Monthly archive

April 2022

May 2022 SDR – Voice for the Defense Vol. 51, No. 4

Voice for the Defense Volume 51, No. 4 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

All I wanna do is zoom-a-zoom zoom zoom and a . . . not be physically present for confrontation clause purposes poom poom. What I mean to convey is there’s a pretty excellent Zoom case in this edition and it’s important. Justice Kagan rejects the notion that time is a flat circle. Omissions are acts if acts are part of the omission. If you’re confused, you won’t find more answers by reading this, but you should do it anyway!

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

Wooden v. United States, 142 S. Ct. 1063 (2022)

Issue & Answer. The Armed Career Criminal Act (ACCA) enhances a defendant’s minimum sentence when that defendant has three prior violent offenses “committed on occasions different from one another.” Does “occasions different from on another” mean anything separated by any amount of time no matter how small? No.  

Facts. In a single evening, the defendant burglarized ten units in a single storage facility. He pleaded guilty and was convicted on ten criminal counts. 20 years later, in the instant case, a federal court determined those convictions were sufficient to subject him to the Armed Career Criminal Act (ACCA) mandating a 15-year minimum sentence on his unlawful possession of a firearm charge. His sentence was 13 years longer than it would have been without the enhancement. The ACCA is triggered by three prior violent felonies “committed on occasions different from one another” and the district court reasoned that entry into each unit constituted a distinct commission of a separate offense on separate occasions despite the burglaries occurring in the course of a single crime spree, under a single roof, and were charged in a single indictment.  

Analysis. The ACCA is triggered by three prior violent felonies “committed on occasions different from one another.” The trial court accepted the Government’s erroneously strict temporal definition of “occasion” as meaning incidents occurring one after another. An “occasion” is essentially an episode or event. An ordinary person would describe his conduct this way: “on one occasion, Wooden burglarized ten units in a storage facility.” They wouldn’t say “On ten occasions, Wooden burglarized a unit in the facility.” Here the legislature placed two conditions on the applicability of the ACCA: (1) different offenses, and (2) different occasions. The commission of multiple offenses can almost always be separated by at least a small moment in time. If every time someone commits more than one offense it also constituted more than one occasion, it would render these two distinct requirements under the ACCA meaningless. Proximity and timing do matter, but not in the strictly technical sense that the Government would have it. This interpretation is consistent with the legislative history, as well. Congress specifically amended the ACCA to exclude the use of multiple convictions in a single criminal episode. The design and focus of the statute are aimed at the career criminals, not criminals who happen to commit multiple offenses on the same night. 

Concurrence (Sotomayor, J.) Justice Gorsuch might be right that the record is unclear, but clarity in the record cuts against the Government. Justice Gorsuch is correct to apply the rule of lenity as an independent basis for ruling in favor of the defendant.

Concurrence (Kavanaugh, J.) Addressing Justice Gorsuch’s lenity argument, the rule should only apply when a criminal statute is “grievously ambiguous.” It is only applied after all other rules of interpretation fail. To presume mens rea where the legislature has stated none is a better approach.

Concurrence (Barret, J.) The majority opinion’s historical analysis of the ACCA is incorrect.

Concurrence (Gorsuch, J.) The majority’s multi-factor approach to considering proximity, timing, and intertwining of offenses lends little help for future cases.  The rule of lenity offers more guidance. “If the law inflicting punishment does not speak plainly to the defendants conduct, liberty must prevail.” Judges should not expand penal laws to “cover problems Congress failed to anticipate in clear terms.”

Comment. Okay, here is another quote which was not necessary to a summary of the case, but which I loved:

The occasion of a wedding, for example, often includes a ceremony, cocktail hour, dinner, and dancing. Those doings are proximate in time and place, and have a shared theme (celebrating the happy couple); their connections are, indeed, what makes them part of a single event. But they do not occur at the same moment: The newlyweds would surely take offense if a guest organized a conga line in the middle of their vows. That is because an occasion may—and the hypothesized one does—encompass a number of non-simultaneous activities; it need not be confined to a single one.

Fifth Circuit

United States v. Sheperd, 27 F.4th 1075 (5th Cir. 2022)

Issue & Answer. The defendant’s lawyer represented the Government’s star witness when that witness debriefed and provided assistance to the Government detrimental to the defendant. The Government was aware of this conflict, but the lawyers on both sides disregarded. Does this constitute a scenario requiring dismissal for denial of conflict-free counsel under the Sixth Amendment? Maybe.

Facts. The Government accused the defendant of Medicare fraud. The lawyer who represented her until days before trial also represented the Government’s star witness. During his representation of defendant, defendant’s lawyer represented another client at a debrief with the FBI and prosecutor. Attorney’s other client would ultimately provide useful information about the defendant and serve as a witness the Government intended to sponsor at defendant’s trial. Notwithstanding all lawyers recognizing the conflict, the debrief went forward. During the next several months the Government added six more counts of healthcare fraud while the lawyers continued to keep the conflict-infected debrief secret from the defendant. Months before trial, defendant’s attorney secured a replacement attorney on account of the conflict. The replacement attorney asked for more time to prepare, and the parties explained the situation to the trial court. The trial court proceeded as planned but excluded the testimony of the conflicted witness. However, the trial court declined to dismiss the case on defendant’s motion raising Sixth Amendment violations. The jury convicted and the judge sentenced the defendant to 30 years in prison.

Analysis. The right to counsel is one of the most important rights afforded a criminal defendant.

One of the most indispensable duties that any counsel owes his client is the duty of loyalty. Counsel breaches that duty when he labors under an actual conflict of interest. And if he breaches the bedrock duty of loyalty, then his representation will fall below the objective standard of reasonableness that the Constitution requires.

In cases where a defendant can show her counsel had a conflict of interest there exists a limited presumption of prejudice where a reviewing court will reverse if the defendant can show that the conflict adversely affected counsel’s performance (as opposed to a probability that it affected the outcome). An attorney’s performance is affected if his judgment was “fettered by concern over the effect of certain trial decisions on other clients.” There is a possibility that the attorney could have persuaded defendant to proceed to trial in order to benefit the conflicted witness. But this record is not sufficiently developed for the court to reach such a conclusion. Therefore, the case must be remanded for further hearing. 

Comment. I don’t mess with representing federal co-defendants if they know each other. Inevitably, one of your client’s names will come out of the other client’s mouth with the intent to reduce a sentence. Probably no conflict exists until something like that occurs, and as long as both clients know of the potential for conflict and sign off on it. A common situation where a lawyer might do something like this is in representing two people arrested in a car with weed in it. Except, in a federal case, there are Title III wiretaps, GPS tracking, search warrants on search warrants, confidential informants, undercover federal agents, probably a lot more money you have to refund after a potential conflict becomes a real one, and a federal judge who will not be so happy about your last-minute motion to withdraw. So, again, I wouldn’t represent federal co-defendants except in limited circumstances.

Texas Court of Criminal Appeals

Garcia v. State, No. PD-0025-21 (Tex. Crim. App. 2022)

Issue & Answer. A restitution order can rest on a faulty legal basis or can lack evidentiary support. It is well established that an objection is required to complain about a faulty legal basis on appeal. Is an objection required to complain about lack of evidentiary support, as well? Yes.

Facts. A jury convicted defendant of aggravated sexual assault. Evidence showed that the Bell County District Attorney paid for a sexual assault exam and was reimbursed by the Attorney General. At the conclusion of defendant’s punishment hearing, the trial court ordered $1,000 restitution payable to the Attorney General. Trial counsel did not object, however the court of appeals found the record to lack evidentiary sufficiency to support the conclusion that the $1,000 restitution would “compensate a victim for loss or injury.”

Analysis. In Idowu v. State the court “drew a distinction between challenges to the factual basis of restitution orders and those that challenge the propriety of such orders; challenges to ‘the appropriateness of (as opposed to the factual basis for) a trial court’s restitution order’ must be explicitly raised in the trial court.” Idowu did not address whether a sufficiency challenge requires error preservation through an objection raised in the trial court. The court of appeals’ reliance on this distinction as permission to review an unpreserved error was incorrect. A complaint about the evidence supporting a restitution order is a due process complaint, and due process complaints can be forfeited by a failure to object. Moreover, the “distinction between factual basis and appropriateness is unclear, we should not rely on it to decide whether challenges to restitution orders must be preserved in the trial court.”

Dissent (Yeary, J.). “I would remand the case to the court of appeals to address the procedural default question in the first instance.”

Comment. The court distinguishes this scenario from assessment of court-appointed attorney fees which requires no objection if assessed without a finding of the defendant’s ability to pay. The Code of Criminal Procedure imposes an affirmative duty on the trial court in the context of court-appointed attorney fees. The Restitution statute has no such affirmative duty, rather it imposes an obligation to consider factors. In my opinion, if both tasks require factual findings, they are not that dissimilar.

Swinney v. State, No. PD-0216-21 (Tex. Crim. App. 2022)

Issue & Answer. A defendant receives ineffective assistance of counsel when his attorney incorrectly advises him that he is eligible for probation from the trial court. But in order to obtain reversal, an appellate court must find prejudice. Does prejudice require a showing that the defendant would have received probation had his attorney given him correct advice? No.

