in our organization and has firmly planted its roots within.  In many ways, I think a great number of our membership have forgotten that the ultimate purpose of a defense lawyer is not just to win cases, but rather, to see that both constitutional rights and that the spirit of the law are protected.   In my view, our criminal justice system is also under attack, and it too, needs to be protected.  If the criminal justice system fails, then we fail with it.  Our law cannot have a blind eye that protects and/or shields certain favored persons from prosecution.  If we, as a country, lose our respect and belief in our justice system, then we are on the road to destruction.  We as lawyers have to inspire non-lawyers that the rule of law is important and that it needs to be respected.  To this end, I see that the “cancel culture” has become embedded in our organization.  It is also my observation that there is a movement that very openly attacks lawyers who dare to take an opposite view of political circumstances.   Here, the danger is that such a culture chills open and needed debate.  We must always have patience and an open mind to consider dissent.  Typically, I see and hear this where political movements are championed by past & present leaders within this organization and dissenters and minority voices are belittled. Our dissenters must always be treated with dignity, due process, and regard.

WE, as Champions of Liberty, must never become like those who say, “do as I say and not as I do”.  Each of our members deserve to have a free and open forum for open debate.  We owe that to each other!  That debate, however, needs to be focused and limited on our missions as defense lawyers.  Unless that happens, we will cease to be Protectors of Liberty, and sadly, we will become robbers of it. 

On another note, in order to protect the ultimate mission of our organization, we must continue to recognize that there is strength in numbers.  It is only by being united in purpose that we can have a voice that will be heard!   Here, so that our combined voices do not become muffled, we must limit our outcry to those causes that advance our system of justice and protect the role of the criminal defense lawyer.  This brings me to my final thought on TCDLA’s secondary mission, and that is to continually upgrade the skills, knowledge, and advocacy of each defense lawyer.  To that end, TDCLA has been incredibly successful in its mission to be a teaching organization.  Through its teaching, mentorship, and inspirational leadership, TCDLA has not only done much to protect the rights of so many individual defendants, but more importantly, it has proven that by protecting a single individual, that we can protect everyone else. That is what we teach and that is how we should live!  It is that mindset and practice that allows us to protect our family, our friends, our neighbors, and both the guilty and the innocent from tyranny.  To that end, it has been one of the greatest honors of my life to be member of this organization and to have played, and to continue to play, a part of TCDLA’s teaching legacy and continuing mission of protecting inalienable rights.

 

Lydia Clay-Jackson, President 2012-2013

“Remembrances”

It was May nineteen hundred and eighty-five, I was in the UT arena along with other new “gold card” members, to be officially sworn in as members of the State Bar of Texas. The only thing I remember about the event is what happened as I was leaving the arena. In that long ago time, when face to face conversation was the rule and not the exception, and when a law degree could be earned at four dollars a credit hour, the State Bar invited all bar sections and state-wide bar organizations to have a booth at the formal swearing in ceremonies.

It was a bright and sunny day, and not a dark and stormy night, I passed by a booth with a tall grey haired man and short grey haired lady. Let’s call them John and Lillian. Lillian called me over and my career as a criminal defense lawyer was started. John spoke with me about the greatest thing in criminal justice – TCDLA. He said it was an organization of criminal defense lawyers who were working daily to make a difference in the lives of those who had been charged with a criminal offense. If I wanted to make a difference, he said, in criminal law then I had to join TCDLA. Lillian’s pitch was a bit more down to earth for a new lawyer, she said TCDLA had scholarships that would pay the tuition and travel to TCDLA seminars. It was the personal touch of John and Lillian that made me signed up on the spot and have not looked back.

I received scholarships and attended the seminars and started to stay over for the TCDLA board meetings. I got hooked and started to recruit other new lawyers. Undoubtedly the only TCDLA bill-board larger than mine was Randy Wilson’s. Sure, I had to re-introduce myself to the same people, a couple of times, but in the end it was worth it. I joined committees and I was placed on committees. I made a concerted effort to encouraged (and yes badgered) others lawyers I would see, to join TCDLA, not only for their benefit but for the benefit of their clients.

Now in 2021 I am honored to say that I have served TCDLA as one of its Past Presidents, (thank you KAD for the pen I wear it with pride). I am pleased with the many accomplishments of our organizations. I yet personally go up to lawyers in the courtroom and ask if I can be of assistance. I always finish with “ by the way are you a member of TCDLA”?

