Monthly archive

March 2022 - Page 2

Shout Outs


Congratulations to Mark G. Daniel for his reappointment to the Texas Forensic Science Commission! TCDLA is proud to have one of our own serve the great state of Texas! Exceptional work, Mark!

Outstanding work to Angelica Cogliano who won her case, challenging the constitutionality of Operation Lone Star. Ultimately, the state agreed that her client (therefore all 2,000 defendants) deserve relief. Amazing work, Angelica!

Kudos to David Lee Botsford on a recent 5th Circuit victory! It deals with the affirmative defense of the statute of limitations. Argued on December 8th, reversal and remand: to determine which of the 4 counts may be barred by statute of limitations, and new trial on any of the 4 counts that are not barred. Great work, David!

Amazing work to Kathy Ehmann-Clardy and Sean Bajuk who heard the sweetest words ever spoken – NOT GUILTY, not once, not twice, but FIVE times. They tried five cases to a jury in Somervell County, working for three days on ABIFV, interfere 911 call, criminal trespass, criminal mischief and theft. Kudos, Kathy and Sean!

A job well done to appellate counsel, Alan Bennett, for winning his trial in a Waco District Court. Opinion affirmed the exclusion of evidence that was not turned over by the State “as soon as practical”. Evidence produced on the eve of trial was excluded… and his ruling affirmed. Way to go, Alan!

Staff Highlights: Seminar Clerk

Jessica Steen

Title: Seminar Clerk
Native State: Texas
Zodiac Sign: Scorpio
Favorite Color: Sea-foam Green
Loves: hiking nature trails and quilting
Interesting Fact: She has had pet reptiles since age six

Jessica Steen is currently studying at ACC for general studies, with the hope to transfer to a university in order to continue her studies in forest and wildlife management. She has participated and staffed countless Girl Scouts and Boy Scouts events, holding a variety of positions, which include secretary work, accounting, administration, and training. At TCDLA, Jessica works on mailing publications and merchandise to members, and packs materials for seminars. In her downtime, she can be found chilling with her animals or starting a new quilting project.

Chapter & Verse: Hearsay III


Agoy! Zounds! Hwaet! Mo#$%@&er! You heard me! It’s time to discuss my favorite of all hearsay exceptions, the excited g****mn utterance. Or, as the TRE likes to put it: 803(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Excited utterances descend to us from the amorphous res gestae statements we discussed last month. They’re one of the categories of res gestae statements that were teased out in the late 19th century when People Who Do These Things started trying to clarify and define rules of evidence.

Interestingly, an excited utterance is admissible regardless of whether the declarant is available.* That means that Powers the Be think of this as a particularly trustworthy type of evidence- with or without the ability to cross-examine the declarant, with or without the proof that the person seeking to have the statement admitted searched high and low for the declarant, that superlative expletive is coming in! The phrase courts use about this one is “firmly rooted.” This is a “firmly rooted” hearsay exception. Rooted in what? Well, more on that in a second, beloved.

Guys. Seriously. While I might be credulous enough to believe that in the heat of an assault, someone wouldn’t think to shout out lies about who the assailant was, I know for sure that when I was a kid, I would stand in the kitchen, slap my own arm until it was red, and then scream to my mom that my brother hit me.

I also have been aware of cases where “under the stress of excitement” meant a very, very long time according to the prosecutor trying to get the evidence in (and according to the appellate courts reviewing trial cases for error- see: Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) (holding that a statement made twenty hours after an assault qualified as an excited utterance). 

In fact, critics much more savvy and devoted than your Darling Allison have noted that the excited utterance exception runs counter to the experience of many female victims. A 1997 feminist critique examined the documented reactions of women to rape, and noted that many rape survivors are too disoriented, numb, afraid, or ashamed to issue a prompt statement, excited or otherwise. Instead, the excited utterance exception seems to describe best those who are sufficiently confident of their power to emit a prompt excited cry, and who expect that their cries will be taken seriously.1

And it’s true that the excited utterance exception was largely based around what that old rascal John Wigmore thought he would do, or folks like him would do, in that situation.

But the truth is that not even the Wigmores and Roosevelts usually respond that way to trauma. Psychologists have researched this very issue for years, and while we might like to think that people won’t actively invent lies while they’re being traumatized, the more complicated reality is that when people are being traumatized, their brains are not reliable reporters of events.

