Monthly archive

June 2022

June 2022 SDR – Voice for the Defense Vol. 51, No. 5

Voice for the Defense Volume 51, No. 5 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Not many cases for the month of May, if you’re only counting non-leaked opinions. And that is officially the closest I think I’m allowed to get to that. What else might be going on this month you might ask? Well, I can report (significantly of course) that losing an earlobe worthy of kissing and nibbling is not that serious. Also, all the electronic harassment constitutional challenges got resolved. Considering that I maintain an electronic edition of this report, I am thoroughly petrified that my harassing, annoying, and alarming commentary is gonna get me jammed up. Good thing I know a few good lawyers.

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

The United States Supreme Court did not hand down any significant or published opinions since the last Significant Decisions Report. See my comment above.

Fifth Circuit

United States v. Castelo-Palma, 40 F.4th 284 (5th Cir. 2022)

Issue & Answer. A defendant who transports illegal aliens for financial gain is subject to a Sentencing Guidelines enhancement for doing so in a manner that creates a substantial risk of death or serious bodily injury. Should this enhancement apply to an individual because he put more passengers in his vehicle than the manufacturer intended? No.

Facts. A drug cartel paid the defendant to smuggle eight individuals into the United States in a 2003 Ford Explorer. He pled guilty without a plea agreement to the charge of transportation of illegal aliens for financial gain. In calculating his federal sentencing guideline points, the probation officer assessed a three-level enhancement for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” In support of the enhancement, the probation officer cited the fact that nine individuals were inside a Ford Explorer with a rated capacity of seven passengers. The district court overruled the defendant’s objection to the assessment of the enhancement and sentenced the defendant to 24 months of imprisonment. 

Analysis. A 3-point enhancement under the sentencing guidelines applies in cases of alien smuggling conducted in a manner that creates a substantial risk of death or serious bodily injury. U.S.S.G. § 2L1.1(b)(6). The Fifth Circuit has identified five factors for consideration when applying this enhancement: (1) availability of oxygen, (2) exposure to extreme temperatures, (3) the aliens’ ability to communicate with the driver, (4) the aliens’ ability to exit the vehicle quickly, and (5) the danger to aliens if an accident occurs. The commentary to 2L1.1(b) suggests the enhancement should apply when “carrying substantially more passengers than the rated capacity of a motor vehicle or vessel.” The Government argues that the crowded vehicle rendered it difficult to exit and dangerous in the event of an accident. The government reaches this conclusion based on hypotheticals not supported by the evidence. Nothing in the record indicated a risk to passengers greater than that of an ordinary passenger, even when considering the fact that the passengers were not wearing seat belts.

Comment. A nailbiter to the end, I thought the answer would be yes. Not that it should be, just . . . I guess it’s a Pavlovian conditioning sort of thing.

Texas Court of Criminal Appeals

Wade v. State, No. PD-0157-20 (Tex. Crim. App. 2022)

Issue & Answer. A defendant is entitled to a lesser-included offense instruction when at least a scintilla of evidence establishes the lesser offense as a valid rational alternative to the charged offense. Can this scintilla of evidence come in the form of the defendant’s own lay opinion regarding the severity of his victim’s injury in an aggravated assault case? Yes.

Facts. Defendant was in a physical altercation with his ex-wife’s new boyfriend. He bit the guy’s earlobe off. The State charged him with aggravated assault with a deadly weapon (to wit: his teeth). They specifically alleged he caused serious permanent disfigurement. EMS took the lobe and the lobeless victim to the hospital where they sewed the earlobe back on. There was no serious bleeding, the injury was non-life-threatening, and the victim declined pain medication. Defendant testified that it was his personal opinion that biting the victim’s earlobe off may have caused some permanent disfigurement but that the disfigurement was not “serious” and was mostly unnoticeable. The victim testified that he considered his injury to constitute permanent disfigurement but said nothing about whether he considered it to be “serious.” The trial court denied the defendant’s request for a lesser-included assault charge to the jury.