I have written this remembrance to lend you my experience. We members of TCDLA have many common goals. I truly believe the foremost goal is to be the best advocate for the Accused that we are capable of being. Our face-to-face contact with one another is one way important way we may reach this goal. Our willingness to go above and beyond to help our fellow Defense Lawyers makes each one of us grand warriors. We must not hesitate, when we see a fellow warrior in need, to personally step us and offer whatever assistance we have in our arsenal. It is this personal touch that allows us , as an organization, to be unbeatable.

The Tim Evans Texas Criminal Trial College has as its adopted motto, “Courage is being scared to death but saddling up anyway”. Let us all make a concerted effort to honestly speak (not text, not email nor any of the other ways of avoiding personal contact) with one another and always be there to lend a helping hand. We will all be better for it.

Bobby Mims, President 2013-2014 and Melinda Carroll

“Restorative Justice”

We were appointed at the last minute to assist on a high-profile death case in Smith County. The Judge had denied contract lawyers a delay. She told them to choose from the death penalty list a 3rd chair. The crime drew national attention from CNN, ABC, and Fox since a black man was charged with kidnapping, raping, and murdering a white woman. We started getting death threats and expected the KKK to show up. We were under tremendous pressure, so we decided to put pressure on the Judge.

Melinda Carroll contacted the “Big Three” Wischkamper, Niland, and Byington. TCDLA’s listserve was livid. Botsford and Recer volunteered to help brief and file a Writ of Mandamus. President Wilson issued a press release charging that a Tyler Judge was forcing a hasty death penalty trial on a young Marine war veteran. 

During voir dire, we Batson Challenged every DA strike on a minority. The Judge denied each. The New York Times called the Judge to comment on why she was forcing a Marine to trial when the lawyers were unprepared. We flipped the drama triangle, and the defendant became the victim with the Judge, the villain. Finally, the Judge suggested the parties settle.  She then ordered the DA voir dire notes sealed for the record and carried our Batson motions.

The DA offered to waive death if the family consented and the defendant told the family what happened.  He agreed.  Scary stuff for defense lawyers! We learned that they had sued Walmart.  I called their lawyers, saying if my client waived the 5th, they could depose him, but I needed their clients to agree.

We all met under armed guard for 8-hours. He told them what happened and why. He put in the details and showed remorse. Mom asked if some man did that to his daughter, what would he want. He said he would want them to die. The mom then said that because we are all God’s children, she forgave him. Incredibly, Mom stood and hugged him.

He was sentenced to stacked life sentences. The family recovered a seven-figure sum from Walmart.

We learned later that it was Restorative Justice we obtained.  We did not know it since we were “winging it.”

Emmett Harris 2014-2015

 

Samuel Bassett, President 2015-2016

I tried two consecutive jury trials in Alpine, Texas (Brewster County) in the late 1990s for a businessman falsely accused of sexually and physically assaulting his young children. I’ll never forget the experience because I was young (in my early 30s) with a small firm and in a “foreign land” of far West Texas. The case arose out of a custody dispute so we were able to take depositions and unravel the State’s cases before trial. It was fun deposing the CPS caseworker on the case for six (6) hours, with all of her records in my possession. We set up shop at the Ramada Inn the week prior to trial and worked very hard to prepare. The trial was going really well for us and the District Attorney was noticeably frustrated, not having realized how much information we had developed in the civil case. During closing arguments, the District Attorney gathered a bunch of uniformed law enforcement personnel in the courtroom and I wondered why. As my client was declared “not guilty” and we hugged, he was immediately arrested and charged with a new charge of physically abusing his children. He spent the next two days in the Brewster County Jail. Once released, we went to Juarez to celebrate our victory and to begin to prepare for the second trial. The State had the same problems with their second case given our extensive discovery efforts. After I filed a motion to recuse the District Attorney for the second trial, a visiting prosecutor and a new judge (Former D.A. Royal Hart) tried the second case and the jury deliberated less than an hour finding my client not guilty. We again went to Juarez for a couple of days with a much more hearty celebration. An interesting post script – my client obtained primary custody of these same children a few months following the second criminal trial.

This case taught me the value in handling concurrent civil or family law litigation when there is a parallel criminal action. From that point forward, much of my practice has been devoted to criminal allegations arising out of family law cases. However, I’ve never again had back to back not guilty verdicts in two first degree felony trials with the same client. I’ll never forget that experience.