Research is clear that the fight-or-flight response affects individuals’ perceptions of an event in ways that may increase the likelihood of mistakes. Because the amygdala prioritizes safety and survival, quick assessments and defensive judgments prevail over deliberate and thorough analyses. Thus, independent of reality, people are more likely to perceive threats, more likely to overestimate the degree of threat, and more likely to attribute ill-intent to others when they are experiencing the fight-or-flight response. Because stereotypes and prejudices (consciously or unconsciously held) facilitate fast decision-making, individuals will also tend to rely on them more heavily to evaluate situations and the intents of others; these sorts of perceptual biases can also lead to errors in judgments and decision-making and in subsequent interpretations and memories of the event. Steven Baicker-McKee, The Excited Utterance Paradox, 41 Seattle U. L. REV. 111 (2017).

So all of a sudden this “firmly rooted” hearsay exception has its roots in… well. What do plants usually have roots in?

I think it’s time, vexatious litigants, for us to start contesting these rules. If you have an alleged excited utterance, do your best to demonstrate that the reliability of it is suspect at best. It might be coming in, but that doesn’t mean anyone has to believe it. Use it as your chance to pull in a memory expert who can talk to the fact finder about why the witness doesn’t have to be lying to just be plain wrong. We can also use our knowledge of how trauma cognition works to advocate for excited utterances we want to be admitted to come in. We can talk about how the stress of situations lasts longer than courts have traditionally realized, and we can emphasize that a person doesn’t have to be visibly disoriented to be responding to trauma.

*Except now we have Crawford v. Washington, which changes all of this in certain cases, and we will spend a whole separate column discussing Crawford and its ramifications.

Federal Corner: Plea agreement or not – You can’t punish me for liking the Yankees and not Red Sox!


United States v. Leroya Cozad, 2022 WL 16492 (10th Cir. Filed January 3, 2022)

The Court in this opinion summarizes a concern defense attorneys have- use a plea agreement or plea to the indictment? This is a very different calculus in Federal Court where the judge does most of the “sentencing” as compared to state court where the prosecutors provide the agreed sentence.

In Cozad, the Court looked at “whether under 18 U.S.C. § 3553(a) it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement.” The 10th U.S. Court of Appeals tells us it is unreasonable.

Facts of the Case

Ms. Leroya Cozad was indicted on a single charge of aiding and abetting the making of counterfeit currency. In negotiations with the Government, she offered to enter a guilty plea to four (4) years-probation. The government countered with a “low end” guidelines sentence. She chose to enter a guilty plea to the indictment, without a plea agreement. The probation officer determined that guideline range was 24 to 30 months. Subsequently and prior to sentencing, both parties submitted sentencing memorandums. Ms. Cozad sought probation and the government sought the low end of 24 months, which is what it had sought during plea negotiations.

The District Court rejected those requests and sentenced Ms. Cozad to 27 months, the midpoint of the guidelines. In explaining that decision the district court stated:

I think sometimes there’s sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right. And, in practice, one of the factors I’ve used to lean against a low-end guideline range are defendants who submit a plea without a plea agreement, without the agreements that typically happen in a plea agreement.

That’s certainly their right to plead without a plea agreement, but they do not have a right to a low-end guideline range sentence, and so it’s always been my — again this isn’t a hard-and-fast rule by any means that I apply, but it’s always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in that, they’re entitled to additional consideration, which is where I start at a low-end guideline range.

But in my calculation, without a plea agreement, I have always started with looking more at the mid-tier of the guideline range, which is where I think the guidelines initially envisioned that courts would operate, and not giving them the additional credit for actually entering into a plea agreement to do that.

In this case, having thought about it obviously since our hearing last week, having looked through the briefs that have been filed in this case since that time, as well as additional information I’ve received from the probation office and going back through the report as well, it’s my conclusion that, first of all, Ms. Cozad has not shown demonstration that entitles her to a variance from the guideline recommendation of a custodial sentence, and I cannot find that that variance has been earned; and secondly, in light of the matters that I’ve just discussed overall, that a low-end guideline range sentence is not appropriate. [Emphasis in Opinion) Record cite at *2 Rec., vol. III at 42–44 (emphasis added).


The Court began its analysis with discussing that a defendant’s sentence was reviewed for either procedural or substantive reasonableness. The Court focused on the fact that that the district court “described its customary practice of distinguishing defendant’s based on the nature of their plea.” And also that while the “district court made a passing reference to ‘the agreements that typically happen in a plea agreement,’ the court did not specify what those agreements are.”

As we know, and the Court of Appeals discussed, those agreements can be appeal waivers and, fast track type agreements. The Court began by analyzing, the district court’s decision under 18 U.S.C. § 3553(a) stating that there were only four permissible factors that could be considered by statute. And while a court under 18 U.S.C. § 3661 is told that “no limitation shall be placed on the information concerning the background, character and conduct of a person…” That does not mean that all information is relevant to a defendant’s character.

