Monthly archive

March 2022

March 2022 SDR – Voice for the Defense Vol. 51, No. 2

Voice for the Defense Volume 51, No. 2 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Facebook is reading your messages, so I cut and pasted this entire SDR and sent it to a friend. We’ll hit that algorithm and bust loose eventually, Sig Heads! We learn that the Confrontation Clause is strong enough to keep sister Suzie, brother John, Martin Luther, Phil, and Don from coming in (because they get in when you open the door. Get it? Whatever.). In other news, I’ve been considering lobbying TCDLA to make some Significant Decision T-Shirts, so send me your ideas, you know they’ll sell!

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

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

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

Sincerely,
Kyle Therrian

United States Supreme Court

Hemphill v. New York, 595 U.S.—, No. 20-637 (2022)

Issue. Is the State permitted to use testimonial hearsay excluded under the Confrontation Clause when a defendant “opens the door” in a manner that requires correcting a misleading impression?

Facts. During a street fight in the Bronx someone fired a stray 9mm bullet and killed a 2-year-old child. Police identified an initial suspect (Suspect 1) and a witness (Witness). When police first interviewed Witness, Witness implicated Suspect 1 as the shooter. Witness later recanted his accusation and instead identified Defendant (Defendant / Hemphill) as the shooter.  Police did not credit Witness’s recantation. They searched Suspect 1’s apartment and discovered a 9mm cartridge and three .357 rounds. Three other witnesses later identified Suspect 1 as the shooter. Abruptly during their murder prosecution of Suspect 1, the State agreed to dismiss their murder charge and allowed Suspect 1 to enter a time-served plea on refiled charges for possessing a .357 revolver. Five years after this dismissal, the State arrested and charged Defendant Hemphill for the same murder. Defendant Hemphill’s DNA had recently proven a match with a sample taken from a blue sweater found inside of Suspect 1’s apartment. Other witnesses had described the shooter as wearing a similar blue shirt during the initial investigation. Defendant Hemphill defended himself at trial by blaming Suspect 1. In opening, counsel explained to the jury that officers discovered 9mm ammunition in Suspect 1’s apartment hours after the shooting. The State convinced the trial court that counsel’s statement was misleading because it omitted the fact that .357 rounds were also discovered and because Suspect 1 ultimately pleaded guilty to possessing a .357 revolver.  Based on New York case law, the trial court found that counsel had “opened the door” to the State’s use of evidence otherwise inadmissible under the Confrontation Clause. The trial court permitted the State to publish to the jury portions of the transcript from Suspect 1’s plea hearing.

Holding. No. Crawford v. Washington, 541 U.S. 36 (2004), rejected the notion that the State may overcome a confrontation challenge with sufficiently reliable hearsay evidence meeting a known hearsay exception. The founders intended to prohibit the “civil-law mode of criminal procedure” and the use of “ex parte examinations against the accused.” Exceptions to the requirement of confrontation are only those known and established at the time of its founding. New York State’s “opening the door rule” was not an exception to the right of confrontation at common law.  The State contends that the “opening the door rule” is a mere procedural rule akin to the requirement of an objection. However, in its implementation, “it is a substantive principle of evidence that dictates what material is relevant and admissible in a case.” The purported exception requires the trial court to evaluate the entirety of evidence and arguments and determine whether admission is justified in order to correct a “misleading impression.” This practice is contrary to Crawford’s strong rejection of procedures allowing trial judges to make determinations whether hearsay evidence is sufficiently reliable in the face of a Confrontation Clause objection. “The Clause commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” The right to Confrontation is a guarantee the same as Fifth Amendment’s prohibition against compelled testimony. A court would be no more justified in admitting a coerced confession to rebut a defendant’s testimony than it would be in admitting testimonial hearsay. The State’s recourse when it believes a defendant is misleading a jury in a manner that can only be cured through evidence made inadmissible by the Confrontation Clause is to raise a Rule 403 objection.

Concurring (Alito, J.). A defendant’s conduct in a criminal prosecution may result in an implied waiver of confrontation. Some examples of this include a failure to object or certain disorderly conduct which results in the defendant’s removal from the courtroom. The rule of optional completeness should be another exception. When a defendant introduces part of a declarant’s testimonial hearsay, the State should be permitted to introduce the rest for context.

Dissenting (Thomas, J.). The Defendant did not raise a Sixth Amendment claim in the New York appellate courts and has not preserved error.

Comment. “Counsel opened the door” is about as popular as saying “not offered for the truth” when prosecutors identify a piece of inadmissible evidence falling into well-known category of evidentiary admissibility: I-get-to-use-this-because-defense-counsel-is-too-effective. I think this case has significant implications, but not necessarily in curtailing rampant use of testimonial hearsay by the State. Instead, I think the impact here is that criminal defense attorneys will be a little less shy about raising certain defenses for fear of the evidentiary consequences.

Fifth Circuit

United States v. Meals, 21 F. 4th 903 (5th Cir. 2021)

Issue. Facebook is reading your messages. When they discover evidence of child exploitation and are compelled by statute to forward that evidence to the government, have they become a state actor for purposes of the Fourth Amendment?

Facts. Defendant was sexting with a fifteen-year-old on Facebook Messenger. Facebook was monitoring these communications and forwarded a tip to the National Center for Missing and Exploited Children (NCMEC). NCMEC forwarded the tip to local law enforcement. Local law enforcement obtained warrants for defendant’s electronic devices and found naked pictures of the fifteen-year-old. Defendant moved to suppress under a theory that Facebook and NCMEC acted as government agents when they searched and obtained messages in which the defendant had a legitimate expectation of privacy. The district court denied defendant’s motion to suppress and sentenced the defendant to 50 years imprisonment.

Holding. No. Under the private search doctrine the government may obtain and use evidence acquired by a non-governmental entity, notwithstanding a person’s expectation of privacy. There are two exceptions to the private search doctrine: (1) the “private actor” is acting as an agent for the government, and (2) if the government, without a warrant, exceeds the scope of the private actor’s original search. The defendant relies on 18 USC § 2258A(a) which requires internet companies to report all instances of child exploitation to NCMEC. Defendant’s argument is that congress has co-opted internet companies for law enforcement purposes. But “[s]ection § 2258A(a) mandates reporting child exploitation on internet platforms to NCMEC, but it neither compels nor coercively encourages internet companies to search actively for such evidence.” The defendant cites the split in authorities on the appropriate factor-test for determining when a private actor becomes a governmental actor and argues that he should prevail under the First Circuit’s test. This court declines to use any factor-test.

Comment. Facebook, if you’re listening, please send me more videos of talking dogs. I’ll tell you all if this worked in Vol. XXXVII No. 3.

Texas Court of Criminal Appeals

Witcher v. State, No. PD-0034-21 (Tex. Crim. App. 2022)

Issue. The offense of continuous sexual abuse of a young child requires two or more instances of sexual abuse occurring over a period of 30 or more days. When the State questions witnesses about the first instance of sexual abuse using words such as “give or take” or “about,” has the State required the jury to speculate such that the verdict is not supported by sufficient evidence?

Facts. Defendant sexually assaulted a young child more than once. The last instance of sexual assault occurred on July 26, 2018. The first instance occurred around the time the victim’s brother went to jail, which was on June 10, 2018, “give or take.” The court of appeals reversed, finding the date the victim’s brother went to jail was too uncertain and speculative. This conclusion was based in part on the fact that the prosecutor phrased all questions about the relevant date of the first instance of sexual assault using the words “at some point,” “around,” “about,” “maybe,” and “give or take.” It was also based on the fact that the testimony did not establish how quickly after the victim’s brother went to jail that the abuse began. “When” someone went to jail could refer to the moment that person went to jail or the time period of that person’s incarceration.

Holding. No. “A jury is permitted to draw reasonable inferences from the evidence but may not come to conclusions based on mere speculation.” The court of appeals’ interpretation of the phrase “when he went to jail” as potentially meaning something other than the exact moment that person went to jail was in error. If someone meant to refer to a general period someone was in jail, they would have said “when he was in jail.” The court of appeals’ finding that words like “around” or “give or take” created too much wiggle room on the relevant date of the first instance of abuse was also in error. “Around” or “give or take” means only a few days. Given the date of incarceration and the date of the last incident, the date of the last incident of sexual assault, the State created a 46-day window for continuous sexual assault when the statute requires two or more incidents occurring more than 30 days apart. Nothing in the testimony lends itself to the conclusion that the generalities used in questioning meant that the first incident of abuse could have actually occurred 16 days after June 10, 2020.

Dissent (Keel, J.) The testimony about the beginning date was equivocal and the jury had to speculate about the meaning of testimony.

Comment. “I invoked my right to counsel when officers tried to question me, give or take.” “I maybe revoked my consent to search around the time officers discovered the contraband.” Same interpretation in these scenarios? Probably not a fair analogy.

State v. Garcia, No. PD-0183-21 (Tex. Crim. App. 2022)

Issue. Can the State appeal from an order granting relief in a misdemeanor post-conviction writ of habeas corpus?

Facts. Defendant pled guilty to two misdemeanor offenses. After immigration authorities notified defendant that his convictions subjected him to deportation, he filed writs of habeas corpus in the misdemeanor court. The trial court found his pleas were involuntary due to ineffective assistance of counsel who failed to advise defendant of his immigration consequences. The State appealed the trial court’s orders granting relief. The court of appeals dismissed the appeal for lack of jurisdiction, holding that the State had no ability to appeal relief granted in a misdemeanor post-conviction writ of habeas corpus. More specifically, the court of appeals explained that the State could not appeal an order “discharging” a defendant from custody on his writ of habeas corpus.

Holding. Yes. “We have previously held that the State can appeal an order granting habeas corpus relief when the order functionally creates one of the appealable scenarios that Article 44.01 specifically enumerates.” Granting of habeas relief is the functional equivalent of granting a new trial—a ground recognized in Article 44.01. Previous cases holding that the State cannot appeal from a judgment “discharging” a defendant are cases that “pre-dated the legislative creation of the State’s right to appeal in criminal cases.”