John Convery, President 2016-2017

A few random thoughts for the 50th. When I joined TCDLA over 30 years ago we were both pretty young. I was finding my way as a brand new lawyer.  TCDLA was finding its way as a young association.  I was simply overjoyed to socialize with criminal defense lawyers and be schooled by legends. I still am. TCDLA was pretty happy in its little house office in Austin. Executive Director John Boston operated on a shoestring budget, with TCDLA ever eager to swell its ranks with new members. Year after year my TCDLA colleagues schooled and encouraged me in the art of criminal defense through education and training programs.  I amassed a ton of paper TCDLA CLE course materials and subject manuals on my bookshelves. I purchased TCDLA check lists, cheat sheets, inspirational t-shirts, and waited eagerly for each delivery of the next issue of our exceptional magazine – Voice for the Defense. I still do.

Through the wonder of technology, vision, and the dogged determination of individual members (Grant Scheiner), TCDLA now provides me with the digital wizardry of its website, listserve and cell phone app.  Through these tools I access a vast library of information not imagined by me as a young lawyer. Members and the TCDLA organization have become more professional, better organized. From the TCDLA building in Austin, with a decent budget, we grew and thrived with Executive Director Joseph Martinez, and now flourish under CEO Melissa Schank, super CFO Mari Flores, and staff.  A once rag tag group of member Legislative lobbyists has morphed into a professional group (Keith Hampton, Alan Place) now led by Alan and Shea Place.  In increasingly divisive and difficult times TCDLA serves as the voice of Texas criminal defense lawyers.

I have socialized and partied with TCDLA friends for over 30 years. I have no plans to stop.   

David Earl Moore , President 2017-2018

“Heroes”

When I first joined 30 years ago at the cajoling of Odis Hill and Scrappy, I did so in part like many of us because of what TCDLA could do for me, in the form of outstanding CLE combined with all the other terrific benefits that come with membership. But, I think that I primarily joined to be part of the tribe.  I wanted to be around other lawyers that were walking the same pathway that I was on, folks that understood. I wanted to meet and get to know the great lawyers I had always heard of, many of them among those TCDLA founding members who met at that hotel in Dallas 50 years ago to conceptualize and create our organization. I hoped that TCDLA would give me an avenue to rub shoulders with them and to be a part of something that those individuals, my lawyer heroes, our predecessors, had formed.

Through the years I was certainly blessed to be able to meet many of those legendary giants.  I also have had the good fortune to make many of my very best and lasting friendships through TCDLA. But, at an early point, the collegiality aspect became secondary as I began to become involved in the critical work that TCDLA does. I have always been cognizant that our actions as criminal defense lawyers have an immense impact on people’s lives, one case, one client at a time.  However, TCDLA gave me the opportunity to make a difference beyond my immediate horizon.  Coach Mike Krzyzewski (Coach K), one of the greatest coaches in the history of sports, said it this way, “People want to be part of a team.  They want to be part of something bigger than themselves.  They want to be in a situation where they feel they are doing something for the greater good.”

TCDLA affords each of us an avenue to make that kind of difference.  Can you imagine the absolute chasm that would exist in criminal justice in Texas without TCDLA’s involvement?  From training and educating lawyers, to our legislative efforts, to standing up for our individual brother and sister members through Strike Force, and in other countless ways, I do not know where we would be, where I would be, without TCDLA.

Cornel West said, “I have always felt called to serve, to empower and ennoble as many people as I could – teaching, truth-telling, exposing lies, bearing witness, and being willing to live for something bigger than yourself.”  If you feel that kind of call, then TCDLA is the home for you.  To be sure, you will certainly be rewarded from the bounty of benefits that you personally receive from your dues, but to really get the blessing of what TCDLA is, roll up your sleeves and take part.

I am proud to have been a small part in the cog of what we do, of what we stand for.  I realize that my tiny contribution is but a drop in the ocean, but the ocean is made up in total of individual drops of water like mine. By ourselves, we may not influence much, but collectively we are formidable.

I came to TCDLA in part to meet people like the TCDLA Founding Fathers. Then I had the great fortune to participate with later torch bearers like Goldstein, Anderson, Botsford, Blackwell, Schneider, Evans, Hurley, and Heiskell et al.  And, based upon the character, devotion, and drive of younger folks who have actively taken up the banner, TCDLA is very much in good stead as we now pass the baton to a younger generation.

