Monthly archive

September 2021

September 2021 SDR – Voice for the Defense Vol. 50, No. 7

Voice for the Defense Volume 50, No. 7 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Long time no see SDR fans! We got a lot of important questions answered in this month’s issue, like is there a difference between bail and bond? The Court of Criminal Appeals picked apart some Governor Abbott’s GA-13 Executive Order prohibiting automatic release for pre-indictment delay. And the Martinez holding that a DWI blood draw constitutes two searches has an interesting new twist pertaining to statutory time limits on warrant execution. The Fifth District didn’t love the issue, but I do.

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.

Sincerely,
Kyle Therrian

United States Supreme Court

Borden v. United States, 141 S.Ct. 1817 (2021)

Issue. The Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence in cases of illegally possessing a gun when a defendant has three or more prior convictions for a “violent felony.” Is a criminal offense a “violent felony” if it requires a mens rea of recklessness.

Facts. The defendant pleaded guilty to a felon-in-possession charge. The Court enhanced his sentence under the ACCA. One of the predicate offenses relied on by the government was a reckless assault.

Holding. No. “An offense qualifies as a violent felony . . . if it has an element the use, attempted use, or threatened use of physical force against the person of another.” One of the keys to this conclusion is the requirement that the force must be used “against the person.” This suggests a higher degree of conduct. It “demands that the perpetrator direct his action at, or target, another individual.” Recklessness does not satisfy this requirement. Nor do reckless offenders rise to the level of culpability the legislature intended to target.

Concurrence (Thomas, J.). The key phrase here is not “against the person of another” but rather “use of physical force” which has an accepted mens rea of intentional or knowing. The ACCA has an additional clause that would include an offense that “involves conduct that presents a serious potential risk of physical injury to another.” But we erroneously found that clause to be unconstitutionally vague in Johnson v. United States, 576 U.S. 591 (2015).

Dissent (Kavanaugh, J.). See comment below – Justice Kagan pretty well summarizes it for us.

Comment. Justice Kagan throwin’ down: “In a nutshell, the dissent’s ‘term of art’ theory goes as follows: Congress took an umbrella term (“offenses against the person”) used to organize a broad set of crimes (some not even conceivably ACCA predicates); plucked out three words (“against the person”); appended them to a statutory phrase (“use of physical force”) with which they are not often associated; put the combination into a substantive criminal statute—all to signify, contra Leocal, a term of art indifferent to mens rea. No wonder the dissent is the first to make the argument. It fails at every turn.

Lange v. California, 141 S.Ct. 2011 (2021)

Issue. Does an officer always have exigent circumstances to enter a home without a warrant when pursuing a fleeing misdemeanant? 

Facts. A police officer entered the defendant’s garage after the defendant committed traffic infractions and, rather than stop when the police officer tried to pull him over, drove a short distance and pulled into his attached garage. The police officer ultimately arrested the defendant for driving while intoxicated. The state appellate court found that categorically that an officer has exigent circumstances to enter a home without a warrant if he is pursuing a fleeing misdemeanor offender.

Holding. No. Not always. An officer may enter a home without a warrant when the exigencies of the situation create “a compelling need for official action and no time to secure a warrant.” The exigent circumstance doctrine requires a case-by-case assessment. In previous cases, the court has found exigent circumstances to include: (1) the need to prevent imminent injury, (2) the need to prevent destruction of evidence, and (3) the need to prevent the suspect’s escape. In United States v. Santana, 427 U.S. 38 (2002) the court indicated a retreating felony suspect could “not defeat an arrest” that had “been set in motion in a public place.” Whether this is a categorical approach in all fleeing-felon cases is unresolved, but its rationale is not a perfect fit for fleeing misdemeanants. Misdemeanor offenses come in all shapes and sizes. Minor offenses do not constitute emergencies sufficient to justify warrantless entry. Minor offenses plus flight may rise to the level, but not always.

Comment. Misdemeanant is a fun word I am going to use now. It actually makes me wonder, should it be Missy Misdemeanant Elliot instead of Missy Misdemeanor Elliot. These are the contributions I give you to ponder.

Texas Court of Criminal Appeals

Pugh v. State, No. PD-0546-20 (Tex. Crim. App. 2021)

Issue. In a conversation where a defendant provided some information voluntarily and some information in response to un-mirandized custodial interrogation, was it improper to evaluate the harm of the inadmissible statements without regard to the admissible statement, and without regard to subsequently discovered physical evidence?

Facts. Defendant had a warrant. An officer looking to execute that warrant located the defendant, conducted surveillance, conducted a traffic stop, and arrested the defendant. During the transport to the police station and without the benefit of Miranda warnings the following conversation occurred:

APPELLANT: Officer?

OFFICER LOPEZ: Yes, sir.

APPELLANT: I’m going to be honest, sir; I got stuff in the car, man.

OFFICER LOPEZ: What do you got in the car?

APPELLANT: I got drugs in the car, and I got a small handgun.

Officers later searched defendant’s car and found heroin and a gun. The prosecution referenced this conversation in closing as proof of the defendant’s knowledge. The court of appeals reversed, finding the statements to be the product of un-mirandized interrogation and the heroin to be fruits of an un-mirandized interrogation.

Holding. Yes. There is no fruit of the poisonous tree doctrine for un-Mirandized statements leading to physical evidence. “A statement taken in violation of Miranda must be suppressed at trial, but other evidence subsequently obtained as a result of that statement need not be suppressed.” The court of appeals was incorrect to conclude that the physical evidence discovered in the car was inadmissible as fruits of un-Mirandized statements. The court of appeals was also incorrect to treat the defendant’s initial volunteered statement of “I got stuff in the car” as inadmissible when conducting a harm analysis. A proper harm analysis would have considered the statement “I got stuff in the car” together with the subsequently discovered contraband. These two pieces of evidence are sufficient to render the follow-up clarification of “I got drugs in the car, and I got a small handgun” of little value since officers properly discovered that for themselves.

Concurrence (Walker, J., joined by Newell J.). “[O]nce Appellant volunteered that he had ‘stuff in the car,’ police had probable cause to search the Impala independent of the subsequent unlawful question by Officer Lopez. . . . It does not take a legal technician to understand that Appellant was conveying that he had illegal items in the vehicle when he volunteered that he had ‘stuff in the car.’”

Comment. If you want a third point of view, I’m not 100% convinced a what-do-you-mean-type question in response to unsolicited voluntary statements rises to the level of custodial interrogation.

Ex parte Gomez, No. PD-0724-20 (Tex. Crim. App. 2021)

Issue. A trial court can require new bond when that bond is insufficient. In this context (1) is there a distinction between “bail” (as an amount set by the court) and “bond” (the value posted by the accused)? (2) Must a trial court cite a “good and sufficient cause” before finding bond insufficient (must that cause be based on changed circumstances)?

Facts. Defendant is alleged to have entered a home and strangled the complainant in her sleep. A magistrate set his bail at $25,000 for burglary and $15,000 for assault by impeding breathing. Defendant posted surety bonds in both cases. The same morning, the trial judge set new bail at $75,000 on each charge. Defendant filed a writ of habeas corpus seeking reinstatement of the original bonds. The trial court denied habeas relief and cited as authority Texas Code of Criminal Procedure Article 17.09 Section 3 (“[defendant shall not be required to give new bond unless] bond is defective, excessive or insufficient…or for any other good cause.”). The court of appeals distinguished between the concept of bail (the amount set by the court) and bond (the amount posted by the accused). In doing so, the court of appeals found that bond was not insufficient because it was posted in an adequate amount to satisfy the amount of bail. The court further found that absent changed circumstances, there exists no “other good cause” to increase bail.

Holding. (1) No. “Bail” and “bond” mean the same thing. The court of appeals was incorrect to draw a distinction and declare that bond is only insufficient when it fails to equal the amount set as bail. The court of appeals correctly cites several places throughout Article 17 supportive of this theory, but there are numerous other places throughout Article 17 where the legislature used  “bail” and “bond” interchangeably. (2) No. The insufficiency of the bond, itself, is a good and sufficient cause. Article 17.09 permits bond revoked if the original bond “is defective, excessive or insufficient . . . or for any other good and sufficient cause.” “The final clause is a catch-all, granting the trial court discretion to revoke bond for reasons not enumerated in the statute.” Moreover, Texas Government Code Section § 54.856 governing jail magistrate determinations in certain counties specifically permits the “court in which the complaint, information, or indictment is filed to review or alter the decision of the criminal law hearing officer.”

Concurrence (Yeary, J. and Slaughter, J.) no opinion.

Comment. This scenario in the future should be attacked on two fronts: (1) Texas Rule of Evidence 101(e)(3)(C) requires the application of the Rules of Evidence in proceedings to deny, revoke, or increase bail, and (2) procedural due process challenges rules mandating notice, hearing and opportunity to be heard. Combined, these rules should require non-hearsay witness testimony.

Johnson v. State, No. PD-0553-20 (Tex. Crim. App. 2021)

Issue. (1) Was it appropriate for the court of appeals to consider facts contained in an exhibit extrinsic to the official appellate record when concluding counsel rendered ineffective assistance by failing to admit said exhibit? (2) Is an attorney ineffective for attempting to admit admissible evidence and failing?

Facts. Defendant is a person who appears to have serious mental health issues. He broke into an occupied vehicle and drove off while a passenger remained inside. While doing this, he brandished a screwdriver and made the passenger feel threatened. Defendant testified at trial that he believed the truck was his because he had abandoned a similar truck in another city. Between the time he abandoned his vehicle and when he believed he discovered it again, defendant was admitted to and broke out of a hospital for psychiatric evaluation. He then hitchhiked to his parents who saw him behaving erratically. He rubbed grass on himself in the yard, he laid on railroad tracks, he walked down the freeway licking guardrails. Defendant’s stepfather testified that defendant had suffered from “schizophrenia or something” in the past. Defense counsel attempted to introduce medical records without a sponsoring witness or proper predicate. The trial court excluded the records. Counsel did not make an offer of proof. The court of appeals held “there was no plausible, professional reason for the failure of Johnson’s trial counsel to properly prepare and offer Appellant’s medical records into evidence in admissible form” and reversed defendant’s conviction. 

Holding. (1) No. “Appellant’s medical records were not filed with the trial court, nor were they part of an offer of proof or a formal bill of exceptions, and there was no motion for new trial where the records were made an exhibit. It is unclear how the court of appeals obtained these records, but it was improper to consider them.” The court’s use of these records to determine deficient performance and harm under the Strickland standard was improper (2) No. Counsel may have had a good reason attempting but failing to admit 1000 medical records. There is no evidence in the record pertaining to counsel’s rationale. “Counsel gets the benefit of the doubt” on direct appeal with a silent record. Without an opportunity to explain why he chose not to secure a sponsoring witness or lay the proper predicate for medical records, there is insufficient evidence to conclude counsel’s performance was deficient.

Comment. I don’t agree the record is insufficient to find deficient performance. Counsel decided these medical records were important enough to offer into evidence but did not do the work to get them admitted. The court suggested a hypothetical where counsel wanted the jury to see the State object to immaterial medical records– but this seems somewhat far-fetched.

Tilghman v. State, No. PD-0676-19 (Tex. Crim. App. 2021)

Issue. Does a hotel guest lose his reasonable expectation of privacy in a hotel room when hotel staff determines the guest has violated hotel policies which are not stated in a rental agreement or explicitly communicated to the guest?

Facts. A hotel manager smelled marijuana coming from Defendant’s room, so he took affirmative steps to evict him. For safety, he called the police for assistance. When the defendant and his guests would not open the door, officers entered without a warrant. Officers discovered marijuana and methamphetamine in plain view. The trial court concluded defendant lacked a reasonable expectation of privacy in the hotel room due to the hotel’s decision to evict him. The court of appeals reversed, finding “without advanced notice of eviction, Appellant maintained a reasonable expectation of privacy . . .” In reaching this conclusion the court of appeals focused on the absence of eviction policies communicated to the defendant and the failure to slide notice of eviction under defendant’s door.

Holding. “Appellant’s expectation of privacy in the hotel room was extinguished once the hotel staff took affirmative steps to evict him on suspicion that he was using illegal drugs in his room in violation of hotel policy.” Police were authorized to enter the room to facilitate the eviction. It is well established precedent that a hotel guest loses his expectation of privacy when their occupancy is scheduled to end or upon eviction. The novel question presented in this case is “[a]t what point, under Texas law, does a person lose his reasonable expectation of privacy in a hotel room if the hotel decides to evict him for violating hotel policy. Our answer is that such loss of privacy interest occurs as soon as the hotel takes affirmative steps to repossess the room.” Actual notice of policies or the attempted eviction is immaterial to this analysis as Texas law does not require actual notice for a hotel to evict a guest. The police may step into the shoes of the hotel to effectuate the eviction.

Comment. But what if you hang the do not disturb sign on the door?