Analysis. A lesser-included instruction is required when there is at least a scintilla of evidence from any source establishing a valid rational alternative to the charged offense. For a lesser included offense to be a valid rational alternative, there must be some evidence casting a reasonable doubt upon the charged offense. This analysis requires the court to look at the evidence in the light most favorable to the requested instruction. Here, the issue pertains to the degree of the injury: serious bodily injury versus bodily injury. Thus, for a lesser included instruction of bodily injury assault, there must be some evidence that would have permitted the jury to rationally doubt the injury to the victim’s earlobe constituted serious bodily injury—in this case, defined as serious permanent disfigurement. “The relevant issue in determining the degree of disfigurement is the damage caused by the wound when inflicted, not the disfigurement as exacerbated or ameliorated by medical treatment. However, bodily injury cannot be elevated to serious bodily injury by postulating potential complications that are not in evidence. There must be evidence of some significant cosmetic deformity caused by the injury.” Not every scar constitutes serious permanent disfigurement. A jury is free to apply its own logic in this regard. Appellant was entitled to rely on his own lay opinion testimony to cast doubt on the severity of the victim’s injury. His lay opinion regarding the seriousness of the victim’s injury was sufficient to obtain a lesser-included offense instruction.

Dissenting (Keller, J.). There is no dispute about what the victim’s injury was and therefore the issue of serious permanent disfigurement is a question of law, not fact.

Dissenting (Slaughter, J.). Losing the entirety of a named body part (earlobe) should constitute per se serious permanent disfigurement. People can wear earrings or intimately “kiss and nibble” on an earlobe and thus the loss of the earlobe is serious.

Comment. This case has an Amicus brief from the 105th Judicial District Attorney who basically says in fewer pages than take up the table of contents that a defendant’s opinion shouldn’t matter. Why was that necessary?

Chambers v. State, No. PD-0424-19 (Tex. Crim. App. 2022)

Issue & Answer. Texas Code of Criminal Procedure Article 38.23 requires a trial court to submit an instruction permitting a jury to suppress evidence obtained unlawfully. There must be a factual dispute before the right to such an instruction is triggered. Must the factual dispute rise to the level of affirmative proof contradicting the State’s evidence? No.

Facts. An officer stopped the defendant for driving without a rear license plate. The defendant did have a license plate. The State’s evidence showed definitively that a paper license was attached to the back of the defendant’s truck. During the stop, the officer found guns and drugs. The trial court denied a pretrial motion to suppress. At trial, the defendant requested an Article 38.23 instruction requiring the jury to disregard evidence obtained in violation of the Constitution. The trial court also denied this instruction. The Texarkana Court of Appeals affirmed the trial court’s denial.

Analysis. A defendant must meet three requirements for submission of an Article 38.23 instruction to the jury: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested fact issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. The defendant met these requirements. There existed an issue of fact about whether a license plate was affixed to the vehicle; the fact was contested by the parties; the fact was material to the stop. The court of appeals’ opinion suggests that a defendant must affirmatively prove the officer could see the license plate in order to get an Article 38.23 instruction. This is not the standard. “[T]he evidence need not prove the existence of the fact; it just has to raise the factual issue.”

Comment. I’m not 100 percent on the distinction between “affirmative proof” of a fact and injection of facts which raise a factual issue. In this case it seems to mean that the defendant did not have to prove that the officer could see a license plate despite the officer’s claims he could not. But that only became a factual issue by affirmative proof that a license plate was affixed to the vehicle. I think it would be easier to comprehend by stating: a defendant is entitled to a 38.23 instruction if some evidence from any source contradicts the State’s theory that evidence was lawfully obtained.

Ex parte Sanders, No. PD-0469-19 (Tex. Crim. App. 2022)

Issue & Answer. Is Texas’s electronic harassment statute facially invalid under the First Amendment? No.

Analysis. The statute at issue, Texas Penal Code § 42.07(a)(7), provides:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) in this section:

(1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in party by a wire, radio, electromagnetic, photoelectronic, or photo-optical system . . .