Rubio v. State, No. PD-0234-20 (Tex. Crim. App. 2022)

Issue. If all of the following happen within the 30-day period for the granting of a new trial, does the trial court continue to have jurisdiction to grant a motion for new trial: motion for new trial filed, motion for new trial denied, leave of court granted to amend motion for new trial, amended motion for new trial filed?

Facts. A jury convicted the defendant of capital murder and the trial court automatically sentenced him to life without parole. Defendant’s attorney filed a motion for new trial for the purpose of giving the court reporter more time to prepare the record. It recited boilerplate language: “the verdict was contrary to the law and evidence.” The trial court promptly overruled this motion. New counsel was retained and filed a substantive motion for new trial with exhibits. The trial court heard and denied the motion on the merits. “In order to determine what arguments and evidence could be considered as part of the record on appeal to resolve this claim, the court of appeals examined whether Appellant’s amended motion for new trial was timely.” The court of appeals found that the second motion—filed after denial of the first—was untimely. The court of appeals therefore declined to consider the evidence of ineffective assistance of counsel produced by defendant during the hearing at which the trial court denied defendant’s second motion.

Holding. Yes. Texas Rule of Appellate Procedure 21.4 provides that a motion for new trial must be filed within 30 days of judgment and sentence and that “[w]ithin 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.” From this rule and prior opinions four distinct rules flow: (1) a motion for new trial must be filed within 30 days, (2) a trial court may rescind an order granting or denying a motion for new trial at any time, (3) A defendant may not amend his motion for new trial outside of the 30-day period, even with leave of court, (4) but if the state does not object to #3, the court can consider a motion so-amended. Now a fifth rule: if the trial court overrules a motion for new trial and a defendant amends and obtains leave of court within the initial 30 days for filing a motion for new trial, the trial court retains jurisdiction to consider the amended motion. 

Dissent (Keller, P.J.).

Comment. It irks me to see prosecutors argue jurisdictional bars and technicalities in substantive motions for new trial which attempt to raise grounds for new trial which are commonly brought in habeas corpus proceedings. Courts don’t appoint counsel in habeas proceedings often and even when they do, most take years to resolve (years after direct appeals are exhausted). When I see a you-didn’t-dot-the-i-and-cross-the-t argument against a motion for new trial, what I really see is a prosecutor saying “let’s use the system against the defendant—we can probably prevent him from having the merits of an argument ever heard because he might not be able to afford a habeas lawyer.” Maybe that’s not what they mean to do, but they should know the implications of what they are doing.

Pugh v. State, No. PD-1053-19 (Tex. Crim. App. 2022)

Issue. “Must a trial court suppress a demonstrative computer animation illustrating otherwise reliable expert testimony purely because it potentially involves some depiction of human behavior?

Facts. A jury convicted defendant of murder. Defendant intentionally ran the victim over with his car. Investigators took detailed measurements from the scene and collected what proved to be the victim’s DNA located on the outside of defendant’s truck. Using measurements from the scene, physical evidence such as tire tracks and the body’s location, and the medical examiner report, the State used an expert to create an animation which depicted the consensus of what the State’s experts believed happened. Defendant objected to the demonstrative exhibit claiming that it portrays subjective belief of what occurred, that nobody knows what the victim was doing before he was struck, and that the unfair prejudice substantially outweighs the probative value.

Holding. An animation is just thousands of individual diagrams. Computer animations are “not fundamentally different from any other form of demonstrative evidence.” They must be authenticated, relevant and have probative value that is not substantially outweighed by unfair prejudice. A demonstrative is authenticated when it fairly and accurately depicts an expert’s opinion. A demonstrative exhibit is relevant if it is helpful to understanding the expert’s opinion. The prejudice versus probative value test should take into account “inaccuracies, variations of scale, and distortions of perspective against the degree to which the judge thinks that the item will assist the trier of fact in understanding a witness’s testimony.” The inflammatory nature of the animation plays a role, too. A demonstrative can be too gruesome or evoke an improper emotional response from the jury. Speculative depictions and factual inaccuracies are also considered under the Rule 403 lens. Here, the expert testified that the animation was a fair and accurate depiction of his opinion (and the jury was instructed the same). Here, the animation was relevant because it helped the jury understand what happened according to the expert. Finally, the probative value was not substantially outweighed by unfair prejudices. The animation was underwhelming in how it depicted the human body as “only marginally more detailed than a stick figure.” The animation did not attempt to recreate injures, it did not contain gore, it did not attempt to evoke an emotional response by doing things such as setting it to the music of Celine Dion or Enya. See Salazar v. State, 90 S.W.3d 330, 338-39 (Tex. Crim. App. 2002)(yes there was a case about the prejudicial nature of Celine Dion and Enya music). The fact that the defendant disputed where the victim was and what the victim was doing is not pertinent to the consideration. There is no per se prohibition against the depiction of human behavior in demonstrative exhibits, but if there were, the instant animation would not be in violation. The instant animation depicted the victim as a rigid motionless almost mannequin-esque figure.

Concurrence (Walker, J.). Computer animations are quite persuasive. When defense learns that the State is going to sponsor a computer animation the defense should do the same thing. If the county does not want to fund a defense animation, that should weigh heavily in favor of the defendant in the Rule 403 balancing analysis.

Comment. Here’s a fun trick: contact the person who created the animation and ask him to show the human figure charging at the defendant menacingly (if that’s the theory). You’ll either get your version of the animation in front of the jury or you’ll get to rail on the bias of the animator who refused to do it.

Ex parte Mathews, No. WR-91, 731-01 (Tex. Crim. App. 2022)

Issue. Does the inference of falsity applicable in cases of a governmental agent engaging in a pattern of misconduct relating to evidence apply to “cases involving a police officer with a demonstrated pattern of misconduct in drug-related cases.”

Facts. Defendant was arrested by a police officer with a pattern of misconduct in drug-related cases which included lying in government records, lying in sworn testimony, and lying in a search warrant affidavit. Defendant pled guilty.

Holding. Yes. In Coty the Court of Criminal Appeals addressed a forensic lab analyst who routinely falsified lab results. It held that it would overturn a conviction without proof that the lab analyst actually falsified the records in a particular case, so long as a defendant can establish a pattern of misconduct. This rule was based, in part, on the egregiousness of conduct and the onerous burden it would place on criminal defendants to have to prove particularized misconduct. A defendant’s burden under Coty is to demonstrate: (1) the technician was a state actor, (2) multiple instances of intentional misconduct, (3) the technician worked on the defendant’s case, (4) the misconduct in other cases is the type that would affect evidence, and (5) the technician handled and processed evidence in defendant’s case around the same period as the misconduct. “We now conclude that the same considerations that drove the Court’s decision in Coty apply with as much force to cases involving police officers who display a pattern of mendacity in obtaining drug arrests and convictions as it does for cases involving laboratory technicians who routinely falsify forensic test results and documentation.”

Comment. I read this sentence—”We filed and set this cause to address whether the requirements for the inference of falsity this court adopted in Coty should apply in cases involving a police officer with a demonstrated pattern of misconduct in drug-related cases”—and thought “oh no, what are they about to do?” The right thing, that’s what!

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

Turner v. State, No. 02-21-00058-CR (Tex. App.—Fort Worth, 2021)

Issue. The Code of Criminal Procedure used to allow a trial court to assess “reparations” in a judgment revoking probation. This provision had been interpreted to grant authority to a trial court to assess unpaid probation fees. When the legislature deletes the word “reparations” from the operative statute, can a trial court continue to require the payment of unpaid probation fees as reparations?

Facts. Defendant was on deferred adjudication probation. The trial court revoked that probation and sentenced the defendant to four years imprisonment. The trial court imposed $910 in “reparations” for unpaid probation fees, to be paid from defendant’s inmate commissary while imprisoned. Defendant appealed the trial court’s reparations order arguing that the Court of Criminal Appeals has never defined probation fees as reparations and the legislature removed the term “reparations” from operative statute permitting the assessment of fees upon revocation.

Holding. Yes. We just won’t call them reparations anymore. Article 42.03 § 2(b) used to say: “in all revocations of a suspension of the imposition of a sentence the judge shall enter the restitution or reparation due and owing on the date of the revocation.” Now it doesn’t say that. The legislature removed the word “reparations” in 2017. The legislature expressly indicated that this amendment was a “nonsubstantive” change to the law. According to the Second Court of Appeals, their precedent only sort-of relied on the term “reparation” to uphold the assessment of unpaid probation fees. But the Second Court also sort-of didn’t rely on the term “reparation.” One of the cases cited by one of the other cases relied upon by Second Court once called probation fees “administrative” or “other fees.” The legislature allows the assessment of probation fees under 42A of the Code of Criminal Procedure. “[W]e believe that Article 42A.652(a) provides [other authority to assess probation fees],” and “[w]e see no reason to abandon our long-standing precedential holdings.”

Comment. One way around precedent is to pretend it isn’t precedent.

none of our prior cases have directly addressed the significance, if any, of the 2017 deletion of the word “reparation” from Article 42.03, § 2(b) of the Code of Criminal Procedure, upon which some of our opinions have purported to rely, at least partially. See, e.g., Taylor v. State, No. 02-15-00425-CR, 2016 WL 3159156, at *4 (Tex. App.––Fort Worth June 2, 2016, pet. ref’d) (mem. op., not designated for publication); Tucker v. State, Nos. 02-15-00265-CR, 02-15-00266-CR, 2016 WL 742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d) (mem. op., not designated for publication); Brown v. State, No. 2-08-063-CR, 2009 WL 1905231, at *2 (Tex. App.––Fort Worth July 2, 2009, no pet.) (per curiam) (mem. op., not designated for publication); see also Kitchen v. State, 594 S.W.3d 429, 431–32 (Tex. App.––Fort Worth 2019, pet. ref’d) (op. on reh’g en banc) (citing Tucker without citing Article 42.03, § 2(b)); Hongpathoum v. State, 578 S.W.3d 213, 216 (Tex. App.––Fort Worth2019, no pet.) (same); Zamarripa v. State, 506 S.W.3d 715, 716 & n.2 (Tex. App.––Fort Worth 2016, pet. ref’d) (same).