State v. Mata, No. PD-0810-19 (Tex. Crim. App. 2021)

Issue. Does the New York v. Quarles public safety exception to the Miranda requirement apply to interrogations about the location of a kidnapped child?

Facts. Defendant kidnapped a child and held her for ransom. Police quickly tracked him down. While in custody, without providing him with Miranda warnings, police asked the defendant where he was keeping the child. The defendant led police to the child while under arrest.

Holding. Yes. The court of appeals improperly narrowed the Quarles exception to scenarios involving guns—a fact central to the Quarles fact pattern. “But everything the Supreme Court said in Quarles applies with at least as much force to the kidnapping of a child.” The social value of rescuing a child outweighs the social value in enforcing the prophylactic rule which deters police misconduct in custodial interrogation. And “[t]he possibility that warnings will deter a suspect from giving information leading to the rescue of a child is not worth the societal cost.”

Concurrence (Walker, J.) The Quarles public safety exception is not “categorical” and “does not turn on whether there is a missing gun, whether there is a kidnapping, or whether public safety can be generally pointed to. Instead, the exception applies when the Miranda warnings themselves can cause more harm than good: when the warnings themselves implicate public safety.”

Comment. I don’t like curtailing longstanding Fourth Amendment precedent, but if someone were holding my family member for ransom, I would beg the police not to give Miranda warnings. I think this case is right.

Wexler v. State, No. PD-0241-20 (Tex. Crim. App., 2021)

Issue. Would a reasonable person believe they are under arrest when ordered out of their home on a loudspeaker, placed in the back of a police car, then accused of knowing where drugs are inside of their home?

Facts. Houston police conducted a raid at a home. 25 officers surrounded the home, blocked off access with an armored vehicle, and ordered the occupants to exit using a loudspeaker. Once the occupants complied, the officers encountered the defendant. An interrogating officer believed defendant was involved in the drug dealing which formed the basis of the search warrant officers were then executing. Without telling defendant she was a suspect, the interrogating officer placed the defendant in the back of a patrol car and told her “We have a search warrant. Tell me where the narcotics are. It will save us some time doing the search. We’re going to find it no matter what.” Defendant complied and told the interrogating officer where to find 25 grams of methamphetamine, marijuana packaged for sale, drug paraphernalia, guns, and ammo. At trial the defendant objected to the introduction of her statements to the interrogating officer given without the benefit of Miranda warnings or those required by Texas Code of Criminal Procedure Article 38.23. The trial court overruled defendant’s objection and the jury convicted. The court of appeals concluded that the defendant was only temporarily detained and affirmed the trial court’s determination that Miranda and Article 38.22 were inapplicable.

Holding. No. The warning requirements of Miranda and Article 38.22 are triggered by custodial interrogation. They serve as a prerequisite to admissibility only when the defendant satisfies an initial showing that she was under arrest when responding to interrogation. The relevant inquiry in determining Miranda/38.22 custody is “whether, [objectively] under the circumstances, a reasonable person would have believed that her freedom of movement was restricted to the degree associated with a formal arrest.” The restriction upon freedom of movement must be more than that associated with a mere investigative detention. Here, the detention was brief, the investigation was efficient, defendant was not removed from the scene nor was she told she could not leave. No evidence shows defendant was aware of the overwhelming police presence which may have given rise to a subjective belief of arrest. 

Dissent (Walker, J.). “I cannot agree [with the majority]. Police commanded her to come out of the residence, placed her in the back of a police car, and told her they were going to find drugs and just tell the police where the drugs were. . .  Appellant was in custody.”

Comment. The court distinguishes State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012). In part the court pointed to the fact that the court had been provided with body camera footage of the entire encounter in Ortiz such that it could conclude defendant was aware of circumstances giving rise an arrest. It is frustrating to see here the absence of a body camera cut against the defendant. I think Walker has it right – notwithstanding the evidence the majority believes the defendant did not prove, there should be enough to find an arrest occurred here.

Ex parte Lanclos, No. PD-0243-21 (Tex. Crim. App. 2021)

Issue. Article 17.151 of the Code of Criminal Procedure requires a court to release a defendant after certain periods of pre-indictment delay either: (1) on a personal bond, or (2) a bond he can afford. Does the Governor Abbott’s GA-13 order suspending Article 17.151 “to the extent necessary to prevent any person’s automatic release on personal bond . . .” prohibit a court from fulfilling its duty to instead reduce bond to an amount the defendant can afford?

Facts. After 90 days of pretrial detention without indictment, defendant filed a writ of habeas corpus pursuant to Texas Code of Criminal Procedure Article 17.151 (mandating release of inmates held without formal charge after certain periods of delay). He sought a reduced bond he could afford. The trial court declined to grant a personal recognizance bond or reduce defendant’s bond to an amount he could afford. The court of appeals affirmed the trial court’s denial of relief, citing defendant’s failure to present any evidence of a bond amount he could afford.

Holding. “Article 17.151 is mandatory; if the State is not ready for trial within 90 days of the beginning of the defendant’s detention, the defendant accused of a felony must be released on personal bond or by reducing the bail amount. Without an indictment, the State cannot be ready for trial under Article 17.151. Under those circumstances, the judge has only two options: either release the accused on personal bond or reduce the required bail amount. If the court chooses to reduce the amount of bail required, it must reduce it to an amount that the record reflects the accused can make.” The State’s argument that the Governor has suspended Article 17.151 is only partially correct. The Governor’s GA-13 Executive order provides: “Article 17.151 . . . is hereby suspended to the extent necessary to prevent any person’s automatic release on personal bond because the State is not ready for trial.” This language suspends the release of defendants on personal bond, but not release on bonds they can afford. The State’s arguments that statutory exceptions to release under Article 17.151 are unsupported by the record. 

Dissent (Yeary, J.). To secure his release for pre-indictment delay under Article 17.151 the accused has the burden to show the trial court a bail amount he could afford.

Comment. The court acknowledges the Executive Order GA-13 (suspension of 17.151) workaround recognized in the previous SDR summary of Ex parte Montes. No. 04-20-00337-CR (Tex. App. San Antonio, Feb. 17, 2021)(not designated for publication). Without saying so, it appears the court places the burden on the trial judge to inquire and ascertain the amount of bond the defendant could post to secure release.

Anderson v. State, No. PD-0279-20 (Tex. Crim. App. 2021)

Issue. Does a pro se incarcerated defendant perfect an appeal by placing his notice of appeal in the mailbox within the deadline to perfect appeal, but omits the words “district clerk” on his mailing?

Facts. Defendant mailed his notice of appeal within the statutory deadline to file notice of appeal. He addressed the mailing to the trial court: to “Dallas County Court #265.” The clerk later received this mailing and filed it a couple weeks after the notice of appeal deadline.

Holding. No.

Dissent (Yeary, J.). Historically a pleading addressed to the proper trial court has been construed as a pleading addressed to the proper clerk. The filing should have been deemed filed on mail receipt within 10 days after the deadline (mailbox rule) or the moment he turned the filing over to prison authorities (prisoner mailbox rule).

Dissent (Walker, J.). Regardless of how an envelope is addressed, if it contains a filing, it is deemed filed in the appropriate clerk’s office the moment it arrived in the custody of the jail or prison. The envelope was better addressed than in other cases where the Court has found an attempt to file sufficient.

Comment. I think the tie should go to the indigent, lawyerless, pro se, incarcerated, inmate trying to perfect an appeal without the help of anyone. I am disheartened by technocratic opinions like this which deny access to the court to an individual who is trying his best without a lawyer.

Herron v. State, No. PD-0853-19 (Tex. Crim. App. 2021)

Issue. When a parolee sex-offender is released from prison and obligates himself to residing county X in pre-release paperwork, does the parolee commit the offense of failure to register as a sex offender in county X when he never physically arrives in that county?

Facts. The defendant was released from prison and ordered to check into a halfway house in El Paso County. Because his offense required registration as a sex offender, Defendant signed forms on his release acknowledging his obligation to register with local law enforcement in El Paso County. At a Greyhound station, and while prison officials were obtaining a bus ticket for him, the Defendant absconded. He never reported to the halfway house in El Paso County. He never registered with a local law enforcement agency in El Paso County. He was later apprehended in Aransas County. At trial nobody could testify where the Defendant actually lived during his period of absconsion. The trial court convicted. The court of appeals reversed and rendered a judgment of acquittal on the State’s failure to sufficiently prove with which of the possible law enforcement agencies with jurisdiction over the halfway house the Defendant was required to register.

Holding. No. “The registration requirement of Chapter 62 is violated only when an individual resides or intends to reside in a particular location . . . . Because it was uncontested that Appellant never physically arrived in El Paso during the relevant time period, he could not have violated an obligation to register there.” The fact that the obligation is triggered after a specified period following the person’s arrival in the jurisdiction indicates that the person’s physical presence in the jurisdiction is required. As it pertains to parolees taking up residence upon release from prison, Article 62 “contemplates situations in which the individual does not move to his expected residence after release.” This supports the conclusion that a parolee does not commit an offense in the county where he announced he would reside when he fails to physically appear in that jurisdiction.

Comment. The Court makes very clear that the defendant should be prosecuted in Aransas County.

Ex parte Sanchez, No. PD-1039-20 (Tex. Crim. App. 2021)

Issue. May a court of appeals, when considering the appeal of an Article 11.072 writ, review evidence de novo when the trial judge hearing the writ did not preside at the trial which resulted in the complained-of conviction?

Facts. Defendant was convicted of failing to stop and render aid when he purportedly collided with a police vehicle involved in a police chase of an unrelated motorist. Defendant contended that he swerved to avoid another vehicle that darted in front of him. The question at trial was whether the defendant actually collided with the police vehicle and whether the defendant was aware the collision occurred. Defense counsel at trial did not call the passengers in defendant’s vehicle as witnesses, but on habeas, their affidavits were presented. Each indicated that defendant swerved to avoid a car that darted in front of him, and none were aware of a collision. The trial court rejected this evidence and denied habeas relief. The court of appeals reversed, applying a de novo standard of review. In the view of the court of appeals, de novo review was appropriate because the habeas judge was not the same judge who heard the trial of the underlying criminal cause and thus “not in an appreciably better position than the reviewing court to resolve the matter.”

Holding. No. “Unlike Article 11.07 cases where [the Court of Criminal Appeals] is the ultimate finder of fact, in Article 11.072 cases, the trial court is the sole finder of fact, and the reviewing court acts only as an appellate court.”

Comment. There are places where the implementation of common law rules pertaining to standard of review and error preservation become untethered from the principles underpinning their implementation. This seems to be one of them. Deferential standards of review derive from the presumption that the trial judge was in a better position to review and evaluate evidence. That simply is not true here.

1st District Houston

Chaves v. State, No. 01-19-00524-CR (Tex. App.—Houston [1st Dist.], Jun. 3, 2021)

Issue. Must a trial court grant a mistrial when the clerk discloses she skipped over a venire member when calling off “the first twelve names on the lists?” to sit on the jury?

Facts. After the State and the Defendant made challenges for cause and exercised their peremptories, the trial court called twelve members of the venire to sit on the jury. The trial court asked whether either side had objections to the jury and both responded they did not. The next day, before swearing in the jury, the trial court informed the parties that the clerk of the court had skipped over an individual who had not been struck by either party. This resulted in the trial court seating the wrong juror—one not among the first twelve unstruck veniremembers. The trial court denied defendant’s motion for mistrial.

Holding. No. Article 35.26(a) requires the clerk to call the first 12 names on the venire list who have not been struck for cause or removed by a peremptory challenge. However, the clerk’s clerical error in skipping over one of these jurors and seating the 13th juror still complied with the “spirit and intent” of Article 35.26(a). The “spirit and intent” analysis is consistent with other intermediate courts addressing the same issue. The use of “shall” in defining the clerk’s duty as “shall . . . call off the first twelve names . . .” isn’t a hard “shall.” Also, defendant cannot show harm in the seating of the improper juror. The juror who the trial court sat was within the zone of potential jurors who could have been seated and the defendant did not exercise a peremptory strike on this juror. The court can only deduce from this that the defendant would have found this juror acceptable but for the fact that this juror was erroneously called by the clerk.

Comment. This is a tough analysis. I agree with the but for analysis of the court: but for learning the fact that this juror was wrongfully counted among the first twelve the defendant wouldn’t have a complaint. But it isn’t like the defendant tried to sandbag everyone by waiting until trial wasn’t going well for him. He raised his complaint the moment he learned about it and before the jury was sworn.

Ex parte Mora, No. 01-17-00661-CR (Tex. App.—Houston [1st Dist. Jul. 27, 2021)

Issue. Can a court of appeals rely on an unpublished opinion of the Court of Criminal Appeals holding that the 2017 version of Texas’s revenge porn statute does not violate the First Amendment.

Facts. Defendant was charged under the 2017 version of Texas’s revenge porn statute. He moved to quash the indictment and filed an application for writ of habeas corpus challenging the statute facially under the First Amendment. The trial court granted both.

