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November 2021

November 2021 SDR – Voice for the Defense Vol. 50, No. 9

Voice for the Defense Volume 50, No. 9 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

What do you get when you combine, in a single lawyer, a level of intelligence that is sought after for employment simultaneously by the district attorney and the district judges in a single county, and a level of intelligence not sufficient to decline one or the other spanning a fifteen-year period? Answer: one reversal this month and probably hundreds if not thousands to come in Midland County. We’ll also delve into evidentiary search warrants versus instrumentality and contraband search warrants for the first time since the bar exam. As Ray Arnold would say “hold onto your butts” Steven Spielberg. Jurassic Park. Universal Pictures, 1990. It’s about to get significantly decision-like.

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.

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

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

United States v. Moparty, 11 F.4th 280 (5th Cir. 2021)

Issue. When the Government elicits evidence of a co-defendant’s guilty plea for the apparent purpose of showing their prosecution is righteous, does the trial court abuse its discretion in denying a motion for mistrial?

Facts. Defendant and co-conspirators were convicted for various health care fraud schemes. One co-defendant pleaded guilty and was convicted before trial. The government presented this as evidence of their righteous prosecution. They introduced it as a fact in opening, and twice elicited it through witness testimony.

Holding. No. Not here. “Defendants are entitled to have questions of guilt based on the evidence against them, not on whether a government witness or a codefendant has plead guilty to the same charge.” Error in admitting a co-defendant’s guilty plea is analyzed using a four-factor test: “(1) the presence or absence of a limiting instruction; (2) whether there was a proper evidentiary purpose for introduction of the guilty plea; (3) whether the plea was improperly emphasized or used as substantive evidence of guilty; and (4) whether the introduction of the plea was invited by defense counsel.” Here, the court gave the jury a limiting instruction in both instances where the State introduced evidence of the co-defendant’s guilty plea. While there was no proper evidentiary purpose for this evidence (did not thwart a defense nor head off impeachment of the witness), the introduction of guilty plea evidence did not overcome the presumption that the limiting instruction was effective. Moreover, the strength of admissible evidence “overwhelmingly eclipsed” any harm that came from the introduction of the co-defendant’s guilty plea. The district court did not abuse its discretion in denying defendant’s motion for mistrial.

Comment. The opening paragraph of this opinion reads: “Some inexcusable trial errors were committed or permitted by the government, which counsel on appeal explained as the reason for an incredibly long (132-page) appellate brief: the government wanted to make abundantly clear that the errors were “harmless.” Nonetheless, we AFFIRM.” Since I’m the summary guy, let me summarize: “GOV’T: what we did was inexcusable, but here’s an excuse,” “COURT: we excuse you.”

United States v. Martinez, 12 F.4th 473 (5th Cir. 2021)

Issue. Federal Sentencing Guideline sentences rely heavily on drug quantities, and a trial court can extrapolate drug quantities from any reliable information. Does a trial court commit error in a multi-drug prosecution and multi-drug sentencing case by arbitrarily attributing 100 percent of seized cash as proceeds from the sale of a drug which results in the highest guideline sentencing range?

Facts. Defendant pleaded guilty to a drug conspiracy charge after law enforcement raided his tobacco shop and found marijuana, cocaine, THC, and other paraphernalia. Law enforcement also found $12,424 in cash. Because the defendant pleaded guilty to a conspiracy involving different types of drugs, the federal sentencing guidelines provide for an all-drugs-combined “converted drug weight” to establish a single base guideline level or starting point for calculating a guideline sentence. In addition to this, the proceeds of drugs can be converted into additional drug quantity based on the drug sales from which they are derived. Here the initial presentence investigation report treated the $12,424 in cash as proceeds from marijuana sales. But upon realization that the defendant could be saddled with a higher converted drug weight and larger sentence if the court treated the full $12,424 as proceeds from cocaine, the probation officer amended the presentence investigation report to treat the full amount as cocaine proceeds. The resulting converted drug weight was three kilograms above the threshold for a base level offense of 24.

Holding. Yes. “A sentencing court can extrapolate the quantity of drugs from any information that has sufficient indicia of reliability to support its probable accuracy.” But a trial court commits clear error when it bases its extrapolation on a presentence investigation report that relies upon speculative inferences and conclusory statements. Here it was clear error to treat all the seized cash as cocaine proceeds. The cash could have been proceeds from tobacco sales, marijuana sales, THC sales, or Xanax sales.

Texas Court of Criminal Appeals

State v. Lujan, No. PD-0244-19 (Tex. Crim. App. 2021)

Issue. Defendant gave incriminating statements during a secretly recorded car ride to locate a victim’s body. Did the previously provided statutory Miranda rights (Texas Code of Criminal Procedure Article 38.22), waived by the defendant while in an interrogation room, carry forward to a subsequent interrogation disguised as a car ride?

Facts. The defendant gave statements during three separate custodial interrogations. During the first and third interrogations defendant was warned as required by Texas Code of Criminal Procedure Article 38.22 (statutory Miranda rights), but she received no such warnings during her second interrogation. In her first interview, defendant told officers she was aware of the details of a murder and the people involved. She admitted she was forced to help tape the bags containing the victim’s remains, joined a caravan of vehicles to a location to dispose of the body, but bailed on the caravan before reaching the final destination. Defendant offered to take detectives to the last known location of the caravan. While in the police vehicle looking for the victim’s body, the second, secretly recorded, warning-less and waiver-less interrogation occurred. During this interrogation defendant “gave a free-wheeling narrative about Trejo’s death, the kidnappings of two other people, her drug use, drug smuggling, and prostitution, the ‘tweaker’ lifestyle, and her underworld compatriots.” After returning, detectives eventually placed defendant back into an interrogation room, provided Article 38.22 warnings, and questioned defendant further about the things she discussed while in the car.

Holding. Article 38.22 prohibits the State’s use of custodial interrogation unless, among other things, interrogators: (1) record a warning the suspect of his rights surrounding an interrogation, and (2) a knowing, intelligent, and voluntary waiver. “The required order is to first warn, waive second, and confess third, and these things must appear in the recording itself. . . . Only ‘warned and waived’ custodial statements are admissible in evidence.” A defendant’s waiver must be a free and deliberate choice made with full awareness of the nature and right abandoned and the consequences of abandonment. “The waiver’s validity depends on, among other things, a showing that the defendant was aware of the State’s intention to use his statements to secure a conviction. . . . A waiver secured by deception is not voluntary.” Here, there was no valid waiver with respect to the in-car statements. The stark contrast between the formalities and warnings preceding the interrogation room statements and the “unceremonious and indecorous” nature of the surreptitiously recorded in-car statements worked to mislead the defendant and weighs against a valid waiver. The fact that detectives insisted on the car ride when defendant expressed a preference to merely tell them where the body was located weighs against a valid waiver. The fact that one detective remarked that the interrogation could continue when they return from locating the body further worked to mislead the defendant and weighs against a valid waiver. The detectives conduct in disguising an interrogation as a car ride to locate a body also weighs against a valid waiver. The State argues that Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005) permits the use of unwarned unwaived statements when they are made as a continuation of a previous warned and waived interrogation. But Bible lacks the elements of deception that exist in this case. Bible signed numerous waiver forms, his unwaived and unwarned statements were given in close proximity to and under similar circumstances as his warned and waived statements. Here, the totality of the circumstances show deception to obtain an unwarned and unwaived confession. 

Concurrence (Yeary, J.) agrees with the majority opinion but would not agree with the majority’s suggestion that Article 38.22 warnings can continue to a future unwarned unwaived interrogation. Article 38.22 requires a separate warning for each recording made.

Concurrence (Newell, J.) “It is unclear whether Bible focuses on the voluntariness of the statement, the issue of whether the second statement was a continuation of the first, or the effectiveness of a reference to warnings in an earlier statement upon a defendant’s decision to make a later statement.” Bible’s usefulness should be limited to inquiries about whether “whether statutory warnings given in a second statement are a fully effective equivalent of statutory warnings given in the first.”

Dissent (Keller, J.) Either the car interrogation was a separate and distinct interrogation for which no warnings were provided and the analysis ends there, or the car interrogation was a continuation of the interrogation room interrogation and this Court should remand for analysis under Bible. Balanced under the factors of Bible, the car interrogation was a continuation.

Comment. There are jokes here about distinguishing [the] Bible. “The instant case is not consubstantial with Bible . . . ?” I don’t know. I’ll keep workshopping it.

Ex parte Couch, No. PD-0349-21 (Tex. Crim. App. 2021)

Issue. The Penal Code’s prohibition on money laundering might include conduct that constitutes an unconstitutional “thought crime” by penalizing the intent to finance or invest funds the defendant believes are intended to further the commission of criminal activity. Is a facial challenge to the validity of the money laundering statute cognizable on a writ of habeas corpus when the State pleaded alternatively that the defendant: (1) intended to finance or invest, and (2) actually financed or invested?

Holding. No. Even if the court struck the complained-of portion of the statute, the State has charged the defendant alternatively with an unchallenged portion of the statute. A pretrial writ is not cognizable if it does not grant the defendant relief from the prosecution. It appears the prosecution would proceed notwithstanding a ruling for the defendant on appeal, thus the court of appeals should address this issue as a matter of congizability.

Villafranco v. State, No. PD-0488-20 (Tex. Crim. App. 2021)

Issue. Rule 412 (Rape Shield Rule) requires an in-camera hearing to determine the admissibility of past sexual behavior of an alleged victim. Both the defendant and the State are entitled to be present and ask questions. Is it reversible error for the trial court to exclude the defendant and the State?

Facts. “At trial, Appellant sought to ask the victim about a previous incident of sexual abuse by someone else to rebut medical evidence offered by the State [the suggestion that vaginal scarring was consistent with the accusation that the defendant penetrated her]. The trial court questioned the victim outside the presence of the parties [without objection] and ruled the evidence of prior sexual abuse inadmissible. The State and defense now agree that the trial court failed to follow the proper procedure for a hearing under Rule of Evidence 412, also known as the “rape shield” rule, and erred in excluding the State, defense counsel, and Appellant from the hearing. The court of appeals affirmed the trial court, concluding that Appellant did not show harm [and rejecting defendant’s contention that the error was structural harm].”

Holding. Sort of. Under Rule 412 (Rape Shield Rule) specific instances of past sexual behavior are admissible to rebut or explain medical evidence presented by the State. The trial court must hold an in-camera hearing on the record to determine whether such evidence is admissible. Both the State and the Defense are entitled to question the witness during this hearing. When the trial court fails to follow this procedure, the proper remedy on appeal is to abate the appeal and remand the case to conduct a retrospective hearing where the defendant has an opportunity to show admissibility and thus harm in the exclusion of testimony. Here, the trial court’s error prevented defendant from adequately developing a necessary record. The exclusion of defense counsel from the in-camera hearing under Rule 412 was a denial of counsel. A denial of counsel is subject to review on appeal despite the lack of a trial court objection if it pertains to a critical stage of the proceedings. “We concluded that a Rule 412 adversarial hearing is a critical stage of trial, and Appellant’s right to counsel was not forfeited by inaction alone.” The ruling of the court of appeals to the contrary is reversed with instructions to abate the proceedings for a proper 412 hearing whereby the defendant can properly develop whether the trial court’s error was harmful.