Facts. A jury convicted defendant of aggravated assault with a deadly weapon. Before trial he filed an election for trial court punishment as opposed to jury punishment. In argument, counsel argued for probation. The trial court questioned its ability to grant probation. Counsel insisted defendant was statutorily eligible. He was not. A jury could have granted probation under appropriate circumstances, but the trial court could not. The court of appeals affirmed the defendant’s sentence citing his inability to show that he would have received a better result had he requested probation from a jury.

Analysis. “A successful IAC [ineffective assistance of counsel] claim depends on (1) deficient performance and (2) prejudice. Prejudice may be measured in one of two ways: a reasonable probability of a different outcome or a reasonable probability of a different decision by the defendant.” If the deficient performance pertains to a guilty verdict, prejudice is evaluated by looking to the potential for having achieved a not guilty verdict. If the deficient performance pertains to punishment, prejudice is evaluated by looking to the potential for having achieved a better result. “But if the deficient performance might have caused the defendant to waive a proceeding he was otherwise entitled to, then the reasonable probability that the deficient performance caused the waiver fulfills the prejudice requirement.” The different-outcome analysis is somewhat relevant to deciding whether the defendant would have made a different decision, but it is not the proper analysis for deciding prejudice arising from erroneous probation eligibility advice. Ultimately, the record says nothing about the impact of the attorney’s erroneous advice and some evidence suggested a viable strategy of electing the trial court for punishment. Thus, the defendant failed to show he would have made a different decision had he been properly advised.

Comment. I think the failure to properly advise on probation eligibility should be evaluated at a near-per-se-prejudice level. I’m not aware of many instances in practice where a client says, “let’s go the non-probation route in punishment.”

Ratliff v. State, No. PD-0545-20 (Tex. Crim. App. 2022)

Issue & Answer 1. A person commits the offense of tampering with a governmental record when that person makes, presents, or uses the record with knowledge of its falsity. When an officer enters into a person’s home in clear violation of the Fourth Amendment, but omits this fact from an offense report intentionally, has the drafting officer committed the offense of tampering with a governmental record? No.

Issue & Answer 2. An officer commits the offense of official oppression when the officer intentionally subjects another to mistreatment or unlawful arrest or intentionally denies or impedes another in the exercise or enjoyment of any right. To justify an otherwise illegal entry into a home (and thus defend an official oppression case), can an officer rely on hot pursuit when he was not actively pursuing the arrestee? No.

Facts. Defendant was the Llano chief of police. He was one of three responding officers when an angry officer (“Angry Officer”) attempted to arrest his neighbor (“Neighbor”) for public intoxication after Neighbor told Angry Officer to slow down while driving in the RV park. 20 minutes after this interaction, the defendant and two other officers arrive to help Angry Officer conduct a public intoxication arrest. But at this point Neighbor had already gone back inside of his RV. The officers demanded defendant come outside, but Neighbor adamantly refused. As reflected on a bodycam recording, he not only refused, but did so on 13 occasions.

00:11-00:13: “The best thing I can tell you is get off my door.”
00:23-00:24: “I am not stepping out.”
00:26-00:27: “You are not coming in.”
00:28-00:34: “This is my personal owned property. I am not. And I am not.”
00:56-00:56: “No sir.” (In response to ‘step outside’)
01:24-01:25: “Get your hands off my door.”
01:29-01:33: “Get your hands off my door. This is my property.”
01:35-01:36: “Take your hands off.”
01:40-01:42: “Take your hands off of my door.”
01:49-01:51: “Take your hands off my door.”
01:55-01:56: “Please take your.”
04:11-04:13: “Why am I stepping out of my.”
04:24-04:25: “For what.” (In response to ‘come down those steps’)
09:31-09:34: “Are you coming in for what reason?”
10:48-10:50: “I don’t wanna walk outside.”

Angry Officer attempted to get Neighbor out of his RV by threatening him. He threatened to call his supervisor, threatened to forcibly remove him, and threatened resisting arrest charges. Another officer pointed a taser at Neighbor’s crotch and threatened to electrocute him. The defendant eventually showed up, entered Neighbor’s trailer, positioned himself behind Neighbor, and directed Neighbor outside in handcuffs. Angry Officer prepared an offense report detailing the accusation of Neighbor’s intoxication. The report did not make any suggestion that officers did something improper or reference the additional non-officer witnesses at the scene. Defendant signed off on the offense report. 

Analysis 1. The State’s witnesses detail the importance of an offense report and the need for a comprehensive description of events and witnesses. The report at issue did neither of these things. “At most, the State’s witness testimony supports the proposition that these witnesses disagree with [the reporting officer’s] reporting style.” Though the report omits important information, nothing contained in the report is false. An omission can serve as the actus reus for an offense only when the defendant has the legal duty to act. Here, there is no statute which dictates the contents of an offense report.

Analysis 2. Exigent circumstances arise from the need to (1) provide aid, (2) protect officers from a person who is presently armed and dangerous, or (3) prevent the destruction of evidence or contraband. Hot pursuit would also justify warrantless entry into a home. Here the closest justification was hot pursuit. But hot pursuit was not established. First, hot pursuit requires a pursuit of a felony offense. This was a Class C misdemeanor. Second, the pursuit must be continuous. Here the continuity of pursuit was broken when Angry Officer chose to go work on a different case before returning to the resolve the instant offense. 

Concurrence / Dissent (Keller, J.). The Code of Criminal Procedure permits an officer to arrest for offenses viewed in his presence. There was some indication in the record that Angry Officer re-engaged with Neighbor after tending to whatever emergency required him to initially disregard Neighbor’s purported intoxication upon his initial contact. This is when Neighbor fled into his home. The defendant had no reason to conclude that hot pursuit was not an available justification in the case of a Class C misdemeanor. This is the first the Court has stated this.

Comment. It is a slippery slope to hold officers criminally accountable for offense report omissions, and lawyer-like understandings of Fourth Amendment law. I agree with a lot of what Judge Keller is saying. But her rationale relies on the theory that the hot pursuit occurred when Angry Officer re-engaged with Neighbor after the first break in continuity. It probably did. But the problem is that this rationale points to some evidence in the record supporting innocence as a basis for finding evidence insufficient. This isn’t the standard. It’s any evidence in the record supporting the conviction, and a jury was free to disregard the witness testimony supporting Judge Keller’s rationale.

Ex parte Dotson, No. WR-74,562-02 (Tex. Crim. App. 2022)

Issue & Answer. Was appellate counsel ineffective for failing to raise an illegal sentence claim based on the improper use of enhancements? Yes.

Facts. The facts are as stated in Judge Slaughter’s dissent as it is the only opinion providing background. In 2009 a jury convicted the defendant for a state-jail felony offense of possession of less than a gram of cocaine. The defendant pled true to two prior felony enhancements which raised his offense level to a second degree. He was sentenced to 18 years in prison. One of the enhancements to which defendant pled true was a state jail felony and thus not a valid prior felony enhancement. Defendant’s appellate counsel did not raise this on direct appeal. 12 years later defendant amended a pending writ of habeas corpus to incorporate this new ineffective assistance of appellate counsel claim.

Dissent (Keller, J.). This case should be decided on Lockhart v. Fretwell, 506 U.S. 364 (1993). In Fretwell the Supreme Court reversed a court of appeals decision holding that an error judged by a previous statute in effect at the time of trial is reversible notwithstanding its subsequent repeal. The Supreme Court indicated the analysis should focus on whether the proceeding was fundamentally unfair or unreliable, and not on the outcome. Here there was no fundamental unfairness because applicant’s actual criminal history supports his enhancement. Moreover, on resentencing, the exact same punishment range will be available to the State using a different enhancement.

Dissent (Slaughter, J.). “In his application, Applicant candidly acknowledges that he had other prior felony convictions that could have supported enhancement . . .” This precludes him from relief under Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013). A habeas applicant cannot establish harm from improper enhancement if his enhanced punishment range was otherwise supported by criminal history. Applicant focuses on ineffective assistance of appellate counsel and not ineffective assistance of trial counsel for this reason—had trial counsel objected, the State would have substituted a proper conviction. At the time of Applicant’s direct appeal there was a lack of clarity in the law as to whether an improper enhancement appeal was meritorious without a trial objection. The failure to raise a murky issue is not ineffective assistance of appellate counsel. Also, this application should be barred by laches.

Comment. I wish the court’s opinion provided some analysis. They don’t typically in routine habeas appeals. Judges Slaughter and Keller are making good points. There must be a counterargument if a five-judge majority felt differently.

Gutierrez v. State, No. AP-77,102 (Tex. Crim. App. 2022)

Issue & Answer. A federal district court declared Texas’s post-conviction DNA testing statute unconstitutional for failing to provide a mechanism to vindicate an erroneous death sentence which stands on an otherwise good conviction. Does the constitutional invalidation of the DNA testing statute eliminate post-conviction jurisdiction of the sentencing court such that inmates may no longer bring post-conviction DNA testing motions? No.