Holding. Yes. Sort of. Last month the Court of Criminal Appeals held the 2017 version of the Texas revenge porn statute was not facially violative of the First Amendment. Ex parte Jones, No. PD-0552-18 (Tex. Crim. App. 2021). The Jones court grafted some additional mens rea requirements onto the statute to its unconstitutional interpretation. Rule 77.3 of the Texas Rules of Appellate Procedure prohibit relying on Jones as precedent because it is unpublished. However, this rule is not consistently followed and the Court of Criminal Appeals itself has once held that unpublished opinions can be cited to demonstrate how the court “interpreted and applied constitutional law. Alford v. State, 358 S.W.3d 647 (Tex. Crim. App. 2012). Accordingly, this court adopts the reasoning in Jones in this case with indistinguishable facts.

Comment. “The rules of procedure prohibit us from relying on the Court’s unpublished opinion in deciding this appeal. Thus, our dilemma: what is a court of appeals to do when the Court of Criminal Appeals has spoken on an issue but effectively forbids us from repeating what it said?” I have a solution, rule for the defendant and force them to speak on it again.

Monjaras v. State, No. 01-19-00608-CR (Tex. App.—Houston [1st Dist. Jul. 27, 2021)

Issue. Is a defendant detained when officers greet him, ask to search his bag, pat him down, and ask him questions?

Facts. Officers encountered the defendant while patrolling an apartment complex they describe as a high crime area. When the defendant saw officers, he immediately looked down. The officers turned around to observe defendant again and he had disappeared.  Eventually the same officers encountered defendant a second time. These officers parked their vehicle without activating emergency lights or blocking defendant’s path. They greeted defendant with “good morning. How you doing, sir?” Appellant spoke freely with the officers. Officers made several requests of the defendant: for identification he could not produce, for use of his fingerprints in their fingerprint identification device, for consent to search him and his backpack. The officers’ language and tone of voice did not indicate mandatory compliance with their requests. Defendant consented to a pat down search and a search of his backpack. At first, the officer conducting the search did not discover a firearm, but when he discovered bullets in defendant’s backpack he patted defendant down again. This officer discovered a gun and a fight ensued. 

Holding. No. Officers did not draw their weapons, speak in a tone indicating mandatory compliance with requests, their posture and where they chose to stand were not oppressive. A pat down and a search of a backpack does not convert a voluntary encounter into an investigative detention.

Dissent (Goodman, J.). After the first search this became a detention. When the defendant started emptying his pockets for officers, their requests became commands and instructions which were repeated multiple times when the defendant did not comply with their “requests.” Officers instructed the defendant to place his hands in front of his body and eventually escalated to making physical contact with him. 

Comment. Both officers swear they would not have chased the defendant if after their consensual encounter he decided to take off running. They would have just watched him run away. I would be committing perjury if I stated under oath I believe that. 

2nd District Fort Worth

Fuller v. State, No. 02-20-00101-CR (Tex. App.—Ft. Worth, Jun. 3, 2021)

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

Facts. This is a substitute opinion from a case appearing in the May 2021 edition of the Significant Decisions Report. Defendant was convicted by a jury of capital murder. The facts at trial showed the defendant and co-defendant entered the home of the victim in the evening of October 9, 2016, shot and killed the homeowner and a guest, then returned the next day, seemingly to clean up the scene. A car chase ensued following the defendant’s flight from the victim’s home on the second day and the defendant was captured. On him was a firearm matching the caliber of the bullets used to kill the victims and $4,000 in cash. After his arrest, the defendant made several inculpatory statements on jail phone calls during the pendency of his case. The case then proceeded as follows:

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

Holding. No. Speedy trial claims are analyzed using the Barker v. Wingo factors: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of the right, and (4) prejudice. 407 U.S. 514. Here, 34 months of delay is more than sufficient to trigger consideration of the remining Barker factors. The three years of delay awaiting laboratory results from DNA testing was unreasonable, but it was the result of negligence, not deliberate conduct.  Both the delay and the reason for delay weigh against the State. However, the remaining factors weigh against the defendant. The defendant did not firmly insist on a speedy trial until a month prior to his trial. He agreed to or failed to object to trial resets during the pendency of the case. Prejudice is lacking, too. This case involves “compelling evidence of Fuller’s guilt.” Neither the death of a witness prior to the defendant’s assertion of his speedy trial right nor an isolated memory lapse by the investigating detective change this.

Comment. This is a thorough and straightforward application of the Barker factors. However, I maintain my previous comment. There are two elements to the reason for delay here: (1) the laboratory backlog, and (2) the prosecutorial decision to wait for the laboratory results. The backlog is not the prosecutor’s fault—it is not deliberate—but the decision to wait on (and make the defendant wait on) lab results is, by definition, deliberate. In some cases it may be excusable based on necessity, but the court here drives home the point how unnecessary those lab results were based on the “compelling evidence of Fuller’s guilt.”

Kingsbury v. State, No. 02-19-00239-CR (Tex. App.—Fort Worth, Jun. 10, 2021)

Issue. (1) Can a domestic violence expert testify to the behaviors of domestic violence victims, generally, as an explanation for why the specific victim in a case recanted on the witness stand?

Facts. Defendant threatened to kill his pregnant girlfriend while brandishing knives in his hands. At trial the victim testified that there was not an assault and that there was instead a mutual struggle. So, the State sponsored a “domestic violence expert” to impeach the victim and explain how battered women think and behave. In the punishment phase, the trial court admitted evidence of prior convictions. Because the prior conviction evidence arose from a probation revocation, that evidence contained references to other inadmissible evidence of unadjudicated offenses which triggered the revocation. The State redacted references to the inadmissible offenses. The defendant objected to their admission as redacted.

Holding. (1) Yes. Three conditions must be met before expert testimony is admissible under Rule 702: (1) the expert must be qualified, (2) the evidence must be reliable, and (3) the evidence must be relevant. The behavior of domestic abuse victims is a soft science. Here, the expert was well-qualified both in education and in experience. Soft science reliability is measured by the legitimacy of the claimed scientific field and whether the testimony is tailored to and guided by principles pertaining to that field. Here the expert met the soft science reliability standard—she testified about the generally accepted principles of the cycle of violence and power-and-control wheel. Given the evidence presented regarding a specific history of abuse, the recanting of the victim on the witness stand, and the unlikelihood that the jury would have familiarity with how domestic violence victims behave, the trial court did not err in finding that the behaviors the expert has seen exhibited by other domestic violence victims would be helpful to the jury in this case.

Evans v. State, No. 02-20-00097-CR (Tex. Crim. App.—Ft. Worth, Jul. 15, 2021)

Issue. (1) To obtain post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure, a defendant must show that the requested DNA testing would produce exculpatory results. Can the defendant satisfy this burden by merely pointing to issues with the laboratory maintaining proper chain of custody? (2) Statutorily, an inmate may make a declaration in lieu of providing an affidavit when required to do so by statute. Is a declaration that omits an affirmation of truth “under the penalty of perjury” a sufficient declaration?

Facts. Defendant was convicted of capital murder and sentenced to life. Defendant’s theory at trial was that two other individuals committed the murder using all of the instrumentalities of the offense the State sought to link to him. Those items were tested for DNA which linked them back to the victim in the case. After his trial, the Fort Worth Police Department learned that two gun cartridges collected as evidence had been inadvertently swapped and mispackaged. The defendant seized on this error as a basis for his Chapter 64 motion for post-conviction DNA testing. He claimed it as a basis to believe that proper DNA testing would exonerate him.

Holding. (1) No. One of the requirements for entitlement to post-conviction DNA testing is that ‘the trial court must find that the item’s chain of custody was sufficiently reliable to establish that the item has not been tampered with.” The foundation of the defendant’s request is that the mishap involving mispackaging should lead the court to believe that the chain of custody was so bad that it produced unreliable results. (2) No. Another requirement is that the movant accompany a request for post-conviction DNA testing with an affidavit confirming the truth of the assertions contained in the motion. “Generally, an inmate may use a declaration in lieu of an affidavit . . .” The defendant included an unsworn declaration but “did not include ‘the only phrase that the Legislature actually mandates should be included in such declarations: that the declaration was 
‘under penalty of perjury.’” This technical failure on the part of the defendant was a sufficient basis for the trial court to deny the defendant’s requested relief.

3rd District Austin

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

4th District San Antonio

In re Garcia, No. 04-21-00142-CR (Tex. App.—San Antonio, Jun. 16, 2021)

Issue. Does a trial judge have a ministerial duty to rule on a post-trial discovery motion more than a decade after conviction?

Facts. Defendant pleaded guilty to an offense in 2009 and was sentenced to 40 years imprisonment. On January 19, 2021, he filed a motion for post-trial discovery under the Michael Morton Act, Texas Code of Criminal Procedure Article 39.14. With his motion he included a letter requesting the clerk forward his motion to the judge. On January 28, 2021, defendant sent another letter directly to the judge requesting a ruling on his motion. The trial judge declined or failed to rule.

Holding. Yes. The trial court has a ministerial duty to rule on a discovery motion, even one filed more than a decade after trial. Mandamus relief is appropriate when a government actor declines to perform a ministerial act and the defendant has no other adequate remedy at law. There being no other adequate remedy, mandamus was appropriate here.

Comment. I am normally critical of the heavy-handed application of technical rules against pro se defendants. But jurisdiction is not a mere technical rule, and I’m not confident the trial court has jurisdiction to grant an order for discovery in this case. The tug-of-war in my head on this issue is between the dilemma of trial courts having jurisdiction into perpetuity (infinite jurisdiction) and having at least enough jurisdiction to enforce Article 39.14(k) which provides:

(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

In the State’s motion for rehearing they explain “[l]ike Chapters 11 and 64 of the Code of Criminal Procedure, the Michael Morton Act provides post-mandate jurisdiction to hear motions – but only for those defendants convicted in 2014 or later .” Sounds like they are conceding trial court jurisdiction into perpetuity.

Cameron v. State, No. 04-19-00245-CR (Tex. App. San Antonio, Jun. 30, 2021)

Issue. (1) Does the due process doctrine of in pari materia require the State to prosecute a person who hires a hitman under the Criminal Solicitation statute and not under the Murder statute as a party to the hitman’s offense? (2) Are insinuations about leniency in exchange for honesty and false assertions that co-conspirators have already implicated an interviewee the type of psychologically coercive tactics which render a confession involuntary? (3) Is an indigent defendant entitled to the appointment of an expert in police interrogation tactics?

Facts. Defendant was convicted of murder. The State presented evidence that she “concocted a plot to murder her former partner’s and son’s father” to collect insurance proceeds. The plot involved three individuals. Defendant was convicted under the law of parties for her conduct in soliciting the other individuals to commit the murder. In addition to challenging the legitimacy of the State’s charging decision, the defendant challenged the lawfulness of her confession. Defendant was interrogated by two officers at the police station in a small room but was free to leave the room during the interrogation and ultimately permitted to go home even after confessing to her involvement in soliciting the murder. The interrogating officer lied to the defendant about how much they knew about the offense, advised that honesty would help her with her case, made references to the defendant’s family, and falsely implied that the hitman was in custody and had already implicated her.

Holding. (1) No. “Two penal provisions are in pari materia if one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision.” Here the criminal solicitation statute is not a more narrowly hewn version of the murder statute. Both statutes contain elements the other does not. “Murder requires death of an individual.” “Criminal solicitation requires a second person be involved in the commission of the offense.” (2) No. The promise of leniency was a vague insinuation that honesty would help with the defendant’s case and devoid of any specifics about charging decisions or possible sentences. There is no evidence the defendant was “overborne as the result of any promise.” (3) No—at least not here. The court considers three factors in determining whether to appoint an expert: (1) the private interest that will be affected by the action of the State, (2) the State’s interest that will be affected if the safeguard is provided, and (3) the probable value of the additional procedural safeguards that are sought and the risk of erroneous deprivation of the affected interest if those safeguards are not provided. The defendant’s (private) interest in the accuracy of the proceeding weighs more heavily than the State’s interest in judicial economy, but the third factor is the weightiest. The defendant has the burden to show that the failure to appoint an expert would create a risk of an incorrect verdict and should support their motion with affidavits or other evidence supportive of the theory, explain why the expert would be helpful or why there is reason to question the State’s expert or proof. Here defense counsel’s assertion that he required an academic and sociological analysis of interrogation tactics was insufficient.

Comment. The narrowly hewn test should be measured by a hypothetically correct jury charge, in my opinion. The elements of the defendant’s offense in this case did, in fact, require a second person to be involved. And while criminal solicitation does not require the death of another individual – it contemplates it: “[i]t is no defense to prosecution under this section that: (4) the felony solicitated was actually committed.” Tex. Penal Code 15.03(c). The court notes that Criminal Solicitation is a inchoate offense and Murder is not. But doesn’t party liability convert it to one? 