I read the cases. They don’t “purport” anything. See PURPORT, Black’s Law Dictionary (11th ed. 2019)(“to profess or claim, esp. falsely; to seem to be”). The above-string-cited cases actually say that probation fees can be assessed upon revocation for the sole reason that probation fees are reparations. But prest-o change-o, now they’re not. Not that I agree, but I think I prefer Judge Yeary’s method to overcoming stare decisis, call it “dead weight” and don’t hesitate to overrule “on account of the court-made doctrine of stare decisis . . .” Ex parte Thomas, 623 S.W.3d 370, 384 (Yeary, J. concurring).

3rd District Austin

State v. Guilbault, No. 03-20-00110-CR (Tex. App.—Austin, 2021).

Issue. (1) Can a trial court grant a new trial because of its own opinion regarding a key witness’s credibility? (2) Can a trial court grant a new trial in a DWI case when an officer leaves a false impression by his evasiveness to questions exposing limitations on NHTSA’s field sobriety testing procedures?

Facts. A jury convicted the defendant of driving while intoxicated. During his cross-examination of the arresting officer, counsel asked questions to test the officer’s proficiency in NHTSA’s standardized field sobriety tests and the Transportation Code. Specifically, counsel asked about: (1) limitations of the HGN test exposed by a 2007 study cited in the NHTSA manual, and (2) the officer’s own traffic infractions he committed while operating his squad vehicle in a non-emergency situation. The officer’s testimony demonstrated that he was not familiar with the 2007 study, nor his obligation to follow traffic laws when operating his vehicle for a non-emergency reason. Defendant moved for a new trial citing: “disingenuous testimony” of the arresting officer and the State’s failure “to correct false and/or misleading testimony.” The trial court found that the officer’s testimony was unduly evasive and presented serious credibility concerns when he was unaware he had to follow traffic laws in non-emergency situations. The trial court granted defendant’s motion for new trial.

Holding. (1) No. A trial court may not grant a new trial because it found a witness not credible. “Whether a witness is credible is a fact question that goes to the weight of the witness’s testimony . . . [and] the jury is the exclusive judge of the facts, credibility of the witness, and weight to be given to the testimony.” (2) Maybe, but harmless here. Even if the officer’s evasive testimony about the limitations of HGN testing was “false and/or misleading testimony [that] the State failed to correct,” the defendant failed to show how this trial error was anything more than harmless error. The arresting officer provided numerous bases for his belief that the defendant was intoxicated, and the State produced evidence of a 0.087 BAC.

4th District San Antonio

Ex parte Ramirez-Hernandez, No. 04-21-00340 (Tex. App.—San Antonio, Jan. 26, 2022)

Issue. A defendant showed he could not afford his $1 million bond; some of the evidence he presented weighed in favor of reduction; some of the evidence he presented weighed in favor of maintaining a high bond. Under these circumstances does a trial court abuse its discretion to deny a request to reduce bond?

Facts. Defendant was arrested on three counts of aggravated sexual assault of his step-daughter. His bonds were set at a cumulative amount of $1 million. Defendant filed a writ of habeas corpus challenging the bond amount and seeking reduction. At the hearing defendant presented a probable cause affidavit, three witnesses, and a letter of support from his employer. All of the witnesses spoke to the defendant’s good character. Two of the witnesses offered testimony controverting the allegations and explaining the complainant’s incentive to lie. Defendant’s siter testified that the most the family has been able to accumulate for bail is $5,000-$7,000. The State offered no evidence. The trial court denied defendant’s request to reduce bail.

Holding. Yes. “[C]ase law is of relatively little value in addressing the ultimate question of the appropriate amount of bail in a particular case because appellate decisions on bail matters are often brief and avoid extended discussions, and because the cases are so individualized that generalization from results reached in others is difficult.” Citing Ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.—Austin, 2002).

The court must consider how actual evidence admitted into evidence affects the weighing of bail factors. Statutory factors include: (1) securing attendance at trial, (2) not an instrument of oppression, (3) nature and circumstance of offense, (4) ability to make bail, (5) safety of victim and community. Case law factors include: (1) nature of offense and possible sentence, (2) ties to community, (3) length of residency, (4) employment history, (5) criminal history, (6) other bond amounts and past compliance, and (7) aggravating factors in the case. Here some factors weighed in favor of a high bond amount and others weighed in favor of a lower bond amount.

The Fourth Court of Appeals considered five other pretrial bail appeals involving sexual assault of a minor. Several of them involved a nuanced consideration of the above-listed factors. In those where bond was set at unattainable levels, they were upheld only when there was a showing of serious risk of flight, continued violations of the law, or inappropriate post-release contact with victims.

Comment. A pretrial writ of habeas corpus reviewed and disposed of by an appellate court within 5 months of filing notice of appeal! San Antonio is doing something right. Other COAs should take notice. Here is a snippet you don’t see often: “Bail is oppressive when the record indicates the trial court set the bail amount for the express purpose of forcing a defendant to remain incarcerated pending trial or appeal.”

5th District Dallas

Shuler v. State, No. 05-20-00386-CR (Tex. App.—Dallas, Jan. 11, 2022)

Issue. Does anyone pay attention to what trial courts assess as fines, fees, and costs?

Facts. The facts are not particularly important here. See below for how the court (frankly how Kathleen Walsh of the Dallas PD’s office) picks apart all of these costs and fees.

Holding. Yes. The trial court assessed a $1,500 fine which it did not pronounce during the defendant’s plea colloquy. “A fine is punitive in nature and intended to be part of a defendant’s sentence; therefore, it must be orally pronounced.” The fine is deleted.

The legislature amended Texas Local Government Code 134.101(b) to require the payment of new types of court costs: a clerk’s fee, a county records management fee, a courthouse security fee, a technology fee, and a specialty court fee. The Statute became effective in 2020—after defendant’s offense date. The assessment of these fees were in error and are therefore deleted.

Former statutes provide for the collection of child abuse prevention and DNA testing fees from defendants convicted or placed on deferred adjudication for child pornography. A new statute reclassified the child abuse prevention fee as a fine and deleted the DNA testing costs. The text of the new law provides that the law in effect at the time of a defendant’s offense shall determine the assessment of appropriate fees. Texas Government Code § 51.608 provides a catchall provision which would seem to supersede the express language of the newly adopted legislation: “a court cost imposed on the defendant in a criminal proceeding must be the amount established under the law in effect on the date the defendant is convicted of the offense.” But, because of the savings provision of the new law indicating the defendant shall pay the costs in effect on the date of his offense, the “law in effect on the date the defendant is convicted” is a law that requires the payment of fees under the old statute.

A former statute authorizes a time payment fee of $25 for a defendant who does not pay the balance of fines and fees within 31 days of sentencing. When a case is on appeal, the assessment of this fee is premature. The 31 days begins counting from the date a mandate is issued.

The court doubled all of the defendant’s costs on account of his being placed on deferred adjudication in two cases. Texas Code of Criminal Procedure article 102.073(a) prohibits a court from assessing a cost or fee against a defendant more than once in cases that are tried in a single criminal action.

The trial court assessed a $185 consolidated felony conviction fee. The Legislature increased the consolidated felony conviction fee from $133 to $185 with an effective date of 2020. This post-dated defendant’s offense date. The consolidated fee is therefore reduced to $133.

Comment. This case is kind of like being stuck behind someone in line at the grocery store with mad coupons. You kind of feel like you’re taking a beating standing in line. But also . . . super interested in how much they’re going to save.

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

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

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

Hall v. State, No. 14-19-00902-CR (Tex. App.—Houston [14th Dist.], Jan 20, 2022)

Issue. Is a sitting trial judge who is friends with a criminal-defense-lawyer-victim an appropriate rebuttal witness if he has familiarity with the low crime rate in the area where the victim was murdered, and the defendant has raised a self-defense which incorporates evidence the high crime rate in the area?

Facts. Defendant was a person with a handicap parking placard and a concealed carry permit. The victim was a person with neither. When the defendant saw that the victim had parked in a handicap parking spot, defendant decided to right this wrong by instigating an altercation. According to the defendant, the two exchanged punches. When the victim got “really mad” and clenched his fists in an “aggressive stance” the defendant pulled out his concealed handgun and shot him in the chest. He then calmly called and flagged down police officers and paramedics. Officers did not see any indicators that the defendant had been in the type of physical altercation the defendant described. At trial, officers testified to the lack of any physical indicia of a serious altercation at the scene; a medical expert testified that the defendant’s handicap was not serious enough to be fatally exacerbated by a fist fight; and the victim’s son testified that the victim was a peaceful criminal defense lawyer who had avoided serious physical altercations with violent people for the duration of his career. Defendant put on evidence of the victim’s young age and physical fitness and compared them to his own old age and ailments. Defendant also elicited through cross-examination of an arresting officer that the area of the offense was prone to gang violence. The trial court permitted the State to call in rebuttal County Criminal Court at Law Judge Raul Rodriguez who was a friend of the victim and familiar with the area in which defendant murdered the victim. Judge Rodriguez testified that he had both maintained a practice and lived in the area of the murder and in his opinion “it is no more dangerous than any other area of Houston” and personally never felt the need to carry a gun to protect himself. 

Holding. Maybe not. Harmless here. Defendant’s argument that the State had no legitimate need for Judge Rodriguez’s rebuttal testimony is unpersuasive. Defendant essentially argues that the State cannot rebut their own witness’s testimony—here the testimony of their officer who admitted the murder occurred in a high crime area. But cross-examination testimony offers shaky support for this argument. Moreover, Judge Rodriguez appeared to be more familiar with the relevant area and community. The combination of Judge Rodriguez’s status as a sitting judge and as a friend of the victim did not convert his testimony from that of a fact witness to that of a witness whose testimony was presented for the mere purpose of improperly influencing the jury. Judge Rodriguez’s relationship with the victim was not a focal point of testimony or the State’s closing. “Even assuming the admission of this portion of the judge’s testimony was erroneous, we conclude any error is harmless.”

Concurrence (Hassan, J.). It was an abuse of discretion to allow a trial judge to testify as a quasi-expert, but the defendant did not specifically object to the witness identifying himself as a judge.

Comment. The Fourteenth Court cites a very good case on the appropriateness of judicial testimony and the potential for improperly influencing a jury by the prestige of office. Joachim v. Chambers, 815 S.W.2d 234 (Tex. 1991).