The Court analyzed that the defendant’s need for rehabilitation was impermissible a factor under 18 U.S.C. § 3582(c) See United States v. Story, F.3d 1241, 1247-48 (10th Cir. 2011) or even worse, refusing to testify, in United States v. Cabrera, 811 F.3d 801, 808-09 (6th Cir. 2016) that Court held that a within-guidelines sentence was procedurally unreasonable because it was based on the defendant’s refusal to testify. The Court pointed to several other illegal considerations, such as prison sentences for inability to pay restitution and as Justice Stevens summarized in Rita v. United States, 551 U.S. 338, 365 (2007) for non-relevant factors, when he noted that it would be “unreasonable for a district court to give “harsh sentences to Yankees fans and lenient sentences to Red Sox fans.”

The Court then turned to Ms. Cozad’s sentence and stated that it did not see how the “fact of a defendant’s open plea, standing alone, bears any meaningful relationship to the § 3553(a) factors.” This was because a plea agreement is a contract and either party may reject the other party’s offer or refuse to negotiate entirely. It continued stating that the fact that the parties failed to mutually agree, as here where Ms. Cozad requested probation and the government requested the low end (of the properly calculated guidelines); that failed contractual negotiation and agreement is not something that provides “insight into the defendant’s character.” It also does not constitute one of the proper reasons under the statute to aid a district court in determining a sentence to comply with §3553(a)- a sentence that is sufficient, but not greater than necessary. The court stated that penalizing a defendant on the “absence of a plea agreement alone is arbitrary.”

The government tried to go back to the district courts use of the “other agreements” that a plea agreement may contain. The 10th Cir. has held that a district court could consider a negotiated appellate waiver because it could show acceptance of responsibility beyond the mere guilty plea. Think of a defendant who failed a urinalysis or violated some other item and is in need of demonstrating to a court that he wants to be committed to acceptance of responsibility.

The Court continued though and discussed that the cases that discussed the appellate waiver in a plea agreement as consideration, were, “fundamentally different than the absence of an appeal waiver in an agreement that never happened and whose terms remain purely hypothetical.”

The government’s next reason was that without providing a benefit for “uniformity purposes” and “additional leniency” to individuals who use a plea agreement, defendant’s would not have a “compelling” reason to use a plea agreement.. The Court explained that the Government’s theory was based on a false premise. Because a prosecutor could always file additional charges or seek aggressive interpretation of the guidelines to provide a “compelling reason”. See Fed. R. Crim. P. 11(c)(1)(B),(C). Therefore, with the government’s recommendation, a defendant who refuses to a plea bargain would still risk receiving a higher sentence in many cases. Thus providing a “compelling” reason to accept a plea agreement in some cases.

Lastly, the Court looked at fast track plea agreements. These are plea agreements where the government has provided an agreement with a specific departure under §5K3.1 of the United States Sentencing Guidelines. The Sentencing Commission adopted § 5K3.1 at the direction of Congress, which sought to incentivize early plea deals by accommodating fast track programs within the guidelines. In the author’s experience these usually provide anywhere for 1 to 2 points for offenses like alien smuggling or illegal re-entry. Fast Track Plea Agreements reward defendants with the set reduction by entering a plea usually prior to the indictment and for waiving any pre-trial motion practice. The Court recognized that these programs do not fit into the § 3553(a) factors, but do reflect Congress’ intent. In Cozad, the district court placed its own expression of this intent, where Congress had not spoken.


Ultimately this does not mean that a defendant cannot receive a harsher sentence if she enters a guilty plea without a plea agreement; rather a defendant cannot receive a harsher sentence simply because she did not have a plea agreement. Rule 11(c) prevents a judge from entering into the negotiations of a plea agreement.  See United States v. Carver, 160 F.3d 1266, 1269 (10th Cir. 1998). This does not mean that the government cannot provide the “compelling reasons” for a defendant to choose a plea agreement, only that the court cannot do so. Reflecting on plea decisions in federal court, this happens many times- role agreements, acceptance recommendations-where it may be at risk, and the hardest to obtain, charge bargaining where a charge is offered that does not contain a mandatory minimum. These are some quick examples of “compelling” reasons that can be negotiated in a beneficial plea agreement. However simply entering into a plea agreement in a single count fraud indictment may not provide any incentive or “compelling reason” where the government is recommending the low end of a properly calculated guideline. Here Cozad explains that you should not be punished for solely that act of acceptance and not taking a benefit-less agreement.

From the Front Porch: Courage to Persevere


My Story

As I sit and ponder what to write in this article I am taken back to a time in my life when earning a living was as good as going to Las Vegas, putting $500,000 on red of the roulette wheel, and hoping that I win. Farming for a living is as good as gambling. This is my story.