5th District Dallas

Turner v. State, No. 05-19-01328-CR (Tex. App.—Dallas, Jun. 9, 2021)

Issue. (1) Can evidence sufficiently support a continuous sexual abuse of young child conviction when the trial court instructs the jury to consider multiple theories of sexual abuse, some of which are wholly unsupported by the record? (2) Did the trial court improperly comment on the weight of the evidence by instructing the jury that “penetration is complete however slight?”

Facts. Defendant was convicted of continuous sexual abuse of a young child. Defendant sexually abused his six-year-old and seven-year-old granddaughters. He was caught by his wife on one occasion. Both children identified acts of digital penetration and sexual contact on multiple occasions over the course of several years. A nurse examiner confirmed injuries to one of the granddaughters consistent with the accusation. In the application paragraphs of the jury charge, the court instructed the jury they could convict on five theories of sexual abuse. Two of those theories were unsupported by any evidence in the record: penetration or sexual contact of the anus. Defendant’s trial strategy as to the remaining bases of conviction included attacking the credibility of witnesses and presenting a theory that his actions were involuntary due to his diabetic low blood sugar.

Holding. (1) No. The verdict was non-specific. There is no basis to conclude the jury relied on erroneous theories. The evidence shows many acts of sexual abuse a period of time exceeding 30 days. (2) No. “The State’s brief concedes the language was erroneous. However, mandatory precedent from 1937 establishes that such language is (i) analyzed as an instruction and (ii) not erroneous.” The Court of Criminal Appeals has condemned and reversed in cases where the trial court defines an anatomical threshold constituting penetration. Greene v. State, 476 S.W.3d 440 (Tex. Crim. App. 2015). But here the trial court did not provide any specific threshold. Even if the instruction was erroneous, the defendant was not egregiously harmed by it.

Dissent (Partida-Kipness, J.). Greene v. State overruled by implication the 1937 precedent permitting the trial court to instruct a jury that “penetration is complete, however slight.” Two courts of appeal have recognized this. Submission of the penetration definition was erroneous but not egregiously harmful.

Comment. I have no issue with the outcome in this case – the evidence presented by the State seems substantial, and the likelihood the jury charge quirks resulted in an unjust result are far too remote. But the case highlights some frustrating realities about our standards of review. Our disproportionate standards for appellate review juxtaposed in this case is what frustrates. We don’t analyze the jury’s thought process unless we need to analyze the thought process to conclude they didn’t think something that would be bad for the verdict.

State v. Patel, No. 05-20-00129-CR (Tex. App.—Dallas, Jul. 2, 2021)

Issue. (1) May a trial court grant a motion to suppress on grounds not raised by a defendant’s motion to suppress?  (2) Is the State’s failure to present evidence of a return and inventory a proper basis for granting a motion to suppress evidence? (3) Must the State show that blood was both drawn and analyzed within the statutorily prescribed three-day period required for execution of a search warrant?

Facts. Defendant was arrested for driving while intoxicated. The arresting officer applied for a warrant and articulated the grounds for his belief the defendant was intoxicated. A magistrate signed a warrant authorizing a blood draw but not blood testing. The warrant further required the officer to execute the warrant within six hours of its issuance. The defendant’s blood was drawn seven minutes after the magistrate issued the warrant, however the laboratory did not test the blood until four days later. Defendant filed a motion to suppress. At the hearing, both the State and the defendant stipulated to the validity of the search warrant and focused arguments on the validity of laboratory testing not authorized by the warrant. Despite the stated scope of the motion, the trial court suppressed the State’s evidence base on: (1) the untimely execution of the search – namely, the laboratory testing conducted outside of the statutorily required three-day execution period under Texas Code of Criminal Procedure 18.07(a), and (2) the failure of the officer to make a timely return and inventory of the executed search warrant. The trial court did not address the implications of the dual-search-dual-authorization issue presented by the DWI blood draw and subsequent test. At the time of the hearing, this issue was an unresolved issue under State v. Martinez, 570 S.W.3d 279 (Tex. Crim. App. 2019). However, during the pendency of this appeal, the Court of Criminal Appeals issued its opinion in Crider v. State effectively resolving the dispute in favor of the State, 607 S.W.3d 305 (Tex. Crim. App. 2020).

Holding. (1) No. “The State has no burden at a pretrial suppression hearing until the defendant alleges a theory of suppression on which the State bears the burden of proof. . . . As a result, the State’s burden of production and persuasion with respect to such issues was never triggered.” (2) No. Texas Code of Criminal Procedure Article 18.10 which provides the requirement for an inventory and return specifically prohibitions suppression of evidence for failure to comply. (3) No. Texas Code of Criminal Procedure Article 18.07(a)(3) requires “execution of a search warrant” within three days of its issuance. But “execution” is the seizure of the evidence, not the subsequent searches. Here, the blood was drawn, and therefore the warrant executed, within three days.

Comment. Despite the issue not being properly raised below, the court nonetheless rejects the argument that the blood must be tested within the three-day period for warrant execution mandated by Article 18.07. The court cites its own opinion in State v. Jones, 608 S.W.3d 262 (Tex. App.—Dallas, 2020) as authority for a conclusory proposition that a search warrant is fully executed upon the seizure of the evidence. This is not correct. The definition of execute is “to carry out fully: put completely into effect. “EXECUTE.” Merriam-Webster Online Dictionary. 2018. https://www.merriam-webster.com/dictionary/execute. (1 August 2020). A search warrant is not fully carried until it can no longer be pointed to as the justification for conducting a search or a seizure. And Crider did nothing to disturb the Martinez holding that “when the state itself extracts blood from a DWI suspect, and when the state conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.” Martinez merely held that the second search is impliedly authorized when the police have asked a magistrate to issue a warrant to draw blood. This issue has legs. Article 18.07 says get it done within three days. Because this is a State’s appeal, the defendant should have an opportunity to re-litigate. He should. And then he should take this up to the Court of Criminal Appeals.

6th District Texarkana

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

7th District Amarillo

Ex parte Owais, No. 07-20-00245-CR (Tex. App.—Amarillo, Jun. 16, 2021)

Issue. (1) When the State offers and the defendant rejects a misdemeanor reduction, is counsel ineffective for failing to advise a defendant that a felony crime of violence will result in automatic deportation? (2) Is counsel ineffective for failing to advise his client to pursue an appeal in order to prevent ICE from using defendant’s “final conviction” against him in deportation proceedings?

Facts. Defendant was driving his car on the sidewalk at Texas A&M. A police officer on foot tried to stop him and he kept on driving. Eventually another officer in a squad car pulled him over and asked him why he didn’t stop for the previous officer. Defendant stated he was scared and nervous and knew he was not supposed to be driving on the sidewalk. The State offered to reduce his offense from a third-degree evading to a misdemeanor evading charge. Counsel advised defendant that his case had triable issues, advised defendant to go to trial until the state offered a misdemeanor reduction, then advised defendant to accept the plea bargain offer. Prior to trial, counsel advised defendant to discuss potential immigration consequences with his immigration attorney and advised defendant generally that evading arrest in a motor vehicle could carry adverse immigration consequences. After a jury convicted defendant, counsel advised defendant of his right to appeal but also advised there were unlikely to be any issues to raise on appeal. The jury convicted the defendant and ICE initiated deportation proceedings based on his conviction which triggered automatic deportation as a “crime of violence.”

Holding. (1) No. When immigration consequences are succinct and straightforward, counsel has a duty to advise the defendant about the immigration consequences of making a particular decision in a criminal case. Padilla v. Kentucky, 559 U.S. 356 (2010). However, here, defendant claims his deportation proceedings arise from the instant felony evading arrest conviction – an offense which renders him automatically deportable as a “crime of violence.” In 2019 the U.S. Supreme Court found the federal definition for “crime of violence” unconstitutionally vague. Sessions v. Dimaya, 139 S.Ct. 2319 (2019). Thus, “the immigration consequences of a conviction for evading arrest in a motor vehicle are ‘not succinct and straightforward . . . .” (2) No. “Counsel is constitutionally required to consult with the defendant about an appeal when there is reason to think that a rational defendant would want to appeal, such as when there are apparent nonfrivolous grounds for appeal, or when the defendant has reasonably demonstrated to counsel his desire to appeal.” Only after his appeal deadline expired and immigration proceedings were initiated did defendant articulate his desire for an appeal on the basis of insufficient evidence. Evidence was sufficient. Defendant admitted to the offense. 

Comment. First, what did counsel do to be named specifically in this opinion aside from give good legal advice? Second, if the federal definition for crime of violence is unconstitutionally vague, how did he get deported for a crime of violence conviction? Which brings me to my third beef, I am not an immigration expert and maybe that is why I don’t know the answer to my second question. Maybe we should all just file Ake motions for immigration experts in cases with potential immigration consequences.

Teague v. State, No. 07-20-00074-CR (Tex. App.—Amarillo, Jun. 24, 2021)

Issue. Is evidence sufficient to convict a defendant as a party to aggravated sexual assault without a showing that the defendant intended for his co-defendant to inflict serious bodily harm?

Facts. Defendant held a woman in his trailer against her will, raped her, captured her after an attempted escape, returned her to the trailer, chained her to a toilet and helped codefendants rape and sodomize her repeatedly until she suffered serious bodily injury.

Holding. Yes. Defendant concedes he is party to the offense of sexual assault, but not aggravated sexual assault. Defendant relies on Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013) for the proposition that “the intent to promote or assist element of party liability required the State to prove that appellant intended the result of victim suffering serious bodily injury.” Nava is a felony murder case where a defendant entered a conspiracy to commit a theft and a co-defendant shot and killed an undercover officer. Nava’s conviction was reversed because “combining the language of [the party liability statute] with the felony murder statute, then, requires an intent to promote or assist, not only the commission of the underlying felony and the unreasonably dangerous act, but also the result of the offense of felony murder—the death of an individual.” The court here distinguishes Nava. In Nava the underlying felony offense was wholly unrelated to the offense the defendant was held liable for at trial. Here, the victim’s serious bodily injury was a foreseeable result of the underlying offense of sexual assault. The doctrine of transferred intent provides “if a defendant intends to promote or assist the commission of one type of sexual assault, but his co-defendant commits a different type of sexual assault, that difference does not shield him from party liability . . .”

8th District El Paso

Ex parte Cardenas, No. 08-21-00034-CR (Tex. App.—El Paso, Jul. 21, 2021)

Issue. Because Governor Abbott has suspended the provision of Article 17.151 of the Code of Criminal Procedure which mandates a personal bond for pre-indictment delay, must a trial judge instead set bond at an amount that a detainee can post to secure his or her release?

Facts. Defendant was arrested on ten charges relating to sexually abusing a child. He was unable to post his bail and the State did not indict him within 90 days. Defendant filed a writ of habeas corpus demanding release pursuant to Article 17.151 (mandatory release for pre-indictment delay). The district court denied relief and cited Governor Abbott’s GA-13 Emergency Order suspending Article 17.151.

Holding. Yes. Article 17.151 requires release on personal bond or an amount the defendant can afford to post. Emergency Order GA-13 only suspends the part of Article 17.151 – the part mandating release on personal bond. A judge still has a ministerial duty to set bond in an amount the detainee can afford if the State has not obtained an indictment in the periods specified in that Article. This issue was decided by the Court of Criminal Appeals last month in Ex parte Lanclos, No. PD-0243-21 (Tex. Crim. App. 2021). “Due to [Lanclos], we need not address whether GA-13 is constitutional or valid.”

Comment. Yes. Courts actually do need to decide whether GA-13 is constitutional or valid. This is an abdication of responsibility by our judicial system. Paying money to secure release when a statute passed by our legislature says you pay no money to secure release is an injury worthy of remedy. Injuries are remedied in courts. Yet, to date, no court wishes to address it.

9th District Beaumont

Hogue v. State, No. 09-19-00234-CR (Tex. App—Beaumont, Jul. 28, 2021)

Issue. Can an appellate court review a complaint about a sleeping juror or a juror unable to hear the trial when no objection was raised by the defendant in the trial court?

Facts. During defendant’s trial, one juror informed the trial judge he could not hear. The judge suggested the juror change his seat. Also, during defendant’s trial, the prosecutor brought to the attention of the trial judge that an entirely different juror was constantly falling asleep during testimony.

Holding. No. Defendant asserts the Sixth Amendment’s promise of a speedy public trial by an impartial jury required the trial court to remedy the problem of inattentive jurors sua sponte. Defendant has neither shown precedent nor argued that juror attentiveness falls within the two categories of errors which an appellate court can review without objection (waivable-only rights and absolute systemic rights).

10th District Waco

Huggins v. State, No. 10-19-00096-CR (Tex. App.—Waco, Jul. 7, 2021)

Issue. Can a trial court accept a pro se guilty plea without providing the Faretta v. California admonishments about the dangers and disadvantages of self-representation?