Do’s and Don’ts of Being Second Chair

Whether you are a seasoned attorney or a new attorney, being a second chair comes with its own unique challenges and pitfalls. However, if done right, the experience of being a second chair will be invaluable for all parties involved, including the client. This article presents suggestions of things to do and things to avoid doing as we advocate for clients as a second chair attorney. One becomes a second chair on a case in many ways, some of which include: new lawyer needing trial experience to get on the wheel, complicated case that calls for the assistance of a court appointed second chair, retained lawyer with resources to hire additional trial help, or even a seasoned attorney helping our next generation of advocates develop trial skills.

No matter the circumstances around a second chair assignment the following steps should always be taken:

  1. Read the discovery;
  2. Read the indictment;
  3. Read the applicable statute(s);
  4. File a designation of attorney;
  5. Have a meeting to decide exactly what help is needed or what will be provided and establish compensation if any.

First Chair Considerations

Expectations must be clear. This can look different for everyone, and it can look different in every case. Do you just want someone to hold your briefcase or bring you water?  Do you want a second chair to support family members and coordinate witnesses during the trial? Do you want your second chair to focus on the client, fielding questions, explaining the process so you can focus on the substantive trial issues? Do you want your second chair to handle a specific witness or area of law i.e.-experts or jury charge?  Do you want your second chair to make objections on the record, or just support you in crafting your objections? Do you want your second chair to brainstorm a theory of the case with you? Do you want your second chair to research specific issues? If so, do you want a brief, case law, or just an oral report back what they found? Do you want them to review and or summarize medical records, or CPS records? If so, how do you want the information provided to you? Do you want them to prepare sample direct or cross questions based on the records, do you want sticky notes, or outlines? Giving the assignment is just as important as how you want the assignment completed. Do you want them to review media?  If so, what are they looking for? Are they watching for redactions?  Are they watching for incriminating statements, exculpatory statements, extraneous offenses? Are they time stamping and transcribing? Are they just reviewing for due diligence purposes because you have a ton of irrelevant media and need a heads up if something important is there?  Be very specific about what you want them reviewing these records for. Are you looking for other possible suspects, or witness credibility issues? When using a baby lawyer, the more direction you can provide, and the reasoning behind it, the better results you will see in return. For example, “I want you to read the CPS records, I am debating between these two defensive theories—the complaining witness is making it up, or some other dude did it. Note each page and highlight the relevant portions that tend to support one or the other theory. If you see another pattern develop, such as parental alienation, note that as well again, with pages and highlights.  We will discuss your review of the records in two weeks and based on what we learn, I will decide which strategy is best for the case.”

Most importantly give and receive deadlines. I have had the unfortunate experience of not giving specific enough assignments and deadlines in the past.  It led to more work for me on each case and added a level of frustration that was not necessary if I had spent more time at the beginning discussing the assignment and clarifying my expectations. I ended up having to do review all CPS records before trial and in another case, I ended up having to deal with a forensic expert on a phone dump at the last minute. As Brene Brown would say, paint done!1

My last big take away no matter what chair you are serving as is to bring a code book to trial and use it. One of the most memorable experiences I have had with this suggestion was as a second chair. We invoked the Rule at the beginning of evidence and then there was an issue whether the expert needed to be excluded. My first chair did not have their code book. I knew what the Rule was, but I had no idea where it was. We frantically combed the one code book we had in the courtroom, and I painstakingly learned that the rule governing witness exclusion is TRE 614, and experts are excluded from the rule.

Being a second chair as a less experienced lawyer

Watch the jury, opposing counsel and the Judge. During voir dire, take notes of attitudes and demeanors of jurors. The lead attorney is going to be focusing on time constraints and making sure the areas of law that are important to the case are covered. They need your eyes and ears to see the jury from a different perspective. During trial, the lead attorney will be focusing on the witness so they might not be able to read the jury or opposing counsel at the same time. Observe and supply feedback to lead counsel. Don’t be afraid to pass the lead attorney notes with questions or comments. Do you think another question should be asked? Does something need to be clarified? If you did not understand something you can bet the jury did not get it either. 

Don’t show up late to court if you are sitting at counsel table. The jury is watching you; act accordingly. Stay off your phone. The jury has been instructed to be off their phones you should as well. Take notes. Track exhibits, number of the exhibit, comments, objections, which witness it was offered through and whether it was admitted. I once leaned over and asked my second chair if the witness said what I thought they had said, and my second chair was not paying attention or taking notes. Infuriating. Ask the first chair if you can get them anything at lunch, and debrief with them after court at the end of the day. Act like part of a team. You are not just sitting second chair to get felony qualified. You should be sitting second chair to help the client. Do not second guess the trial theory. Trials are stressful enough; lead attorneys do not need back seat drivers in the courtroom.

Being a second chair to a less experienced lawyer

Again, have that first meeting to discuss what roles each of you will have. Don’t take over as the senior attorney.  Your job is to guide and teach.  Remember the saying, “If you give a man a fish, you feed him for a day. If you teach a man to fish, you feed him for a lifetime.” Mistakes made by the first chair attorney are okay if they do not rise to the level of ineffective assistance of counsel. Mistakes and struggles are how we learn. 

Watch how they navigate and use technology in the courtroom. I am a flip chart and sharpie kind of girl.  Watching the young lawyers in my office use power points during voir dire has helped me develop and grow as an attorney. Focus on deferring to the first chair for decisions and strategy calls. For example, I was recently in trial in county court as second chair and the prosecutor kept asking me questions, like would we stipulate to priors. I had to be mindful that it was not my case. I know what I would do, but I wanted the prosecuting attorney to have that conversation with the first chair attorney. Remember there is also an emotional element to trying cases. They might need a little more support and feedback from us while gaining trial experience. Remind them that this is hard work, and everyone makes mistakes, that is why we call it the practice of law. Finally, balance any constructive criticism with specific compliments on their skills and successes as appropriate. If your feedback is professional and helpful, a young lawyer is more likely to take it to heart. Then, your efforts contribute to developing the advocacy skills of a less experienced lawyer.

Tips for Public Defenders & Indigent Defense

Practicing law is hard, regardless of who your client is. However, representing indigent clients adds an additional layer of complexity that increases the difficulty for both the client and the lawyer representing them. These complexities, combined with the additional challenges brought by COVID-19, necessitate that we pull all the resources we can to lessen our clients’ burden as much as possible.  To that end, here are five tips that attorneys who represent indigent clients can use to improve their overall situations. 

1. Electronic Monitoring Cost – CCP 17.43

Often on serious cases, a judge will order electronic monitoring, or, during a bond hearing, a judge might insist on electronic monitoring as a condition for lowering a bond. We all know that paying the deposit and fees on such a device can be a more significant hurdle for clients than paying the bond in the first place, especially when electronic monitoring costs are compounded with supervision fees and drug testing fees. However, the Code of Criminal Procedure provides an avenue to make this hurdle a little easier to clear. As always— with all things— your mileage may vary depending on your jurisdiction and the particular judges you practice in front of. 

CCP 17.43 allows for electronic monitoring fees to either be paid directly by the defendant or set as a reimbursement fee. See Tex. Code Crim. Proc. Art. 17.43(b). If you can successfully argue for the fee to be set as a reimbursement fee instead of being paid directly and are granted relief, your client can get out of jail and avoid the additional financial hardship.  Secondly, if the case ends up being dismissed, your client will likely avoid paying any of the reimbursement fees. However, if the case DOES end up pleading, CCP 42A.652(b) is what you should remember. This statute allows the judge to waive the reimbursement fees “if the judge determines that payment of the reimbursement fee would cause the defendant significant financial hardship.” See Tex. Code Crim. Proc Art. 42A.652(b). Of course, it is advantageous to you to provide as much documentation of your client’s financial difficulty as you can.  

2. Ability to pay inquiry – CCP 42.15

This is a particularly underutilized part of the indigent defense tool kit. CCP 42.15 indicates that a judge should be conducting an ability-to-pay inquiry in regards to fines and court fees, and it provides a way for fines and fees to be partially or completely waived. Under this statute, a judge can determine that your client has the resources to pay and can order them to: (1) pay the entire amount immediately; (2) pay the entire amount at a later date; or (3) pay the entire amount in installments. Conversely, the judge can also find that your client does NOT have the resources to pay and order the same conditions as (2) – (3) above (either in full or a partial amount). Additionally, the judge can order your client to satisfy what is owed via performing community service hours. Further, the judge can use a combination of all of these to allow your client pay what they owe. You can even go one step further and argue, utilizing CCP 42.15 in combination with CCP 43.091, for a full waiver of fines and court costs. 

3. Multiple Court Cost – CCP 102.073

If a court tries to double dip on you and attempts to collect more than one court cost fee, CCP 102.073 is your bread and butter. CCP 102.073 states that “in a single action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.”  See Texas Code Crim. Proc. Art. 102.073. Of particular note in this statute is the fact that it states “criminal action” and not “criminal episode.” Some courts may conflate the two and try to assess multiple court costs when they should not. This is exceptionally important to pay attention to because the court’s inappropriate application of this statute could cost your client hundreds of dollars. 

4. Proper clothes for trial, via clothes closet or other means

Certainly, this is old hat for many of you, but some things bear repeating: the clothes our clients wear can change the jury’s perception of them. It’s the reason why we don’t try cases with our clients in orange jump suits. Dressing appropriately is important from the moment you walk into the courthouse for trial until the very end. Even when first entering the courthouse, perspective jurors begin sizing up your client. They are judged constantly: from the hallway, through voir dire, and then finally from the jury box. If your client is wearing a pair of ancient jeans and a t-shirt because that is all they can afford, the jury doesn’t understand this as a manifestation of your client’s poverty. Rather, they perceive your client’s clothing as a reflection of a person who doesn’t care enough about his situation to put on a polo and decent pair of shoes. A clothes closet is the best resource we defense attorneys can access to address this problem. If you have a Public Defender’s Office, see about partnering them with the local defense bar to put together something that everyone can use.