The Past

Raised as a son of a share-crop farmer in Eastern Central Texas I have my share of memories that have shaped the man I am today. You see, from an early age of seven, my father put me to work driving tractors, chopping weeds, hauling hay, and feeding cows on the farm. As a child I worked from sun up to sundown. Sitting on a John Deere tractor through my teens I had a lot of time to consider my future. Long hours working beside grown men with my hands. Real Blue-Collar work.

I always wanted to be an attorney.  I felt at a young age a desire to help people. More especially, people who may not be able to defend themselves, be it from poverty, lack of education, or upbringing. I was raised in a very small rural community of 1300 people near the Trinity River. Even to this day, the poverty level is still around 70% of the population.

I graduated from high school in 1988 achieving just about everything you can in high school. The work as a farmer’s son paid off teaching me how to persevere and never give up on my dreams. Accepted to Texas A&M University-College Station I joined the corps of cadets.  I stayed seven days and due to homesickness, I withdrew and went back to the farm.


At the age of nineteen I married and soon had a family of four children to raise. Adopting my wife’s two daughters who were three and four, and two sons born by the age of twenty-two, with my dreams on hold, I did what I knew and returned to farming in 1990. I farmed, enduring droughts in 1996 and 1998 that devastated the crops and more precisely my financial situation. Losing hundreds of thousands of dollars due to the weather is a hard pill to swallow.

I continued fighting the good fight, farming, while raising my four children.  On September 11, 2001, the world, and my life, changed forever. The realization of my own mortality sunk into my soul.  For the first time in my life, I no longer felt safe in the United States. I realized that the same country I grew up in was not guaranteed to my children. I felt fear, but more than fear, I felt the desire to ignite my dreams of becoming an attorney. And the journey began.

Back to College

I earned an Associate’s Degree from Navarro College in 1990. But as you may know, a Bachelor’s Degree is a requirement for law school. So, I enrolled in an online program through Texas A&M University-Commerce. I achieved a Bachelors Degree in 2005 in Business.  My preparation for law school entrance had begun. In the meantime, I started the MBA Program at the same University.

Getting Accepted to Law School

There were days upon days I felt like I was fighting windmills, like the stories of Don Quixote. The LSAT, it was a huge obstacle in my way, so I enrolled in a LSAT Preparation Course in Dallas.  Driving 140 miles to Dallas and back home daily I learned how to take the test, and make a high enough grade to apply for law school. I gathered my reference letters and all other items necessary to complete the one-stop computer-based application process to law schools. When my LSAT scores came in, I anxiously sent out admission requests to every law school in Texas.

My first choice was SMU-Dedman School of Law.  But I really didn’t think I was smart enough to get accepted, much less graduate, from such a prestigious school. I started receiving acceptance letters. South Texas College of Law, Texas Tech, Texas Wesleyan (now Texas A&M University School of Law), and lastly SMU. It was a no-brainer.  SMU here I come.

Law School

At the age of thirty-six I appeared on SMU Law Campus eager, but terrified, of what was to come.  Remember, I am a country boy, shy, timid, afraid to speak in crowds. Yet, I planned on conquering my fears, and I did. The night program is where my law school career began. A maximum course load of no more than nine hours a semester. After the first full year I petitioned the University to allow me to attend full time. My request accepted, I retired from farming after seventeen-years, once again a full-time student.

It was my goal to finish law school in three years. Now mind you, I finished the first year with only eighteen credit hours.  Summer School, full-time Fall and Spring semesters, I made the round trip of one-hundred and forty miles a day for two years. I always went home daily so I could wake up, serve my kids breakfast, and take them to school. I look back on those three years of law school and cannot believe I actually succeeded and graduated. Me, a country boy, a share-croppers son, the first person to go to college in my family.

Time to Work

After passing the bar exam I hung my own shingle in my small hometown of 1300 people. And people came. I was alone running a law office with no training other than law school. I succeeded. I was now “helping people.”  Many who could not help themselves.  After one year I moved my office to the county seat. Seven years later I opened a second law office in the county just north of my home county.

Courage to Perform

When I have a bad day, I just think about my children’s faces. Seeing each one in my mind. I tell myself “I have a mission to defend the Constitution of the United States of America to my best ability with fairness to all.” The whole time hoping I can make a difference for my children’s future by defending those who cannot fight for themselves. 

It has all been worth it. And I wouldn’t change a thing if I had a chance to do it again. My struggles have led to my passion to perform at the highest level. I now have six children, four grown, and two boys seven and eight years old. I thank them for giving me the courage I need to step out every-day against the oppression of the government. Owing the drive, perseverance, and courage I muster up on a daily basis to face adversaries, States Attorney’s, Federal Attorney’s, and Courts to my children. I do it for my children with love in my heart. 

I have saved clients lives from life in prison. Helped families fight for their children. Protected innocent victims of abuse. All a part of my “mission” to seek justice in this world.