When I have crossed over and am no longer here, I want my children and my grandchildren to know what I stood for.  I want them to know that I was a proud member of TCDLA, and that I loved this organization.  My feelings for our group are reflected by the words of Major Richard Winters who commanded Easy Company during World War II. When he was asked years later by his grandson if he had been a hero in the war, Winters replied, “No, but I served in the company of heroes.”

Lord knows that there are storm clouds on the horizon as our constitutional protections are under constant threat.  I believe personally that the Rule of Law itself is endangered.  Come join in this company and be a part of the greatest group of criminal defense lawyers in the world.  I hope for society’s sake that TCDLA will still be a beacon for justice in another 50 years.  And, in the words of General Dwight Eisenhower, issued on the morning of June 6, 1944, on D-Day, “Let us beseech the blessings of Almighty God upon this great and noble undertaking.”

Mark Snodgrass 2018-2019

 

Kerri Anderson Donica, President 2019-2020

I’ve been a proud member of TCDLA since 1987. There are so many adventures I’ve had over all those years with TCDLA that are best kept between the adventurers. You know what they say – what happens with TCDLA stays with TCDLA! Most of the best friends I have in the world arose from my relationship with this organization.  We share war stories, we call each other for advice about cases, the law, our families, our love life. We vacation together, we share our joys and our heartbreaks.

As I think back over the past 34 years during which I’ve been involved with TCDLA, perhaps the most significant was 2019-20 during which I served as our President. We were seriously ROCKING along until March 2020. I’d told Melissa Schank that I could not believe what an easy, harmonious year we’d had. I mean NOTHING had rocked the boat… Then God smiled and COVID-19 hit. And the world (and the courts) locked down. We learned how to say ZOOM and wear masks and shelter at home. It was terrifying. Even more terrifying for our clients – many of whom are locked up and had no idea when we could ever get them the heck out of jail or how we could conclude any of our clients’ cases.

Together, we formed the COVID-19 task force. With Melissa’s help, we selected some of the finest leaders and legal minds to assist our members and their clients wade through this uncharted territory. New leaders were born – or at least recognized (Clay Steadman was my fearless point man and NEVER disappointed. Allison Clayton, Jeep Darnell, Kyle Therrian… brainiac rock stars).

The bottom line – we old(ish) guys and gals were able to see that the future of our much loved family/organization is safe and will continue to rise to even new heights.

I will forever be thankful for TCDLA and the memories I cherish – and plan to continue making! Thank you, TCDLA! I’ve loved you for ALMOST 50 years!


Honoring Our Veteran Lawyers 50+ Years Before the Bar

Sam D. Adamo
Paul F. Anderson
Gordon V. Armstrong
Shirley Baccus-Lobel
Cecil W. Bain
Richard Edward Banks
Robert T. Baskett
Jim Sharon Bearden Sr.
David R. Bires
Kenneth E. Blassingame
Stephen E. Blythe
Bill Booth
Paul Brauchle
Alan Brown
Stan Brown
Michael J. Brown
Jim Burnham
Robert Marcus Cady Sr.
Charles Campion
J. A. Canales
Harold L. Comer
Richard Johnson Corbitt III
Dennis R. Croman
Jerald D. Crow
Jackson Qlo Crum
Dick DeGuerin
Gary F. Dennison
Danny V. Dent
Blake C. Erskine
Tim Evans
Wallace T. Ferguson
F. R. “Buck” Files Jr.
Louis J. Fohn
Paul L. Fourt Sr.
Errol N. Friedman
G. Rudolph Garza Jr.
Michael R. Gibson
Victor H. Gillespie
Smith E. Gilley
Gustavo E. Gonzales
Ronald L. Goranson
Dan Green
Lealand W. Greene
Frank Hale
Lynn P. Hardaway
Emmett Harris
Joseph C. Hawthorn
Tom M. Henderson
R. Charles Hoelscher
William M. House Jr.
Guy W. Hull II
Lynn Reed Ingalsbe
Frank H. Jackson
Tim James
Elizabeth C. Jandt
Paul G. Kratzig
James H. Kreimeyer Jr.
James Lane
Ken D. Lipscombe
Edward A. Mallett
Robert A. Markowitz
Edgar A. Mason
Richard Mayhan
Tom S. McCorkle
Dan R. McCormack
Wayne Meissner
Ebb B. Mobley
Charles G. Morton Jr.
Stephen M. Orr
Juan “Sunny” Palacios Jr.
Douglas H. Parks
George J. Parnham
Robert Pelton
John F. Pettit
Jimmy Phillips Jr.
John M. Pinckney III
Robert A. Price IV
Tom L. Ragland
Robert E. Richardson Jr.
Grady L. Roberts Jr.
Allen C. Rudy Jr.
Ted L. Sansom
Larry  Sauer
Eloy Sepulveda
Polk Shelton
Monte Sherrod
Don C. Smith
Buddy Richard Stevens
Jack V. Strickland
Larry B. Sullivant
Ronald L. Sutton
Alex R. Tandy
Bill  Trantham
Theodore F. Trigg
John Trube
Robert A. Valdez
John W. Warner
Sheldon Weisfeld
Phillip Westergren
Charles F. Wetherbee
Norman True Whitlow
Dain P. Whitworth
William K. Wilder
Randy Wilson