A clothes closet requires a dedicated space and not all places can pull this off effectively.  There are, however, other options for making sure your client is dressed appropriately. One option is to go to the judge and discuss the issue with them. Ask for a modest clothing allowance to put on an attorney payment voucher at the end of the trial. Finding some appropriate decent looking clothing at a thrift store can be done cheaply, and you will find many judges are more than willing to pay out a few bucks to reimburse you for this. Also, in jurisdictions where judges are a bit more on the tightfisted side, local defense bars can set aside a bit of money for a fund that helps support appropriate courtroom dress. However, you have to do it, there are options available. Your client showing up appropriately dressed can make the difference in getting a two-word verdict. 

5. And finally – fight…

Of course, we always fight for our clients, right?  But sometimes we lose track of the more subtle and important ways to fight for them.  It’s important to remind judges, ADAs, probation officers, and anyone else involved in the criminal justice system that programs like drug court, DWI court, pre-trial interventions, and deferred adjudication are not just meant for rich people. Low-income citizens should NEVER be priced out of a better resolution to their case. Fight by reminding people of this at every opportunity. No good is accomplished for anyone when our clients are set up for failure. Pushing back against post-conviction financial injustice is the only way we can prevent indigent clients from being set up for failure.

Why Diversity Matters

Businesses, non-profit organizations, and government agencies have been creating diversity and inclusion divisions in the past decades, due to recognition that the demographics of the U.S. have changed. Texas is a minority-majority state, with African Americans being the largest minority group, according to the 2020 U.S. Census. If an organization wishes to continue to grow and succeed into the next millennium, issues of diversity and inclusion must be addressed.

For a criminal defense attorney, understanding issues relating to race, diversity, and inclusion can help one be a better lawyer. Here is why. 

Race in the Criminal Justice System

One cannot be a good criminal defense attorney and not be aware of issues involving race and racial bias in both policing and the criminal justice system. Over-representation of Black men in the criminal justice system is well documented. Black men make up approximately 13 percent of the male population, but make up to 35 percent of those incarcerated. One in five Black people born in 2001 is likely to be incarcerated, compared to one in 10 Latino people and one in 29 white people, according to a 2019 Vera Institute of Justice report.1  More than 70 percent of the people currently on Texas’ Death Row are Black or Hispanic, according to the Texas Department of Criminal Justice January 2022 report.2 A good defense attorney must understand the discrimination faced by many in the communities of color in order to understand why the criminal justice system is in it’s current state. It’s important to understand the historical and systemic racism that exists in these institutions to understand why your client was pulled over, why your client was searched, and how your client’s race plays in their case and/or sentencing. To ignore the racial aspects involved in policing and the bias that has been studied and documented to exist in the criminal justice system, may cause an attorney to fail in preparing for their case.

Understanding Race and Diversity Will Help You Understand Your Client

If the pandemic has reminded us of anything, it’s that we are social creatures…and social creatures have a need to be understood and heard. For many clients from communities of color, their attorney may appear to be vastly different than themselves in comparison. We may not look like them, talk like them, or even live in similar neighborhoods. These things may cause a client to build walls and see us as untrustworthy. To build rapport and trust, we must show these clients that we empathize with them and want to understand their story and history.  To do this, we must be truly open to listening with an ear towards understanding. I often represent black clients and have been accused of being biased against them, on multiple accounts, because of the historical tensions between the Asian and African American communities. I could deny that such tensions exist or say that those things were in the past. But if I did that, it would invalidate what my client has said and the fear they are feeling having me as their lawyer. By acknowledging that these tensions exist, I open a door towards a conversation that will help guide me to the fears and anxieties my client has about their case.  My acknowledgment also opens my client up to tell me the goals they have for their case. Attorneys are oftentimes more counselors-at law than attorneys-at law.

Understanding Race and Diversity Will Help You in Trial

Most attorneys practice in major cities. All the large cities in Texas are minority majority. That means more jurors from communities of color are part of our jury pool than in prior decades. We miss an opportunity to connect with the jurors if we do not acknowledge that race has played a critical part in their life experiences.  Bias, race, and racial bias are in the forefront of many jurors’ minds in the wake of cases such as George Zimmerman, George Floyd, and Ahmaud Arbery. 

As a lawyer, you must address how the police are viewed by communities of color to understand how your trial may be affected in instances where the main witness is a police officer. For some communities, the police have been known to threaten and harass their own. For others, there’s a fear of police because they’re from other countries, where the police are corrupt and brutal. An attorney must understand the racial and cultural dynamics of these communities. You will not connect with your jurors, and therefore not help your case, if you are not aware of and do not discuss these issues with the jurors beforehand.

We are Here for You

Discussions of race and racial bias can be scary and emotional. People are afraid of being called racist, stupid, or uncaring. However, the first step towards understanding is the desire to learn.  Our members at the Diversity, Justice, and Inclusion Committee are here to help answer your questions without judgment. There are no stupid questions if you’re asking to learn and understand. We want to have this dialogue with you to help you be a better lawyer, as well as a better TCDLA member. Monique Sparks and myself are the co-chairs of this Committee. Reach out to us anytime. Let’s talk.

Outcry Statements: ARTICLE 38.072, C.C.P. Part 1

In child abuse cases the “outcry statement” of a child witness may be admissible into evidence pursuant to Article 38.072, C. C. P., which establishes an exception to the hearsay rule of exclusion. Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013); Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005); Dorado v. State, 843 S.W.2d 37 (Tex. Crim. App. 1992); Dority v State, 631 S.W.3d 799, 791 (Tex. App.-Eastland 2021); Gibson v. State, 595 S.W.3d 321, 326 (Tex. App.–Austin 2020); Prince v. State, 574 S.W.3d 561, 571 (Tex. App.–Houston [1st. Dist.] 2019); Hines v. State, 551 S.W.3d 771, 780 (Tex. App.–Ft. Worth 2017); Alberts v. State, 302 S.W.3d 495, 504 (Tex. App.–Texarkana 2009, no pet.). It permits the introduction into evidence of an out-of-court statement of a child complainant which, in typical criminal or civil litigation, would be barred as hearsay. Bays v. State, supra at 585; Gibson v. State, supra; Prince v. State, supra. Testimony of an outcry witness about a complainant’s outcry is not expert testimony, but is admissible hearsay testimony about the facts of the case. Schmidt v. State, 612 S.W.3d 359, 367 (Tex. App.-Houston [1st Dist.] 2019, reh. denied, pet. ref’d).

A. Requirements

In the prosecution of any sexual offense involving a child, prohibited sexual conduct, sexual performance of a child, or an assaultive offense against a child, the prosecution may use as evidence of guilt, statements made by an alleged child victim who is younger than 14-years of age or is disabled. To be admissible, the following conditions must be present:

  1. The statement was made by the child against whom the offense was allegedly committed;
  2. The statement was made to the first person, 18-years of age or older, other than the defendant, to whom the child made a statement about the offense;
  3. The statement must describe the offense in some discernible way and not be merely a general allusion that something in the area of child abuse is going on;
  4. The adverse party must be notified 14 days prior to the beginning of the trial of the name of the outcry witness and be provided a written summary of the testimony of the outcry witness;
  5. The trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content and circumstance of the statement; and
  6. The complainant testifies or is available to testify in court or in any other manner provided by law.

Art. 38.072, Sec. 2, C.C.P.; Sanchez v. State, 354 S.W.3d 476, 484-85 (Tex. Crim. App. 2011); Dority v. State, supra; Prince v. State, supra; Nino v. State, 223 S.W.3d 749,752 Tex. App.–Houston [14th Dist.] 2007); Robinett v. State, 383 S.W.3d 758 (Tex. App.–Amarillo 2012).  Article 38.072 applies to outcry statements made by a child (under 18-years of age) who was the victim of sexual contact or abuse prior to age 14. Olivera v. State, 2009 WL 3740781, *7 (Tex. App.–Dallas 11/10/09, pet. ref’d); Cordero v. State, 444 S.W.3d 812 (Tex. App.–Beaumont 2014).  Prior to September 1, 2009, Art. 38.072 applied to child victims twelve-years of age or younger.  Acts 2009, 81st Leg., ch 710, Sec. 1, 2, eff. September 1, 2009.

A seventeen-year-old victim is a “child” for purposes of Article 38.072, so a seventeen-year- old cannot be an outcry witness, even though the seventeen-year-old may be an adult for other criminal law purposes.  Gutierrez v. State, 630 S.W.3d 270, 278 (Tex. App.-Eastland 2020, pet. ref’d 2021). A person who has not attained the age of eighteen-years cannot be an outcry witness.  Nino v. State, 223 S.W.3d 749 (Tex. App.- Houston [14th Dist.] 2007).  Where the victim of an aggravated sexual assault of a child charge is eighteen-years of age or older when she makes her outcry statement, the outcry testimony is not admissible under Article 38.072.  Cordero v. State, 844 S.W.3d 812 (Tex. App.-Beaumont 2014, pet. ref’d).  An outcry witness must be eighteen-years of age or older.  Prieto v. State, 337 S.W.3d 337 S.W.3d 918 (Tex. App.-Tyler 2011); Bargas v. State, 252 S.W.3d 876, 894 (Tex. App.-Houston [14th Dist.] 2008).

Illustration: In Zarco v. State, 210 S.W.3d 816 (Tex. App.–Houston [14th Dist.] 2006), a police detective was determined to be the proper outcry witness in an indecency with a child prosecution, although the child complainant first told her cousin about the abuse. However, the cousin was not 18 years of age at the time the complainant made her statements, and the testimony indicated that the detective was the first person, 18 years of age or older, other than the defendant, to whom the complainant made a detailed statement about the offense.

Illustration: In Harvey v. State, 123 S.W.3d 623, (Tex. App.–Texarkana 2003, pet. ref’d.), the testimony of victim’s boyfriend as to the content of victim’s outcry statement to him, that her step-father had sexually assaulted her when she was twelve-years old, should not have been admitted in a child sexual assault case, because the victim did not make the outcry to her boyfriend until after her eighteenth birthday.

Illustration: In Shaw v. State, 122 S.W.3d 358 (Tex. App.–Texarkana 2003), a handwritten note by a child victim that the defendant had sexual contact with her, was not admissible in an aggravated sexual assault prosecution as an outcry statement under the Article 38.072  because the victim testified she wrote the note after she told everybody, and the victim testified she did not give the note to her mother, but rather, her mother found it.