Dissent (Keller, P.J.) defendant was not actually denied counsel. Counsel was allowed to ask some questions before the court took complainant back into chambers for in camera examination. “Consequently, this was not a complete denial of counsel at the hearing.”

Macedo v. State, No. PD-1053-20 (Tex. Crim. App. 2021)

Issue. The State presented evidence that the defendant regularly beat his son and his wife, that he threatened to kill them, and that he had a prior conviction for domestic violence. Under these circumstances, was the trial court’s erroneous admission of the offense report which accompanied the prior conviction harmful when the prosecutor highlighted it in closing and the jury requested to review it in deliberations?

Facts. Defendant shot and killed his wife. During the guilt stage of trial family members testified about defendant’s mistreatment of the victim, their constant fighting, and defendant’s previous threat to shoot her in the head. At the punishment stage family members testified again. The recounted incidents where the defendant was mean to the victim and family members for no particular reason. Defendant’s son testified about incidents of physical abuse which included the use of a horse whip. He also recounted an incident where the defendant threatened to crash the car and kill the entire family. In addition to live witness testimony, the State introduced a prior judgment of conviction for domestic violence and, over defendant’s hearsay objection, accompanied it with an offense report describing defendant’s conduct as kicking and biting his wife in the jaw and “right eye area.” In arguing the totality of aggravating punishment evidence, the prosecutor highlighted the facts contained in the offense report and invited the jury to review the offense report during deliberations. The jury accepted the prosecutor’s invitation and requested the report.

Holding. No. “In light of all of the punishment evidence, the evidence that Appellant bit the victim one time was relatively insignificant.” He regularly beat his son with a horse whip. He regularly beat his wife. He threatened to kill his family. He threatened to kill his wife multiple times, once with a gun. He committed domestic violence. He gave false stories about the shooting to the police. “[E]ven if the jury had not learned about the biting and kicking from the police report, it would have learned from the prior judgment that Appellant was convicted of a prior domestic violence incident against his wife. Without the details, the jury would have been left to imagine what happened during that offense, and given the horse-whip testimony and the prior threat with the gun, the jury could have imagined the extraneous offense to be even worse than it was.”

Comment. I agree with the final sentiment of this opinion – I can’t imagine the jury would have imagined facts better than they were depicted in the police report if given the opportunity to consider only the judgment of prior conviction.

Rodriguez v. State, No. PD-1130-19 (Tex. Crim. App. 2021)

Issue. Self-defense is a confession-and-avoidance defense requiring the defendant to admit an offense and assert his defense. Is a defendant entitled to a self-defense instruction when he admits the actus reus but equivocates on the mens rea?

Facts. Defendant was convicted of murder. The incident involved a brawl in the parking lot after a Dallas Cowboys football game. Defendant pointed a gun at the victim who was, depending on who you believe, either pummeling his brother or trying to break up a fight. Defendant testified that he retrieved the gun to scare the attackers away, he didn’t intend to shoot the victim, and that the gun went off accidentally when someone grabbed his arm. The trial court denied the defendant’s requests for instructions on necessity, self-defense, and defense of third persons. The court of appeals found that the defendant did not satisfy the doctrine of confession-and-avoidance (admit the crime and assert the defense) and affirmed.

Holding. Probably. “Confession and avoidance is a judicially imposed requirement that requires defendants who assert a justification defense to admit, or at a minimum not deny, the charged conduct. . . . Logically, one cannot both justify and deny conduct.” This Court has previously found confession and avoidance sufficiently satisfied when the defendant admits an actus reus but still equivocates on the culpable mental state. “[A] defendant’s testimony explicitly denying a culpable mental state or asserting accident does not automatically foreclose a justification defense if his testimony may otherwise imply a culpable mental state.” “Refusing the defensive instructions in [such cases] would violate a court’s duty to look at the evidence in the light most favorable to the requested instruction. The refusal would depend on accepting as true the defendant’s express denial of intent and ignoring his admissions about having hurt or killed the victim in response to the victim’s aggression. Such admissions would imply the requisite intent even if the defendant otherwise denies it.” Here, defendant testified that he had his finger on the trigger and gripped the gun tightly when he pointed it at the victim at close range. This sufficiently demonstrates an intent to kill.

Comment. Even though the Court of Criminal Appeals has steadily chipped away at confession and avoidance, some courts of appeal still use it as one of their top favorite ways to get rid of cases involving self-defense.

Simms v. State, No. PD-1248-19 (Tex. Crim. App. 2021)

Issue. Is some evidence showing that a recklessly speeding defendant actually passed out the moment before veering into oncoming traffic and killing an oncoming motorist sufficient to trigger a lesser-included-offense instruction on deadly conduct in an aggravated assault prosecution?

Facts. A jury convicted defendant of aggravated assault for recklessly causing a fatal head-on car accident while speeding. Defendant drifted into oncoming traffic inside the Washburn Tunnel in Houston while going between 58 and 62 miles per hour. Defendant admitted he was speeding in the tunnel but testified that he dozed off or passed out while driving prior to the collision. Defendant requested a lesser-included-offense instruction on deadly conduct. He argued that some evidence showed the collision was the result of his involuntary non-reckless act of losing consciousness and “if the jury believed his testimony that he passed out or dozed off prior to the accident, it could have rationally concluded that he was reckless only with respect to his speeding, but not with respect to actually causing the head-on collision.” The trial court denied defendant’s request.

Holding. Yes. Entitlement to a lesser-included-offense instruction requires a two-part test: (1) determine whether the proof necessary to establish the charged offense includes the lesser offense, and (2) determine whether there is some evidence in the record that would permit the jury to rationally find that, if the defendant is guilty, he is only guilty of the lesser offense. Anything more than a scintilla of evidence will do. Here there is no dispute that deadly conduct is a lesser-included-offense of aggravated assault. In a reckless aggravated assault prosecution, the State must show that the defendant’s reckless act actually caused the end result. “In contrast, a person commits deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.” Aggravated assault is a result-oriented offense, meaning the defendant must be shown to have been reckless with respect to the result of serious bodily injury. Deadly conduct is not a result-oriented offense, meaning the defendant must only be shown to have been reckless about his actions which placed another in imminent danger of serious bodily injury, but not with respect to any particular result. If the jury believed the defendant’s speeding-then-dozing-off story, then defendant was reckless with regard to his speeding, but not reckless with respect to actually causing the victim’s serious bodily injury “because the conduct leading to that result was committed involuntarily and unconsciously.” The speeding, alone, could not have caused the collision and the defendant’s loss of consciousness, if believed, would constitute an intervening cause.

Dissent (Yeary, J.) The speed caused the injury and defendant recklessly sped before losing consciousness.

Ex parte Harris, No. WR-78,077-02 (Tex. Crim. App. 2021)

Facts. Evidence at trial showed that when officers approached a drug house, a man took off running and got away. A witness in the home described the man who got away and provided the nickname “Man.” Based on witness statements an officer was able to identify the man known as “Man” as the defendant. Two witnesses at trial testified that defendant was not the man known as “Man” and that the defendant wasn’t present at the home when officers arrived. Another witness testified that he and appellant were together all day at his home during the drug bust. Some evidence at the scene did connect defendant to the offense, including a pit bull (defendant was known to own a pit bull) and a Cadillac (defendant’s sister owned a Cadillac). Defendant presented substantial evidence in a habeas hearing that the person known as “Man” is Orlando Noble who bears a strong resemblance to the defendant. Harris County District Attorney’s Office Conviction Integrity Unit interviewed Noble. Noble denied being at the house, but admitted his nickname is “Man.” The trial prosecutor testified at the habeas proceeding that defense counsel had explained to him that Orlando Noble was the person they were seeking. The trial prosecutor showed a picture of Noble to the officer who chased him and that officer could not identify him. At trial the chasing officer testified with 100% certainty but based on the recent developments testified at the habeas hearing that me might have gotten it wrong. At the time of trial the Houston Police Department Gang Tracker database failed to show any similarities between Noble and defendant. Now, 10 years later it shows striking similarities in the appearance between Applicant and Noble.

Holding. Based on evidence presented, defendant has established actual innocence.

Concurrence (Yeary, J.). This isn’t actual innocence – there remains some suggestion that the defendant is still the person known as “Man.” However, the disparities in the Houston Police Department Gang Tracker database between the time of trial and what it shows presently constitutes new evidence sufficient to grant habeas relief.

Comment. Not the first time the man got the wrong man, man.

Ex parte Cook, No. WR-91,503-01 (Tex. Crim. App. 2021)

Issue. When a defendant is driving while intoxicated with a child passenger, can the State convict the defendant of two offenses when there are two child passengers?

Holding. No. The unit of prosecution in a DWI with Child is the act of driving. The offense is both a nature of conduct offense (driving while intoxicated) and circumstances surrounding conduct offense (with a child passenger). “A circumstance element can prescribe the gravamen of the offense if it makes otherwise innocent conduct criminal.” Here it doesn’t.

Comment. Toughness should at least be commensurate with knowledge of the law. Here one trait outpaced the other. 

Biggers v. State, No. PD-0309-20 (Tex. Crim. App. 2021)

Issue. The statutory scheme for codeine possession requires proof of more elements (particularized chemical ratios) as its associated Penalty Groups decline in severity. The highest penalty group for codeine possession is possession of pure codeine and requires no proof of chemical ratios. When the State fails to prove chemical ratios fitting the penalty group they alleged, are they entitled to a conviction on the highest penalty group? Are they nonetheless entitled to some form of a conviction?

Facts. The State charged defendant with possession of codeine as described in Penalty Group 4 (with a particular ratio of codeine and medicinal nonnarcotic substance). A jury convicted defendant of possession of codeine, a Penalty Group 4 substance. However, at trial the State’s chemist did not thoroughly discuss chemical ratios (here codeine and promethazine). The state did not perform quantification testing on the substance. The chemist did not testify that the substance mixed with codeine (promethazine) had “valuable medicinal qualities” either alone or when mixed with codeine as required by the Statute. The Court of Appeals reversed and rendered a judgment of acquittal on the basis of no evidence establishing the particular ratio of codeine and medicinal nonnarcotic substance (promethazine).

Holding. No and No. “The Texas Health & Safety Code establishes different tiers of punishment for codeine possession:

    • Penalty Group 1: Codeine not listed in Penalty Group 3 or 4.
    • Penalty Group 3: A mixture of not more than 1.8 grams of codeine . . . per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonncarcotic ingredients in recognized therapeutic amounts.
    • Penalty Group 4: a mixture that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the . . . mixture . . . valuable medicinal qualities other than those possessed by the narcotic drug alone and not more than 200 milligrams of codeine per 100 milliliters or per 100 grams.”

Here, “[t]here is no question that promethazine is present in the mixture.” The defendant admitted the substance was “lean,” the chemist testified that it smelled like cough syrup and that the substance contained “an unspecified amount of codeine and promethazine.” What the chemist failed to do was testify that the combination of promethazine and codeine created a compound with medicinal qualities other than those produced by codeine alone. With this failure, the jury was prohibited from convicting the defendant as charged—under Penalty Group 4. This failure cannot result in Codeine possession under Penalty Group 1. Codeine possession under Penalty Group 1 is the possession of codeine that does not fall in Penalty Group 3 or 4. “To put it simply: The State must negate the possibility that a mixture was a Penalty Group 3 or 4 substance. Because we lack proof that the substance in this case is not a Penalty Group 4 Substance, we cannot say it is then a Penalty Group 1 substance.”