Facts. The State is seeking to kill the defendant, and the defendant is seeking to test various items for DNA. He requires DNA testing to explore his theory that the victim’s nephew was the true perpetrator of the offense. The Court of Criminal Appeals has twice previously affirmed a trial court’s finding that the defendant cannot establish a likelihood of having avoided conviction with the benefit of favorable test results.  Defendant filed a civil rights lawsuit in federal district court and obtained a ruling in his favor. The federal district court declared Texas’s procedural requirements for post-conviction DNA testing unconstitutional for failing to provide a mechanism for DNA testing to prove oneself “innocent of the death penalty.” Defendant subsequently filed his third motion for post-conviction DNA testing in a state district court. That court dismissed defendant’s motion and claimed it no longer had jurisdiction in light of the federal invalidation of the relevant statute.  

Analysis. The federal district court did not invalidate what the statute validly authorizes: motions to attack a conviction. The federal district court opinion is not final because it is now pending in the Fifth Circuit. Moreover, the decisions of federal district and circuit courts are not binding authority on Texas state courts. “The trial court in this case was not divested of its jurisdiction to entertain and resolve Appellant’s third motion for post-conviction DNA testing by the federal district court’s opinion.”

Comment. The Court’s opinion puts “innocent of the death penalty” in quotes throughout. They don’t define the concept or explain why. I wasn’t sure whether the Court meant to convey a belief that the concept is silly, that the phrasing is silly, or that it is an elsewhere-defined concept. So, I researched. It means that “no reasonable juror would have found [the defendant] eligible for the death penalty under applicable state law.”  Sawyer v. Whitley, 505 U.S. 333, 336 (1992).

Alcoser v. State, No. PD-0166-20 (Tex. Crim. App. 2022)

Issue & Answer. This case involved a multi-count jury trial with 13 unobjected-to jury charge errors. Only a few affected the jury’s consideration of the State’s allegation that the defendant committed assault family violence. Where errors are the type where a defendant might have derived some benefit had they not existed, has a defendant shown sufficient harm to secure a reversal? No.

Facts. Defendant and complainant were in a verbal altercation. Complainant testified that she confronted the defendant when he began gathering his clothing and while he was attempting to leave the house. According to the complainant, defendant grabbed her by her face, pushed her to the ground, put his hands on her throat, and choked her. After a break in the assault, complainant attempted to call 911 but Appellant took her phone and broke it. Appellant then chased her around the house with a bat and threatened to kill her. Eventually she got away with one of her children; the other child ran to the neighbor’s house to ask for help. Appellant claims to have acted in self-defense because the complainant attacked him. A jury convicted defendant of family violence (enhanced with prior conviction), endangering a child, and interference with emergency request for assistance. On appeal, defendant claimed that an array of erroneous jury charges caused him egregious harm (standard for reversing unobjected-to jury charge error). The court of appeals found defendant was “egregiously harmed by the cumulative errors.”

Analysis. The jury charge contained 13 errors ranging from improper definitions of culpable mental states to misplacement of the self-defense instruction and omission of abstract paragraphs and definitions. The State concedes the Court of Appeals correctly reversed defendant’s convictions for endangering a child and interference with emergency request for assistance. The remaining analysis is focused on the errors which affected the family violence charge: an incorrect definition of “knowingly,” the placement of the self-defense instructions, the self-defense application paragraph, and the omission of the presumption of reasonableness instruction (home defense). The erroneous definition of “knowingly” was harmless. Defendant admitted that he acted knowingly when he defended his case by self-defense. The misplacement of the self-defense instruction was harmless. Though its placement made it applicable to the offense of interference with emergency request for assistance, the language of the self-defense instruction made it applicable to assault. The omission of a self-defense application paragraph and appropriate presumption of reasonableness are more nuanced issues to which the court must apply the multi-factor egregious harm test for unobjected-to jury charge set forth in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Here, under the Almanza analysis, there was not egregious harm. The state of the evidence suggested that the State’s case was not necessarily strong enough to likely overcome a presumption of reasonableness. However, the arguments of counsel did not focus on whether defendant’s use of force was reasonable or necessary. The arguments were a traditional he-said-she-said juxtaposition. This was sufficient to overcome any likelihood of acquittal which may have flowed from the appropriate instruction.

Concurrence (Yeary, J.). The court of appeals shouldn’t be pointing out things a trial court did wrong when they weren’t pointed out by the parties. The court of appeals shouldn’t have cumulated the jury charge error and applied it to all offenses. Instead, each error should have been carefully assigned to the offense to which it applied.

Comment. Almanza is a four-factor test: (1) the entirety of the jury charge, (2) the state of the evidence, (3) arguments of counsel, and (4) other stuff. The court acknowledges this jury charge is a mess and that the state of the evidence was such that a correct jury charge would have put the defendant in a better position. The only factor militating against reversal was the fact that the attorneys didn’t really argue about whether the defendant was acting reasonably. This is an example of why factor tests aren’t that helpful. They provide a nice way to format a brief, but they don’t tell you who wins.

Patterson v. State, No. PD-0322-21 (Tex. Crim. App. 2022)

Issue & Answer. Does a warrant sufficiently describe the place to be searched when the warrant only describes a fraternity house but the incorporated affidavit describes the room inside the fraternity house officers wish to search? Yes.

Facts. Police received multiple calls regarding a drug overdose at the Texas A&M Sigma Nu fraternity house. Upon arrival and discovery of a deceased fraternity member, the police treated the fraternity house as a murder scene. They conducted a protective sweep of the house and discovered narcotics and paraphernalia in plain view in common areas and in certain rooms, including defendant’s room 216. Both the warrant affidavit and the resulting warrant described the suspected place as the fraternity house. However, the warrant affidavit also described the suspected room 216 and what law enforcement had seen in the room giving rise to probable cause. This information did not appear under the heading “suspected place” but rather ‘synopsis of investigation.” The court of appeals pointed to this as the basis for why the incorporated warrant affidavit did not cure the warrant’s non-specificity.

Analysis. “When a search warrant affidavit is incorporated into a search warrant, it becomes a part of, and can be used to aid the description in, the search warrant.” When read in a common-sense manner, the affidavit described Appellant’s room as the place to be searched.

Valadez v. State, No. PD-0574-19 (Tex. Crim. App. 2022)

Issue & Answer. Can the State use the “doctrine of chances” to present evidence of numerous context-less marijuana “incidents” involving a defendant who denies at trial knowledge of marijuana hidden inside a vehicle. No.  

Facts. Defendant was the backseat passenger in a car that smelled like marijuana. A DPS trooper stopped the vehicle for a window tint violation. During the stop the trooper noted the smell of marijuana and the fact that the three passengers behaved nervous and did not have consistent stories about their plans. Eventually the DPS trooper discovered 18 pounds of marijuana concealed in the vehicle. Defendant claimed at trial he was an innocent passenger uninvolved in the distribution. Defendant sponsored the testimony of vehicle’s driver who had already pleaded guilty and taken responsibility for the marijuana. The driver testified that the defendant had no knowledge of the marijuana or his plans to distribute. Over Defendant’s Rule 404(b) and Rule 403 objections, the State introduced evidence of six prior instances where the defendant was “connected with” marijuana. The trial court also denied defendant’s request for a limiting instruction on this issue. The court of appeals held that the defendant opened the door to the State’s use of these prior acts by advancing a theory that he was innocent.

Analysis. Under Rule of Evidence 404(b) evidence of prior bad acts is not admissible to prove character conformity. One of the numerous exceptions to Rule 404(b) is the “doctrine of chances.” Evidence is admissible under this doctrine if it shows “highly unusual events that are unlikely to repeat themselves inadvertently or by happenstance.” The similarity between the two events is probative of the fact that the instant offense, alleged to have been committed similarly to the prior one, was committed by the defendant. Upon request, a trial court must instruct the jury that it may consider the doctrine of chances only if it finds the extraneous offense true beyond a reasonable doubt and limits its consideration to its intended purpose. Evidence admissible under Rule 404(b) may still be inadmissible under Rule 403—when probative value is substantially outweighed by danger of unfair prejudice or misleading the jury. Where strong evidence already supports the State’s conviction the probative value of objectionable evidence is reduced. Here the doctrine of chances “did not justify the admission of extraneous incidents because they were not highly unusual or exactly the same as the charged offense.” The State provided the jury only with generic details surrounding the other offenses. Thus, the jury was left to speculate about the meaning of the prior drug offenses. This problem was exacerbated by the trial court’s erroneous denial of a limiting instruction. The State’s evidence was already sufficiently strong, and the prior convictions did not meaningfully advance their proof in a permissible way.

Dissent (Yeary, J.). The trial court’s determination was at least within the zone of reasonable disagreement. This court should give deference to that ruling. The prior marijuana incidents at least provided some evidence that the defendant would have been familiar with the odor of marijuana. Because the defendant claimed to be innocent, he opened the door. Rule 403 favors admissibility. Once a prosecutor establishes some relevance to the defendant’s prior bad acts beyond character conformity, it should be admitted.

1st District Houston

Navarro v. State, No. 01-20-00308-CR (Tex. App.—Houston, March 31, 2022)

Issue & Answer. When a defendant “provokes the difficulty” of resisting arrest but some evidence shows officers used unlawful or excessive force in response to this, is the defendant entitled to a necessity defense in the ensuing prosecution for assaulting a police officer? No. Not in the First District Court of Appeals.