Facts. Defendant, having previously been represented by two appointed attorneys, asked to represent himself at trial. He signed a document indicating he knowingly waived his right to representation and requested to proceed without an attorney. The record contained some evidence that the defendant was sufficiently intelligent and experienced in criminal justice to support the conclusion that his waiver was knowing and intelligent. This included partial completion of a college education and prior criminal prosecutions. The trial court did not admonish the defendant regarding the dangers and disadvantages of self-representation.

Holding. Yes. In the Tenth District at least. Before a trial court may permit self-representation, the trial court must ensure the defendant is “aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta v. California, 422 U.S. 806 (1975). However, the Court of Criminal Appeals has distinguished Faretta holding that it does not apply in cases of self-representation where the defendant does not contest guilt. Hatten v. State, 71 S.W.3d 332 (Tex. Crim. App. 2002). Defendant argued that the Court of Criminal Appeals limited its holding in Hatten to misdemeanor cases and cites one other court of appeals which agrees with this analysis. This court disagrees with this conclusion.

Ex parte Braswell, No. 10-21-00121-CR (Tex. App. Waco, Jul. 7, 2021)

Issue. Does an intermediate court of appeals have original jurisdiction to consider a pretrial writ of habeas corpus pertaining to bail?

Facts. Defendant filed an original application for writ of habeas corpus in the Tenth Court of Appeals after “an incident between the vehicle she was driving and another vehicle and after a blood draw was performed on Braswell.” In the writ, the defendant challenged the amount of her pre-trial bail.

Holding. No. The Texas Constitution vests intermediate appellate courts with original jurisdiction in writs of habeas corpus. But law also provides for direct appeal of pretrial writs of habeas corpus. The intermediate court of appeal cannot exercise both original and appellate jurisdiction. The original jurisdiction of a court of appeals to issue a writ of habeas corpus is limited to those cases where a person’s liberty is restrained because the person has violated an order, judgment, or decree entered in a civil case.

11th District Eastland

Smith v. State, No. 11-19-00222-CR (Tex. App.—Eastland, Jun. 10, 2021)

Issue. (1) In an online solicitation of a minor prosecution, is evidence that a defendant suggested he and the minor only “maybe have sex” sufficient to establish the intent to engage in sexual contact element of the offense? (2) Are recorded accusations lodged by a detective in an interrogation inadmissible under the Confrontation Clause when that detective is not called to testify at trial?

Facts. Law enforcement created an online post on Craigslist in the “casual encounters” section where they posed as a minor after a person responded to the post. Defendant responded to the post. The officer posing as a minor indicated he eventually informed the defendant that the person he was talking with was 13 years old. Defendant claims he did not receive that message prior to texting: “do you wanna come over and talk and drink and maybe have sex? Just see where it goes.” The officer then sent another message indicating the person with whom the defendant was speak was 13 years old. Defendant showed up for his “casual encounter,” texted “how do I know this isn’t a trap,” powered through that dilemma, entered the apartment and got arrested. Officers looked through defendant’s phone and could not find the first text message they sent defendant indicating an age of 13 years old – the one that preceded defendant’s suggestion that they “maybe have sex.” Defendant gave a mirandized interview where he disputed his knowledge and intent. The detective interviewing him lodged accusations such as “you knew she was 13” and “the opportunity presented itself and maybe you took advantage of it.” The State did not want to call the detective to testify at trial and instead played a recording of the interview over defendant’s objection.

Holding. (1) Yes. At least here. It is true that defendant’s explicit statement was that he intended to “maybe have sex” and see where things go. Even assuming he did not receive the first text message indicating age, defendant’s argument that he took “maybe have sex” off the table after receiving the second text message indicating the age of the minor is unpersuasive. Sufficient evidence indicated defendant went to the location set up by law enforcement with the intent to have sex with a minor. The encounter arose from a posting in the “casual encounters” section of Craigslist and the moment before he entered the apartment where he believed he was meeting a minor he asked “how do I know this isn’t a trap.” (2) Yes. At least here. But the error was not harmful. Testimonial statements that are offered for purposes other than to establish the truth of the matter asserted do not violate the Confrontation Clause. Tennessee v. Street, 471 U.S. 409 (1985). Sometimes the State may admit statements made by a non-testifying police officer during an interview to provide context for the interviewee’s responses. To determine whether contextual or background statements are admissible a court weighs the actual utility of placing the defendant’s own words into context against the “likelihood the jury will gravitate toward the statement’s improper use.” Here there was little to no utility, defendant’s responses were sufficiently understandable without the detective’s contextual accusations. This rendered the detective’s accusations inadmissible under the Sixth Amendment but the trial court’s error was not harmful. They “were of minimal importance to the State’s case” considering their cumulative nature to direct evidence linking defendant to the offense.

Comment. Does every one of these cases involve the defendant committing a crime despite knowing he is being set up?

Deere v. State, No. 11-19-00227 (Tex. App.—Eastland, Jul. 22, 2021)

Issue. (1) Must a trial court strike a juror for cause who indicates they have a bias in favor of police but who was not informed the law required them to be unbiased or set their bias aside? (2) To preserve error must a identify the objectionable jurors selected, is it improper for the trial court to require counsel to alienate the jury by doing this in their presence?

Facts. Counsel asked each potential juror “how much credibility, based on a scale of one to five, the juror would afford an officer of the law before any testimony was given, and each potential juror answered.” The scale of one to five was only vaguely explained. Counsel did not inform potential jurors that the law required their impartiality to judge credibility of witnesses nor did counsel ask whether jurors could set aside their bias in favor of following the law.  After following the first four steps in the five-step process to preserve error in the improper seating of a juror, trial counsel attempted to complete the process by objecting to improperly seated jurors once they were seated but before they were sworn. The trial court required defendant to object to jurors in their presence.

Holding. (1) No. “That some of the potential jurors answered that they would rank an officer’s credibility as a five does not necessarily equate to an admission that the juror would absolutely believe the officer’s testimony once given. Nor does it equate to the venireperson’s inability to set aside preconceived notions or an admission of the venireperson’s inability to follow the law.” This scenario is different than the one presented in Hernandez v. State, 563 S.W.2d 947 (1978) where a trial court exercised discretion to strike a juror for cause who committed to always believing a police officer no matter what. The Hernandez juror’s bias was more deeply entrenched and the trial court made a discretionary determination to excuse, not a compulsory one. (2) No. First, counsel did not follow the five-step process for objecting to improperly seated jurors. He must identify objectionable jurors before he learns of his opponent’s strikes (before the jury is announced). “This prevents a party from belatedly conforming its claimed objections to the jurors actually seated.” Here, counsel waited until the jury was seated (but not sworn). While it was probably unfair for the trial court to require counsel to make objections about the jury in front of the jury without any explanation for why a hearing outside the jury’s presence was denied “any potential harm was self-inflicted since the (object-before-jury-announced) procedure in Nava, was not precisely followed.”

Comment. I’m trying to wrap my head around the articulated reason for a rule that objecting once the jury is announced is too late. The court seems to say that this is essentially sandbagging. But, if the other four complicated steps in the process were followed, I don’t see how this is taking unfair advantage. The first step in the process is to make a “clear and specific challenge for cause.” So, counsel would have to conform the objection to improperly seated jurors to the previously made challenge for cause.

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

Null v. State, No. 14-19-00839-CR (Tex. App.—Houston [14th Dist.] Jun. 8, 2021)

Issue. (1) Is a complainant’s inability to remember an attack or identify the defendant as an attacker an impediment to a sexual assault conviction if DNA evidence doesn’t exclude the Defendant as the assailant? (2) Can an appellate court find that venue was proper out of thin air? (3) when a trial court excuses a juror sua sponte on unauthorized grounds (can’t speak English), has a defendant preserved error by objecting to the factual assessment rather than the unauthorized grounds? (4) Was defendant wrongfully denied a lesser-included instruction on attempted sexual assault after the sexual assault nurse indicated that the DNA she collected could have migrated to its location of discovery (inside of the vagina) from another place (outside of the vagina)? (5) Did the trial court err in admitting DNA testing over Appellant’s 702 objection that the State’s witness had no information on how the laboratory conducted testing or independent qualifications to explain the testing.

Facts. Complainant was 16 years old when she came home in a confused state and told her mother she had been raped while out jogging. Later complainant revealed that the jogging story was a lie. Instead, her story was that she skipped school, got drunk, hung out with an adult friend, got more drunk, tried to walk home, passed out, found herself in a car with a man “pressing on top of her.” Toxicology reports showed complainant had Xanax and marijuana in her system. Forensic evidence showed that Defendant could not be excluded as a suspect. At trial, complainant testified that she did not know the defendant, had never seen him before, and could not identify him as the attacker.

Holding. (1) No. Despite the complainant’s inability to describe an attack or identify the defendant as the attacker, her initial statement to her mother was that she had been raped and the defendant could not be excluded as a contributor to the DNA. A rational jury could have concluded that he was the attacker and that he had sexually assaulted the victim. (2) Yes. The State has the burden to prove venue by a preponderance of the evidence. Because the defendant did not contest venue, “we presume that the prosecution satisfied that burden . . .” (3) No. While inability to speak English is not a grounds for the trial court to excuse a juror over objection, the defendant must tailor his objection to the trial court’s lack of authority to preserve such an argument for appeal. Here the defendant objected to the trial court’s assessment of whether excused jurors sufficiently spoke English. This did not preserve the legal issue for review. (4) No. Entitlement to a lesser-included instruction on attempt requires affirmative evidence, the fact that the sexual assault nurse believed that semen could have migrated from outside to inside the vagina is mere uncertainty and not affirmative evidence. (5) No. Trial courts can take judicial notice of all DNA evidence concerns under Texas Rule of Evidence 702, including the validity of DNA testing and the validity of the STR technique in evaluating DNA evidence.

Dissent (Hassan, J.). “Instead of endeavoring to establish that the State met its burdens [under 702], both the State’s brief and the majority rely upon the well-known fact that courts are permitted to take judicial notice of select facts. Without evidence that the trial court took judicial notice, this is an unremarkable recitation of an unambiguous Rule.”

Comment. This opinion is incredible. First, if the complaining witness can’t articulate that an attack occurred and identify the defendant was the attacker, the mere fact that he can’t be excluded as a DNA contributor was enough for two judges on this panel. Then, the evidence sufficient to establish venue is that there is no evidence of venue but the court will fix it by presuming there is. The goose/gander issue with criminal attempt should be noted, too. That DNA was found in the complainant’s vagina was certainly evidence of the defendant’s guilt for this panel, but that it could have migrated from outside of the vagina to inside of the vagina is not affirmative evidence of anything. A motion for en banc reconsideration has been filed. Rightfully so.

Coleman v. State, No. 14-19-01016-CR (Tex. App.—Houston [14th Dist.] Jul. 15, 2021)

Issue. (1) Can the State establish the necessary element of physical pain in a bodily injury assault without the testimony of the complainant or any physical indicia of injury? (2) Can the State establish the necessary element of a dating relationship in a family violence prosecution by showing the defendant made 235 phone calls to the complainant and expressed that he loved her and missed her? (3) Can the State use a prior assault family violence conviction to elevate a misdemeanor assault to a felony and then sentence a defendant as a habitual offender with additional assault family violence convictions?

Facts. A police officer observed defendant’s car jerking in front of him at a stop sign, saw defendant slap and hit the complainant, heard the complainant scream for help, observed the vehicle fail to maintain a single lane, observed the passenger door open while the vehicle was still moving, observed complainant’s body hanging out the door as though someone was preventing her escape. Complainant got into the officer’s vehicle and explained the assault that had occurred. While incarcerated waiting trial, defendant made 235 phone calls to the complainant. During one call he told the complainant that he loved her and missed her. Complainant did not testify at trial.

Holding. (1) Yes. “[A] factfinder may infer that a victim actually suffered physical pain, and no witness—including the victim-need testify that the victim felt pain.” The jury could have inferred the complainant felt pain when she screamed help, when she was slapped, when she was hit, when she hung out the door of the car. (2) Yes. The jury could infer from 235 phone calls as well as from “the tenor and content of” intimate conversations that the defendant and complainant had a dating relationship. (3) Yes. Defendant’s analogy to theft offenses elevated by “two or more” previous theft convictions is misplaced. A state jail felony elevated theft may not be punished as a habitual offender with additional theft convictions because the statute provides that a theft offense is elevated by “two or more” prior thefts. This language indicates the legislature’s intent to set a maximum punishment on habitual thieves at state jail punishment. In the context of habitual domestic violence, the offense is elevated to a felony if it is shown that the defendant has a single prior family violence offense. The statutory language lacks the open-endedness of the elevated theft statute which justified a limit on usage for prior offenses of the same type.