Recognizing Members Who’ve Belonged to TCDLA for 50 Years

Cecil Bain
Roy Barrera Sr.
Alan Brown
Dick DeGuerin
F. R. “Buck” Files Jr.
Michael Gibson
Frank Maloney
James M. Morris
George J. Parnham
Vincent Walker Perini
Jimmy Phillips Jr.
Theodore Trigg

Current Issue: July/August 2021

/

DOWNLOAD PDF VERSION

Features

13 | Memories of TCDLA’s First President – By Frank Maloney
22 | 50 Year Member Pieces – By TCDLA Members
28 | 50 Years of Past Presidents – By TCDLA Past Presidents

Columns

4 | President’s Message
5 | Chief Executive Officer’s Perspective
6 | Editor’s Comment
7 | Ethics and the Law
7 | Chapter & Verse
8 | From the Front Porch
10 | Federal Corner

Departments

36 | Significant Decisions Report

President’s Message: July/August 2021

/

I would like to highlight a few of the many benefits our members receive from TCDLA. One example is, during the pandemic, a fantastic group of TCDLA members agreed to help our membership with the COVID-19 Response Task Force. This committee was led over time by Clay Steadman, Allison Clayton, and Nicole DeBorde Hochglaube. It provided wonderful motions, cheat sheets, and other items to assist our membership with handling the specter of virtual trials during the pandemic. This committee proved to be a life line to our membership especially during the trying and lonely times of the pandemic.

Another example is the TCDLA Judicial Conduct Committee. Our brothers and sisters in the criminal defense bar sometimes encounter questionable actions by the judiciary. I have personally witnessed defendants on bond being placed into the court’s holding cell when the defendant refused to accept a plea offer so that the defendant would reassess whether or not to take the plea offer. In situations where you question actions by the judiciary, it is helpful to have a resource to whom counsel may report legitimate concerns without being subject to repercussions from the judiciary. The Judicial Conduct Committee acts as a buffer in such situations and provides counsel with the welcome assistance of very capable attorneys from other jurisdictions. The following is an example of when counsel may possibly encounter questionable actions by the judiciary and stems from the published opinion of Ex parte Gomez, Nos. PD-0724-20 & PD-0725-20 (Tex. Crim. App., June 9, 2021). A citizen was charged by complaint in Harris County with two felonies – burglary and assault by impeding airway. A magistrate set bail on the cases at $25,000.00 and $15,000.00, respectively, for a total of $40,000.00. The citizen accused made bond on the cases and, the same morning, he appeared in the district court to which the cases were assigned. The district judge, without a reporter’s record of the proceedings, revoked the bonds, ordered he be rearrested, and set bail at $75,000.00 on each charge, for a total of $150,000.00 – more than three times the amount set by the magistrate. Days later, the accused moved that the bonds be reinstated, but the district judge claimed she had heard probable cause, weighed several factors in determining the bail amounts, and denied the request. A writ was then filed to reinstate the bonds, but the judge denied relief by claiming that she evaluated the circumstances and adequacy of the original bonds and had discretion to increase the bail amounts. The Court of Criminal Appeals held that courts do not have unlimited discretion to hold that bonds are insufficient because a trial judge must consider relevant circumstances pursuant to Article 17.15 of the Code of Criminal Procedure, and a court’s “discretion does not allow it to use bail as an instrument of oppression or to ignore the accused’s ability to pay.” If a trial court arbitrarily found “insufficient bond,” the trial court’s action would be reversible for abuse of discretion. This case was remanded to the court of appeals to determine if the district judge acted arbitrarily. The excellent appellate team on this case consists of Thomas Branton “Brent” Mayr, Sierra Tabone, and Stanley G. Schneider. Time will tell what happens on this remand to the court of appeals.