Illustration: Article 38.072 outcry statements may not be presented by means of a recording but must be presented by the first person to whom the child makes a statement about the offense charged. Bays v. State, 396 S.W.3d 580, 591-92 (Tex. Crim. App. 2013).

Since outcry testimony may only be about the offense charged, any testimony about conduct that occurred prior to the effective date of §21.02 (continuous sexual abuse of a child) cannot be the subject of outcry testimony. Bays v. State, supra at 585 (the outcry statute permits the first person to whom the child made a “statement about the offense” to testify).  The statement made by the child victim must describe the alleged offense. Art. 38.072, §2(a), C.C.P.; Mata v. State, 2016 WL 859037 (Tex. App.-Austin). The outcry statute does not apply to a collateral matter or extraneous offense.  Beckley v. State, 827 S.W.2d 74, 78 (Tex. App.–Ft. Worth 1992); Linney v. State, 401 S.W.3d 724, 780 (Tex. App.–Houston [14th Dist.] 2013, pet. ref’d); Chapman v. State, 150 S.W.3d 809, 816 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d 2005). 

The burden is on the State, as the proponent of the evidence, to satisfy each element of the predicate for admission of evidence pursuant to Art. 38.072. Rosales v. State, 548 S.W.3d 796, 806 (Tex. App.–Houston [14th Dist.] 2018); Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990); Vinson v. State, 252 S.W.3d 336, 340 n.15 (Tex. Crim. App. 2008). If the State presents such evidence, the burden shifts to the defendant to rebut that evidence. Eldred v. State, 431 S.W.3d 177, 183 (Tex. App.-Texarkana 2014). “The provisions of article 38.072 are mandatory and must be followed for the outcry statement to be admissible over a hearsay objection.”  Bays v. State, supra at 591 (the statute’s explicit content and procedural requirements are mandatory, even though they may at times result in admission of a less detailed statement of the child.); Hines v. State, 551 S.W.3d 771, 781 (Tex. App.–Ft. Worth 2017) (the proper outcry statement is not determined by choosing the most detailed statement); Robinett v. State, 383 S.W.3d 758 (Tex. App.–Amarillo 2012) (same); Owens v. State, 381 S.W.3d 696 (Tex. App.–Texarkana 2012) (same); Elder v. State,132 S.W.2d 20 (Tex. App.-Ft. Worth 2004) (same); Thomas v. State, 1 S.W.3d 138 (Tex. App.-Texarkana 1999) (same); Reynolds v. State,227 S.W.3d 355 (Tex. App.-Texarkana 2011) (same); Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (holding that outcry witness’s testimony is only admissible as a statutory exception to the hearsay rule if its procedures are followed);  If the trial court overrules a hearsay objection without complying with the provisions of article 38.072, the trial court has committed error.  Rollins v. State, 2010 WL 1568473 (Tex. App.–Houston [1st Dist.] 2010, pet. ref’d).

Where a trial court commits error by admitting hearsay testimony that does not comport with Article 38.072, an appellate court will not reverse unless the failure to comply with the requirements caused harm. Rollins v. State, supra at *6; Bays v. State, supra; Prestiano v. State, 581 S.W.3d 935, 946 (Tex. App.–Houston [1st Dist.] 2019).  A trial court’s decision to admit or exclude evidence under Art. 38.072 is reviewed for an abuse of discretion. Garcia v. State, 792 S.W.3d 88, 92 (Tex. Crim. App. 1990). “The erroneous admission of evidence becomes harmless error if other evidence proving the same fact is properly admitted elsewhere, or the evidence comes in elsewhere without objection.  Land v. State, 291 S.W.3d 23, 28 (Tex. App.–Texarkana 2009, pet. ref’d); . . .; see Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).” Prince v. State, 574 S.W.3d 561, 574 (Tex. App.–Houston [1st Dist.] 2019).  Testimony of an outcry witness is subject to a limiting instruction at the defendant’s request. Smith v. State, 40 S.W.3d 147, 150 (Tex. App.-Texarkana 2001)

B. Outcry Witness

The outcry witness is the first adult to whom the child makes a statement about the offense.  Robinett v. State, 383 S.W.3d 758 (Tex. App.–Amarillo 2012); Prince v. State, supra at 571; Dority v. State, supra at 792. The first person to whom the child made a statement cannot be the outcry witness if the person did not hear, does not remember, or did not understand what the child was saying. Foreman v. State, 995 S.W.3d 854, 859 (Tex. App.-Austin 1999, pet. ref’d); Dority v. State, supra at 792. To qualify as “outcry evidence,” the child’s statement must constitute more than a general allusion that sexual abuse has occurred.  Rather, the statement must describe the offense in some discernable manner.  Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); Hines v. State, 551 S.W.3d 771, 781 (Tex. App.-Ft. Worth 2017); Bargas v. State, 252 S.W.3d 876, 894 (Tex. App.–Houston [14th Dist.] 2008); Owens v. State, 381 S.W.3d 696, 702 (Tex. App.–Texarkana 2012). 

Illustration: In Elder v. State, 132 S.W.3d 20 (Tex. App.–Ft. Worth 2004), pet. ref’d, cert. denied, 544 U.S. 925, habeas corpus denied, 2007 WL 2191333, the child’s mother was  determined to be the outcry witness where the child made statements to her that the defendant “stuck his weenie” into her mouth, and “licked her privates,” had told her “boys can do that,” had touched her breast and had taken pictures of her with her panties off, which was more than mere allusion that something in the area of child abuse had occurred, even though the child later told the case manager some details she had not mentioned to the mother.

However, the decisions are not consistent as to what constitutes a “discernible manner.”  Several courts have held that the proper outcry witness is the first adult to whom the complainant tells “how, when and where” she was assaulted. Hanson v. State, 180 S.W.3d 726 (Tex. App.–Waco 2005, no pet.); Muzolf v. State, 2016 WL 2842066, *1-3 (Tex. App.–Dallas 05/10/16); Rodgers v. Sate, 442 S.W.3d 547, 552 (Tex. App.–Dallas 2014, pet ref’d); Mitchell v. State, 381 S.W.3d 554, 559-60 (Tex. App.–Eastland 2012, no pet.); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.–Dallas 1999, pet. ref’d); Brown v. State, 381 S.W.3d 565, 571 (Tex. App.-Eastland 2012). In Mata v. State, 2016 WL 859037,*2 (Tex. App.–Austin 03/04/16), where the defendant was charged with continuous sexual abuse of a young child, the trial court did not abuse its discretion by finding the first witness to whom the child described the offense to be the witness to whom the child described the time element, in conjunction with describing the abusive conduct, because that is when the child discussed the “how, when and where” of the abuse.  In Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008), the court held that just providing an interviewer with a general confirmation of sexual abuse, but providing no specificity as the “how, when, where” does not make that interviewer the proper outcry witness if the complainant tells a later interviewer the details of the abuse.

On the other hand, several courts of appeal have rejected the position that how, when and where are necessary to constitute a proper outcry statement. Instead, they rely on “the well-established rule that, to be a proper outcry statement the child’s statement must describe the offense in some discernible manner and must be more than an allusion to sexual abuse.” Brown v. State, 189 S.W.3d 382, 386 (Tex. App.–Texarkana, pet. ref’d 2006); Sims v. State, 12 S.W.3d 499,500 (Tex. App.–Dallas 1999, pet. ref’d); Reed v. State, 974 S.W.2d 838, 841 (Tex. App.–San Antonio 1998, pet. ref’d); Eldred v. State, 431 S.W.3d 177, 181 (Tex. App.–Texarkana 2014); Rosales v. State, 548 S.W. 3d 796, 806 (Tex. App.–Houston [14th Dist.] 2018).  The Court of Criminal Appeals has not resolved the apparent conflict as to which standard should be applied.

Frequently, family members are viewed as having received only general statements of abuse, and subsequent statements to adults outside the family are labeled the “outcry evidence.”

Illustration: In Castelan v. State, 54 S.W.3d 469 (Tex. App.–Corpus Christi 2001, no pet.), a child told her grandmother that the defendant had “put his thing in through the back.”  The child later described the offense to a school counselor. The appellate court ruled that the school counselor was the proper outcry witness because the earlier statement to the grandmother had not communicated specific details of the abuse. 

 Illustration: In Rosales v. State, 548 S.W.3d 796, 807 (Tex. App.–Houston [14th Dist.] 2018), the court held that a statement to Aunt Mary that the defendant “touched her in the wrong way” was no more than a general allusion that abuse had occurred.

Illustration: In Shaw v. State, 329 S.W.3d 645 (Tex. App.–Houston [14th Dist.] 2010, pet. ref’d), the child victim’s mother was the first person, 18 years of age or older, to whom the complainant made a statement describing the offense; but the court found that the complainant did not disclose sufficient details to her mother to describe the alleged offense.  The complainant had told her mother that the defendant was the one who got her pregnant.  The court held that although this statement might raise an inference of penetration, it did not clearly describe the alleged offense that the defendant penetrated the victim’s sexual organ (how else could the defendant have impregnated her).  The court ruled the school principal was the outcry witness.

Illustration: In Reynolds v. State, 227 S.W.3d 355 (Tex. App.–Texarkana 2007, habeas corpus denied 2016 WL 5393852), the program director of a child advocacy center qualified as an outcry witness regarding an offense involving the genital area of a child complainant, as the mother of the child did not testify that the complainant told her about an offense involving the genital area. 

Illustration: In Smith v. State, 131 S.W.3d 928 (Tex. App.–Tyler 2004), pet. ref’d, the court properly determined that an employee of a children’s advocacy center, rather than the child’s mother or doctor, was the proper outcry witness, even though the child made statements both to his mother and the doctor before talking to the advocacy center employee. The child’s statements to the mother that the defendant had been performing oral sex on him did not relay specific enough details about the charged offense and the trial court could have reasonably determined that the statement was nothing more than a general allusion that sex abuse was occurring, and the record did not demonstrate that the child told his doctor anything more than he told the mother.