The essential issue presented in this case is whether the Court’s precedent in Scott v. State should be overruled or whether it should stand, and its rationale in the context of telephonic harassment should be applied to electronic harassment statute (texts, emails, social media, etc.). 322 S.W.3d 662 (Tex. Crim. App. 2010) The Scott Court found that telephonic harassment (repeatedly ringing a person’s phone to annoy/harass/etc.) was not communicative conduct. Telephonic harassment was neither legitimate communication nor expressive. Telephonic harassment is the infliction of emotional distress for its own sake. The Scott Court also found that, even when communicative, speech which invades a substantial privacy interest of another in an essentially intolerable manner is outside the protection of the First Amendment.

Defendant argues the Court created a new category of unprotected speech by creation of the “invasion of substantial privacy interest” standard. But the core holding of Scott was not in the creation of a new category of protected speech. The core holding in Scott was a finding that the conduct proscribed was not speech at all—it was noncommunicative or pure harassment. The First Amendment forbids the abridgement only of speech, but it is not enough that the statute might touch on some potential kernel of expression. A statute must regulate conduct with a significant expressive element before it treads into First Amendment territory.  To this end the Supreme Court has permitted Congress to revoke funding from law schools that banned military recruiters in response to the military’s stance on homosexuality. The Supreme Court also green-lit Nevada legislation requiring the recusal of legislators on bills involving a matter of personal interest. The telephonic harassment statute does not target expression—it does not require the speaker to even use spoken words.

Ultimately, the electronic harassment provision is no different than the telephonic harassment provision. The statute does not target speech and does not require the electronic communication to be expressive. “A person intending to harass another could violate the statute by sending several e-mails containing only the letter “B” (arguably a “writing”) or e-mails containing nothing (some minimal level of “data”). Nor is there a requirement that the data be understandable by either man or machine.

Concurring (Yeary, J.). The electronic harassment statute protects individuals.

Dissenting (Keller, J.). Too many of the statute’s applications will affect speech and too many of those applications will affect protected speech. The statute is overly broad and thus violates the First Amendment.

Comment. The court is pretty well split on this one. A facial first amendment analysis is a three (maybe four or five, but we’ll keep it basic) step process: (1) does it target speech? (2) if yes, then do a substantial number of its applications target protected speech (i.e., is it narrowly tailored)? and (3) if yes, then is there a compelling government interest? The Court does not even get past step one. Step two is the alarming part of the statute because the answer is unquestionably “yes.” But the court’s position is that overbreadth doesn’t matter if the statute is not designed to target speech.

The Court signals throughout its opinion that the Statute is ripe for as-applied challenges—challenges to the constitutionality of the statute based on the specific nuances of a particular case. This was a facial challenge aiming to strike down the statute altogether because its application is unconstitutional in too many instances. Don’t give up your constitutional challenges, this is still a viable issue on a case-by-case basis.

Ex parte Barton, No. PD-1123-19 (Tex. Crim. App. 2022)

Issue & Answer. Same as Sanders

Analysis. This case reaches the Court of Criminal Appeals from the Second Court of Appeals. The Second Court of Appeals declared the electronic harassment statute unconstitutional by relying on the Court of Criminal Appeals post-Scott opinion of Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014). In Wilson, the Court of Criminal Appeals overruled an intermediate court holding that telephonic communications were not “repeated” under the statute because one of the phone calls relied upon by the State to achieve the repetitious nature of the phone calls had a legitimate purpose (other than to harass, annoy, etc.). The Court of Criminal Appeals explained “the existence of evidence that may support the conclusion that the call had a facially legitimate purpose does not legally negate the prohibited intent or manner of the call.” The court of appeals in the instant case took this to be an acknowledgement of facially legitimate reasons behind phone calls satisfying the elements of a harassment. This interpretation reads Wilson too expansively. What Wilson stands for is this:

[The telephonic harassment statute] makes it an offense to make repeated telephone communications, where those communications are made in a manner reasonably likely to harass, annoy, [etc.], so long as the person making said communications has an intent to harass, annoy, [etc.]. If the person harbors some extra intent in making those communications, he nevertheless still has an intent to harass, annoy, [etc.]. Unless the separate intent is specifically an intent not to harass, annoy, [etc.], the existence of a separate, facially legitimate intent to communicate does not negate the prohibited intent.”