If a TCDLA member encounters issues during a case for which assistance may be needed, such as a trial judge arbitrarily finding insufficient bond, revoking the bond, rearresting the client, and improperly raising the bail, know that TCDLA is here to help you. Remember that you are not alone in this stressful profession of ours. TCDLA has many committees that are here to assist you in times of need. Put them to use and get the full benefits of your membership. We value your membership in TCDLA and look forward to helping you.


Holcomb Strong
Cindy Holcomb & Randy Gilbert

Honor, integrity, and service defined Weldon Holcomb’s life. He was not only a superb lawyer, but also a friend and mentor. As a charter founding member of TCDLA, Past President, Hall of Fame recipient, and TCDLEI fellow, he had an unwavering commitment to the profession and its future. He willingly gave his time, expertise, and money to leave his profession in a better place than he found it.

His early years as the son of a barber and a child of the Depression taught him the value of hard work. He served as a B-17 bomber pilot in WWII, then used his GI Bill to get him through the University of Texas and UT Law School. Through his experiences he found a profound sense of gratitude which motivated him to constantly “give back” in all areas. As a Christian gentleman, his love of God, family, hometown and the law defined him. He practiced his faith demonstrably to everyone both high and low, with ethics and integrity going hand in glove with his Baptist faith.

Weldon loved practicing law first as an Assistant Attorney General, then as District Attorney of Smith County, and eventually as one of the top-rated Criminal Defense Attorneys in Texas.  He had several firsts including seating the first African American and first female on a Smith County jury.  He tried many notable cases, including the first use of TV cameras in the courtroom (Billy Sol Estes), and took a court-appointed case to the US Supreme Court and won (Wade vs. US). With his Stetson hat, suit, TCDLA lapel pin, cowboy boots, and pockets full of Peppermint sticks (Baptist cigars), he was the quintessential Texan.

He was fond of folksy sayings like “if syrup goes to five dollars a sop” and many young prosecutors fell into the trap of judging the book by its cover. They often discovered too late that behind the facade was a steel trap mind that could quote a governing case without a moment’s pause and left no stone unturned in the pursuit of justice for his client.

When asked in an interview how he wanted to be remembered, Weldon said that he wanted to be known as a lawyer that followed the law and the Constitution fairly for everybody regardless of who they were, what their race was, or what position they occupied in the community. He wanted it to be known that he was good for his word, and if he told you something you could put it in the bank. 

Weldon made a difference in his community and the practice of law. His involvement with TDCLA vastly upgraded the quality of Criminal Defense in the State of Texas. To use one of his favorite sayings… he never took more water out of the bucket than he put back in.

Chief Executive Officer’s Perspective: July/August 2021

/

In the past 16 years I have learned so much about the history of TCDLA. I remember the first year I started I had the opportunity to sit with Judge Frank Malone, the first TCDLA president, to work on a PowerPoint project. We spent a number of hours together. I was so intrigued about criminal defense, its checkered history, and the stories he told me stick with me to this day. Over the years I’ve had the opportunity to sit and listen to the stories of many of our gentle giants, who gracefully and humbly shared with me their struggles and successes in the fight for criminal defense.

Many of our giants are not with us today, but who can forget their contributions—Kelly Pace’s smile and energetic pep talks bright and early, Scrappy Holmes’ late-night stories. And I’ll always cherish Weldon Holcomb coming into the office, signing a book, and explaining to me what it was like to be a defense attorney decades ago. To this day we have Weldon’s first gavel memorialized in a shadow box hanging in the office. Many other pictures grace our home office of the charter members who first met in Dallas in 1971 to found TCDLA, if you ever have the opportunity to come and visit.