Dissent (Keller, J.). Would affirm the conviction as a penalty group 4 conviction. Proportions of substances under this statutory scheme are mitigating factors. “Of course, the State has to prove that the substance lacks the mitigating characteristics of penalty group 4 codeine in order to obtain a conviction for penalty group 1 codeine. As the Court explains, the State has not done this. So, the State cannot obtain a conviction for penalty group 1 codeine.”

Dissent (Slaughter, J.) Would affirm the conviction as a penalty group 4 conviction. “We have never required a chemist to explicitly recite the relevant statutory language or use magic words to support the finding that the ‘valuable medicinal quality’ element was satisfied.”

Comment. Albeit correct in the outcome, the opinion somewhat mischaracterizes the State’s position. I read the entirety of the State Prosecuting Attorney’s brief because I was bothered by what their argument appeared to be on the face of the opinion: “we are entitled to convict a person of a greater crime we know he didn’t commit because we failed to prove the lesser crime we know he did.” But that’s not quite what they’re saying. The State’s position is that “valuable medicinal qualities” is simply a fact the State must disprove to obtain a PG-1 conviction and thus “[d]espite its placement in PG-4, it should only affect PG-1.” In other words, the State’s success in proving codeine but failure to prove the statutory ratios should result in a conviction of the lowest penalty group by default. Regardless of how the one reads the State’s argument, it is nice to see the CCA aim a brushback pitch at the State and their contention that the defendant’s argument was the absurd one. “When the State brings a defendant to trial for possession of a specific penalty group (where that penalty group requires a specific quantity and proportion analysis), fails to ensure that the proper testing is conducted, and fails to provide testimony to the jury as to the specific quantity and proportion analysis as required by statute, and then turns to this Court to invent a creative way to uphold this conviction, perhaps this is a scenario that borders on absurdity.”

Sanchez v. State, No. PD-0593-20 (Tex. Crim. App. 2021)

Issue. When a defendant executes a jury trial waiver in anticipation of an agreed plea but ultimately rejects the State’s plea agreement, does the trial court abuse its discretion to enforce the jury trial waiver and force the defendant to a trial before the court?

Facts. Defendant executed a jury trial in anticipation of an agreed plea. Procedurally, he had reset his case on a few occasions, some having to do with his request to have a Spanish speaking attorney. Prior to reaching an agreement, defendant had set his case for jury trial. On a date preceding his trial setting, defendant appeared in court for purposes of accepting a plea agreement. He expressed hesitation and effectively communicated to the trial court that he did not wish to withdraw his jury trial waiver. The trial court denied the defendant’s request and set the case for a trial before the court.

Holding. Yes. “[A] defendant who executes a jury waiver in anticipation of a negotiated guilty plea, and then balks at executing the plea and immediately seeks the reinstatement of his right to a jury trial, should be [entitled to have his wish respected].” Even if this nuance were not dispositive, the trial court abused its discretion under the Hobbs v. State, 289 S.W.3d 193 (Tex. Crim. App. 2009) analysis of a defendant’s right to withdraw a jury trial waiver: (1) orderly administration of business of the trial court, (2) unnecessary delay or inconvenience to a witness, (3) prejudice to the State. The State articulated witness reticence, but reticence was not attributable to the defendant’s waiver of a jury trial. If anything, it was attributable to the fear of testifying—something required from the witness in either instance. The delay and administration of court business would have similarly been insignificant had the trial court permitted defendant to continue to jury trial which the trial court had already docketed for two weeks after the date the defendant was supposed to enter his plea of guilty. The matter was only reset by virtue of the State amending the indictment and triggering the defendant’s right to 10 days of preparation.

Comment. The opinion highlights a colloquy between the trial court and the Spanish speaking defense counsel where the trial court interrogates counsel about the details of the advice provided by counsel pertaining to the defendant’s waiver of a jury trial. Counsel gave a detailed account of his communications with the defendant. I’m not entirely sure the trial court is entitled to this information from counsel.

Ex parte Young, No. WR-65, 137-05 (Tex. Crim. App. 2021)(not designated for publication)

Issue. [Although the answer is obvious] can a prosecutor work for the district judges as a clerk and legal advisor in cases where he is directly and indirectly involved or even simply employed as a prosecutor?

Facts. Ralph Petty, the chief appellate and writ counsel for the Midland County District Attorney’s Office moonlighted as a clerk and legal advisor to the district judges in cases where his office represented the State of Texas. His employment with the district judges was described as follows: “When a habeas application was filed, the judge of the convicting court assigned the writ to Petty. He then reviewed the file, performed any necessary research, and submitted a recommendation and a proposed order with findings of facts and conclusions of law to the assigning judge.” This went on for fifteen years. The current elected district attorney, Laura Nodolf, initiated an investigation resulting in the DA’s office sending “letters to each of the defendants for whom Petty had billed the district court judges for work on postconviction writs—some 300 plus defendants—to inform them of the ‘ethical situation.’” In the instant case—a capital murder prosecution—two separate prosecutors represented the State, but “Petty was actively part of the prosecution team. Petty was basically the legal advisor to the team that was prosecuting the case and probably drafted just about every single motion in that case that the prosecution filed.” During the pendency of defendant’s prosecution Petty was paid $16,700 by the district judges. Petty represented the State during defendant’s first subsequent writ proceeding that was denied by the trial judge paying Petty. During the pendency of the instant writ, Petty resigned from the State Bar of Texas in lieu of disciplinary action and the Supreme Court found the facts established violations of Texas Disciplinary Rules of Professional Conduct, Rule 1.06(b)(2)(conflict of interest by virtue of other employment or personal interests). He also evaded testimony by claiming Fifth Amendment privilege.

Holding. No. “Applicant Clinton Young’s structural due process rights were violated by Judge Hyde’s employment of Petty as a judicial clerk while Petty was prosecuting Applicant for capital murder before Judge Hyde.” “The record demonstrates that Petty was serving two masters.” A fair tribunal is a fundamental requirement of due process. Impartiality is a fundamental requirement of the public’s confidence in the judiciary. “Judicial and prosecutorial misconduct—in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him—tainted Applicant’s entire proceeding from the outset. As a result, little confidence can be placed in the fairness of the proceedings or the outcome of Applicant’s trial.”

Comment. The Court’s opinion implies that every case Petty touched for 15 years is tainted. And the judges involved are as culpable as Ralph Petty. Only two Midland County judges involved during the Ralph Petty era are still sitting as judges in Midland County. Kudos to the TCDLA Amicus committee on their extensive involvement in this case. There’s a lot of work to be done now in Midland County.

Roland v. State, No. PD-0035-21 (Tex. Crim. App. 2021)

Issue. Historically, district courts had exclusive original jurisdiction over misdemeanors involving official misconduct. Does that remain true today?

Facts. Defendant was prosecuted for and convicted of official oppression in a Fort Bend county court at law. The Court of Appeals found the conviction void and explained “neither the Code of Criminal Procedure nor the Government Code grants original jurisdiction over misdemeanors involving official misconduct to county courts at law” and that Article 4.05 of the Code of Criminal Procedure grants such jurisdiction to district courts.

Holding. No. The court of appeals’ opinion relies on case law which predated a 1985 amendment to the Texas Constitution. At that time the Texas Constitution contained a specific provision giving district court jurisdiction over official misconduct misdemeanors. The Constitution now reads “District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive appellate or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.” Thus, the court must look here to “other law.” Article 4.05 confers original jurisdiction on the district court, but not exclusive jurisdiction. A county court at law has original jurisdiction of “all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed five hundred dollars.” Article 26.045 excludes from county court “exclusive original jurisdiction” offenses involving official misconduct, but does not prohibit the exercise of “original jurisdiction.” The legislature has provided that the exercise of any jurisdiction by a county court over cases of official misconduct in the following counties: Atascosa, Bowie, Calhoun, Hopkins, Hunt, Kaufman, Navarro, Rockwall, and Van Zandt.

Comment. Weird.

Do v. State, No. PD-0556-20 (Tex. Crim. App. 2021)

Issue. The State read a DWI charge to the jury and omitted the allegation that the blood alcohol concentration (BAC) was 0.15 or greater; the State similarly omitted the same allegation from the jury charge. Under these circumstances: (1) did the State fail to join the 0.15 allegation for consideration in this trial? (2) may the State maintain a jury verdict of 0.15 on which no jury passed its judgment?

Facts. The State charged the defendant with driving while intoxicated with a blood alcohol concentration (BAC) of 0.15 or greater. At trial the State did not read the 0.15 BAC allegation to the jury and the jury charge omitted instructions to consider this element. During the punishment phase, the State read the 0.15 allegation and defense objected and argued that the fact of blood alcohol concentration was an element of the offense to be determined by the jury. The trial court overruled defendant’s objection and convicted him of driving while intoxicated with a BAC of 0.15 or greater. On appeal, the State conceded that the 0.15 element is an element of the offense which should have been submitted to the jury. The court of appeals analyzed the issue as jury charge error and reversed on a theory that the State was limited to proving intoxication by showing a blood alcohol concentration, and that the jury charge permitted proof by other definitions (mental or physical faculties). In reaching this conclusion the court of appeals pointed to some facts contained in the record inconsistent with intoxication: speaking clearly and coherently and concession by law enforcement that defendant did not appear highly intoxicated.

Holding. (1) No. Defendant advances a “failure-to-join” argument. He contends that the failure to read the 0.15 enhancement and failure to include it in the jury charge meant it was never joined as part of the case at the guilt stage of trial. This argument should be analogized with cases where a charging instrument is read by the State late in trial. The error in such instance is not the timing of the reading alone, but the consideration of evidence before the indictment was read. The remedy is the reintroduction of evidence. This is an error which requires objection to effectuate the remedy, but defendant made none, at least until the punishment phase when the State alerted everyone that it would then proceed on its proof of the 0.15 enhancement. Because defendant’s failure-to-join argument as it pertains to an errant element omitted from the reading of the indictment gets messy under these facts, “we conclude that there is no such thing as joining issue on only some of the elements of an offense in the charging instrument.” This leaves only jury charge error. (2) Yes. “The right to have an element decided at the guilt stage of trial is a creature of statute.” The error is not structural, but rather constitutional. As such the Court reverses only unless it finds beyond a reasonable doubt “an omitted element is supported by uncontroverted evidence . . . where the defendant did not, and apparently could not, bring forth facts contesting the omitted element.” Here the results of the BAC test were uncontroverted, and the error was therefore harmless beyond a reasonable doubt.

Concurrence (Richardson, J.)(joined by Hervey and Newell). The Court should state specifically whether the 0.15 element is a punishment enhancement or offense element.

Concurrence (Newell, J.)(joined by Hervey, Richardson, and McClure). The Court should state specifically whether the 0.15 element is a punishment enhancement or offense element. It is a punishment enhancement.