The point of Wilson was not to declare that the harassment statute implicates expressive conduct.

Concurring (Yeary, J.). Same as in Sanders.

Dissenting (Keller, J.).

Suppose a citizen, unhappy with an opinion from this Court, sent repeated emails to a group of like-minded citizens, saying “Texas is in trouble” and “This is arguably the most devastating ruling I have ever received from a court” and “It’s time to get serious and get on the phone, write letters, etc. to EVERYONE YOU KNOW to make them aware of what’s happening. Name names on this court! If this stands we lose Texas. It’s do or die this time.” Has that citizen committed a crime? Under the Court’s decision today, the answer is “Yes.” At the risk of being prosecuted myself for violating § 42.07(a)(7) of the Texas Penal Code, let me say here that the people of Texas should be alarmed by this holding.

The statute unquestionably targets speech. The harassment statute is “far broader” than the telephonic harassment statute. What distinguishes the two statutes—if there must be a distinction—is that telephonic harassment will always involve a captive audience. Someone must endure their phone ringing, but the same cannot be said about a person being “harassed” electronically.

Comment. Judge Keller is right.

Ex parte Nuncio, No. PD-0478-19 (Tex. Crim. App. 2022)

Issue & Answer 1. Is Texas’s “obscene harassment statute” overly broad in violation of the First Amendment? It “will have to wait for another day”

Issue & Answer 2. Is Texas’s “obscene harassment statute” unconstitutionally vague under the First Amendment? No.

Analysis 1. The statute at issue, Texas Penal Code § 42.07(a)(1) provides:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) Initiates a communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene

(b) in this section:

(3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of excretory function.

The obscene harassment statute regulates speech and therefore Scott does not apply. The conduct in the instant case is entirely different than telephonic harassment. Telephonic harassment is committed by causing someone’s phone to ring irrespective of communicating anything. Obscene harassment criminalizes conduct specifically because of the content of the speech. Here, whether the statute targeting speech is overly broad depends on the definition of “obscene.” The court of appeals found the Legislature’s definition narrower than the description given by Miller v. California when defining obscenity as outside the limits of First Amendment protection. But the Legislature’s definition is broader than the court of appeals acknowledges. The Legislature’s definition does not incorporate a requirement that the comments appeal to “prurient interests” nor does it exclude comments with “serious literary, artistic, political, or scientific value. These are important prongs to the Miller standard for unprotected obscene speech. “We conclude, therefore, that obscenity defined by § 42.07(b)(3) and restricted by 42.07(a)(1) includes both unprotected speech and protected speech. However that is not the end of our analysis.” An overbroad statute must be substantially overbroad before invalidating it on First Amendment grounds. Here, the defendant mistakenly believed it was the State’s burden to show the statute is not overbroad and made no attempt to expound upon the hypotheticals in which the Law cannot be applied. “The answer to the overbreadth question will have to wait for another day.”

Analysis 2. Defendant targets the phrases “ultimate sex act” and “patently offensive” as used in the obscene harassment statute. “Ultimate sex act” is not vague because the statute provides an “exemplary list of ultimate sex acts” illustrating what it means to prohibit: more than a general allegation of sexual activity. “Patently offensive” is not vague because it is a phrase defined in a sister statute found to survive First Amendment vagueness scrutiny.

1st District Houston

Ex parte Mazuera, No. 01-21-00612-CR (Tex. App.—Houston [1st Dist.], Apr. 14, 2022)(not designated for publication)

Issue & Answer. When a trial court rejects an agreed bond amount as sufficient to satisfy the statutory factors in setting bond, must the trial court’s decision be supported by specific evidence pertaining to those factors? Yes.