Facts. The State charged the defendant with (1) aggravated assault with deadly weapon against a peace officer (striking Officer 1 with a trophy and attempting to strike Officer 1 with a screwdriver), (2) aggravated assault with deadly weapon against public servant (attempting to strike Officer 2 with a screwdriver), (3) assault of public servant (biting Officer 1), and (4) attempted arson. The evidence presented at trial showed officers were dispatched to multiple 911 hang-ups at an upholstery business. When they arrived several car radios were on with volume full blast. Defendant’s mother approached officers in the parking lot covered in transmission fluid. Defendant stepped outside of the business briefly to yell at officers and to tell them his mother was a “black widow” and a “drug dealer.” When officers entered the business, it was in disarray and transmission fluid was everywhere. Officer 1 had his handcuffs out. When the defendant saw Officer 1, the defendant retreated to an office and refused to come out. He soaked a towel in transmission fluid, lit it on fire, and threatened to burn everyone in the building. Officer 2 used a steel baton to smack the flaming towel out of defendant’s hand. Officer 1 tasered the defendant who was unphased by electrocution. The defendant hid under a desk and tried again to light the transmission fluid on fire. Officer 1 tasered the defendant again and defendant was again unphased by the electrocution. Officers flipped the desk over and the defendant “rode the desk to his feet.” Officers tackled the defendant and during a struggle the defendant struck Officer 1 with a trophy, grabbed a screwdriver and attempted to stab him, then bit him in the arm. Officer 2 punched defendant in the face until he was sufficiently dazed that he could be handcuffed. Officer 1 testified that the trophy blow caused pain but no injury. He also testified that the bite resulted in a loss of a chunk of flesh which required hospitalization and a week-long antibiotic soap regimen. The defendant testified that he “had a feeling they were going to take me to jail for whatever reason they could find,” admitted he did not obey commands, and admitted he resisted being pulled by the arm out of the office. According to the defendant he did not bite Officer 1 until the encounter escalated into a physical altercation due to his resistance.

Analysis. A defendant is not entitled to a necessity defense instruction “if it is undisputed that he provoked the difficulty that made it necessary for him to commit the offense.” “[O]ne who unlawfully resists detention or arrest by peace officers cannot claim that later criminal conduct, such as an assault, is a necessary response to any further efforts to detain or arrest him that his initial resistance precipitates.” The defendant disobeyed orders and physically resisted detention and later bit an officer in an altercation that his disobedience and resistance precipitated. This is distinguishable from a case where a defendant resists a person and claims he was unaware that person was a police officer.

Comment. The Fifth Court of Appeals and the Tenth Court of Appeals do not believe that “provoking the difficulty” is a doctrine which makes a defendant ineligible for a necessity defense.

2nd District Fort Worth

Thetford v. State, No. 02-18-00488-CR (Tex. App.—Fort Worth, Mar. 3, 2022)

Issue & Answer. An offense which requires “an act” cannot be predicated on “an omission.” Rodriguez v. State, 454 S.W.3d 503 (Tex. Crim. App. 2014). Rodriguez was an insufficient evidence reversal of a felony murder conviction—murder in the course of committing injury to a child, to wit: failing to feed a child (alleged numerous ways). Did Rodriguez create a per se rule that evidence is always insufficient to support a conviction when the relevant statute requires an act, but the State alleges an omission? No.

Facts. The State charged the defendant with attempted murder “by failing to provide adequate food and/or nutrition.” The evidence showed that the defendant, in addition to passively failing to feed her son, told friends and family not to feed him, led people to believe that feeding her son caused him pain, interfered with a gastrostomy button placed into her son’s stomach by doctors, asked medical staff to keep him asleep, and removed her son from Ronald McDonald House when she learned medical staff provided him with food after it was requested.

Analysis. Criminal attempt requires an act—not an omission—that amounts to more than mere preparation and tends but fails to affect the commission of the offense intended. The Penal Code defines an “act” as a “bodily movement” and an “omission” as the “failure to act.” Tex. Penal Code § 1.07(a)(1). When the State alleges a failure to do something, a conviction can be supported by a showing that the defendant committed acts in the course of an omission. The record established that the defendant committed both acts and omissions. She deterred and interfered with attempts to provide nourishment. This was sufficient to support a conviction for attempted murder despite the non-statutory allegation that the defendant committed the offense by omission.

Comment. The defendant filed a motion to quash the indictment alleging that failure to do something can’t serve as a predicate “act.” The Court agrees but was previously satisfied with the sufficiency of the indictment by summarily holding that Rodriguez is a sufficiency case and has no bearing on whether the indictment alleged an offense. Despite the court’s previous resolution of the question, it remains unclear to me how a defendant has notice of what acts she must defend herself from allegedly committing when the indictment alleges only an omission. Alleging an omission to inform a person about the acts they committed is as useful as not alleging any acts or omission at all.

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

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 Nineth 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

Ex parte Herrington, No. 12-21-00168-CR (Tex. App.—Tyler, Mar. 23, 2022)

Issue & Answer. The State may re-try a case after an objected-to mistrial if there was a “manifest necessity” for the trial court to grant the mistrial. Does manifest necessity exist when the State learns that an un-subpoenaed officer who promised to be present is missing at trial? No.

Facts. After a jury was empaneled and sworn, the State realized their DPS trooper had been deployed to the Texas border. The trial court declared a mistrial without the consent of the defendant. Before retrial, defendant filed a writ of habeas corpus challenging continued prosecution on double jeopardy grounds.

Analysis. Prosecution after mistrial is not barred if a trial court grants the mistrial on the basis of manifest necessity. A manifest necessity mistrial is justified only in extraordinary circumstances. A missing officer who the State did not subpoena does not create grounds for granting a mistrial on the basis of manifest necessity. “[W]hen a prosecutor empanels a jury without first ascertaining that his witnesses are present to testify, the prosecutor takes a chance” and gambles on proceeding without that witness’s testimony.  

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

Ex parte Pham, No. 14-20-00872-CR (Tex. App.—Houston [14th Dist.], Mar. 1, 2022)

Issue & Answer. Is a defendant’s plea involuntary when he represented himself, made it known to the prosecutor that eligibility for a dentistry license was his concern, then enters a no-contest plea which ultimately resulted in his ineligibility to apply for a dentistry license? No.

Facts. Defendant was a dentist. While subject to a disciplinary action he continued to practice dentistry when he should not have. The State charged him with unlawfully practicing dentistry. Defendant initially retained a lawyer, but that lawyer never appeared in court. Defendant requested the court’s permission to represent himself. After a Faretta hearing and the defendant’s acknowledgment of the dangers and disadvantages of self-representation, the trial court permitted the defendant to proceed pro se. Defendant entered a no contest plea to the offense.  In the plea paperwork he struck references to guilt and even wrote the phrase “not guilty” in various places. After the trial court accepted the defendant’s no-contest plea and placed defendant on community supervision, the defendant learned the disposition of his criminal case made him ineligible to reinstate his dentistry license. With assistance of new counsel, the defendant filed a writ of habeas corpus challenging his plea on the basis of voluntariness and ineffective assistance of counsel. In an affidavit to the habeas court, the defendant articulated his misunderstanding about the consequences of his plea on his dentistry license.

Analysis. “A plea is voluntary if (1) the defendant is fully aware of the direct and punitive consequences of the plea . . . and (2) the plea is not induced by threats, misrepresentations, or improper promises.” The record does not reveal that the defendant’s plea was induced by any misrepresentation by the trial court or the prosecutor. Because the defendant elected to represent himself, “he was expected to discover for himself that certain consequences would result from his plea. Pham’s failure to understand that he would become ineligible for a dental license did not render his plea involuntary, unless the trial court was required to admonish him of that consequence sua sponte.” The trial court only had a duty to admonish the defendant regarding the direct consequences that are punitive in nature and enunciated in the law. 

Hughes v. State, No. 14-20-00628-CR (Tex. App.—Houston [14th Dist.], Mar. 15, 2022)

Issue & Answer 1. Is there a Sixth Amendment right to confrontation in a revocation hearing? Yes.

Issue & Answer 2. Is the physical presence aspect of the Sixth Amendment’s right to confrontation violated by conducting a Zoom revocation hearing without obtaining sufficient waiver of physical presence? Yes. Even though counsel did not object? Yes.

Facts. Defendant was a deferred adjudication probationer. The State filed a motion to adjudicate guilt alleging that defendant had committed a new offense (forgery). The trial court conducted a Zoom hearing. Counsel was present in the courtroom for the hearing, but the State, the witnesses, and the defendant all attended via Zoom. The trial court indicated that the defendant remained on a video in the jail because he had been exposed to COVID-19 while in the jail. During the hearing the defendant was not given an opportunity to speak or communicate except when he testified in his own defense.

Analysis 1. Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012) controls the question of confrontation in a revocation hearing. Doan declared that revocations are not administrative in nature, but rather judicial proceedings. Thus, they are governed by the rules applicable to judicial proceedings. This includes the right to confront witnesses.  

Analysis 2. The right to be present for witness confrontation is a waivable-only right (objection unnecessary, the right is not forfeited absent a valid waiver).