Food for Thought: Semantics and the Presumption of Innocence

Proof lies on him who asserts, not on him who denies.
– Code of Justinian (22.3.2)

It  has long been held that a person accused of a crime is presumed innocent. In 1895, the United States Supreme Court in Coffin v. United States stated that, “the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law…”1

However, the presumption of innocence is much older than 1895. The idea that the prosecution must prove an accused guilty and that the accused has no burden to prove his innocence began in the Roman times. One of the first instances that it was written was in the Code of Justinian, which stated:

“Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day” – Book IV, Title 19 (emphasis added).

It was not until 1797 that the phrase “innocent until proven guilty” was coined.

So how and why did it go from “unless” in the Digest of Justinian to “until?” And does it matter? We do not yet have the answer to our first question, and we spent some time looking, but as to the second question: yes, we believe it does matter.

The word “until” means “up to the time that” or “up to such time as,” while “unless” means “except on the condition that” or “under any other circumstance then.” “Until” presumes that a condition will be met, while “unless” does not make any presumption at all. Unless is a precondition.

While it may seem inconsequential to delineate the differences between the words “until” and “unless,” especially because the phrase “guilty until proven innocent” is so engrained in our society, it is interesting to note and to consider that Texas specifically uses the word “unless” in the definition of presumption of innocence:

“All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”2

Did the Texas Legislature mean to use the word “unless?” Or was it a typo or some sort of oversight? Curious, we looked at 15 other states. Out of those 15, only one used the word “unless” like Texas does.3 It seems to us that using the word “unless” in the Texas definition of presumption of innocence was a deliberate choice.

Whatever the reason, the Texas Code of Criminal Procedure defines presumption of innocence using the word “unless,” and perhaps we as criminal defense attorneys ought to as well. “Until” creates an intrinsic bias against our clients. When we use the word “until,” we tell the jury it is going to happen: the state will prove its case against our client and overcome the presumption of innocence. And why would we give the state even the slightest advantage, when they already have so much in their favor?

Maybe it is time to give the old 1797 phrase a makeover and bring it back to its roots by saying “innocent unless proven guilty” to our clients, our courts, and perhaps most importantly, our juries.

Diligent Participation Credit

Neither parole nor “good time” credit is available to defendants serving State Jail prison sentences. During the 82nd Legislative Session, a bill addressing “diligent participation” was introduced and passed into law. The bill presents the possibility for inmates serving State Jail sentences to receive additional credit towards their sentence. The sentence had to be served day for day prior to September, 2011. There are several restrictions when determining the eligibility for diligent participation. Any and all time credit awarded by the Trial Court is considered “a privilege and not a right” meaning it is purely discretionary. Tex.CodeCrim.Proc.Art. 42A.559(h). With respect to how much credit one might receive, it may not exceed “one-fifth of the amount of time the defendant is originally required to serve in the facility” or 20 percent of the sentence. Id.

The judgment must reflect whether the court finds defendant is “presumptively entitled to diligent participation credit”. Tex.CodeCrim.Proc.Art. 42.0199. The determination of whether an individual is presumptively entitled is required on the face of the Judgment. Id. If the court makes an affirmative finding and the Defendant has not been subject to disciplinarily action while in the State Jail facility then the award of credit for eligible diligent participation credit is mandatory. Tex.CodeCrim.Proc. Art. 42A.559(f). 

If defendant is not presumptively entitled to diligent participation credit then a report containing records of specific day counts of participation in “educational, vocational, treatment, or work program(s)” is sent to the court. Tex.CodeCrim.Proc.Art. § 42A.559(g). A presumptively eligible defendant subject to disciplinary action while in the state jail facility loses presumptive status. Their records are forwarded in a similar manner to individuals not found to be presumptively entitled. According to the Texas Department of Criminal Justice web page on the matter, if the Trial Court does not award credit, “the offender will serve their full sentence.” Time where an inmate has either completed or is making successful progress towards completing an educational, vocational or treatment program, or is actively involved in a work program qualifies as “diligent participation”. Tex.CodeCrim.Pro.Art. 42A.559(a). The purpose of this statute is to incentivize participation in available programs for State Jail inmates.

A Diary of Declaration Readings

Declaration reading in Gail, Borden County, Texas, USA. Population 231. There may not be much to this one-jail-cell-town out on the Caprock of West Texas – except a great sense of American pride. The entire courthouse staff (yes, all six) showed up to support the reading today!

-Laurie Key, Lubbock

My Dad, Philip Fickman, despised tyrants and bullies. Perhaps that is because most of our family was murdered in the pogroms.

My Dad loved this country and the freedoms we are all guaranteed. He always made July 4th a fun celebration for my brothers and me. Annually, my Dad and the other young fathers on the block put on a large, joyous, and probably illegal, fireworks display in the middle of our street.

When I became a dad, I always hosted a big barbeque on July 4th. Everybody was eager to eat, but before we ate I had my young sons, Sam and Daniel, read aloud the first and last paragraphs of the Declaration of Independence. I wanted them to understand the meaning of this holiday.

By 2010, many members of the Harris County judiciary were acting as if they were King George III. They were stepping all over the rights of our clients. Like our Founders, the Harris County Criminal Lawyers Association had finally suffered enough of this tyranny.

So, in 2010, before we headed out to our family barbeques and fireworks,  members of HCCLA staged a symbolic protest against our local tyrannical judges by reading the Declaration of Independence on the courthouse steps. We sought no permission. That would be akin to our Founding Fathers asking the king for permission to declare independence.

I told my sons about our readings and about how it all started in our backyard with them. They liked it and they were supportive. For several years, Sam, who has a film degree, has edited TCDLA Declaration reading videos.

This year, Sam and Daniel were in town. I invited them to join us in the reading.

Watching my sons read the Declaration of Independence was something I will always treasure. In strong, resolute voices, they joined me and my colleagues in open defiance of tyranny. These readings are not about my family or how we celebrated the 4th of July. These readings are about all our families and our communal rejection of tyranny inside and outside of the courthouse.

-Robb Fickman, Houston

The Henderson County Bar Association gathered on the courthouse steps Friday to read the Declaration of Independence. Congress signed the unanimous declaration of the united thirteen colonies of America on July 4, 1776. It is the foundation for this country.

As the words rang out over the square, flags waving, the voices of speakers bounced back in echoes from the other buildings confirming the eloquent and courageous words of freedom and independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness . . .”

A crowd gathered on the lawn to hear the words that still ring true today. Shana Stein Faulhaber, local event organizer, said the words move her to this day every time she reads or hears it.

“I still get goosebumps,” she said.

Although she is new to the area, she has quickly jumped in and embraced community involvement.

Zane Faulhaber closed the ceremony by playing the “Star Spangled Banner” on electric guitar.

The practice was originally started by a group of criminal defense attorneys and has quickly grown to a state-wide event.

-The Athens Review

Following our first reading in Hopkins County, we hit the road to read in Delta (Cooper) and Rains (Emory) counties. We then joined up with Mac Cobb to read the Declaration of Independence in Morris (Daingerfield), Marion (Jefferson), and Cass (Linden) counties. Six counties, lots of miles, a few mispronounced words, but high spirits.

-Brent McQueen, Sulphur Springs

Shelby County criminal defense lawyers Deck Jones, Jeff Adams, April Prince, and Stephen Shires gathered at the front of the Historic Shelby County Courthouse July 2, 2021, to give a ceremonial reading of the Declaration of Independence and the Bill of Rights.

The Texas Criminal Defense Lawyers Association has encouraged this annual event since 2016 across the state of Texas.

An audience gathered in front of the courthouse to hear the lawyers recite the Declaration of Independence and the Bill of Rights. Although a heavy rain moved in on the event, the lawyers pushed through until they completed their task.

-ShelbyCountyToday.com

A handful of citizens came out Friday at noon to the Hale County Courthouse as county lawyers conducted their annual reading of the Declaration of Independence as part of the Fourth of July holiday celebration. This was the eighth annual reading of the Declaration, a tradition started in Plainview in 2013. The reading is an event put on annually by the Texas Criminal Defense Lawyers Association. Mayor Charles Starnes was among the nine readers during Friday afternoon’s reading.

-Plainview Herald

A long-standing tradition for South Plains lawyers kicked off Independence Day celebrations with a reading of the Declaration of Independence reminding us of all the Fourth of July isn’t just for cookouts and fireworks. It’s a time to celebrate the official beginning of our country.

EverythingLubbock.com

It was a great day for the readings in Archer, Baylor, Knox, Foard, and Wilbarger Counties. Thanks to Robb Fickman and Chuck Lanehart for helping with this tradition and my dear friends Scott Stillson and Todd Greenwood of Wichita Falls for the fun road trip.

-Dustin Nimz, Wichita Falls

Reading of the Declaration of Independence in Bowie County (Texarkana, Texas) and Miller County Texarkana, Arkansas) simultaneously in front of the Federal Courthouse with Mac Cobb and Jeff Harrelson.

-Brent McQueen, Sulphur Springs

Freedom and the liberties that come with it were celebrated ahead of the 4th of July holiday on Friday when attorneys recited the Declaration of Independence and the Bill of Rights in front of the Brazos County courthouse.

The annual tradition is celebrated across more than 150 Texas counties. Locally, the event is organized by the Brazos County Defense Lawyers Association.

Local criminal defense attorney Shane Phelps helped organize the event. He says the time for complacency about freedoms in the United States and Texas is over. Phelps says citizens need to appreciate why we celebrate this holiday and understand and exercise our rights.

“We stop every year to celebrate the 4th of July, but sometimes we don’t really appreciate what it’s all about. This is an effort to try and remind people of the sacrifice that was made by our founders so that we can enjoy the freedoms we do,” said Phelps. “So before we get started on our parties and our barbecues and boating, it’s a good thing to hear the words of the founders in the Declaration and the Bill of Rights, so that we understand and appreciate as we enter this festive holiday weekend just how important those rights are to Americans in Texas.”

Phelps says it’s up to everyone, including attorneys, to help protect the rights of American citizens.

“Criminal defense attorneys are champions of liberty. We step into the courts of Texas every single day, and we defend these rights. We remind jurors and judges of the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, all of those rights that guarantee freedom to citizens,” said Phelps. “An important message and important part of that is to understand that if you don’t know what your rights are and if you don’t exercise them, then when you really do need them, they’re just not going to be there.”

Cameron Reynolds, president of the Brazos County Defense Lawyers Association, says knowing your rights and freedoms is crucial, and more people should take the time to read the constitution and Bill of Rights. Reynolds says those documents are more than just words on paper.

“I’ve been doing this defense work for the better part of 25 years. I’ve represented judges, police officers, doctors, lawyers, and I can tell you it’s a lot different when something’s happening to them,” said Reynolds. “It doesn’t mean that much until something happens to you or your family. Then you realize, man, I really need this. I need these rights to mean something.”

-KBTX-TV, Bryan

To commemorate the Fourth of July holiday, the Harrison County Criminal Defense Lawyers Association will host the group’s ninth annual public reading of the Declaration of Independence, this Friday, July 2.

The event will begin at 11:30 a.m., in front of the working 1963-model Harrison County Courthouse, located at 200 West Houston St, and not at the historic courthouse.

“The public is invited,” organizers stated.

Those who want to participate remotely can watch the live broadcasting on KMHT radio’s Facebook page.

“This is the ninth annual reading in front of the Harrison County courthouse,” organizers said. “Your local defense bar is committed to protecting and ensuring by rule of law the individual rights guaranteed by the Texas and Federal Constitutions in criminal cases.”

The local defense lawyers will be joining other defense lawyers across Texas and the United States as they recite the Declaration of Independence.

In honor of the nation’s freedom, lawyers across the state pause for a few moments of the designated day to read the Declaration in front of Texas county courthouses, and anywhere globally that a Texas attorney is.

“Since 2010, Texas criminal defense lawyers have gathered on courthouse steps across the state early each July to publicly read the Declaration of Independence,” the Texas Criminal Defense Lawyers Association’s website, www.tcdla.com, states. “The tradition—unlike any other in the nation — is supported by members of the Texas Criminal Defense Lawyers Association.”

The event has been carried on locally, in Marshall, since 2012.

-The Marshall News-Messenger

Miles: 250

Courthouses: 5

Speeding tickets: 1

Happy Birthday, America!

#tcdlastrong

-Michelle Ochoa, Beeville

After I participated in the wonderful, colorful,  inspirational 11th annual Lubbock Criminal defense Lawyers Declaration reading the morning of July 2, I changed into my snazzy US flag shirt in honor of my great friend, the late David Hazlewood, who never missed an LCDLA Declaration reading and always wore is lag shirt. Then  it the road for the Texas  Hill  country, companionless, in my beat-up Chevy Tahoe. Along the way, I read the Declaration  of Independence in Post, Sweetwater, Coleman, Brady, and Llano.

Unfortunately, I forgot my own advice and did not forewarn the citizenry to witness my oratory until I was five miles outside of Post. I phoned my buddy Ted Weems, the Garza County Attorney, but he was out. His assistant promised to come downstairs with the County Judge, his secretary, and maybe others to hear my presentation.