Dissent (Yeary, J.)(joined by Slaughter). The 0.15 element is an offense element. “Once again, as in Niles v. State, 555 S.W.3d 562 (Tex. Crim. App. 2018), this Court puts the onus on a defendant to object on the State’s behalf when the jury charge fails to require the jury to find an essential element of a greater-inclusive offense, thus resulting in the defendant’s de facto conviction for a lesser-included offense.” “It seems anomalous to me . . . that we should allow the State to convert Appellant’s true point of error on appeal into a claim of jury charge error that the State did nothing within its power at trial to prevent. . . . We should treat Appellant’s appellate claim for what it purports on its face to be and for what it truly is: a claim that his one-year jail sentence was illegal, since he was convicted only of a Class B misdemeanor . . .”

Dissent (Walker, J.)(joined by Yeary). “Party responsibility” for not objecting to the jury charge should not fall to the defendant when the State omits an element of the State’s case. Appellant’s “party responsibility” was to object when the Court sentenced him to a greater offense than on which the jury convicted. He did. The State did not appeal the submission of the submission of an incorrect charge. The only issue before the court is an illegal sentence. The sentence is illegal.

Comment. The Sixth Amendment requires a jury to find each element of the offense beyond a reasonable doubt before the State can obtain a conviction. This is not “a creature of statute,” but rather United States federal constitutional law. See Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 99 (2013). Judge Yeary’s position makes the most sense to me, but it did not win the day. Now it is what it is. So going forward, during voir dire, do we raise an objection when the State says the jury must find all the elements beyond a reasonable doubt and puts their outline up on a PowerPoint slide. Because it seems the rule is that the jury just needs to find some of the elements beyond a reasonable doubt and appellate courts can fill in the blanks. This might seem overly sarcastic, but unless someone can show me the juror who gave an opinion on the 0.15 element in this case, this is what happened here.

Hernandez v. State, No. PD-0790-20 (Tex. Crim. App. 2021)

Issue. Is indecency with a child a lesser-included offense of aggravated sexual assault of a child?

Facts. The complainant accused the defendant, her father, of forcing her to perform oral sex on him while she was ten years old. The defendant testified that he did not do that, but that he instead pulled her pants down, rubbed her vagina, pulled his pants down, hugged her, and touched his penis to her torso. The trial court denied the defendant’s request for a lesser-included offense instruction on indecency by contact.

Holding. No. “An offense is a lesser-included offense if it is established by proof of the same or less than all the facts required to establish the commission of the charged offense.” A defendant is not entitled to a lesser separate offense instruction. To distinguish separate offenses from lesser offenses, the court conducts an allowable-unit-of-prosecution analysis. “Aggravated sexual assault’s allowable unit of prosecution is penetration. . . . Similarly, the allowable unit of prosecution for indecency with a child is sexual contact.” One offense involves penetration of sexual organs, the other involves simply touching the breast, anus, or genitals. 

Comment. The Court explains the flawed rationale of Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007). In that case the court attempted to foreclose any analysis which permitted a factual approach to lesser-included analysis by stating that the analysis “must be capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment with the elements of the potential lesser-included offense.” But the Hall court went on to explicitly endorse Martinez v. State, 599 S.W.2d 622 (Tex. Crim. App. 1980), a case in which used a facts-at-trial approach. The Court reconciles this using the offense gravamen analysis. But the facts of this case lent themselves to this analysis. Defendant’s theory is that he criminally touched the complainant in completely different places than he is accused of penetrating. The question remains, what if the defendant touches but doesn’t penetrate a sexual organ he is accused of penetrating?

State v. Lopez, No. PD-1291-18 (Tex. Crim. App. 2021)

Issue. Is four months of delay sufficient to trigger a full analysis of the Barker v. Wingo factors and conclude a defendant was denied his Sixth Amendment right to a speedy trial?

Facts. Defendant was arrested in April for injury to an elderly person. The court appointed counsel in May. In July, five days before the 90-day indictment-delay deadline, which would trigger a personal bond, the State dismissed the felony charge and filed a Class A Misdemeanor assault. Two hearings followed, one on July 20 and one on August 8. It appears at the July 20 hearing: (1) the trial court denied defendant’s request for the personal bond to which he was statutorily entitled, (2) the trial court ordered defendant’s competency evaluated, (3) the proceedings were not stayed as statutorily required for competency evaluation, and (4) speedy trial rights were not asserted or discussed. The August 8 hearing appears to have been the date set for trial to begin, but counsel indicated he had no notice or awareness of an August 8 trial setting. A very confusing hearing ensued where the trial court constantly went on and off the record. The trial court asked some questions about defendant’s competency, defendant’s counsel orally demanded a speedy trial and dismissal of charges, the State announced ready for trial and urged agreed-upon competency issues, counsel for the defendant then announced ready for trial. The trial court then announced it believed defendant was incompetent but granted the speedy trial motion and dismissed the case. The Court of Appeals affirmed the dismissal order in a published opinion that “allow[ed] a defendant to claim he has been presumptively prejudiced by the State’s failure to provide a speedy trial far sooner than any standard this Court has ever recognized, even though the State announce[d] ready for trial and ha[d] not been served with a speedy trial motion.”

Holding. No. Four months is an insignificant delay. “To be clear, the length of delay is a ‘triggering mechanism” for analysis of the other Barker factors, and a court does not engage in the complete analysis unless a defendant alleges that ‘the interval between accusation and trial has crossed the threshold dividing ordinary from presumptively prejudicial delay. We measure the delay from the time the defendant is formally accused or arrested to the time of trial.” Even if it were appropriate to account for future delays for competency evaluation, that delay is not the fault of the State. The State’s exercise of discretion to reduce the case to a misdemeanor instead of pursue the original felony is not a basis to blame them for four months of delay. Moreover, the defendant did very little to assert his right to a speedy trial until the August 8 hearing when he contemporaneously asked for a dismissal.

Comment. The court held that the delay in obtaining a competency evaluation is not the fault of the State but did not go so far as to say that the time for competency restoration is not the fault of the State. To be clear, it is 100% the fault of the State that a person cannot get treatment for mental health and competency restoration in a reasonable amount of time. It is 100% the fault of the State that people with mental health problems languish in county jails and serve de facto sentences for crimes they were not convicted of. The mental health crisis in this state is 100% the fault of the State. Not the defendant.

1st District Houston

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

2nd District Fort Worth

Megwa v. State, No. 02-19-00386-CR (Tex. App.—Fort Worth, Sep. 2, 2021)

Issue. Article 18.01 of the Code of Criminal Procedure literally prohibits a municipal judge from issuing a search warrant for a place that has already been searched before. Does this prohibition apply when the subsequent search involves new probable cause and a new crime?

Facts. Defendant owned a pharmacy in Denton. The State alleged she was running a “pill mill” (a pharmacy that fills fraudulent prescriptions). An investigator obtained two search warrants, the second issued a month later than the first.

A district court judge issued the first search warrant (SW1). In this warrant application the investigator accused the defendant of engaging in “diversion of controlled substances for unlawful use by virtue of her profession or employment” as well as money laundering. The warrant authorized a search of the defendant’s pharmacy and the seizure of “hard copies of prescriptions, a surveillance system hard drive, drugs, U.S. and Nigerian currency, a cell phone, computer equipment, a safe, some vehicles, cashier’s checks . . . , and various documents.”

A municipal court judge issued the second search warrant (SW2). In this warrant application the investigator again alleged the defendant “knowingly diverted to the unlawful use or benefit of another person a controlled substance to which she had access by virtue of her profession or employment.” The investigator alleged some of the same probable cause facts from SW1 but added new facts detailing a what appeared to be a controlled-buy using a cooperating suspect. This controlled-buy occurred after law enforcement had previously executed SW1. In the SW2 warrant application, the investigator shared his cooperating suspect’s account of the defendant illegally selling her drugs by swapping her name out for that of a legitimate customer. Based on the investigator’s representations, the municipal judge authorized SW2’s request to search defendant’s pharmacy for prescription bottles, currency, labels, and other documents.

Holding. No. Article 18.01(d) provides: “a subsequent search warrant may be issued pursuant to Article 18.02(a)(10) [an evidentiary search warrant for mere evidence] to search the same person, place, or thing subjected to a prior search under Article 18.02(a)(10) only if the subsequent search warrant is issued by a judge of a district court, a court of appeals, the court of criminal appeals, or the supreme court.” Search warrants issued pursuant to Article 18.02(a)(10) are “evidentiary search warrants” seeking evidence proving the commission of a crime or the identity of a suspect (“mere evidence”). They are subject to more stringent requirements than warrants authorizing seizure of evidence for some other reason under the various other articles which provide specific authorizations for specific types of evidence which are either contraband, fruits, or instrumentalities of a crime. Defendant proposes a strict literal reading of the Article 18.01’s subsequent warrant issuance prohibition / limitation. The defendant’s reading would prohibit a search of a place if that place has ever been searched before for any type of evidence for any reason at any time. This would lead to absurd results.

Case law proposes two views indicating why the subsequent search in this case was permissible. View 1: “if a warrant authorizes a search for both mere evidence and items listed under another ground for search and seizure, then the warrant is not a mere-evidentiary search warrant” and not subject to the stringent prohibition / limitation on subsequent warrant issuance under Article 18.01(d). View 2: the subsequent warrant prohibition does not prohibit the issuance of a warrant based on different probable cause for a different criminal offense. Both views assume legislative the legislative intent of prohibiting subsequent search warrants (or limiting their issuance to certain magistrates) meant to harass or serve as general exploratory searches of the same person, place or thing. Here, neither warrant was purely evidentiary. Both authorized search and seizure of evidence constituting evidence of an offense or tending to show that a particular person committed an offense as well as search and seizure of evidence of implements and instrumentalities. Both search warrants also set forth distinct probable cause for distinct criminal offenses occurring on different days. For these reasons the “subsequent” warrant issuance by the municipal judge was appropriate.

Comment. The court suggests that the Court of Criminal Appeals take this issue up. I doubt the outcome would be different. The hypothetical given by the Second Court is compelling: a strictly literal reading of the subsequent warrant prohibition would prohibit police from searching for a dead body in the same place they executed a search for methamphetamine ten years prior if the warrant was issued by the wrong type of judge. This is an absurd result not intended by the legislature.

3rd District Austin

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

4th District San Antonio

Ex parte Trevino, No. 04-20-00544-CR (Tex. App.—San Antonio, Sep. 15, 2021)

Issue. Do the rules of evidence apply in bail revocation hearings?

Facts. This is the continuation of a saga from the June edition of the Significant Decisions Report. Defendant is currently held without bail on an aggravated assault family violence allegation as the result of a motion filed by the State with an attached offense report detailing defendant’s commission of a new family violence offense committed while on release. The trial court revoked the defendant’s bond without a hearing based on the consideration of the State’s hearsay evidence. Defendant filed a motion to set his bond and the trial court conducted a hearing where it again considered the State’s hearsay evidence over the defendant’s objection. Following the trial court’s denial of his motion, defendant filed a writ of habeas corpus seeking bail. The trial court refused to issue the writ.