“Appellant was in a separate break-out room with no possibility to communicate with his counsel in private regarding how to confront and cross-examine [the sole witness proving the offense of forgery]. Appellant was not truly present during his hearing. Instead he was relegated to being a distant observer with no opportunity to confront or cross-examine as envisioned by the Confrontation Clause.”

The defendant was not present at his hearing for Sixth Amendment purposes. Had he been present he may have offered assistance in pointing out inconsistencies in testimony which would have enabled counsel to cast doubt on the accusation.

Dissent (Wise, J.). The record does not reflect that the defendant was unable to communicate with counsel.

Comment. The Fourteenth Court provided this disclaimer: “However, we are neither prepared to make blanket pronouncements in this case nor conclude that a defendant is not present at a proceeding under the Sixth Amendment if he is present via video-conferencing.” I think this alludes to the possibility of conducting a Zoom proceeding in a different manner which alleviates the problems articulated in this case; namely that the defendant could not privately and effectively communicate with counsel during cross-examination. I think this would be exceptionally difficult within the Zoom platform itself in cases where the defendant and his or her attorney are in separate locations. Even the break-out functionality which conceivably creates an opportunity for attorney-client consultation is a poor substitute for real-time interaction in a courtroom. First, it requires stopping down the proceedings, interrupting the flow of cross-examination. Second, it places an unfair burden on the defendant that he chooses between imposing upon the trial participants and consulting with his or her lawyer. Third, so long as the defendant remain under guard (either in the courtroom or the jail) the conversation is neither private nor privileged.

BEC/EAC Report Update

In 2019, TCDLA first requested information on the sophisticated scam known as Business Email Compromise/Email Account Compromise, (BEC/EAC), for short. Now, in 2022, it is unfortunate to report that the situation has only grown worse.

The BEC swindle is aimed at organizations and individuals who execute wire transfers. These cyber criminals utilize compromised email addresses and abuse virtual meeting platforms in order to advise victims to provide information that will allow them access to funds.

These cunning cons often use email platforms to manipulate company executives who approve wire transfers into transmitting fraudulent, large dollar amounts. Once the money is transferred overseas, it is exceedingly difficult to recover or prosecute. The best way to avoid being scammed is to learn about BEC/EAC, to spread awareness and to implement employee training.

Now, in the third year of the pandemic, virtual meeting platform usage in the workplace is the norm. The advent of these virtual meeting platforms came along with a rapid increase in BEC/ EAC attacks. The platforms used by so many businesspeople today were immediately recognized and targeted by the criminal world as a primary tool to advance their invasion. I would direct all readers to view the FBI Public Service Announcement at the following URL for full and complete details concerning how they, and others, may be at risk: https://www.ic3.gov/Media/Y2022/PSA220216.

It will point out that between the first alert in 2019, and until the end of 2021, there had been an increase in BEC/EAC complaints. Trend Micro has determined the five types of BEC/EAC frauds: the Bogus Invoice Scheme, the CEO Fraud, the Account Compromise, Attorney Impersonation, and Data Theft. You can find definitions here: https://www.trendmicro.com/vinfo/us/security/definition/business‑email‑compromise‑(bec).

The use of cryptocurrency, which is a form of virtual funds, is currently rising within these scams. The FBI PSA alert number I ‑041321 states that cryptocurrency “…is popular among illicit actors due to the high degree of anonymity associated with it and the speed which transactions occur.” You can find more information at:

https://www.ic3.gov/Media/Y2021/PSA210413

The BEC/ESA exploitation has undoubtedly spread due to the COVID‑19 epidemic, which launched the advent of virtual meeting platforms, and caused the separation of offices and employees, making individuals more susceptible to these digital deceivers.

It is truly incumbent upon the honest and initiative‑taking businesspeople in our global society to educate their staff and key personnel, while awareness at an all time high.

If you find that you are the victim of a fraudulent activity, contact your financial institution immediately to request a recall of funds. Regardless of the amount lost, file a complaint with www.ic3.gov or, for BEC/EAC victims, BEC.ic3.gov, as soon as possible.

M. “Mike” Adams, EnCE, TX DPS # A17351
TALI, TACDL, NACDL
www.pfforensics.com

Celebrating What Freedom and Independence Mean: Declaration Readings – 2022

Every year we gather together, across the State of Texas and beyond, to read the Declaration of Independence on the courthouse steps in order to remind those that seek to do injustice that we are here to defiantly stand in their way. This symbolic gesture probably means something different to each of the folks that read. However, regardless of our political and social backgrounds, we all read to protect the rights and liberties that we hold dear and that we fight to defend each and every day. The founder of this wonderful 13‑year‑old tradition—Robert Fickman of Houston—will join me in coordinating statewide readings again this year. Those of you who have been involved in the past—you know who you are—will soon be contacted with information about the 2022 readings.

If you are not familiar with the TCDLA Declaration readings, you have not been paying attention. Patriotic criminal defense lawyers across Texas gather at the local courthouse and simply read the Declaration of Independence. (Our readings have inspired similar events in other states and in foreign countries.) Sometimes, it means just one lawyer reading to an audience of none on a small town square. Sometimes, it means a dozen or more lawyers reading to large crowds on expansive courthouse lawns as flags fly and children play, and with everyone singing patriotic songs. We hope those who witness or participate in a reading come away with an appreciation of what Independence Day truly means.

The 2022 readings will take place on July 1 or on whatever date works best for your community around Independence Day. If you  have been involved as an organizer of a local Declaration reading in the past, we would appreciate you confirming with us you will organize again this year. If you have not been involved in a Declaration reading in years past but want to get involved this year, please contact us: Robert Fickman of Houston, 713‑655‑7400 (), or Chuck Lanehart of Lubbock, 806‑535‑2689 (chuck@lubbockcriminaldefense.com).

Please join us in honoring our nation’s most sacred document in the spirit of independence.

Claim your Community!

The Professional Ethics Committee for the State Bar of Texas – Opinion No. 690

This article was first published in the State Bar of Texas Journal in October of 2020.
Submitted by: Keith Hampton

Question Presented

Does a lawyer who represents a defendant in a criminal matter violate the Texas Disciplinary Rules of Professional Conduct if, after receiving tangible evidence from the lawyer’s client, the lawyer does not reveal the existence of the evidence until trial and refuses to allow the prosecuting attorney to inspect the evidence until the court orders the lawyer to do so?

Statement of Facts

A lawyer represents a client who is in jail awaiting trial in a felony domestic violence case. While in jail, the defendant receives several letters from a victim in the case that contain relevant information. The defendant gives those letters to the lawyer, who takes the letters to his office for safekeeping. The lawyer does not reveal the existence of the letters until trial. The prosecuting attorney informally asks to inspect the letters, but the lawyer refuses. The lawyer continues to refuse to allow inspection of the letters until ordered to do so by the court after a hearing.

Discussion

“Unlawful” obstruction or concealment in general. Rule 3.04(a) of the Texas Disciplinary Rules of Professional Conduct prohibits the unlawful obstruction, concealment, alteration or destruction of evidence. Rule 3.04(a) provides:

“A lawyer shall not… unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.”

To constitute a violation of Rule  3.04(a),  the  obstruction or concealment must be done “unlawfully.” The term “unlawfully” is not defined in the Rules.

Nevertheless, as discussed below, the term “unlawfully” is generally understood to refer to conduct that violates a statute, court order, or other mandatory disclosure obligation.

Any obstruction or concealment that violates criminal law would clearly be “unlawful” and therefore would violate Rule 3.04(a). Criminal conduct related to obstruction or concealment could also likely violate subsections (2), (3), (4), or (12) of Rule 8.04(a):

“A lawyer shall not:”

(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) engage in conduct constituting obstruction of justice; . . . [or]

(12) violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

Whether particular conduct violates a criminal obstruction statute is a question of substantive law that is outside the Committee’s purview. The Committee is not aware of any authority holding that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime.

Obstruction or concealment of evidence is also “unlawful” if it violates a court order. For example, a lawyer in possession of tangible evidence may violate Rule 3.04(a) by knowingly failing to obey a court order requiring production of the evidence. Such conduct could also violate Rule 3.04(d), which provides:

“A lawyer shall not… knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience.”

Finally, a lawyer acts “unlawfully” for purposes of Rule 3.04(a) if the lawyer knowingly fails to provide evidence when disclosure is mandated by the rules of the tribunal, a subpoena, a discovery obligation, a cooperation agreement, or the like (hereafter, a “Mandatory Disclosure Obligation”). It is not unlawful, however, for an attorney to withhold ordinary tangible evidence pending a ruling on a good faith, legally available objection, motion for protection, or other procedurally legitimate challenge to a Mandatory Disclosure Obligation.

Mandatory Disclosure Obligations of criminal defense counsel. There is no traditional discovery process in Texas that allows the State to obtain evidence from a criminal defendant. Absent a court order, therefore, a lawyer who receives ordinary tangible evidence from a client generally does not have an obligation to turn over the evidence to the prosecuting authority. In such a situation, the lawyer does not act unlawfully, and consequently does not violate Rule 3.04(a), merely by maintaining non‑destructive custody of such evidence.