I guess the assistant was like me—forgetful—and no one from inside the courthouse appeared. A random young lady happened to wander up the courthouse steps, and she enthusiastically took my photo,  but she did not stick around to hear my rendition of the Declaration.

In Sweetwater, another young lady—wearing a US flag scarf—firmly refused to photograph me and hurried away as if I were a leper. So, I took my first snapshot self-portrait—known as a “selfie”—with my trusty cell phone camera.

The friendly Justice of the Peace court coordinator was my only audience in Coleman, and she graciously agreed to take my picture.

The courthouse in Brady was closed. With no assemblage, I delivered the most eloquent recitation of the Declaration heard anywhere ever, and there is no evidence to the contrary. Having mastered the art of the selfie, I snapped away, shuddering at my semblance.

When I arrived at the beautiful Llano County Courthouse, I was confronted with driving rain, so I ducked into the quaint gazebo on the courthouse square and read the Great Document. I did the selfie thing again: I hope it was my last.

What a hoot! Six counties, 304 miles, and three selfies. God Bless America!

-Chuck Lanehart, Lubbock

Over in Marathon, there was a Dog and Pony Show parade Saturday morning with  Brewster County Sheriff Ronnie Dodson leading participants through downtown. There was also a chili cook-off, dancing under the stars, and fireworks.

Marfa was mostly quiet over the weekend but famed criminal defense lawyer Dick DeGuerin continued his tradition of reading the Declaration of Independence aloud to a gathered crowd in front of the Presidio County Courthouse.

-Big Bend Sentinel

Judy and I  have read the Declaration in ten countries, including Russia twice on our travels as United Methodist missionaries. Here we are in Prague, only a few feet from a Jewish internment camp from Hitler’s death squads. It gave us a great sense of pride to be free and standing over so many who were gassed and horribly mistreated. So many people from foreign countries came up to us and simply said, “Yah! Yah!” Meaning yes to the end of tyranny and injustice!

-Ken Mingledorff, Houston

Travis County attorneys and TCDLA staff gathered outside of the Blackwell-Thurman Criminal Courthouse in Austin for our annual Declaration of independence reading. While this year’s reading didn’t feature our usual donut and coffee reception, we were pleased to keep the tradition alive, even during a pandemic. In the rare in-person gathering, the Austin Criminal Defense Lawyers Association members were pleased to see their colleagues and participate in this meaningful reminder of our shared passion for defending our community.

 – Bradley Hargis, Austin

Revolving Door: Treatment vs Incarceration

For far too many years our country has been suffering at the hands of our own policies. The laws that govern our actions regarding addiction and individuals battling a substance use disorder in our legal system are outdated and counterproductive. Now is the time for a change. We have experienced dramatic gains in our abilities to treat addiction. Research has proven that (a) incarceration has not produced our desired outcomes, and (b) treatment can make a positive change. Addiction as a brain disease has been scientifically proven, therefore we must not put off the inevitable any longer. It is a disease that is both progressive and ultimately fatal. Our government spends billions of dollars annually primarily focused on drug interdiction to combat a problem that, instead, should be fought at the base level of demand which is the individual’s need for a substance.

In choosing to treat the disease of addiction instead of demanding incarceration, we would greatly counter the negative impact that addiction places on our families, communities, and society. The bottom line is we need to do something different than sticking to the status quo, which is complaining and blaming when outcomes do not change. Appropriate treatment is an option that is the catalyst for many in recreating their lives and helping them become accountable for the actions that resulted in their involvement in the legal system in the first place. Research has shown that court-ordered treatment has been used effectively, especially with drug monitoring and close surveillance within a clinical environment. One cannot deny that placing clients in the appropriate level of treatment has made a positive impact on many people. However, we, as a nation, continue to apply outdated and unsuccessful methods while at the same time maintaining our claims that we take a special interest in offering the best care/outcomes for those who suffer.

Considering the foregoing, how can we best work with and offer assistance to the clients that we serve who often find themselves drowning in the consequences and grips of addiction? Is it not time for our judicial system to partner in the responsibility of treating a disease with medical and addiction treatment professionals? As a treatment professional, I do see some similarities between the work that I do and that of an individual’s attorney. In my experience of working with attorneys, I believe that we both have an ethical duty to advocate for both the individual, as well as, the opportunity to receive services specifically designed to address the addiction that so often is the main contributing factor behind their legal issues. The outward symptoms of this disease are legion and like no other. They can be neighbor’s jewelry being stolen, children being removed from the home by child protective services, or local businesses being burglarized.

Attorneys are positioned in a unique and much-needed way to help their clients that are dealing with substance use. There is no doubt that people dealing with legal issues put a lot of faith and trust into what their attorneys have to say. In many instances, families and friends have spent a lot of time and energy trying to get their loved one to see the reality and seriousness of their substance use and the resulting consequences. Honestly, for many of us in recovery, family members are the hardest to help. We know that addiction impacts the family unit as a whole and the whole unit suffers. Attorneys and others on the outside of the consequences and emotional attachments are better equipped to view the realities and deliver hard truths. I know several people in recovery today that due to the actions of their attorneys, were afforded the opportunity to receive appropriate services versus another stay in a county jail or prison.

Because attorneys are uniquely positioned and may often provide an angle of leverage that no other can, it allows them to be an integral part of addressing the actual problem of addiction, instead of the symptoms only. This is where the real change happens! Some helpful actions for the attorney to take when creating this change are as follows:

  • Clinical Assessments – Because each client has their own set of circumstances and will be at different stages in their addiction, clinical assessments will provide a sound starting point for creating their individualized treatment plan. These clinical assessments can be performed by local therapists, social workers, government agencies, or treatment professionals.
  • SUD (Substance Use Disorder) Focused Mitigation Packets – Creating an outline of information to be collected on each client, including but not limited to, (a) the bio/psycho/social history of the accused to identify past traumas and mental health issues; highlighting any verbal, physical or sexual abuse, (b) a genealogical report to notate family history of addiction, (c) interviewing family members and peers regarding how client’s SUD has progressed, (d) identify appropriate SUD and mental health experts to testify on the client’s behalf, and (e) documentation of past treatment history and both judicial and incarceration records. This will assist in creating the personal story of the accused.
  • Individualized Treatment Plans – Building working relationships with professionals from all levels of care is paramount. Depending on the clinical assessment outcome, the client may simply need a contact from the local recovery community and a list of twelve-step meetings in the area. However, others may need to work with individual counselors or therapists specializing in addiction, trauma, mental health, etc., or be admitted to a facility for detox, residential, and an intensive outpatient program in conjunction with sober living options, sober companions, or life coaches.
  • Advocate for the local specialty courts as an option.
  • Client’s Family Dynamics – Due to the ripple effect of addiction, it is also known as a family disease. Some family members may struggle with their own addictions, such as co-dependency. The family member who is the greatest enabler of the client is also the one that could destroy their case due to their inability to make tough decisions where the client is concerned.

There is no question as to which direction is the most ethical and beneficial for each and every American. It would be a massive undertaking to find an individual that has not been impacted in some way personally by addiction. We must continually ask ourselves, which policy, incarceration or treatment, would we prefer if it was our loved one? Addiction does not discriminate; we are all eligible in some respect. Hope is generated today in the fact that addiction is absolutely treatable, and a life of recovery is possible. When appropriate representation is teamed with appropriate clinical services, lives are transformed.

International Overdose Awareness Day…
is the world’s largest annual campaign to end overdose,
remember without stigma those who have died,
and acknowledge the grief of the family and friends left behind.

Time to Remember. Time to Act.
August 31st.

Juveniles & Forensics: When the Wait is Worth It

Juvenile criminal court works at warp speed utilizing days and weeks instead of months and years. This is especially true with serious cases that, in the adult system, may take a year or two from the date of offense to trial. In juvenile courts, the length of time between arrest and adjudication, even in the most serious of cases, can be less than 4 months. This shortened time makes sense when looking at the courts as a rehabilitative system that provides services to a child as quickly as possible; as well as the limited jurisdiction, until age 19, that the Juvenile Court has. However, this short timetable is a major obstacle in determining the path of a case and properly preparing a defense if the case will be contested. The problematic nature of the abbreviated pending case life is especially egregious when forensic evidence is involved.

Forensic crime laboratories tend to work on 4-9 month backlogs as a matter of course. Some forensic disciplines involving highly specialized analysis, like complex DNA, can take upwards of 18 months to process. Even simple controlled substance and dangerous drug analysis can be several months from lab submission to the final report. A juvenile case with a resolution of six to nine months of total supervision and no collateral consequences could be completed before any laboratory analysis reaches the court. With these two disparate timelines, it becomes even more imperative that the attorney be able to determine a reasonable timeline for the evidence to be available, understand the expected outcomes of forensic analysis, and then decide whether the forensic examination delay is to the client’s benefit.

Forensic Analysis Timeline

Forensic analysis all begins the same way: with the submission of possible evidence to experts for their analysis. For some items, the lab receives the evidence within hours of the alleged offense by a crime scene technician who collects the evidence and submits it to a laboratory. For controlled substances, this may be a Police Department evidence technician mailing or dropping off evidence on a weekly or even monthly basis. For technology and data, this introduction of evidence occurs after a search warrant or subpoena is signed and the data is provided to the technical expert. The first consideration for an attorney regarding the expected timeline is the discovery that has been provided by the State. This can be enhanced through further advanced discovery requested through your discovery motion practice. This advanced discovery should include all documents relating to the cause at issue, including the laboratory submission sheets, the chain of custody, any correspondence with laboratory or technical experts, and photographs of the evidence itself. This discovery will show the exact date and time that the evidence entered the forensic analysis channels.

The second step is to use the historical knowledge of the specific laboratory or expert who has accepted the evidence. Every lab will have some differences in its backlog and evidence handling, but most labs follow the same general analytical procedures. The time needed to conduct analysis is inconsistent with the laboratory’s actual case output time. In the best-case scenario, in which a lab had no backlog and no administrative hurdles or issues, the following are the timelines from evidence submission to final report release (the timeline within parentheses is the current average turnaround time for Texas labs):

  • Controlled Substance: 1 day (3-6 months)
  • Toxicology: 1 day (4-8 months)
  • Latent Prints: 1 day (3-6 months)
  • DNA: 5 days (9-18 months)
  • Digital Media Analysis: 1 day (1-3 months)

These timelines vary greatly from lab to lab and region to region. As an example, Houston Forensic Science Center is currently working on a 10-day controlled substance turn-around time, while the TX DPS Laboratory in Garland is at 9 months (227 days) for the same analysis. In other instances, digital media analysis is sometimes handled by investigators and “experts” from within District Attorney Offices and Police Departments for faster turnaround once the data is received.

The final issue that may alter or extend the timeline is the complexity of the analysis. This information can be gleaned from discussions with the client, as well as the nature of the offense. Clients typically know if an item was passed around and will have a mixture of DNA or if it was wiped clean. Clients typically know if the drug was a standard street drug or if it was a new designer drug that would require additional testing. Clients typically know if they have an Instagram/Snapchat/Facebook profile that contains hundreds of messages, or on the other hand if it has tens of thousands of messages.

Setting Realistic Expectations

The forensic laboratory is limited by the quality of the evidence it receives, the protocols and instrumentation available, and agreements with local prosecuting agencies. Lab analysts are bound by scientific principles while working in a high throughput environment in which getting the best result is secondary to getting the most reports sent out and evidence submissions closed. High throughput forensic laboratories are more similar to the McDonald’s business model of maximizing the number of customers with adequate quality than they are to a fine dining establishment in which there is time and money available to focus on the absolute best quality, using the most cutting-edge techniques, for a small number of customers. This analogy is especially evident with DNA analysis. When a box of items comes in for DNA analysis, the first step is not to sample all the items to ensure that all the possible DNA contributors are identified. Rather, the laboratory looks at the agreement it has with the submitting agency to determine if the nature of the offense even qualifies that item for analysis. If it does qualify, then a single item, maybe two or three, is selected for initial screening for biological material. This screening can be as simple as visually analyzing the item for hairs, stains, and other possible biological material. Many, if not most, of items collected are never scientifically analyzed or even inspected; instead, they are merely inventoried. If the initial screening results in biological material that may be relevant to the case, then those screening samples proceed for actual scientific analysis using instruments. When the standard protocols and analysis result in a weak or incomplete DNA profile, then a secondary analysis may be done on a small subset of cases to better identify those DNA profiles present. However, most cases end laboratory analysis at this point with less than specific results. Although there are significantly more sensitive and accurate instrumentation and protocols used around the country in DNA analysis, those practices are rarely, if ever, used in a forensic DNA laboratory. This is because the lab does not focus on getting the single most accurate result on one specific case since it may hamper the throughput, increase the cost, and cause a longer turnaround time on hundreds of other cases. This is the exact reason why only a fraction of the collected evidence will be screened, only a fraction of that screened evidence will be analyzed, and only a fraction of that analyzed evidence results in complete DNA profiles.