To honor our leaders, we also began taking an annual presidents picture at Rusty, which we hang in the office to celebrate anew those who sacrificed not just one year but six to work on the officer chain. These now join the more than 50 presidents adorning our wall. Each day I walk by and I look at these people, some I’ve gotten to know very well—helping me grow professionally and mentoring me over the years. The institutional knowledge of our past presidents and board members helps us all in so many ways that one can only understand when you yourself serve as an active leader in the association.

Once a small organization of some 60 attorneys, today we number close to 3,400, training more than 5,000 attorneys each year. With our grants, we continue to expand our outreach to develop experienced criminal defense lawyers. Our efforts in the legislature have also grown, assuming more importance every year. But the continued success of our association comes from relying not only on our leaders but also on our members—who contribute by serving on a committee, writing a Voice article, testifying about legislation, helping a listserve colleague, giving a referral, or assisting with all the tools at their disposal at seminars.

In my years as witness to the growth of our organization, I myself have been given so many opportunities, been exposed to truths I would never have otherwise experienced—such as understanding what actual innocence means and what it means to represent somebody who needs a fair defense. These are things I never would’ve been exposed to short of working in a criminal defense field. Most of all, I’ve been given a chance to be part of the friendship bond. I have made some truly amazing friends in this organization.

When I looked at the video put together of all of our pictures collected over the last 50 years, I was struck by the heartfelt camaraderie: simply overwhelming. I am so proud to be part of an organization with people who not only care about one another but who will also fight alongside each other. The Texas Criminal Defense Lawyers Association is a singular organization, one we all should be proud to belong to. I look forward to celebrating another decade—no! 50 years!—and making it to the centennial celebration. Cheers to all of our members and criminal defense attorneys who are part of the organization’s past, present, and future.

Editor’s Comment: July/August 2021

/

I’m old enough to know that I’m still too young to get to toot my own horn regarding my wins and important cases.  There are far too many lawyers who have earned the right to do that in the pages that follow this article. Those men and women have spent far longer than I have changing the face of criminal defense in this State and bettering the lives of countless defendants. I am, however, old enough to tell everyone how important TCDLA is to me. My best friends belong to this Organization, and I can’t tell you how lucky I am to be able to say that. I’ll always remember Clay Steadman pushing me to get more involved; John Hunter Smith hearing me present the first time at a CLE and telling me I needed to keep speaking while immediately recruiting me to do so; David Moore asking me to serve and even chair a few committees during his Presidency; Heather Barbieri, Lance Evans, and Reagan Wynn all taking the time to help me learn as much as I could at the TCDLA Texas Criminal Trial College; Betty Blackwell and Clay asking me to speak in Austin at the seminar they were moderating (Clay told me I was in the big leagues and I better not f*ck this up and I better not say f*ck either); Sarah Roland asking me to serve as one of her co Vice-Editors; my good friends Sarah and Rusty Gunter recruiting me to come speak in Lubbock just so I could be introduced with my testicle case (don’t ask); Kerri Donica asking me to serve on her COVID-19 Task Force and fighting the good fight all over Texas for an entire year with one of the best groups of lawyers I’ve ever been around; and many other unforgettable times. My time in TCDLA has made me certain that I am exactly where I am supposed to be. 

For those that don’t know this about me, I went to college wanting to be anything but a lawyer. Specifically, a lawyer in Texas. More specifically, a criminal defense lawyer in Texas. Even more specifically, in El Paso, Texas.  My dad, Jim, is the best lawyer I know and I just didn’t want to have to work as hard as he has for as long I’ve been alive. But during college, it only took one science class for me to figure out I wasn’t going to be a doctor, so I started working towards law school.  I went on to attend the University of Oklahoma College of Law, never intending to practice criminal defense, and certainly not criminal defense in Texas, and absolutely not criminal defense in El Paso. My first day of Constitutional Law class set me straight, though; I was going to take a side in criminal law and that side was on the side of the good guys. Still, I sure as hell wasn’t coming back to Texas or to El Paso.  It turns out God had other plans and, for the last 10 years, I’ve been working alongside my dad, as a criminal defense lawyer, in Texas, working too hard but fighting the good fight. So, in addition to all of the friends I’ve mentioned, and all of those I haven’t, I have my dad, the person I’ve looked up to forever, to thank for getting me into what consists of the greatest group of people I’ve ever known. If it weren’t for him, I wouldn’t have known after one day of law school what I wanted to do for the rest of my life and I wouldn’t be who I am today.  He’s also the person who told me I had to join TCDLA because it was (and is) a giant organization of people who work too hard fighting the good fight every single day. That’s why all of the people I’ve mentioned are among my best friends. They understand what I do because it is what we all do on a daily basis, fighting the un-winnable fights because it’s the right thing to do (or maybe we’re all nuts). 