Facts. The State indicted the defendant with ten child pornography offenses. For each offense a court set his bail at $100,000. Defendant filed a pretrial writ of habeas corpus and argued he is entitled to a bail amount he can afford. Defendant presented evidence of his significant ties to the community, his service in the United States Marines and National Guard, his college education, his employment, and his lack of prior criminal history. Defendant requested $10,000 bond in each of his cases and urged the trial court to set conditions that would satisfy any concerns regarding his flight risk or potential danger to the victim or community. The State requested bail reduced to $15,000 in each case. The trial court reduced bail to $75,000 in each case.

Analysis. A trial court’s determination in setting bail is reviewed for an abuse of discretion. “We acknowledge that an abuse-of-discretion review requires more of the appellate court than simply deciding that the trial court did not rule arbitrarily or capriciously. An appellate court must instead measure the trial court’s ruling against the relevant criteria by which the ruling was made.”

A court must consider certain statutory factors when determining an appropriate bond amount: (1) the bond must be sufficiently high to secure appearance and compliance with bond conditions, (2) bond may not serve as an instrument of oppression, (3) the nature and circumstances of offense, (4) the defendant’s ability to make bail, and (5) safety of victim and community. A court may also consider work record, family and community ties, residence, prior criminal history, conformity with previous bond conditions, aggravating factors alleged in the instant offense.

Here, no evidence suggested a risk of flight, an aggravated fact pattern, or public safety concerns. The State’s request for a $15,000 bond in each concern actually reflected the opposite of these particularized concerns. The defendant did not present evidence regarding “specific assets or financial resources [or] explain what efforts, if any, were made by appellant to furnish bail in the amounts set by the trial court.” However, in this case, the defendant’s failure to present financial evidence is easily remedied by his length of pretrial incarceration without securing release financially. Ultimately, the trial court’s setting bond without reference to guiding principles was indicative of an intent to keep the defendant locked up arbitrarily and as an instrument of oppression.

Comment. A 34-page opinion on pretrial habeas should be designated for publication. Or be shorter.

2nd District Fort Worth

Ex parte Hance, No. 02-19-00237-CR (Tex. App.—Fort Worth, Apr. 21, 2022)(not designated for publication)

Issue & Answer. When criminal investigators fail to turn over material evidence and only disclose its existence mid-trial, is it an abuse of discretion for a trial court to proceed with trial and deny a defendant’s motions for continuance, dismissal, and mistrial when the nature of the concealed evidence does not lend itself to quick review and usage by defense counsel? Yes.

Facts. A jury convicted the defendant of aggravated sexual assault of a child under six years of age. At trial, the defendant’s wife (mother of the child) testified regarding the defendant’s computer search history which included searches for information about daddy-daughter and toddler molestation. Nearly two years before trial began, the defendant’s wife provided the relevant laptop to law enforcement who in turn sent it to a specialty agency for forensic evaluation. A mirrored hard drive and forensic report were generated. While prosecutors were aware of the laptop seizure, they did not become aware of its forensic analysis until it was revealed mid-trial by their chief investigator. Defense counsel filed a verified combined motion for mistrial, dismissal and continuance. The trial granted a continuance for two weeks, appointed a defense forensic expert, and ordered the laptop produced to this forensic expert. However, the trial court changed course and reconvened trial when two jurors indicated their unavailability in the event of further delay. Before trial resumed the State announced it had refused to turn over the laptop to the defendant’s expert because it contained “nonchild pornography.” The prosecutor rationalized that nonchild pornography could be indicative of potential child pornography. The trial court again denied the defendant’s motions for mistrial, dismissal, and continuance. Instead, the trial court ordered the State to provide defense counsel with a mirrored hard drive for overnight review.

Analysis. “When the trial judge ordered the State to turn over the computer’s hard drive to the defense expert, the State decided the court’s order was infirm and should not be complied with.” The prosecutor raised concern about the possibility of child pornography which was not an objection the prosecutor made when the trial court ordered the laptop produced to the defendant’s expert. Notwithstanding the prosecutor’s ignorance of law enforcement’s investigation, the State—through its investigators—possessed the laptop, the forensic report, and material evidence for almost two years. “The rule is well established that the knowledge of one part of the prosecution team is imputed to all members of the prosecution team.” The trial court’s denial of further continuance and forcing trial to proceed instead of declaring a mistrial was “denial of counsel and denial of fair trial.” The defendant should have been afforded the ability to conduct an independent forensic analysis of the laptop for information which may have been relevant to impeaching the State’s theory regarding the defendant’s proclivities and search engine activity.