Holding. Yes. The rules of evidence apply in proceedings that may result in denial of bail. “In some bail proceedings, the trial court may consider hearsay evidence, but not in bail revocation proceedings when the hearsay evidence has been objected to and no exception applies.” A trial court abuses its discretion in revoking bail based on objected-to hearsay evidence. In the instant case, the trial court heard no substantive evidence from a witness with first-hand knowledge of facts sufficient to hold the defendant without bail. “Without the inadmissible hearsay evidence, there was no evidence presented to satisfy the preponderance of the evidence standard to deny bond . . . .”

Comment. The court reaches the correct outcome but leaves the lines still somewhat blurred in an area where a significant number of trial courts in this State prefer a Star Chamber model. The rules of evidence specifically apply in bail proceedings to “deny, revoke, or increase bail.” “Deny,” “revoke,” and “increase” are distinct concepts. When a judge revokes bail, the judge must either then set new bail or deny bail. A judge may also deny bail upon initial arrest. Denial of bail is saved for limited statutory and constitutional circumstances. A judge may circumvent bail revocation by simply finding the current bail insufficient. But in this scenario the judge has increased bail. So, the rules of evidence apply in all of these scenarios. But to make things simpler, here is the rule: if whatever the defendant did wrong on bail means he might have to go to jail again, the rules of evidence apply.

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

Popp v. State, No. 08-19-00298-CR (Tex. App.—San Antonio, Sep. 9, 2021)

Issue. (1) If the State intends to rely on party liability, must it plead facts sufficient to establish one of the enumerated statutory bases for party liability? (2) Is the State required to present direct evidence of an agreement to establish conspiracy liability? (3) In a prosecution for capital murder committed in the course of a robbery, is a defendant entitled to a 404(b) limiting instruction when the State introduces evidence of another robbery committed by the defendant during the same evening under similar circumstances? (4) When the State introduces a text message conversation between the defendant and a witness can the defendant use the rule of optional completeness to introduce a separate conversation involving that witness and a third person about the same subject matter?

Facts. A jury convicted the defendant for his part in a capital murder committed while robbing a drug dealer. The State’s evidence included a separate robbery committed by the defendant and his associate Soriano on the same evening. In the pre-murder robbery, defendant and Soriano robbed the girlfriend of a drug dealer at gunpoint while driving in a gray Crown Victoria. Later in the evening a witness saw an unidentified person inside of a similar Crown Victoria shoot and kill a man. Law enforcement reviewed the victim’s text messages and saw that the defendant had set up a $100 purchase of cocaine. The victim was found with a fake $100 bill and no cocaine. Witnesses identified the defendant as the driver of a similar Crown Victoria on the evening of the murder. Defendant and Soriano asked a housemate to dispose of the murder weapon and told this witness that they had “fucked up.” Defendant claimed at trial that his associate Soriano pulled the trigger without his knowledge or cooperation. Prior to trial defendant filed a motion to dismiss the indictment indicating he was unclear on which of the statutory theories of party liability the State intended to rely and pointed out the various acts which could constitute party liability (causing, aiding, promoting, assisting, failing to prevent, attempting)

Holding. (1) No. The Texas Constitution provides that the State need only notify the defendant that he has been charged with a felony—nothing more. All other complaints about an indictment are complaints as to its form and are governed by statute. Statutorily “everything should be stated in an indictment which is necessary to be proved.” Tex. Code Crim. Proc. art 21.03. But the State’s failure to adequately inform the defendant doesn’t matter if it doesn’t prejudice the defendant’s substantial rights. It is well settled that the State need not plead party liability. Requiring the State to plead party liability is unworkable. The State is entitled to use theories of party liability to rebut a defendant’s attempt to shift blame to another person. “[T]he State cannot predict with any certainty which accomplice theory will apply until the accused actually puts on his case contesting his participation in the offense as a principal.”

(2) No. “In determining whether the accused participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.” Evidence showed that earlier in the night defendant lured a drug dealer to a certain location, drove a crown Victoria with passenger Soriano, and robbed the drug dealer at gunpoint. Two hours later the defendant lured a second drug dealer to another location, drove to the same vehicle with the same passenger. The victim died from a bullet fired from the same gun. Given these facts, both knew a gun was in the car, how it would be used, that they were participating in a robbery, and played certain roles. Whoever the non-shooter was, that person failed to call 9-1-1 and seek medical attention to the dying gunshot victim.

(3) No. “When a separate offense is used to prove a main fact in the case, an instruction limiting the jury’s consideration of this evidence is generally not required. Indeed, circumstances of the offense which tend to prove the allegations of the indictment are not extraneous offenses.” This is same transaction contextual evidence. The State charged the defendant with committing murder in the course of a robbery. The earlier robbery showed that defendant and his associate were on a crime spree involving multiple robberies of drug dealers during the evening.

(4) No. At least not here. The rule of optional completeness under Texas Rule of Evidence 107 permits a party to introduce additional writings to supplement those offered by their opponent if those writings are part of the conversation or part of another conversation that is necessary to explain or allow the fact finder too fully understand the conversation. Here, the State introduced text messages between the victim and the defendant setting up a drug deal. The victim’s separate conversation with his girlfriend admitting he had no drugs to sell was not particularly relevant. The jury did not need to know the victim was not actually going to sell the defendant drugs, the issue at trial was whether the defendant believed he was robbing a drug dealer when he murdered the victim.

Comment. I’ve never seen the right to factual notice described as a mere statutory right. I have seen it describe this way, though:

Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished. ‘Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.

Hamling v. United States, 418 U.S. 87, 117–18 (1974)

9th District Beaumont

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

10th District Waco

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

11th District Eastland

State v. Martinez, No. 11-20-00144-CR (Tex. App.—Eastland, Sep. 2, 2021)

Issue. (1) Is a defendant’s aversion to being hassled by the police combined with a bit of potentially sketchy behavior enough for reasonable suspicion? (2) As long as an officer has reasonable suspicion, can he make a person wait 38 minutes while a drug dog arrives to sniff that person’s vehicle?

Facts. An officer decided to hassle a person he recognized from a previous arrest. That person was the defendant and the officer stopped him for a technical violation of the Transportation Code. Defendant pulled over at a gas station and immediately exited his vehicle without having been asked to do so. Defendant recognized the officer and thanked the officer for his previous arrest and helping him change his life. After explaining to the defendant that he would receive a warning for the traffic infraction, the officer launched into a fishing expedition about evidence of unrelated crimes that might be found on the defendant’s person or in the defendant’s vehicle. Defendant consented to both a search of his person and his vehicle. Prior to the officer searching his vehicle, defendant became agitated about the circumstances of the traffic stop. He revoked his consent and declined to even roll down his windows when requested. The officer held the defendant at the scene for 38 minutes until a canine unit arrived and alerted on the vehicle for drugs. The trial court granted the defendant’s motion to suppress.

Holding. (1) Yes. Criminal history + attempting to avoid the police + exiting a vehicle on a traffic stop + changing the topic of discussion during the traffic stop + not owning the vehicle you are driving + becoming irritated about being detained for a hyper-technical traffic violation + not consenting to a visual search + declining to roll windows down and consent to a smell search + defendant’s prediction that the officer would call a canine unit = reasonable suspicion that some nonspecific other criminal activity may be afoot. (2) Yes. “[I]f during his investigation of the circumstance that precipitated the traffic stop the detaining officer develops reasonable suspicion that other criminal activity has occurred or is occurring, the scope of the initial investigation may expand to include other offenses and the officer may further detain the driver for a reasonable period of time in order to dispel or confirm the officer’s reasonable suspicion of other criminal activity.” The standard for a prolonged detention during which an officer has reasonable suspicion is diligence. An officer must work diligently to confirm or dispel his suspicion. 38 minutes to procure a drug dog was diligent and not unreasonable.

Comment. Rodriguez v. United States, 575 U.S. 348 (2015) is the controlling case here. It explicitly states that making a person wait for a drug dog absent reasonable suspicion is unconstitutional. It suggests without holding the existence of reasonable suspicion might provide the officer with a little bit of bonus time to get a drug dog there. The court finds that this implied bonus time is enough to cover the 38 minutes it took the officer in this case to get the drug dog. I’m not sure this holds up. I’m also not a big fan of using a person’s aversion or reaction to police harassment as a factor for reasonable suspicion. The act of exercising a Fourth Amendment right should not be a factor which weighs against a citizen.

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

Chavez v. State, No. 14-19-00351-CR (Tex. App.—Houston [14th Dist.], Sep. 9, 2021)

Issue. Generally, when a defendant denies commission of an offense, he presents no evidence establishing commission of a lesser-included offense. But in a capital murder case involving party liability, where a co-conspirator testifies the agreement among co-conspirators included kidnapping but not murder, is the defendant who denies all criminal responsibility entitled to lesser-included offense instructions on kidnapping and on felony murder?

Holding. Defensive evidence sufficient to establish the submission of lesser-included offense instructions may come from prosecution witnesses. The testifying co-conspirator was inconsistent about what the defendant agreed to. Because there was some evidence that the defendant was only party to a kidnapping and some evidence the defendant was only a party to felony murder, the jury should have been given the opportunity to sort it out.

Dissent (Wise, J). There is no evidence that the defendant did not intend to kill the victims. There is no evidence that when the co-conspirator formulated the idea to commit murder, the defendant did not join in that endeavor.

Comment. There is a statewide trend helmed by the Court of Criminal Appeals permitting defensive instructions that are inconsistent with defensive theories but nonetheless consistent with evidence presented at trial.

Operation Lone Star

The Premise

In March, 2021, Governor Greg Abbott announced Operation Lone Star, (OLS) a law enforcement initiative aimed at arresting single males for Class B criminal trespass upon their entry upon private property along the Texas-Mexico Border. At the same time, he declared 42 counties as disaster areas. The Department of Public Safety was charged with sending between 500 and 1000 State Troopers to the border to enforce state trespass laws at a cost of approximately 2.5 million dollars per week. The DPS executed memoranda of understanding with private landowners along the border so they could enter the property and arrest anyone they saw on the property without permission. Initial arrest rates were projected at 200 arrests per day. According to Governor Abbott, from the outset, the purpose of the initiative was to stem the tide of dangerous human and drug traffickers crossing the border. See: CNN’s @RosaFlores reports https://t.co/UPtF19o9NZ.

Enter the Lubbock Private Defender Office

In July, 2021, the Texas Indigent Defense Commission approached the Lubbock Private Defender Office (LPDO) to act as the central hub for providing defense services to those arrested under OLS. LPDO agreed and virtually overnight became the central authority to receive requests for attorneys and assign those cases to attorneys. Texas RioGrande Legal Aid (TRLA) took over 560 of the first round of cases. Private counsel and other private defender organizations were recruited to handle the remainder of the cases flowing in. Thankfully, the projected 200 arrests per day has yet to be realized, but currently, over 1,500 cases have flowed through LPDO to various defender organizations and private counsel. Thirty-Seven (2.4%) have been felonies with the majority of those being American citizens, not foreign nationals.

While the majority of clients have been Mexican Citizens, we have seen clients from Venezuela, Guyana, Haiti, Honduras, Columbia, Cuba, and various other countries of origin.