Special Criminal Evidence. It is generally accepted that a lawyer has a self‑executing obligation to turn over some special types of tangible evidence. This opinion will refer to such evidence as “Special Criminal Evidence,” as opposed to “ordinary evidence.” The definition of Special Criminal Evidence varies by jurisdiction, but generally includes contraband, the instrumentalities of a crime, or the fruits of a crime. Common examples are illegal narcotics, a murder weapon, and stolen jewelry. Depending on the jurisdiction, the definition of Special Criminal Evidence may also include documents and records directly involved in the perpetration of a crime, such as book‑making receipts or falsified records, as well as other direct evidence of the client’s involvement in the crime (such as a bloody glove). The rationales offered to support the obligation to turn over Special Criminal Evidence are that (1) possession of such evidence—by anyone—is usually illegal, (2) preparing the client’s defense does not require counsel to possess the evidence, and any evanescent evidence (such as fingerprints) could degrade while in the lawyer’s possession.

Most United States courts that have considered the issue have held that a lawyer who comes into possession of Special Criminal Evidence—however defined in that jurisdiction—has a self‑executing obligation to turn over the evidence to police or other law enforcement authorities. See Rubin v. State, 602 A.2d 677,  686  (Md.  1992) (collecting cases); see also Hitch v. Pima County Superior Court, 708 P.2d 72, 75 (Ariz. 1985); In re Ryder, 381 F.2d 713, 714 (4th Cir. 1967) (“It is an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime”); see generally Restatement (Third) of the Law Governing Lawyers § 119 (2000) (lawyer must notify prosecuting authorities or turn over the evidence after reasonable time for non‑destructive testing); Gregory C. Sisk, The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster’s Computer and Bloody Knives under the Stairs; 89 Wash. L. Rev. 819 (2014); Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan. L. Rev. 813 (2011).

It appears to be the general rule that, before turning over Special Criminal Evidence to law enforcement authorities, a lawyer may be allowed to examine the evidence and subject it to tests that do not alter or destroy material characteristics of the evidence. Restatement (Third) of the Law Governing Lawyers § 119 (2000). It also appears to be the general rule that if a lawyer turns over Special Criminal Evidence acquired from a client, the trial court should not allow the jury to learn the source of the evidence. See Rubin v. State, 602 A.2d at 688 (collecting cases); see also Henderson v. State, 962 S.W.2d 544, 556 (Tex. Crim. App. 1997) (holding that trial court properly compelled lawyer to turn over maps received from client when kidnapping victim was possibly still alive, but noting that neither the client’s communications to the attorney nor the attorney’s communications to law enforcement could be admitted at trial); Sanford v. State, 21 S.W.3d 337, 344 (Tex. App.—El Paso 2000, no pet.), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (“[b]y allowing the State to recover the evidence, the public interest is served, and by refusing the State an opportunity to disclose the source of the evidence, the attorney‑ client privilege is preserved”). At least one jurisdiction has endorsed a procedure designed to avoid disclosing the source of the evidence to the prosecution. See District of Columbia Rules of Professional Conduct, Rule 3.4, Comment 5 (D.C. Office of Bar Counsel may accept evidence and turn it over to proper authorities without revealing its source, thereby preserving the defense lawyer’s obligation of confidentiality).

At present, the scope of a lawyer’s self‑executing obligation to turn over Special Criminal Evidence has not been well‑defined in reported Texas law. E.g., Sanford v. State, 21 S.W.3d at 344, n. 6 (declining to decide question of whether attorney had an obligation to reveal to law enforcement the location of an instrumentality of the crime, which the lawyer had learned from client); Henderson v. State, 962 S.W.2d at 556 (referring to “cases in other states that require an attorney to release physical evidence in his possession to the authorities but prevent the government from disclosing to a trier of fact that the evidence came from the defendant’s attorney”). For purposes of this opinion it is sufficient to note that a Texas court might recognize a self‑executing obligation to produce Special Criminal Evidence. If so, a violation of that obligation would be “unlawful” for purposes of Rule 3.04.

Application to assumed facts. The Committee now turns to the specific statement of facts presented at the start of this opinion. The assumed facts involve an incarcerated client who, during a jailhouse visit, gives tangible evidence (letters) to his lawyer. At the time of receipt, the lawyer is not subject to any order or agreement that mandates producing the evidence to the State. The lawyer declines to produce the letters in response to an informal request from the prosecuting attorney but produces the letters when ordered to do so by the trial court.

The lawyer is not subject to a self‑executing obligation of production by virtue of the special character of the evidence. A letter from a victim does not qualify as Special Criminal Evidence, even if the letter might be incriminating or exculpatory. Specifically, such a letter is “ordinary evidence”— it is not contraband, a fruit or instrumentality of the alleged crime, a document directly involved in the perpetration of a crime, or other direct evidence of the client’s involvement in the crime (such as a bloody glove). A Texas criminal defense attorney has no obligation to turn over ordinary tangible evidence to the prosecuting attorney. That the lawyer receives the ordinary tangible evidence from an incarcerated client does not change the result, assuming the lawyer does not violate the law in the process.

No obligation to accept custody of evidence tendered by client accused of a crime. The Committee also notes that a lawyer is under no obligation to accept or act as custodian of tangible evidence tendered by a client accused of a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and assuming the lawyer counsels the client as to the applicable laws regarding evidence preservation, the most prudent course is often to decline a client’s request to accept custody of evidence related to an alleged crime. See generally “What Do I Do with the Porn on My Computer”: How a Lawyer Should Counsel Clients About Physical Evidence, 54 Am. Crim. L. Rev. 751 (2017) (comprehensive discussion of advice that lawyers should give clients if lawyer declines to take possession of tangible evidence).

Unaddressed issues. This opinion does not address (a) the destruction or alteration of evidence, (b) a lawyer’s obligation with respect to mere information received from a client related to tangible evidence (e.g., the location of a corpse or murder weapon), (c) a lawyer’s obligation with respect to tangible evidence independently discovered by the lawyer or the lawyer’s agents, (d) evidence that is not provided directly to the lawyer by the client, or (e) evidence that might exonerate a co‑defendant or third‑party. The Committee also cautions that it offers no opinion regarding the application of criminal obstruction statutes and that prosecuting authorities may take a broad view on what conduct constitutes criminal obstruction or concealment.

Conclusion

A lawyer who elects to take possession of tangible evidence from a client in a criminal matter may not conceal that evidence from a prosecuting attorney or obstruct access to that evidence if doing so would be “unlawful.” A lawyer’s conduct with regard to potentially relevant evidence is unlawful if it is prohibited by statute, court order, or Mandatory Disclosure Obligation, as defined above. In general, however, a Texas lawyer is not required to disclose ordinary tangible evidence in a criminal matter in the absence of a court order or agreement. The common law may impose a self‑executing obligation of disclosure if a lawyer takes possession of Special Criminal Evidence , such as contraband, instrumentalities of a crime, or fruits of a crime. The precise scope of such an obligation is a question of substantive Texas law to be addressed by the courts. The failure to comply with a judicially recognized obligation of disclosure would be considered “unlawful” and would violate Rule 3.04(a).

Under the facts stated in this opinion, a lawyer who obtains ordinary tangible evidence from an incarcerated client does not violate the Texas Disciplinary Rules of Professional Conduct by refusing to produce the evidence to the prosecuting attorney until ordered to do so.

A lawyer is under no obligation to accept tangible evidence from a client charged with a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and counsels the client regarding evidence preservation, the most prudent course may be to decline a client’s request to accept custody of evidence related to an alleged crime.

Opening a Public Defender’s Office: Setting the Foundation

There can be brilliant artistry in good lawyering. Everything that arises from nothing – say, progressing from an initial client meeting to charting a thorough defense strategy – has required at least one person in one moment to stand in front of something blank and wonder: what is the most right thing to do next?

The art lies in the repeated conquests of uncertainty, or perhaps, the ability to share space with that uncertainty yet find a way forward. The examples are many, but the one that comes strongest to mind is the anxiety we feel in those moments where trial creeps closer and closer and we find ourselves in that continual, turbulent swirl where we think we have the right words and questions and then, suddenly, on a late night drive back from a jail‑visit, wonder if anything we have done is remotely adequate. We are, in those moments, artists, and regardless of how self‑ critically we assess our own ability to create, that’s precisely what we must do. Because, no matter how we get there – through logic or invention or some combination of the two – the time will come when we must stand and show our slew of audiences what we have prepared. And it’s those moments that Gus from Lonesome Dove describes best: “Well, here’s where we all find out if we was meant to be cowboys.” Art and creation are at my perpetual forefront because I am the Chief Public Defender for an office that is barely three‑months old. On December 5, 2021, there was officially no such thing as the Concho Valley Public Defender’s Office. The next day there it was: grant‑funded with a seven‑county coverage area (centered in San Angelo), with no real playbook.1 But there it was and there I was, and in that long drive to the part of Texas that really should have some significant portion named for Tip Hargrove, I began my own wondering about what it means to create.

As the year unfolds, I plan to write more about what it means to build a Public Defender’s Office – successes and failures alike – but for now, I want to focus on the three areas that have been most important to our foundation.