Illustration: In Monreal v. State, 2006 WL 220857 (Tex. App.–Houston [14th Dist.]), the trial court properly determined that the victim’s mother, rather than the defendant’s wife, was the proper outcry witness, even though the four-year old victim made a statement about the touching to the defendant’s wife before making the statement to her mother, the record was devoid of specific details of the statement made by the victim to the defendant’s wife, the victim’s mother was not present when the victim told the defendant’s wife about the abuse, no testimony was heard at the hearing from the defendant’s wife or the victim, and the victim specifically told her mother that the defendant had touched her private parts with his finger.

As these cases illustrate, the trial court has broad discretion when deciding which of several witnesses is the outcry witness.  Generally, reviewing courts will not disturb that decision absent clear abuse of discretion.  Guzman v. State, 591 S.W.3d 714 (Tex. App.–Houston [1st Dist.] 2019); Martinez v. State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005); Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008); Robinett v. State, supra; Chapman v. State, 150 S.W.3d 809 (Tex. App.–Houston [14th Dist.] 2004, pet., ref’d 2005); Juarez v. State, 2016 Tex. App. LEXIS 3492, *13 (San Antonio 04/06/16).  However, in Brown v. State, 189 S.W.3d 382, 385-86, (Tex. App.–Texarkana, 2006, pet. ref’d), the conviction was reversed because a counselor was not the proper outcry witness where the child had previously told her father of the offense in a discernable manner. A written summary has been found to be insufficient where the summary was deemed to have provided less information that the indictment.  Biggs v. State, 921 S.W.2d 282, 285 (Tex. App.–Houston [1st Dist.] 1995, pet. ref’d 1996); Gay v. State, 981 S.W.2d 864, 866 (Tex. App.–Houston [1st Dist.] 1998); Davidson v. State, 80 S.W.2d 132. 136 (Tex. App.–Texarkana 2002.

It is not error to allow two different outcry witnesses where the child describes different conduct to each of them.  Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Matthews v. State, 152 S.W.3d 723 (Tex. App.–Tyler 2004, no pet.); Alvarado v. State, 2016 WL 191935, *3 (Tex. App.-Houston [1st Dist.]). However, an outcry statement is event-specific, rather than person-specific.  Ruedas v. State, 2015 WL 9584002, *4 (Tex. App.–Eastland).  There may be two outcry witnesses if they each testify about different events, but there may be only one outcry witness as to the victim’s statement about a single event.  Guzman v. State, 591 S.W.3d 713 (Tex. App.–Houston [1st Dist.] 2019); Eldred v. State, 431 S.W.3d 177, 181-182 (Tex. App.–Texarkana 2014); Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.–Texarkana 2000, pet. ref’d); Reynolds v. State, 227 S.W.3d 355, 368 (Tex. App.–Texarkana 2007); Hankey v. State, 231 S.W.3d 54, 57 (Tex. App.–Texarkana 2007); Cervantes v. State, 2019 WL 6607003 (Tex. App.–Waco) (trial court acted within its discretion in allowing both mother and grandmother to testify as outcry witnesses to a minor child’s initial statements describing the alleged conduct with the minor, in a prosecution for indecency with a child by contact and by exposure, despite the defendant’s contention that it was error to allow multiple outcry witnesses; although both witnesses described sexual contact, they described different events; the grandmother’s testimony was limited to describing a gesture made by the minor when describing her interaction with the defendant and the mother testified as to the statements the minor made that the defendant made her touch his “thing” while sitting on the couch.); Smith v. State, 459 S.W.3d 707 (Tex. App.–Texarkana 2015, pet. ref’d) (complainant’s mother was proper outcry witness who could testify to her out-of-court outcry statements in aggravated sexual assault prosecution, as there was nothing before the trial court suggesting that the complainant had made event-specific outcries to any person other than her mother); Eldred v. State, 431 S.W.3d 177, 181-185 (Tex. App.–Texarkana 2014), habeas granted 2015 WL 5076834, pet. ref’d, (hospital employee, rather than forensic examiner, was the proper outcry witness concerning two initial events of sexual abuse that occurred the night before the victim’s hospital visit; medical record contained several quotes attributed to victim concerning abuse, which were entered by hospital employee prior to when the victim met with the forensic examiner.  It is not error to admit more than one statement that the child made to more than one outcry witness. Josey v. State, 97 S.W.3d 687 (Tex. App.-Texarkana 2003) (if a child victim first describes a different type of abuse to a second outcry witness, the second witness may testify about the different issue of abuse). In Zinger v. State, 899 S.W.2d 423 (Tex. App.–Austin 1995), rev’d on other grounds, 932 S.W.2d 511 (Tex. Crim. App. 1996), it was permissible to admit multiple statements the child made over a three-day period, where they were all considered part of the initial outcry.

The outcry witness must present the outcry testimony in trial before the trier of fact. If the outcry was elicited during a forensic interview with the child complainant, the forensic interviewer may be the outcry witness, but the outcry testimony may not be presented by means of a recorded statement. Bays v. State, supra; Dunn v. State, 125 S.W.3d 610 (Tex. App.–Texarkana 2003).

C. Reliability Hearing

Prior to admitting the outcry statement, the trial judge must conduct a hearing outside the jury’s presence to determine that the statement is reliable. In making that determination the judge must consider the time, content, and circumstances of the statement. Sanchez v. State, 354 S.W.3d 476, 484-85 (Tex. Crim. App. 2011); Duncan v. State, 95 S.W.3d 669 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d).  The statute charges the trial court with determining the reliability based on “the time, content and circumstances of the statement. . .. [I]t does not charge the trial court with determining the reliability of the statement based on the credibility of the outcry witness.” Sanchez v. State, supra at 487-88. The statute does not require that the reliability hearing be conducted prior to trial, only prior to the admission of the outcry statement. Sanchez v. State, supra at 485 n.16; Smith v. State, 131 S.W.3d 928 (Tex. App.–Eastland 2004, pet. ref’d).  The complainant must either testify or be available to testify at the hearing.  Eldred v. State, 431 S.W.3d 177, 181 (Tex. App.–Texarkana 2014), habeas granted 2015 WL 5076834, pet. ref’d.

Admission of the evidence without a hearing is an abuse of discretion but is subject to a harm analysis.  Moore v. State, 233 S.W.3d 32, 35-37 (Tex. App.–Houston [1st Dist.] 2007).  In order to preserve error, the defendant must object to the trial court’s failure to conduct a preliminary reliability hearing.  Diaz v. State, 125 S.W.3d 739 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d).  Even in the face of an objection, error in failing to conduct a reliability hearing may be deemed harmless. Adams v. State 2003 WL 21087716 (Tex. App.–Austin 2003, no. pet).

Current Issue: March 2022

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DOWNLOAD PDF VERSION

Features

24 | Do’s and Don’ts of Being Second Chair – By Michelle Ochoa
27 | Tips for Public Defenders and Indigent Defense – By Mark A. Melchor, J Ryan Crisler, and Rachel Crisler
30 | Why Diversity Matters – By Thuy Le
33 | Outcry Statements: ARTICLE 38.072, C.C.P. Part 1 – By Craig Jett

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
9 | Editor’s Comment
10 | Ethics and the Law
12 | Shout-Outs
13 | Chapter & Verse
15 | Federal Corner
20 | From the Front Porch

Departments

4 | CLE Seminars and Meetings
38 | Significant Decisions Report

President’s Message: Thank You

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I want to take this opportunity to thank all of the hard-working people who are dedicating their time and talents to making TCDLA the wonderful organization it is for our members. Each of the committee chairs and members have been such a great amount of help for me during my time this year as president.

These excellent TCDLA committees are: Affiliate, Amicus Brief Curiae, Awards, Budget and Finance, By-Laws, Cannabis, Capital Assistance, Client Mental Health, Corrections and Parole, COVID-19 Task Force, Criminal Defense Lawyers Project, Diversity, Justice & Inclusion, DWI Resource, Ethics, Executive, Health and Wellness, Indigent Client Defense, ICC, Judicial Conduct, Juvenile, Law School Students, Legislative, Listserv, Long-Range Planning, Media Relations, Membership, Memo Bank, New Lawyers, Nominations, Past Presidents, Prosecutorial Conduct, Public Defender, Reapportionment, Rural Practice, Strike Force, Technology, Transcript Database, Veterans, Voice for the Defense, and Women’s Caucus. I also want to include the Texas Criminal Defense Lawyers Educational Institute and local Affiliate Criminal Defense Bars.

Almost daily, TCDLA s confronted with challenges from various areas of concern. It is a relief to know that I can refer these challenges to our brilliant committees knowing that I will receive a collective consensus on how to best tackle any given issue. I always know that I will get the most astute advice possible from these outstanding individuals. After obtaining the advice from a committee, I then refer the issue to our Executive Committee for their input. I want to thank my Executive Committee for their tireless and wonderful guidance during my presidency on the many issues we have faced together. Heather Barbieri, John Hunter Smith, David Guinn, Jr., Clay Steadman, Nicole Deborde Hochglaube, Jeep Darnell, Betty Blackwell, David Moore, David Botsford, Grant Scheiner, Monique Sparks, and Paul Tu each deserve our heartfelt thanks for their dedication and contributions to TCDLA. I am truly blessed to have such wonderful support from these individuals.

Last but not least, I want to thank our hardworking TCDLA staff and their excellent leader, Melissa Schank. The number of CLE’s alone that are produced by TCDLA keeps our staff working long hours and oftentimes away from home. Thanks so much for your service to TCDLA. Melissa is the leader that keeps all of this running for TCDLA. Her fortitude, experience, thoughtfulness, and steady hand at handling the many issues confronting TCDLA is truly awesome. I cannot thank her enough. The next time any of our members are at a TCDLA function, please take the time to seek out these people and thank them for their contributions to our wonderful organization.

In the future, it is my hope that our members who have not yet taken part in our committees will take the time to help our organization continue to grow by dedicating their time to committees or any other part of our organization.

Executive Officer’s Perspective: Fast and Furious

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“In life, it’s not where you go, it’s who you travel with.”