In order to implement these measures, the Texas Supreme Court issued an Emergency Order suspending various provisions of the Code of Criminal Procedure to allow for LPDO to act as the appointing and payment authority for OLS cases. The Court modified 26.04 to allow TIDC to approve procedures that differ from the Indigent Defense Plans of the various counties involved and authorize alternative methods of appointing counsel. It also allows, contrary to 26.04, for appointment of any counsel from any county in Texas to represent an OLS client on a felony charge. In short, TIDC tapped LPDO to provide indigent defense services for all OLS cases and is fully funding that effort.

A special process has been established to handle the magistration and processing of all OLS cases. Once arrested, all OLS arrestees are taken to “The Tent” in Del Rio where they are magistrated remotely by retired judges recruited by the Office of Court Administration. Once magistrated, LPDO receives a referral for appointment of counsel, and the arrestee is transferred to the Briscoe Unit of TDCJ in Dilley Texas or the Segovia Unit in deep South Texas to be held in one of these repurposed prisons until disposition of their case.

The prison units are having to be air conditioned and up-staffed to meet jail standards and accommodations for Zoom conferences and Zoom hearings are being increased to handle the additional requests for attorney-client meetings as most of the attorneys involved are dozens if not hundreds of miles from the unit. LPDO has had to contract with interpreters to handle interpretative duties, as most of the attorneys recruited do not speak Spanish, the primary language of those arrested.

For those attorneys not a part of an organization, LPDO has contracted with investigators to assist in the necessary investigations in some cases. Also, TIDC has increased funding for myPadilla to offer immigration consults on all cases under the OLS umbrella.

Most of the cases have been from Val Verde and Kinney Counties, overwhelming the capabilities of local clerks, judges and prosecutors. Most of the cases, over 97%, have been misdemeanors, and most of those have been criminal trespass.  With the involved counties being declared a “disaster area,” the cases are all enhanced to class A punishments. (Interestingly, Throckmorton County, north of Abilene is counted as one of the 42 Counties in the Disaster Declaration.)

Because of the overwhelming numbers, TRLA and other defenders have been successful in securing the release of hundreds of clients under Article 17.151 of the CCP. The prosecuting authority has been unable to meet the 15 and 30 day deadlines of 17.151 for filing cases.

Going Forward

I have told the media that, like Pearl Harbor, this initiative came as a complete surprise to us. The difference in 1941 and now is, it was as much a surprise to the other side as it was to us. Fortunately, we have been able to build capacity quickly to stem the tide of casualties. Between TRLA, Restoring Justice out of Houston, and the many private counsel and small firms who have stepped up to assist, we have been able to assign counsel in a reasonable time in nearly all cases.

Going forward, we are contracting with at least one additional public defender office. A recently signed contract will bring a team of 19 lawyers, social workers, investigators, and paralegals to San Antonio to work exclusively on OLS cases. Salaries will be competitive, and they will be looking for courtroom-ready, Texas-licensed lawyers to fill those slots.  You can send your resume to me if interested in applying. I will forward it to that office.

Additionally, we are looking for a resource attorney to help oversee and serve the attorneys working OLS cases. The application and job description for that position can be found at www.LPDO.org

We are passionate about ensuring every individual arrested under the OLS umbrella has access to quality counsel who will aggressively represent them in these charges. If you want to be one of those lawyers, please let us know.

HIPAA in the Age of COVID

Most of us are familiar with the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. While digital discovery and electronic transfer of records is no new thing, COVID stomped on the accelerator pushing lawyers into technology and e-practice. A lot of us are stumbling into the digital realm and safeguarding the Protected Health Information (PHI) we have in our possession probably isn’t the first thing on our to do list. Unless you want to risk the potential of fines between $119 and $59,522 per violation, you’re going to want to pay attention. 

To understand if your practice falls under the regulations of HIPAA, you first need to look at the Texas Medical Records Privacy Act (TMRPA). The TMRPA’s definition of a covered entity is broader than the Federal Law. If you create, receive, store, or work for someone that creates, receives, or stores PHI, you fall under TMRPA. Texas Health and Safety Code §181.001(b)(2)(A-D) Essentially, if you come into contact with PHI, you’re a covered entity and will need to comply with the requirements protecting that information.

What is Protected Health Information (PHI)?  PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual.  45 C.F.R. §160.103 This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.”  Id.  So, if it’s medical information that can be tied to a specific person, it’s probably PHI.

As criminal defense attorneys there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMRPA because of the information that we come to possess regarding our clients: from the mental health records we receive for a mitigation packet or for a grand jury presentation, to the TDCJ records that include infirmary trips, to the SAFPF records that include counseling information, to the UA results for a pre-trial check in, or to the discovery with EMT or blood draw records, the potentials are pretty limitless. Remember too that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations.

What does it mean then that we are covered entities maintaining confidentiality of PHI?  Obviously secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. PHI is not our main focus, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release; and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements. 

Under what circumstances can a party re-disclose PHI that we have received? The first is to have a valid court release such as a subpoena signed by the Judge, a Grand Jury subpoena, or an administrative subpoena that authorizes a covered entity to re-disclose PHI in their possession.  However, that is not the most likely scenario for when we will re-disclose PHI. Usually,  those subpoenas are going to go to the people creating the PHI. We will need a valid release to re-disclose PHI.

A valid release is more than just a set of initials on your intake contract saying you can use a client’s medical records for anything we need. Texas Health and Safety Code 181.154(d) tasked the Attorney General with creating a standardized form to comply with signed releases to comply with TMRPA and HIPAA. The 2013 form has some specific requirements like designating who the documents are being released to (not just “anyone who wants them”), the purpose of the release, a description of the information to be used or disclosed, and a specific expiration date. Additionally, there must be a separate statement for release of mental health records, drug or alcohol information, or HIV records that are to be released. The Attorney General’s standardized form is available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumer-protection/hb300-Authorization-Disclose-Health-Info.pdf. Your releases are allowed to be in written or electronic format, or even orally given as long as properly documented. Tex. Health &Safety Code 181.154(b) Best practices though: GET IT IN WRITING.

What constitutes a valid signature? It’s easy enough when a client is in person with a State ID to verify who is signing your release. But gone are the days of ink and pen, and an electronic signature is acceptable as long as it is valid under applicable law. The touchstone is the ability to verify that the signature is valid, and the person signing has the authority to do so. There are some programs, SIGNiX, eSignLive by Vasco, and Adobe Sign have been found to comply with HIPAA requirements of verification.

What about just safeguarding the records in our file? Is your USB drive encrypted? Can you use your Hotmail account to e-mail the records to another attorney or the Judge? How complex is your password? These are all things that HIPAA and through it the TMRPA expect you to have considered and made a plan for. The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004.  HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306 It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why.  The goal is that if there ever is a breach, we can show we did everything we could to avoid it.  Here are some highlights of best practices:

Encryption

Encryption renders PHI unreadable and undecipherable. The data can only be read if a key or code is applied to decrypt the data.  While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place.  There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/best-encryption-software for some ideas.

Passwords

Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPAA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember.  So instead of using a complex sequence of numbers, letters, and symbols, use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980”.

Third Party Storage

Are you using another company to maintain your files? If so you’re going to need a business associates agreement. 45 CFR §164.308(b) A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself.

E-mail

Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: 1) End to end encryption; 2)  a business associates agreement with your email provider; 3) make sure to configure your e-mail correctly; and 4) have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant e-mails.

If you’re not a solo practitioner, you have to make sure that you’re training your associates too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training. Tex. Health &Safety Code 181.101(a) & (d) 

And why are we doing all of this? Because we want to avoid the enforcement arm of HIPAA and the TMRPA.  The TMRPA in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. Texas Health and Safety Code §181.201. As noted above, the Department of Health and Human Services published a final rule increasing the civil penalties for 2020.  For violations the covered entity did not know about, fines can be between $119 and $59,522 per violation.  If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation. 

These are not nebulous threats.  In May 2017 HHS levied a $2.4 million civil penalty against Texas Health Systems after they released the name of a patient who had presented fraudulent identification and was subsequently arrested.    Concentra Health Services in Addison, Texas was fined $1.7 million after an unencrypted laptop was stolen from its facilities. The largest HIPAA fine to date has been against Anthem Health in 2019 for $16 million dollars for failing to protect patient data.

So what do we take away from this? It is to remember that as we implement new technology and new ways of doing business into our practices we be aware of steps to make sure private client information stays private. A lot of us may be old hat to encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds.

Texas Forensic Science Commission Update

George Rodriguez spent nearly two decades behind bars before a panel of forensic scientists determined that the analyst who testified at his trial was either incompetent or knowingly perjured himself. This revelation led to a 2004 audit of the Houston Police Crime Laboratory, which exposed a systemic pattern of poor training, data misinterpretation, and sample storage violations. In response, the Texas Legislature imposed an accreditation requirement onto Texas forensic science laboratories and created the Texas Forensic Science Commission (TFSC) to investigate allegations of negligence and misconduct.

The Commission is made of nine members appointed by the Governor of Texas – seven scientists, one prosecutor, and one defense attorney. The Commission, including TCDLA’s own Mark Daniel, are still today engaged in various forensic development initiatives, working collaboratively with stakeholders in the criminal justice system to improve education and training in forensic science and the law. Over time, the Texas Legislature has expanded and clarified the role ascribed to TFSC under TCCP 38.01. Currently, the Commission serves four main purposes: (1) investigate complaints of misconduct, (2) accredit crime laboratories, (3) adopt administrative rules for the use of certain disciplines in the courtroom, and, (4) as of 2019, license individual forensic analysts. 

1. Licensing Requirement

Prior to 2019, the accreditation requirement was already implemented for laboratories conducting forensic testing in Texas. The new Forensic Analyst Licensing Program now requires each individual acting as a forensic analyst to have their own individual license on top of the already existing requirement that the laboratory for which they work be accredited. The statute lays out which disciplines are subject to the licensing requirement:

License Required:

  • Drug sample testing
  • Toxicology
  • Forensic Biology (DNA)
  • Firearm & Toolmarks (ballistics)
  • Document comparison
  • Trace comparison (gunshot residue, footprints)

No License Required:

  • Latent fingerprint examination
  • Intoxilyzer breath test
  • Digital examination
  • Text excluded under Article 38.01
  • Presumptive tests (for parole or probation violations)
  • Text done primarily for scientific research or medical practice
  • Forensic Pathology
  • SANE examination
  • Forensic anthropology, entomology, or botany
  • Environmental Testing
  • Accident reconstruction
  • Serial number restoration
  • Polygraph examination
  • Voice recognition
  • Statement analysis
  • Forensic odontology
  • STI testing
  • Arson investigation
  • Forensic photography
  • Non-criminal paternity testing and tissue testing
  • Forensic Psychology

The new forensic licensing program brings with it a number of benefits to defendants and defense attorneys. One benefit is the ability of the Commission to reprimand individuals after a determination that misconduct has occurred. TFSC now has the authority to revoke or suspend such a person’s license, or refuse to renew their license once it expires. If an analyst’s license is suspended under this provision, the Commission can put that individual on probation, and impose conditions on that probation such as requiring they report regularly to TFSC or take classes to improve the areas that are the basis of the discipline. Additionally, this licensing requirement leaves open a new vehicle by which we can exclude expert testimony. Going forward, we must always check the license requirements and status for each expert noticed by the State.