Be safe.


50 Years of Editors

Sarah Roland…………………………2016-2021

Michael Gross……………………….2013-2016

Greg Westfall…………………………2009-2013

Emmett Harris………………………2005-2009

David Richards……………………..2004-2006

John Carroll…………………………..2001-2004

D’Ann Johnson……………………..1999-2000

Suzanne Donovan…………………………..1998

William P. Allison…………………1995-1997

Jim Skelton……………………………1993-1995

Kerry P. Fitzgerald…………………1984-1994

Stanley Weinberg…………………..1981-1983

Clifton Holmes………………………1977-1981

F.R. “Buck” Files, Jr……………………….1976

Harry Lee Hudspeth………………1974-1975

Emmett Colvin……………………..1973-1974

Wesley H. Hocker………………………….1972

Ethics and the Law: July/August 2021

/

I became aware of TCDLA in 1974 while I was a student at South Texas College of Law. I joined as a student member. I was assigned to intern with Jim Skelton. Jim and I met, and he let me start working on cases. One case was a robbery case where a woman, our client, had robbed a grocery store. I had read in the Voice for Defense about mitigating evidence being presented to a jury. I showed the article to Jim, and we immediately started preparing for the punishment part of the trial. We put on several witnesses to testify about our client and her background. We put on evidence of her family history. We showed that her husband had abandoned her and three small children, and when she robbed the store she took food, diapers, and other household goods. The jury came back very soon, and our client was granted a short probation – thanks to the article in the Voice. After that my job on all cases was to investigate and prepare mitigating evidence. When I first met Jim Skelton, he was defending David Owen Brooks who was a defendant in the largest mass murder case in U.S. history. After being involved in that case and helping Jim, I knew my calling was defending citizens accused of crimes.

Jim and I were appointed to represent a woman charged with capital murder. The case had been reversed and we did the retrial. She was found guilty again and sentenced to death. After many years and finally at a writ hearing in federal court, she was given a new trial. Rather than go to trial again the state allowed her to plead to life. A documentary was made about the case. When I went to prison to see her, she started crying and said thanks to my testimony in the federal writ hearing – hours away from her execution – her life was spared. We both cried together, and I felt part of my mission in life was fulfilled. She was released from prison a few months ago and called me on the phone to thank me again and talk.

TCDLA is very important to me as it allows me to try and help my fellow lawyers by founding the ethics committee and ethics hotline.

Chapter & Verse: July/August 2021

/

In December of 2014, I became the Chief Public Defender of the Republic of Palau, a small island nation near Micronesia. I had been a lawyer for 2 years and 1 month and had worked as an assistant public defender there for six months before my boss quit and left me holding the bag. Even though the nation was small, the job was big. The private bar was tiny and generally disinterested in taking low-paying criminal work, which meant our office handled about 95% of all criminal cases- around 1,200 a year. These cases included murders, drug trafficking from the nearby Philippines, and a large number of sex assaults. In addition to rampant alcoholism, the native population of Palau also had one of the largest percentages of schizophrenics in the world.

I knew that I was underqualified for the job. I had no resources and no help. For the first three months, I was the only lawyer in the office, running desperately from traffic court to misdemeanor docket to felony trials. I bleated for help to everyone I could back home, through achingly slow dial-up internet. TCDLA answered.

Jani Maselli sent me dozens of hours of CLE on disks that even my battered desktop could play. She sent me books and banks of motions and everything she could get her hands on. The package arrived out of nowhere and I wept in my office, not just because of the life-changing materials I desperately needed, but because of the overwhelming kindness it showed.

Months later, David Ryan would show up on a late-night flight, bleary-eyed, and would present a CLE the next day to just about every practicing lawyer in Palau, a group that could fit in a medium-sized conference room. When you’ve been isolated for such a long time, seeing a familiar face, hearing a familiar voice, smelling their familiar cigars, and leaning against them as the night wears on in a muggy outdoor bar in a strange land means more to you than they can really ever know.

 And that’s what TCDLA means to me. More than I can ever repay.