Figuring out who we are and what we stand for

In many ways, this will be an ongoing,  ever‑evolving  process – as it should be. But our leadership team has spent a great deal of time huddling, sharing and editing ideas and drafts, and zeroing in on the essence of our who we are. What does it actually mean to be our office? What our governing why is? What principles encompass all that we say and do? Being frank is a repeated exercise in radical self‑disclosure as is being candid about fears and hopes along with allowing room for what arises. The process itself has been unifying and revealing.

The gravest mistake, I believe, is to rush past this into court. Appointments are easy for a Public Defender’s Office to come by. What is not easy to come by is building a team of people that aspires to be more than “relevant” in court in the long‑run. It takes patience, and commitment to the idea that a few months of foundation‑cementing will not only pay perennial dividends, but will ward off any sort of hasty entrance into a world that existed long before you were there.

The significance here, I believe, is that an initial goal should be the development of an authentic, clearly defined set of values that becomes a constant reference point for every decision we make. This ranges from what we consider important when we hire and how we set clear internal expectations, to drawing lines and setting boundaries – that is, creating parameters of accountability.

These critical values are ones we want our early staff to assist in creating. The values are empty words if they are thrust upon an unaccepting audience, but are powerful unifiers if they are the product of like minds working towards a shared goal. What is staggering, though, is how bonding the actual art of creating this internal pledge is. Each of us brings to the table a great deal of history that informs what we want this office to stand for. It is fascinating to see just how overlapping and simple the asks of humility, aspiration for excellence, shared passion, some combination of a kind and caring and supportive workspace are. The list is not surprising, but the act of building it has been one of the best things we have done as a young office.

Finding, appreciating, and celebrating your people

In these early days, there are two leadership principles I feel lucky to have discovered. The first is striving to be the humble choreographer of everybody else’s brilliance. At its most basic, it means that at any given moment, on any given subject, delighting in not being the most qualified subject‑matter expert in the room. And, as importantly, feeling privileged that you have that heightened level of excellence and thoughtfulness down the hall.

Choreographing this includes focusing on creating the environment encouraging the person who knows the intricacies of how to fight court costs better. It includes encouraging the person who knows how to prepare bond writs better and the person who knows how to automate repetitive motion  creation  better. It is finding and attracting this eclectic combination of spectacular minds and unleash them on the world, not to hire and stifle and ensnare.

The second principle was one that John Cage taught me when I first discovered the beautiful silence of 4:33 – let the words and questions and concerns of others be the soundtrack to your silence; gather them all. Harvest them. Explore them, pay attention to them, and let them inform what’s missing, what to adjust. Anyone can walk into a room with a megaphone – sometimes, I believe, the art lies in finding comfort in listening.

Both of these principles, soft‑ spoken as they may appear, are active behaviors. To conflate curiosity and quietude with weakness or inaction is to misread the power of what it means to encourage the people around you to reach – endlessly, endlessly – towards their own exceptionalism, and give them the space to do so. Choreography, after all, is a noiseless practice.

The privilege of collaboration

When I think of the people outside any office I have worked in who have taught me the most, I think of three: Clay Steadman, James McDermott, and Lisa Greenberg. This is not to ego‑stroke, it is to acknowledge at critical moments in my career, I have been more than fortunate to be able to talk with people whose experience adds meaningful weight to their words.

I have realized I am a phone‑ call away from the most whip‑smart people in the State. We are building a semi‑enclosed entity in San Angelo, yes, but that is more a function of geography than anything else. To be able to call Paul Chambers to discuss automation, Michelle Ochoa to hone a contested MTR practice, or Jani Maselli for any reason – it makes me tap my heart in appreciation. It is impossible to imagine laying any sort of foundation without appreciating the exceptional resources across the State that continue to redefine what it means to be generous with time and wisdom.

That brings me to a line from a book called Complexity, one that dives into the chaotic brilliance of complex organizations (of which, I believe, Public Defender Offices are very much a part): “The edge of chaos is the constantly shifting battle zone between stagnation and anarchy, the one place where a complex system can be spontaneous, adaptive, and alive.”

My hope is that our office thrives on this precipice – a sense of aliveness pervading all that we do, a space of controlled disarray allowing for the nonstop collision of ideas, and the solidarity that lets us smile at the acknowledgement that we are all in it together.

My thesis is that none of this happens without the time spent up front getting things right. Time will tell.

Nueces County Veterans Treatment Court

A few years ago, the Texas Legislature passed legislation and provided funding for specialty courts to address and serve our combat veterans. Many veterans were being arrested for crimes varying from DWI and evading to assault family violence and aggravated assault. Many of the acts leading to the arrests were in direct relation to psychological injuries received while serving of our nation, such as PTSD and/or substance abuse. Up to 20% of veterans suffer from these problems due to their service, as well as many other mental health issues such as traumatic brain injury (TBI). In essence, when “Johnny” goes off to war, somebody different comes back home. Unfortunately, to compound the problem, typical probation does little to rehabilitate those who are suffering from combat stress.

According to 2021 population statistics, Nueces County alone has 27,152 veterans living within its boundaries, giving it the largest veteran population south of Bexar County. Naval Air Station Corpus Christi and Naval Air Station Kingsville – located in Nueces and Kleberg Counties respectively – house all branches of the military in some capacity, as well as many of the servicemen and women who remain in Texas after their deployment to enjoy South Texas beaches, BBQ, and freedom. To assist all of these veterans in the area, the Nueces County Veterans Treatment Court (NCVTC) specialty court was developed in Corpus Christi.

NCVTC is overseen by the Honorable Jack Pulcher, who presides over the 105th District Court covering Nueces and Kleberg Counties. Current District Attorney Mark Gonzalez has utilized NCVTC much more effectively than his predecessor, who viewed it simply as a mechanism to gain funding for a few more prosecutors. DA Gonzalez, has welcomed the program with open arms, and the effects have been notable – the specialty court has only a six percent (6%) recidivism rate. Thanks to extra funding from the Texas Veterans Commission, NCVTC now accepts low income veterans who did not previous qualify due to financial hardships, as well as assistance for unexpected needs such as utility, housing, and transportation on a case by case basis.

The program provides a second chance to veterans through a judicially supervised, team based approach that ensures participants are monitored and receive treatment for their underlying issues. veterans are screened, assessed, and approved for participation in the voluntary program. The local defense bar, Coastal Bend Defense Lawyers Association, has been trained to seek out and recognize veterans who may qualify for this. A local jail liaison also checks for inmates who qualify for the program, notifying the specialty court and the defense attorney to act at once if they find someone eligible. (After the defense attorney reviews discovery and performs due diligence defense of course).

The program is aptly named the Veterans Treatment Court because its mission is to treat the symptoms that led to the problem. NCVTC is a hybrid “Drug and Mental Health Court” that uses a typical drug court model while applying the principles of both drug and mental health courts. The specialty court is team‑based, with representatives from the U.S. Department of Veterans Affairs, state and local rehabilitation agencies, and volunteer veteran mentors (Vets helping Vets). There are two local veterans treatment centers in Nueces County that are used, as well as various inpatient and outpatient centers across the state of Texas. NCVTC participants often experience little to no wait getting into these centers.

NCVTC is available to prior or current service members of all the armed forces, including the Coast Guard. Active, reserve and National Guard members with honorable and other than honorable discharge awards are eligible to participate. Only individuals charged with murder, manslaughter, or sex offenses cannot participate. Applicants are assessed by a committee consisting of representatives from the district attorney’s office, the defense bar, veteran’s affairs, the jail, and probation. Counselors and veteran mentors and are approved on a case‑by‑case basis. Complaining witnesses are always contacted and their approval, although not mandatory, weighs heavily. The applicant also interviews in person on a case‑by‑case basis.

There are two possible tracks once the applicant is admitted. Track 1, which is a diversionary track (pre‑trial diversion), leaves the charges pending until all fees are paid and the applicant graduates from the program. Expunction fees are waived and a volunteer attorney litigates the expunction on behalf of the graduate. Track II is the non‑ diversionary track. Any remaining supervision may be terminated early (except DWI 3rd or more, due to the law). If the participant qualifies for a non‑disclosure, assistance is provided. NCVTC, which is typically a 12‑24 month program, is 100% funded by the grant through the Texas Veterans Commission. Probation classes, abstinence monitoring and living assistance are all covered. A veteran who is already on probation can be transferred to the Veterans Treatment Court. Once the case is transferred, the Veterans Court treatment program controls, and all decisions are made by the Treatment Court and its staff. The Veterans Treatment Court has its own judge, with two prosecutors and two criminal defense attorneys assigned to serve the court. The court also has a designated probation officer, outreach coordinator from the Veterans Administration, jail liaison, and volunteer mentor representative who attends court and takes an active part in the program.

The positive aspect of the Veterans Treatment Court is that it focuses on the special needs of our veterans and the unique challenges that they face. It helps our veterans cut through the red tape and take advantage of the services offered by the Veterans Administration. Often, NCVTC leads to a disability diagnosis and support that the veteran would have never otherwise received. It does not follow the “cookie cutter” approach; rather the hands‑on specialty court focuses on the individual needs of the client.