2. Public Database

Given its vast regulatory functions involving forensic sciences, TFSC maintains a wealth of information and data on forensic laboratories and laboratory personnel, including applications and materials on accreditation of forensic laboratories, as well as records relating to complaints, disclosures, serial number discrepancies, mistakes, errors, spills, misplaced or lost samples, misconduct, false entries and other laboratory noncompliance issues.  Texas law requires that all of these matters be reported to the Commission.

Much of this data and information has historically been available to the public through public information requests, which often involved a cumbersome and time-consuming process. However, TFSC announced this past April that it will be making all of this invaluable public information readily available through a public database hosted on its website. The database, which launched in June, is scheduled to be made accessible in November 2021. This database will be a vital resource for criminal defense attorneys across the state.

3. New Disciplines

The field of forensic science is ever evolving and growing, with new specialties and testing being developed continuously. Sometimes, this may lead to unreliable sciences being offered as proof in court. Some of the previously admitted sciences now determined to be unreliable include forensic odontology, hair microscopy, retrograde extrapolation, and arson investigation. There are two new areas that Texas criminal defense attorney must be aware of in the coming years: Rapid DNA Testing and Marijuana Testing.

Rapid DNA Testing: In 2018, the FBI approved Rapid DNA Identification – a DNA analysis developed by ANDE corporation which provides results in less than two hours. Such rapid testing would allow suspects to be swabbed at booking and their samples run through the database immediately. However, none of the entities performing this test are accredited by TFSC. Additionally, Rapid DNA Identification use at crime scenes also comes with its own limitations: crime scene DNA samples may be mixtures, or they may contain low quantity or quality DNA. Even if a quality sample is collected, there are currently no approved expert systems for crime scene samples, and law enforcement collecting crime scene samples do not have the education, training or experience necessary to assess the crime scene evidence and determine the type of testing to achieve the optimal results. As currently marketed, Rapid DNA analysis will become a law enforcement database with no restrictions, quality controls, or standards, making it largely unreliable.

Marijuana Testing: In December of 2018, the Texas Legislature passed the Agriculture Improvement Act, which legalized the industrial production of hemp. With the new law, THC concentrations under .3% are considered legal hemp, but the laboratories do not have the instrumentation to quantitate the amount of THC in a sample. In order to compensate for this lack of quantitation, some Texas laboratories have modified the DEA approach to cannabinoid testing, adding a visual examination for “cystolithic” or unicellular hairs. If the sample contains THC but the analyst cannot observe any hairs, the substance is reported as simply THC. If the sample contains THC and the analyst does observe hairs, the substance is reported as marijuana.

However, this method is tenuous under Texas law, which distinguishes between legal and illegal Cannabis products by the part of the plant the product is derived from. Since Texas law groups the derivatives of the plant with the portion of the plant it was derived from, the visual inspection component does not provide any meaningful information. This leaves the THC detection alone, without proper quantitation, as an insufficient method to distinguish between products originating from the stems and seeds; flowers and leaves; or preferentially extracted from cystolithic hairs.

Mark Daniel’s term as the TCDLA representative to the Commission ended on September 1, 2021. Mark was appointed to the Commission in November 2016. The Commission wouldn’t have been what is has been during his term and what it has grown to be without his participation and leadership. Mark has done an amazing job representing citizens accused, their counsel and thereby, all citizens of the State of Texas on the Commission. He used his special talents to move between the scientists and the representatives of legal interests to secure the implementation of many practices which make forensics in Texas more transparent than any other state in the union. Maybe the crowning jewel in Mark’s work at the Commission is the public data portal which is in the final days of beta-testing and modification. This portal will give practitioners access to the records of each licensed lab and lab worker along with any complaints self-disclosed or otherwise against a lab or an employee or associate thereof. The portal will also provide access to the disposition of the complaint. Counsel will have the information at her hand to confront witnesses who claim special forensic expertise in an efficient and effective fashion like never before. We couldn’t have been better served or more grateful as an association! Thank you, Mark!

Thank you to Bill Hines of Austin for serving us so well on the licensing advisory committee of the Texas Forensic Science Commission for the past three years. We are appreciative and grateful that he selflessly devoted his time in the pursuit of justice. He will be stepping away in January 2022, and will be replaced by Angelica Cogliano of Austin.

Current Issue: November 2021

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DOWNLOAD PDF VERSION

Features

12 | Operation Lone Star – By Philip Wischkaemper
22 | HIPAA in the age of COVID – By Clifford Duke
26 | Texas Forensic Science Commission Update – By Rick Wardroup

Columns

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

Departments

4 | CLE Seminars and Meetings
33 | Significant Decisions Report

President’s Message: Happy Veterans Day

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Happy Veterans Day to all my fellow veterans and those who support them. We remember those who went before us, those with whom we served, and those who came after us defending our great country. In 1918, on the eleventh hour of the eleventh day of the eleventh month, World War I realized a temporary cessation of hostilities – an armistice – between Allied forces and Germany. In the following year, November 11, 1918, came to be known as Armistice Day as proclaimed by President Wilson: “To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations…” After World War II and Korea, the 83rd Congress decided to change “Armistice” to “Veterans” resulting in November 11th becoming a day to honor American veterans of all wars.

I am in awe of my fellow veterans – past, present, and future. My fellow United States Marines have distinguished themselves for the last 246 years in Tripoli, Chapultepec, Belleau Wood, Guadalcanal, Iwo Jima, Inchon, Chosin Reservoir, Khe Sanh, Hue City, and Fallujah. My brothers and sisters in the United States Army have distinguished themselves in the Battle of the Bulge, Normandy, Saint-Mihiel, D-Day, Naktong Bulge, Baghdad, Basra, and Haditha. My brothers and sisters in the United States Navy have distinguished themselves in the Coral Sea, Java Sea, Midway, Bismark Sea, and the China Sea. My brothers and sisters in the United States Air Force have distinguished themselves in the Berlin Airlift, MiG Alley in Korea, Operation Bolo, and Desert Storm. My brothers and sisters in the United States Coast Guard have distinguished themselves as America’s maritime first responder and protects our economic, national, and border security. Approximately 1.4 million people serve in the U.S. armed forces. That means that approximately 0.4% of the American population is active military personnel, and only about 7.3% of living Americans have ever served in the military. Id. Such an awesome responsibility on so few.

I am also proud to have served with many past and present judge advocates in all our services. Over the years, Military judge advocates have provided sage advice for commanders in all aspects of the military from courts-martial to civil affairs to rules of engagement. After military service, many of these judge advocates continue to distinguish themselves in their legal careers in the civilian sector.

What amazes me is how our veterans continue to serve their country after they leave the military – whether it be in government service or the civilian sector. I believe that the military training our veterans received enables them to overcome any obstacles placed in their way. We were all required to read and be familiar with reading lists while in the military. One book on the reading list was The Art of War by Sun Tzu who listed nine varieties of ground: (1) dispersive ground; (2) facile ground; (3) contentious ground; (4) open ground; (5) ground of intersecting highways; (6) serious ground; (7) difficult ground; (8) hemmed-in ground; and (9) desperate ground. Sun Tzu defined desperate ground as, “Ground on which we can only be saved from destruction by fighting without delay, is desperate ground.”

I think all of us, veterans or not, have been on desperate ground be it in our lives, in court, dealing with the government or our clients and their families, or elsewhere. I think of the criminal defense attorney battling an extremely difficult trial – be it a DWI or a capital murder death case – while dealing with the prosecution, judge, jury, or others. We can all have a sense, in this way, of what our veterans have been through during their military service. To better understand the sacrifice our veterans have given to this country and to better understand Veterans Day, I would suggest reading an outstanding non-fiction book, On Desperate Ground by Hampton Sides. This book provides you with a glimpse of our armed forces at the Chosin Reservoir during the Korean War. This book also informs you about how our military forces have overcome extreme difficulties in the defense of our country and why we should, indeed, observe Veterans Day.

Executive Officer’s Perspective: Do you love what you do?

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“Your work is going to fill a large part of your life,
and the only way to be truly satisfied is to do what you believe is great work.
And the only way to do great work is to love what you do.”

– Steve Jobs

As everyone starts going back in to work, we notice a seismic shift between working from home and in the office. The previous year held many challenges for working parents, juggling their full-time jobs and taking care of children (and, if you were like me, taking on the role of warden and teacher). This past year’s social isolation totally unsettled me. A people person, I surprised myself by all too easily becoming something of an unsocial couch potato. The anxiety built as we let our guard down in the spring, thinking things were getting better, then boom—a new strain crept in.

Still, many of our staff returned to the office immediately after Austin’s mandatory shutdown lapsed. As things opened up more, I too returned to face the new challenges: from traveling, to ever-changing COVID rules, to dealing with children thinking themselves free of virtual school (since “the warden” no longer occupied a home office). I am so glad they are back to in-person school, though I do feel sad for our COVID puppies, now alone at home. Did anyone else‘s children beg for a pet that has now become your responsibility?

Through all the disruption, the workforce has changed too: In association/events and hotel industries, for instance, many employees have moved on, some working remotely—if at all. Several companies have given up or reduced their office space, maybe rotating shifts to adjust. With courts not yet 100% operational, we still face zoom court and may well into the future. Some say that zoom and team rotations are the way of the future. Really? Sure, many jobs can be managed remotely or on a rotating basis, but if you work in an industry that provides service to people, how can you do this from home? You need to interact, serve, provide resources.

More than a year in, service industries like restaurants struggle to maintain a staff. One person now does the job of three. To this, we can all relate. The bottom line, at the end of the day, is can you provide your customer the best service. This new reality faces a challenge as everyone opens up to in-person events, social gatherings, vacations. In Austin, for one, employers must deal with the daunting prospect of a job market that’s become ultra-competitive, each company trying to offer more than the next (a boon to service employees, of course).

But when you’re running a small business, whether with one or more employees, each person has a job. And when you’re understaffed, struggling to fill positions, you will ultimately have to spend time training any new hires, assimilating them in your way of doing things. What sets your work culture apart from the next? Do you mentor your team? The job is not always about pay. Don‘t get me wrong; everyone loves a hefty paycheck. What makes a job desirable, though, may lie in the extras—the atmosphere—you offer. Is there a passion for the industry? A job may be stressful, but at the end of the day, is it rewarding? Can you believe in what you do? I hear all too often how people dread going to work. What things do you do to ensure your team doesn‘t feel this way? There are so many things you can do that are not financially prohibitive. Sometimes that just means thinking outside the box.

With TCDLA, what makes our staff special is their motivation to provide the best service. If an issue arises, we want to resolve it immediately. Our members are our extended family we’ve grown to know and care about. I attended several seminars recently and listened closely to what the speakers and attendees had to say. For me, this sort of continuing education is invaluable. Networking with peers assists me in keeping up with the newest trends, technology—but most important, in finding ways we can better serve our members.

Editor’s Comment: Goose, Meet Gander

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From October 7 through October 8, 2021, I had the pleasure of attending my first TCDLA Forensics Seminar.  The seminar may be the most educational CLE event I have ever attended.  What Philip Wischkaemper, E.X. Martin, and Larry Renner, along with Melissa and the folks at the home office, put together is an incredible event that every criminal defense attorney should try to make time to attend in the future.  While I got my normal dose of camaraderie that I often feel when I attend TCDLA events and get to hang out with our brothers and sisters from across the State, the Forensics Seminar struck me as such an interesting difference from the norm because all of us attendees were primarily taught by non-lawyers for the entire seminar. Learning from the professionals who know the sciences, rather than from lawyers who have learned it from a professional, was a fascinating difference.  Each of the scientific professionals who presented were wonderful and helped me, and I would hope others, understand at a deeper level each of their respective forensic sciences, including and maybe most importantly, the limitations. 