Understanding clearly what the laboratory will find or not find is paramount in deciding if it is prudent to wait for the forensic analysis report. Reaching out to an expert in the forensic field of the case is a great way to set this realistic expectation. If there is a firearm found in the grass a month after an alleged incident being sent in for fingerprints, that will probably not lead to harmful evidence against the client. If that same firearm was recovered immediately after being pulled from the client’s waistband and thrown to the ground and was submitted for DNA analysis, then the likelihood of additional harmful evidence against the client being in a forensic report is much higher. A few rules of thumb to start the calculation are:

  • The longer someone holds and touches something, the more likely he/she will be transferring DNA to the item
  • The more people that touch an item, the lower the likelihood that the client’s DNA will be singled out
  • Latent prints are much more likely to be probative if found on a smooth, clean, dry surface
  • Toxicology tends to be one of the most accurate overall analyses
  • Common Controlled Substances are very accurately identified; dilutions/mixtures do not matter
  • Digital media (i.e. Cloud, Snapchat, Instagram, phone dumps) have vast amounts of information that can create very specific timelines of communication, location, and identity

Using these rules of thumb, an attorney can have productive conversations with the client to determine whether the lab report will benefit in negotiation or trial preparation; or conversely, if the case would result in a more beneficial ending should the case be adjudicated before the lab report being issued. The client can provide that worst-case scenario regarding the incident with directed questioning that allows the attorney to understand the type and quality of forensic evidence left behind. Begin by asking questions like: where did you place your hand? What did your finger touch? Where did you dispose of the soda can? Did you ejaculate, and if so, where? Where did specific items come from? Who else may have contacted said items?

Regarding digital media, many times the attorney can complete their own analysis of the evidence at issue by reviewing the client’s cloud and social media accounts with his/her consent. A clear understanding of whether there are or are not harmful posts and communications can dictate the path of the case, even before the subpoena returns are done.

The final issue when setting expectations is staying relevant on the legal factors affecting forensic science. This was seen in 2015 when the FBI notified laboratories that their population statistics were in error for the previous 15 years, and most laboratories either slowed or stopped DNA analysis for a while. More recently, the passage of Texas House Bill 1325 legalizing hemp has led to almost no forensic laboratory in the State able to differentiate legal hemp from illegal marijuana.

Assessing the Client’s Interest in the Forensic Delay

Ultimately, the delay in forensic analysis can be positive when dealing with the Juvenile Court’s short timetable. If the attorney has looked at the reasonable timeline and set realistic expectations for the forensic analysis outcomes, they can decide if the results will be beneficial or harmful to the case. If they will be beneficial, then it is an easy calculus: does the time waiting for those results outweigh the delayed result of the case? In serious cases, this answer is typically a clear yes; this is because a lower charge, less incarceration/supervision, or a sealable criminal record are worth a few months extra on pretrial conditions of release. However, in less serious cases, that wait for forensic analysis, even analysis in the client’s favor, may prolong the juvenile’s time in the court system given the multitude of deferred prosecutions and non-plea options available. With these cases, the threat of a harmful lab report for the State may be enough to negotiate a slightly better result.

The more complicated issues emerge when the forensic analysis is expected to result in a harmful final report for the client. In these cases, there is a decision to be made: to move fast or move slow. To resolve quickly, the attorney can utilize the delay in forensic analysis and push the court to an exclusion of evidence if it is completed by the time of the contest. Many juvenile courts would prefer to hold contested hearings as quickly as possible, even without all the evidence available. If the State is not in agreement to exclude the evidence, then there is the option of stipulations and agreements to what is known or expected to be known. These could range from simple pretrial agreements that no party will mention that forensic evidence was even collected (removing any issue of positive or negative inference of what that delayed analysis would have shown), to stipulations that items were collected but no analysis was completed on them and no inferences to be made. An additional option for moving fast is to utilize the months-long delay in the forensic analysis as a bargaining chip if the case will be resolved outside of contest. Many juvenile prosecutors are more willing to negotiate when the alternative is a months-long delay and drawn-out technical proceedings.

If the plan is to move slowly, then there needs to be an intent to fully and completely litigate the scientific issues that a harmful forensic laboratory report can bring forward. If the intention is to wait for the completed analysis, the attorney must begin the discovery process of the full laboratory case file, a background of all analysts and technicians, as well as build an understanding of the scientific principles at hand. Having an expert review the analysis places additional pressure on the Prosecutor to also learn the science, protocols, and laboratory issues at hand. If the analysis includes anything but the most routine established analysis, then there is the possibility to push for evidentiary hearings and Daubert hearings. Depending on the case and the age of the client, this may be a positive resolution for the case if the clock runs out, leaving little to no jurisdiction over the client regardless of the case outcome. Finally, it is important to remember that if the forensic analysis makes it to contest, the client still retains the clear right to confront the analyst who did this specific analysis. (Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S. 647 (2011)).  These confrontation clause issues are especially important for those attorneys practicing in rural areas that may require the State to fly in experts from Austin, Houston, or Dallas, depending on where the analysis was completed. Ultimately, a choice to move slowly on a case with delayed forensic analysis could add months or even a year to the path of the case, but the results can be substantial, even with an unfavorable lab report.

Jurors may see forensic science as the gold standard of evidence, but the extensive delay in completing that forensic analysis can be utilized for your juvenile client’s benefit regularly. It is vital for an attorney to know the expected timeline, realistic laboratory outcomes, and then maximize the options even though months and years of scientific delay do not fit the weeks and months of Juvenile Court focus on the client.

Current Issue: September 2021

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Features

15 | Food for Thought: Semantics and the Presumption of Innocence – By Jessica Canter
16 | 34th Annual Rusty Duncan Advanced Criminal Law Course 2021
22 | Diligent Participation Credit – By Jonathan Hyatt
23 | A Diary of Declaration Readings – By Chuck Lanehart
31 | Revolving Door: Treatment vs Incarceration – By Michelle Sandlin
35 | Juvenile Forensics: When the Wait is Worth It – By Scott Ruplinger

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
7 | Editor’s Comment
9 | Ethics and the Law
11 | From the Front Porch
12 | Federal Corner
32 | Shout-Outs

Departments

4 | CLE Seminars and Meetings
38 | Significant Decisions Report

President’s Message: September 2021

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On July 28, 2021, Texas Governor Abbott issued Executive Order No. GA-37 relating to the transportation of migrants during the COVID-19 disaster. GA-37 authorizes the Texas Department of Public Safety (DPS) “to stop any vehicle upon reasonable suspicion of” transporting illegal migrants and to impound any such vehicle. On July 27, 2021, Governor Abbott issued a letter ordering the Texas National Guard (TNG) to “assist DPS in enforcing Texas law by arresting lawbreakers at the border.” On August 3, 3021, Judge Kathleen Cardone of the United States District Court for the Western District of Texas, El Paso Division, issued a temporary restraining order finding that the United States Department of Justice would likely prevail on its claim that GA-37 violates the Supremacy Clause of the United States Constitution because it conflicts with federal immigration law and that GA-37 “causes irreparable injury to the United States and to individuals the United States is charged with protecting, jeopardizing the health and safety of non-citizens . . .” United States v. Texas, Cause No. EP-21-CV-173-KC (W.D. Tex., August 3, 2021).

Caught in the middle of all this are hundreds of indigent migrants. In Val Verde County, Del Rio, Texas, DPS has installed chain link fences on private property at the border and, when migrants breach the fences or enter private property, the migrants are arrested by DPS for the misdemeanor offenses of trespassing or criminal mischief. (https://www.texastribune.org/2021/07/30/texas-greg-abbott-border-security/) Governor Abbott has converted the Briscoe state prison in Dilley, Texas into a state jail to house these arrested migrants. Id. This is approximately 100 miles from Del Rio, Texas. Id. These indigent migrants are charged, magistrated with a bond set at a processing tent, and then transported to Dilley, Texas to await the outcome of the charges. Id.

There exists marked confusion by DPS in Del Rio regarding how these Texas laws are affected by migrants who are seeking asylum. Id. For instance, on July 30, 2021, it was reported that a migrant husband-wife couple from Venezuela were seeking asylum when DPS arrested the husband for trespassing. Id. It was the understanding of the local sheriff that families and children were supposed to be handled by Border Patrol and not DPS. Id. A local Border Patrol agent was confused about why DPS arrested this family member. Id. The sheriff intervened resulting in the husband being reunited with his wife and turned over to Border Patrol for asylum processing. Id.

Hundreds of people have been arrested by DPS, and the Val Verde County Attorney’s office is now overwhelmed with these cases. Id. It has been reported that the County Attorney expects to offer time served to most of these defendants. Id. The Texas Indigent Defense Commission has begun to direct funding to help with court-appointed attorneys for these defendants. Id. Val Verde County, however, does not have enough attorneys to cover this number of new cases. Criminal defense attorneys from around Texas will be needed to help these indigent, migrant defendants.

The Texas Criminal Defense Lawyers Association has many wonderful attorneys who would be willing to assist with these cases. The concerns of TCDLA, however, are that a quick guilty plea of time served may not be appropriate for these cases. Our concerns are many. How fairly was the bail amount determined? How quickly will a pre-trial habeas motion to decrease bail be heard? What are the effects of a plea on the asylum or immigration situation for the migrant? How will Padilla letters be obtained for the migrant to answer immigration concerns and who pays for this? Who will pay for travel and lodging at Del Rio to examine the alleged crime scene and to then travel to Dilley to meet with the client? Who will pay for the investigators needed to help prepare the case? Who will pay for mental health experts and other potentially necessary experts to help prepare the case? Who will set the court-appointed rates?

These are questions we in TCDLA have for our clients every day. These are questions that should also be answered for these indigent, migrant defendants in Del Rio. TCDLA attorneys are always up to the task for providing an excellent defense for clients in these situations. I look forward to seeing how TCDLA attorneys are again up to the challenge and how they will provide excellent defenses for these defendants in Del Rio.

Chief Executive Officer’s Perspective: Change is Now

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With Texas opening back up and members faced with more in-person contact, TCDLA is moving at full speed. We continue to deal with change – Covid variants cropping up, new executive orders. We must also now contemplate a second special session, which includes “bail reform” on the agenda. To that end, we will present a legislative update in September. For now, you’ll find a Legislative Update Paper in the members-only section of our website. TCDLA will do everything possible to keep our members up to snuff on every new change, legislative or otherwise. As soon as our legislative cheatsheet is revised, we will share it as a free member benefit.

Our volunteer forces are also mustering to provide help as needed. Our COVID Task Force, co-chaired by Allison Clayton () and Nicole DeBorde Hochglaube (), maintains a timely COVID resource page on TCDLA’s home page, with useful motions, tools, and other resources. As always, if you are being threatened or found in contempt, contact our Strike Force, led by co-chairs Wm. Reagan Wynn () and Nicole DeBorde Hochglaube (). Confronted with an ethical dilemma? Call our Ethics Hotline, and Robert Pelton or one of the committee members will assist you.

Other volunteers on our committees are also contributing to the team effort. Our Amicus Curiae Brief Committee, steered by Chair Niles Illich, has been hard at work this month preparing several new briefs. The Technology Committee is assessing new apps and databases, along with security programs and other tools to enhance your member experience. If you have not visited our committee page, by all means click on the “About” tab on the TCDLA website. We list more than 30 committees there, all designed to assist our members. If you want to join one and contribute to the effort, let us know. We cannot succeed without our members; they make everything possible.

Also of note, TCDLA is working with LPDO and TIDC on responses to Operation Lone Star. As part of Operation Lone Star, Governor Abbott bolstered the law-enforcement presence along the border. The number of immigrants arrested for criminal trespass or related offenses has subsequently mushroomed. More criminal defense attorneys are now needed to lend a hand representing those arrested under this heavy-handed program. We emailed information and have posted this, but you can learn more by emailing or visiting https://www.lpdo.org/.

For those who’ve needed a break from the madness, our monthly zoom meetings with TCDLA past presidents have provided welcome relief, wherein our gentle giants gather, brainstorm, and continue to lead the charge from behind the scenes. They let me crash their meetings, listening in on so many amazing stories. I love the laughs and camaraderie, the obvious affection they share for one another. It reenergizes me every time I visit.

And finally, we’re preparing for the Tim Evans Texas Criminal Trial College, featuring deans Kerri Anderson Donica and Lance Evans and emeritus deans Lydia Clay-Jackson and Tim Evans. We have a cohort who’ve been waiting since March 2020 for the college, and they’re excited for the opportunity. But don’t forget all our other upcoming seminars: Visit our website to sign up. It has been too long since we’ve seen each other! Nothing can surpass the feeling when can we come together, not only reconnecting but also sharing strategies – and assisting one’s brothers and sisters.