—Charles Schulz

February flew by. The month started with seminars during the Austin shutdown, led by our fearless course directors Rick Wardroup (Capital); Jani Maselli Wood (Appellate); Teri Zimmerman, John Shelburne, and John Convery (Veterans); and Rick Wardroup and Alyse Ferguson (Mental Health). Special thanks to all the speakers and attendees who braved the weather and made this event possible.

Next up was TCDLA’s Federal Law & Gumbo. The excellent topics and speakers in New Orleans kept the entire audience entranced each day till 4:30 pm. Speakers then lingered and met with attendees individually, and the questions continued at length. You know it’s good when no one leaves early on a Friday! Course directors John Convery and David Botsford hosted a stellar lineup. (If you missed the event, you can find it in the on-demand portion of our website.)

Of particular note was the presentation of the TCDLA Distinguished Service Award to Roy Barrera Sr., surrounded as he was by a number of attending past presidents. It was such an honor to meet a legend and listen to his stories. At the age of 95, Roy still retains clients and actively litigates, including in a recent criminal felony. He may be the longest-standing criminal defense attorney in the state, licensed more than 70 years. In 2021, Roy had two jury trials—one trial to verdict and another ending in a mistrial. He truly is one of our gentle giants.

The fun times did not end with the seminar; this also included our President’s Trip, hosted by Michael Gross. His choice social events combined great times, delicious meals, plus the camaraderie of our past presidents, officers, lifelong members, and new faces. We spent four days and evenings together and really got to know each other and catch up. The photos can’t begin to show just how much fun we had!

Gene Anthes and Sean Levinson from the Membership Committee also put together a rousing get-together: our first Members Social Event Touring the Cowboys Stadium. This was a great idea to bring members and families together to meet and form relationships in a fun, relaxing environment. The Membership Committee has three more social events planned this year: a Dallas Stars Hockey game, a Texas Rangers game, and a Wine Tasting—Austin to Fredericksburg. We will be sending more details soon.

The month continued with an Indigent Defense seminar in Dallas, where Lynn Richardson assembled a talented lineup for an overwhelming turnout of attendees. This event has always been popular due to Lynn’s leadership and support. In addition, we hosted two Juvenile Training Immersion Programs. Bill Cox and Kathleen Casey-Gamez worked tirelessly with trainers who prepared materials and a written curriculum designed specifically for Texas. The series of small group interactive programs—each a different topic—proved to be a resounding success. The next one is March 4 in El Paso on Adolescent Development. The final program of the series will be held virtually on April 29, dealing with “The Role of Counsel and Organization 101: Managing the Juvenile Caseload.”

It must be noted that we have worked closely with the grant on innumerable related items. We want to thank Judge Hervey and the Texas Court of Criminal Appeals judges in general for their continued support for the education of criminal defense attorneys and support staff.

We also held a successful Career Pathways training to engage law-school students, new lawyers, and lawyers exploring a specialty or new career. More than 40 criminal defense attorneys shared their experiences, career paths, local county cultures, and norms—whether in private practice, firms, or PD/MAC offices. If you missed out, you can still view this on the website.

TCDLA also joined with the NACDL Foundation in a united effort to fund TCDLEI scholarships. We appreciate all our members who contributed and/or attended. The Texas Criminal Defense Lawyers Educational Institute Board met to prepare for the Rusty Duncan Silent Auction as well as plan for the remainder of the fiscal year. Do you have something you would like to donate—artwork, vacation home, jewelry, memorabilia? We welcome anything!

The Future Indigent Defense Leaders 3.0 class has been finalized, and we will next turn to planning travel to Gideon Core 101 in April. If you didn’t get in this year, applications will open up for 4.0 in November. We had so many qualified applicants that TIDC and HCPDO really had a hard time selecting candidates. The client-centered focus was overwhelming, listening to each applicant’s story. Special thanks to those who assisted in the numerous interviews—Thuy Le, Brandon Ball, Kathleen Casey-Gamez, Bill Cox, and Rick Wardroup. We have weekly planning meetings with these folks as well as Geoff Burkhart and Alex Bunin.

As Michael mentioned in his article, many of our other committees met this month. The Awards Committee, for one, met to select the recipients and research candidates—itself quite a task! All our committee volunteers should be lauded, as they continuously look for ways to provide services for our members.

This month has indeed flown by. I worked night and day to catch up so I could enjoy my time spent with members, whether traveling, zooming, or on the phone. Time flies when you’re having fun, and enjoying what I do in life is its own reward itself. Now time for March Madness!

Editor’s Comment: Baseball and Wind; That’s Just Life

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By the time y’all read this we will be moving out of February and into March. This season brings me immense happiness, but also carries incredible frustration. I love spring because it means baseball is coming back. Take Easter and Groundhog Day, roll them into one and that’s the day I embark on the annual trek to Phoenix, Arizona.  My Dad, my little brother, and my two little boys head over to watch Major League Baseball’s Spring Training. Days are spent watching sleepy baseball games while enjoying the beautiful weather and getting to spend generally uninterrupted time with my boys. But, for those of you in west Texas (I’ll even count Lubbock as part of that for these purposes, although a map would prove each of my friends up there to be wrong). March means the god-awful, sand-filled wind that brings along all of the dust anyone could ever bear, and some we can’t. I hate the damned spring winds. But, I suppose that is life and it’s a little bit of a microcosm of what we experience pretty regularly. I don’t know of many people, save for Derek Jeter or Mickey Mantle (I’m a Yankee fan), who probably experience the highs that we do when we get two-word verdicts, especially in the cases we’re supposed to lose. But, I don’t know that most folks know the pain of sitting next to someone you’ve worked your butt off to save only hear to the jury come back with one miserable word. I suspect maybe Jeter knew a pain close to that feeling when the Yankees lost to the Red Sox in ALCS after being up three games to none, but at least he didn’t have to get hit in the face with the damn dust-filled wind coming out of the west at a million miles per hour. Each issue I try to think of what I can say that could possibly reverberate with all of the criminal defense attorneys in this State. What ties bind us? Fortunately, or unfortunately, I think the ties that bind us are the extreme highs and lows of our practice. Be kind to one another because unless one of us is friends with Derek Jeter, the only people that truly know how high and low we feel at work are the brothers and sisters we encounter in court, correspond with on the Listserv, and see at CLEs and Board meetings. Just like I know that only my dad completely understands the beautiful experience of rebirth that I feel getting to spend days at baseball games with my young sons. Also, I know that only the men and women of this organization completely understand how I feel when I walk a client out of a courtroom after a hard-fought battle. Just the same, only the folks of west Texas (yes, even Lubbock) know how bad the wind sucks in March, and only the men and women who practice criminal defense know what it’s like to have your head caved in during a defeat. Keep fighting brothers and sisters. Rusty is just around the corner.

Be safe,
Jeep Darnell

Ethics and the Law: Is it ethical to charge a non-refundable retainer?

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The answer from the State Bar’s Texas Center for Legal Ethics is a definite “maybe”. There are several Rules of Professional conduct that cover attorney’s fees. From the State Bar’s point of view, the most important one, is that an attorney must return any unearned fee. Rule 1.15(d) of the Texas Rules of Professional Conduct. The problem for the attorney in charging a non-refundable retainer, is that the burden is on the attorney to prove that the fee has been earned.

Some jurisdictions have outlawed the practice of charging non-refundable retainers because it deprives the client of the right to change lawyers without suffering monetary penalties.

If the attorney withdraws from the case or is terminated, the amount of the fee retained must be related to the services performed, and if not, the fee may be found to be unreasonable, in violation of Rule 1.04(a) of the Texas Rules of Professional Conduct.

Criminal Defense attorneys have a particularly difficult time in drafting contracts that will allow them to get paid for the work that they perform.  Experienced attorneys know that it is virtually impossible for an attorney in our field to be paid after the case is completed. Thus, the attorney will want to be paid prior to the end of the representation. We cannot terminate out representation without approval of the court and therefore are at the whim of the judge assigned to the case.   Once we designate as attorney of record, we can be required to complete the criminal case through a jury trial and the 1st appeal of any sentence, even if unpaid by the client, if a judge refuses to approve our motion to withdraw. Rule 1.15(c)Texas Rules of Professional Conduct.

This is probably the hardest concept for most civil lawyers to understand about our profession. If they are unpaid, they can simply notify the client that they will longer do work for them. We do not have that luxury. Most of the attorneys who volunteer to serve on grievance committees come from the civil side and the concept of being paid prior to work being completed, is foreign to them.

Because of the very real possibility of having to complete a case without getting paid for our services, utilizing a contract that includes a non-refundable retainer becomes tantalizing to the criminal defense bar. But there are serious issues that can land the lawyer in trouble with the grievance system.

Opinion 391 sets out the difference between a true retainer and an advance fee. A true retainer belongs to the attorney at the time it is received because it is a fee to secure the lawyer’s services and remunerate him/her for loss of the opportunity to accept other employment. Opinion 431 says that the lawyer must substantiate that other employment will probably be lost by representing the client. Thus the burden is on the lawyer to prove it is a retainer fee. Even then, Opinion 431 goes on to say that if the client discharges the attorney before any opportunities have been lost, or the attorney voluntarily withdraws, then the attorney must refund an equitable portion of the retainer. Opinion 431 specifically says that a fee is not earned simply because it is designated as non-refundable. Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) came to the same conclusion.

The most recent opinion concerning non-refundable retainers is Opinion 611.  The question presented was whether an attorney could charge a non-refundable retainer that included payment for services up to the time of trial and then charge an additional fee for trial. The answer was a clear “NO”. This type of contract violates the Rules of Professional Conduct.  It is in fact an advance fee. That is, it is a fee for services not yet performed. That means, that the fee has not been earned by the attorney at the time it was received, and because it belongs to the client it must be deposited into a trust account, Rule 1.14(a).

The Ethics committee went on to say that there is no prohibition in the Rules from an attorney requiring a payment of a fixed fee at the beginning of the representation. The advance fee must be separated from the attorney’s and placed in a trust account and only transferred to the operating account when it is earned.

After serving 6 years on the State Bar’s Commission for Lawyer Discipline, and 5 years as the Chair, I do not recommend that criminal defense attorneys use the words non-refundable in their fee agreements. It is simply a red flag for the state bar and not worth the headache of going through the grievance process.