In fact, that was a regular topic of conversation among many of the attendees.  While we are generally trying to keep out many of these various fields of forensic science in our trials, we cannot forget that sometimes the fields of science can work to our benefit. While we should never allow the government to bring garbage dressed up as science in front of a judge or jury without a fight, we should not be unwilling to utilize forensic sciences to our benefit, even those forensic fields that may be considered on the fringe.  We’ve all known forever that polygraphs are inadmissible in criminal courts in Texas, but that doesn’t mean we cannot utilize them to conduct our investigations into our clients. It also doesn’t mean that the best post-conviction lawyers we have among our members don’t utilize them all the time to help with the exoneration of their clients. 

Similarly, blood spatter evidence should not be discarded by our members as junk without any potential merit. Let me be clear, I will never suggest that blood spatter evidence should always be admissible. What I am suggesting is that within the proper limitations of blood spatter evidence exists the potential exculpatory use of that forensic field. I have used evidence to my client’s benefit that I would probably fight tooth and nail to keep out or discredit if the tables were turned. Don’t let us box ourselves out from properly utilizing forensic sciences to our clients’ benefit simply because of our own disagreements with improper use of a certain field.

One of the other great presentations at the Forensics Seminar was by Mark Daniel. We all owe a debt of gratitude to Mark for the work that he has done on behalf of the criminal defense bar at the Forensic Science Commission. With Mark’s help, the Commission has made strides in limiting the use of junk science in criminal courts in Texas. Among those achievements is the licensing requirement for certain Forensic analysts in order for their forensic analysis of physical evidence . . . and expert testimony to be admissible in a Texas criminal court. See Tex. Code Crim. Proc. art. 38.35(d)(1).   Although not every Forensic science has such a licensing requirement, there are many professed forensic sciences that have been excluded from the licensing requirement because they are unreliable. On the other hand, there are other forensic sciences that the Commission has simply not required licensing despite the general evidentiary admissibility of the field. Do not forget to review to article 38.35 of the Texas Code of Criminal Procedure. And you probably want to get a copy of Mark’s PowerPoint presentation that specifically lays out the sciences that require licensing and those that don’t. 

There is no way I can summarize in one short column the information I learned at the Forensics Seminar.  However, I can tell you that until we learn to work with experts in the various forensic fields and gain our own understanding of the proper application of the fields and the limitations, we are simply missing out on a benefit to each of our clients. Lucky for us, Philip Wischkaemper is planning to put on the Forensic Seminar again next year.

Be safe.

Ethics and the Law: New Rule for Clients with Diminished Capacity

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Beginning July 1, 2021, a new Rule of the Texas Disciplinary Rules of Professional Conduct went into effect, Rule 1.16. It is intended to address the ethical problems of representing persons with “diminished capacity” a term that includes persons with mental impairment and intellectual disability. The central problem for lawyers has been the underlying assumption of the ethical rules that the client is mentally sound, an assumption often refuted by the reality of criminal defense lawyers often called upon to counsel and represent clients suffering from a mental disability.

Both the Code and the ethical rules are relatively clear about how to represent a person who is incompetent to stand trial. But the Rules have offered no guidance to lawyers about how to represent a client who is barely competent, but whose judgment is impaired due to illness. In Indiana v. Edwards, 554 U.S. 164, 173 (2008), the Supreme Court called such a client the “gray-area defendant,” legally competent to stand trial but who “lacks the mental capacity to conduct his trial defense unless represented.” Ethically, it has been an ethical no-man’s land.

The problem arises in those areas that award the client autonomy in criminal cases. Rule 1.02 specifically commands that the defense lawyer “shall abide by a client’s decisions” regarding the “plea to be entered,” the waiver of the right to trial by jury, and the decision whether to testify. Moreover, the lawyer cannot, even if it is sound strategy, concede guilt to a jury over the client’s objection. McCoy v. Louisiana, 138 S. Ct. 1500 (2018).

Without guidance, some attorneys decided to treat client decisions like any other, ignoring the impact of an illness on judgment, and dutifully obeying the ethical command even as the client was committing legal suicide. Others went the other direction, with an attitude of benevolent condescension, manipulating the events and the client as a countermeasure against his client’s illness, even against his will.

Rule 1.16 now provides guidance and expressly empowers the lawyer if certain preconditions are met. First, the defense lawyer must first reasonably believe that the client does in fact have diminished capacity due to mental illness. Secondly, this incapacity must render the client unable to “adequately act” in his own interest. Finally, the client’s diminished capacity has put him “at risk of substantial physical, financial, or other harm unless action is taken.”

If these preconditions are met, then the attorney is permitted to take “reasonably necessary protective action.” “Protective action” is intentionally broad to include the various courses of action that might arise. The Rule helpfully specifies that the lawyer may consult with “individuals or entities that have the ability to take action to protect the client.” The lawyer that has been hesitant to speak to others can be reassured that reaching out to those who care about the client is permitted under the Rules. When enlisting other people, the lawyer is directed by the Commentary to “look to the client, not the family members or other persons, to make decisions on the client’s behalf.”

The Rule also expressly addresses the attorney-client privilege issue: “the lawyer may disclose the client’s confidential information to the extent the lawyer reasonably believes is necessary to protect the client’s interests.” The Commentary directs the lawyer to consider the client’s consent before disclosing confidential information under these circumstances. “Only in compelling cases should the lawyer disclose confidential client information if the client has expressly refused to consent. The authority of a lawyer to disclose confidential client information to protect the interests of the client is limited and extends no further than is reasonably necessary to facilitate protective action.”

This Rule was debated and the concerns of some members of the bar should be noted. The Legal Director of Disability Rights worried about the Rule’s impact on clients who expected their lawyer to “be their advocate, not their protector.” Another objection was that the Rule invites lawyers “to make untrained judgments about a client’s mental state with no real guidance.” Time will reveal the wisdom of this Rule, but in the meantime, the criminal defense lawyer does address a frequent dilemma in our profession with some guidance, however minimal.

Chapter & Verse: History of Hearsay

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My Dear and Beloved Reader, I need a break. Yes, it’s true. Even indefatigable, un-shut-upable columnists like yours truly get fatigued from time to time. Having this giant copy of the Code of Criminal Procedure strapped to my back the past year of writing Chapter and Verse has done it to me. Sometimes a change is as good as a rest, they say, and so that’s what I seek: change. For these next few columns, I want to switch focus from digging through the CCP to digging through the ROE. Yes, you heard me right, dear friends: first, we’re going to spend a while getting cuddly with Article VIII –  Hearsay. Oh, don’t make that face. Deep breaths, we can do this… deep breaths.

We should start in the beginning of this story – which, in the case and of all things evidentiary – is dear John Wigmore.  Wigmore, if you don’t remember,  was a law professor who spent more than ten years “in monastic study” to produce a massive sketch of the evidentiary landscape. In a 1904 Harvard Law Review article, Wigmore alerts us to the recency of the hearsay doctrine in Anglo-American law. He traced it as  something that began in back to the 1500s, but clarifies that it was not really nailed down until the 1700s.1

I know you don’t believe me, dear reader, but the way that this worked out is actually super interesting and I think will illuminate the path for us in the dark nights to come. Historically, before about 1500, a big part of a juror’s role was to educate himself (never herself – because jurors were always men, remember?) about the case as much as possible BEFORE the trial. Yes, you heard me right. They were supposed to go knock on doors and visit people, and ask any questions they deem necessary, and then show up to court and discuss what they had learned with each other and with the judge. Wigmore even cites a 1303 robbery where, the judge asks the sheriff if the jury is ready, and the sheriff replies, “The least informed of them has taken great pains to go up and down in every hole and corner of Westminster—they and their wives—and to learn all they could…”2 (let’s all appreciate that even in 1303, or maybe especially in 1303, wives were considered an important part of effective hearsay-gathering). These were trials where jurors took an active role, and themselves often acted as witnesses. The concept of hearsay, or even, really, any kind of rules of evidence, didn’t make sense in that paradigm.

But as the world became a more crowded place, and as cities in Europe grew, trials became a different spectacle all together. It became increasingly expected, and then requisite for the parties to bring actual evidence to trial. Conversely, and it became increasingly common for the jury to be pulled from a larger group and be less familiar with intimate facts, to as a result, juries began to consider that the evidence presented to them impartially. Eventually, in the mid-1500’s, trial courts were routinely holding that hearsay evidence could only be considered for (as we would put it in modern legalese) “the truth of the matter asserted” when if it was corroborated. The mentality being, it seems, that no shocking revelations should come as a form of gossip.

Today, it seems like pretty common sense that hearsay, by itself, is not sufficient to sustain a conviction. However, that proved difficult under the social norms of the time, but I think it’s also interesting to note that for most of history, all women (and men who were enslaved or indentured) were generally forbidden from of testifying at trials. This makes any case with an alleged female or minority victim particularly difficult to prove without hearsay evidence. For a particularly chilling example of this principle in action, see: occurred in People v. Hall, 4 Cal 399 (1854), (Where the California Supreme Court overturned the murder conviction of a white man who killed a Chinese laborer in front of several Chinese witnesses, finding that because, per the State’s high court, no Chinese persons should be able to give testimony against a white man as a matter of law.)

But I digress… let’s go back for a moment to dear John Wigmore. Painstakingly, he draws connections between the development of hearsay rules. He articulates that not only the way the role of the juror changed, but also, later, the way the role of counsel changed. Wigmore points out that until 1695, defense counsel didn’t do much more than give impassioned arguments for the accused, and only if the accused were even permitted an attorney – and over the next hundred or so years, the role of the “defense lawyer” gradually started to include cross-examining witnesses, as well, which had previously been something the judge or the accused would do himself. 3

This greatly lengthened the average trial, and also began the evolution of “the art and science of cross examination”, which still makes a few worthy practitioners and many unworthy bloviators a lot of money to this very day. As cross examination became a skill practiced by law-trained defense attorneys, the legal theory and reasoning of the hearsay doctrine grew more refined.

So that, my charming correspondents, is the quick and very dirty history of how we have gotten to where we are today. In 1975, the Federal Rules of Evidence were finally codified, and reliance on Wigmore’s (lengthy, historical, and frankly much more lovely and fascinating) traditions of evidence waned. Somewhat unbelievably, Texas did not officially adopt an actual Rules of Evidence to apply to criminal cases until 1986! And didn’t adopt a unified civil and criminal code, such as that we have now wasn’t adopted, until 1997, when your darling Allison was but a babe in arms (or maybe a moody and rebellious teenager, who can be sure?), but still well within the professional memory of many of our esteemed members.

For next time, dear reader, now that we have seen the painful birth of this ROE baby, let’s take a deep breath and turn to TROE 801 (a)-(d). It’s a short reading assignment, but I assure you that it has a lot to unpack. Until then, I remain, as always,

-Allison