Current Issue: May 2022

/

DOWNLOAD PDF VERSION

Features

8 | BEC/EAC Report Update – By Mike Adams
26 | Celebrating what Freedom and Independence Mean – Declaration Readings 2022 – By Chuck Lanehart
27 | The Professional Ethics Committee for the State Bar of Texas – Opinion No. 690 – State Bar Journal Ethics Committee, Submitted by Keith Hampton
31 | Opening a Public Defender’s Office: Setting the Foundation – By Joe Stephens
33 | Nueces County Veterans Treatment Court – By Harold Walker

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
10 | Editor’s Comment
12 | Ethics and the Law
16 | Federal Corner
19 | From the Front Porch
25 | Shout-Outs

Departments

4 | CLE Seminars and Meetings
36 | Significant Decisions Report

President’s Message: Thanks

/

I cannot believe that it has already been almost one year since the beginning of my presidency and that it is drawing to a close. I am looking forward to Heather Barbieri leading TCDLA throughout the next year. We are in good hands with Heather at the helm. I want to thank our CEO, Melissa, for making this a very good and very smooth year. We are very fortunate to have her as our CEO. Melissa and her staff are absolutely wonderful, and I want them to know just how much I appreciate their help and hard work this past year. I want to thank my executive committee for their wonderful help and thoughtfulness during this past year. I could not have asked for a better EC, and they certainly made my year a wonderful experience. You are all stars. I want to thank my committee chairs and their committee members for all of their excellent work this year on the various and difficult tasks I sent to them to solve for TCDLA. What an outstanding group of individuals. I also want to thank our membership for their loyalty to TCDLA and helping when called upon to help TCDLA. We are indeed fortunate to have such wonderful members of TCDLA. Thanks to everyone.

Be well.

Executive Officer’s Perspective: Cyber Security

/

“Don’t worry. I’m from the IT team.”

—Unknown

As we begin the month, it is time for TCDLA to run scans and ensure we pass all the PCI Compliant tests. These are security standards we must follow to process payments online while maintaining a level of security that protects data. After several days, countless hours of answering more than 200 questions, running tests on servers, and contacting IT on our website and database providers, we passed. The good thing is we get to do this all over again next year!

Coincidently, this month I attended a professional development training on cyber security and how it affects associations, members, and vendors. In addition, Mike Adams, TCDLA and Technology Committee member, submitted an article for this issue that complements mine perfectly.

What I have learned—and witnessed—is that anyone that can be a victim. Yahoo Finance reported cyber‑attacks increased by 341% during COVID‑19, according to Nexusguard Research. All too often, people are embarrassed to admit tobeing victims, and unfortunately, they don’t share their experiences, allowing us to continue thinking it can never happen to us. But think again. Attacks no longer take the form of emails with lousy grammar or fake voicemails intoning, “This is the IRS. You will be arrested . . .” (IRS repeatedly says they never call, always corresponding by mail.)

Just recently in my own world view I’ve seen deposit accounts altered, payment methods changed, ransomware paid, wire transfers intercepted by duplicate email accounts, and more—all when knowledgeable, professional people are the victims.

Data by RiskIQ suggests cyber‑ crime costs organizations $2.9 million every minute, with major businesses losing $25 per minute as a result of data breaches. Ransomware attacks have gone mainstream with the proliferation of ransomware‑ as‑a‑service (RAS), where cyber‑ criminal groups create and market ransomware to “affiliates.”

Who knew there were so many phishes (from information accessed here: Eight types of phishing attacks and how to identify them | CSO Online)?

Whaling: Seeking CEO or president credentials. When assuming office, our incoming president each year receives emails from members telling them “you have been hacked.” No, they’re not being hacked, just targeted as high‑profile titles. When you look at the sender’s email address, it may indicate, for instance, from Melissa Schank, mschank@tcdla. com <akfdjfalksdjfl;kaj@gmail. com>. If you look closely, you’ll see it’s not the actual email address it seems to be at first glance. Several such fake emails led people to think that I needed them for a minute, or wanted them to process something for me, or needed to make bogus payroll/vendor account changes. In our office we must remain alert about our established procedures for payment for members, vendors, or even staff (when dealing with in‑house payroll/401k updates).

Phishing : Mass-market emailing looking for you to log in. You might see, for example, an email saying your PayPal password expired; your storage has been exceeded; your account is frozen; or something as blatant as “click here to pay the outstanding invoice.” If you enter your information, they have you. If this should happen, of course, you’re advised to change your password(s) immediately and contact the entity to make sure nothing is billed you.

Spear Phishing: Targeting large corporations or government agencies. Assembling critical data, these criminals work for long periods researching then strategically attacking these organizations.

Clone PhishingCreating a near-perfect replica. The look is the same, often gaining entry by resending a message received previously that was intercepted by a cloned website. If you receive what seems to be an odd request or repeats a previous message, reach out to the end‑user directly to find out. (Some offices have particular code words or do not handle specific processing through email.)

Vishing: Phone call from a financial firm asking for personal information due to a “security problem.” Whenever I get one of these, I hang up and log into the secure site, determine if there is in fact a breach, make sure my password works—or even call the firm as needed.

Smishing: Pretending to send text messages from a company to get you to click on a link. Often attackers use the name of a reputable company, replicating the logo or site and asking you to log in. Recently I purchased something from Best Buy, using a Wells Fargo card, and the site asked for a verification code from my bank. My bank info is saved in contacts, so I know if they text or call. They responded to my inquiry: “Wells Fargo will never call or text you for this code. Don’t share it.” Why these are successful: 98% of text messages are read, with 45% responded to, while emails run 20% and 6%, respectively.

Snowshoeing:A viral type of spam. We get a message, open it—and every one of our contacts gets a message we didn’t send. We tell everyone not to open that email after someone tells us about it. At any rate, change your password immediately, then let people know not to open the infected message. The most virulent form can invade your contact list once you start clicking away and spread again. Most malware software will catch this, so it is essential to keep an active subscription. (When I notice something is working oddly on my computer, I immediately run a scan.)

Other attacks:

  • Man in the middle: someone pretending to be you and intercepting all your emails and transfers by having your information
  • Email Forwarding Activity: attackers set up email rules to hide their malicious activities or have emails forward
  • Ransom: send us bitcoins or we will hold your data hostage
  • Fake Malware and Updates
  • SQL Injection: attacking your database
  • Drive-by Attack :website loaded with viruses

A helpful to visit for more information is cissar.com.

Additional Preventive Measures (from information and graphics accessed from TSAE CEO Forum)

    1. Determine what data your organization saves that could be lost if you are Also, consider the cost to replace it (or pay reparations to members) for a breach.
    2. Conduct an annual review of the organization’s cybersecurity stance, policies and procedures, the threat landscape, any training program, and insurance.
    3. Implement multi‑factor authentication (MFA) for all.
    4. Make sure that your website is secure with HTTPS.
    5. Conduct a baseline, simulated phishing attack for both the board and staff to raise awareness and improve skills.
    6. Ensure that antivirus and malware detection is provided to all staff computers, then monitor, maintain, and review them regularly.
    7. Communicate and enforce clear password models. Promote the use of password vaults for all.
      • Make your password longer and harder to guess, with a minimum of 16 characters using a combination of letters, numbers, and special characters,
      • Change your password
    8. Develop business continuity plans that include what may need to happen in case of a cyber or ransomware attack. Then, create and communicate an incident response plan.
    9. Implement document retention and destruction plan.

How secure is my password?

These attacks are exceptionally successful because the attackers are perfecting their craft. After all, this is what they do, and they do it well. At the end of the day, we all try to be as secure as possible, and awareness is critical. Unfortunately, there is a new scheme, attack, or virus every day. We can be so busy sometimes that we do what is fastest, all too often leading to otherwise‑avoidable consequences. I thank those who bravely share their stories. We’re not judging them, rather, thanking them for making others aware who might otherwise fall victim. By sharing this piece, I hope you were able to maybe take one new thing away—or just be reminded about the threats.

Editor’s Comment: You Might Not Like It, But You Better Get Used To It

/

Last year at Rusty Duncan I had the pleasure of speaking on the topic of “Technology in the Modern Criminal Defense Law Office.” Normally that level of excitement is reserved for the time of day when everyone is taking a nap, but instead they had me speak at 8:00 a.m. on Thursday morning. One of the topics that had the crowd roused at such an early hour was the ethical implications in maintaining a “modern” law office. Attendees were a little shocked at the idea that if they didn’t maintain a fairly high level of technological understanding in maintaining and securing their technological information, it could be problematic.

As of 2019, comment 8 to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct states that,

  1. Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education. If a system of peer review has been established,the lawyer should consider making use of it in appropriate circumstances. Isolated instances of faulty conduct or decision should be identified for purposes of additional study or instruction.

Changes like that make each of us responsible for so much more knowledge and skill than our predecessors had to deal with. No longer are the days where lawyers could pass off changing technology as something for another professional to have to worry about. We all have an ethical duty to maintain a level of proficiency in the technology associated with the practice of law, and more importantly the associated risks. It isn’t hard to figure out that means we have to maintain a level of understanding of how to minimize those risks. Over the next couple of months, beginning with this edition, we will try to bring you relevant articles on that very topic. Not just from other lawyers, but from professionals who are equipped with the knowledge that not all of us possess to assist in maintaining the level of understanding that we are tasked with knowing. I know it may not always be the most riveting of topics, but I hope each of y’all learn something from the material.

Be safe.

1 2 3