3rd District Austin

Ex parte Boyd, No. 03-20-00395-CR (Tex. App.—Austin, April 18, 2022)(not designated for publication)

Issue & Answer. Executive Order GA-13—which is still a thing—suspends the release of inmates on personal bond pursuant to Texas Code of Criminal Procedure Article 17.151. This provision requires release of an inmate after 90 days of pretrial incarceration without indictment. Is a trial court required to release an unindicted murder suspect after 90 days of delay, notwithstanding Executive Order GA-13? Yes. 

Analysis. The Court of Criminal Appeals determined in Ex parte Lanclos that, notwithstanding the existence of Executive Order GA-13, a trial court must at a minimum “release [] defendants on bonds they can afford” when Article 17.151 is properly invoked. The State’s attempt to circumvent the Lanclos decision by citing the Texas Supreme Court Emergency Orders authorizing trial courts to modify or suspend court proceedings is unpersuasive. An individual’s pre-indictment incarceration is not a court proceeding. Article 17.151 relief does not require a court-proceeding. The authority given by the legislature to the Texas Supreme Court to extend court proceeding deadlines was given in the wake of Hurricane Harvey. After Hurricane Harvey, courts were without infrastructure to conduct necessary business. There is nothing about the pandemic that prevents a trial court to review the basic facts material to an Article 17.151 determination and rule accordingly.

Comment. Also, GA-13 is unconstitutional. If I say it enough, it will be real. Right? It’s unconstitutional.

4th District San Antonio

Vitela v. State, No. 04-19-00737-CR (Tex. App.—San Antonio, Apr. 27, 2022)

Issue & Answer. Is it proper for an appellate court to rely on evidence produced at trial to uphold a pretrial ruling on a motion to suppress? Yes. 

Facts. This is an opinion on rehearing from the court’s November 2021 opinion. The motion to suppress arose from law enforcements search and seizure of the “black box” on defendant’s vehicle following a deadly vehicle collision. Defendant did not pay for the tow fee and failed to collect the wreckage of his vehicle from the impound lot. The State argued the property had been abandoned and the Defendant therefore relinquished his expectation of privacy. The Court of Appeals agreed and affirmed the trial court’s denial of defendant’s motion to suppress. On rehearing the defendant argued that the trial court improperly relied on facts presented at trial after the trial court had already denied his motion to suppress.

Analysis. For as long as the trial court has continuing jurisdiction over the case it is free to reconsider an earlier suppression ruling. “It is [only] the reviewing court that is generally limited to what was before the trial court when it made its ultimate decision.” Black v. State, 362 S.W.3d 626 (Tex. Crim. App. 2012).

Comment. The Fourth Court kind of picks some state-convenient quotes from the Black opinion and passes over the quote introduced with the phrase “the general rule.”

The general rule: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing—the evidence that was before the court at the time of its decision.  According to Vitela’s briefing, “Neither the prosecution nor the Appellant requested to reopen the suppression hearing.”

Williams v. State, No. -04-21-00486-CR (Tex. App.—San Antonio, Apr. 27, 2022)

Issue & Answer. Aggravated promotion of prostitution can be committed by various acts (“owns, invests in, finances, controls, supervises, or manages). When an indictment charging a person with aggravated promotion of prostitution merely tracks the statute and does not identify which of the various acts the State intends to prove, has that indictment provided sufficient notice? No.

Facts. The State alleged that the defendant promoted prostitution in Kerrville. Evidence showed that the defendant procured several women for a “rancher” “looking to party.” Defendant was explicit in the text messages regarding the sexual acts which the women could perform for a fee. The “rancher” turned out to be the police. Defendant and the prostitutes were arrested. The jury convicted.

Analysis. A person commits aggravated promotion of prostitution if he (1) knowingly, (2) owns, invests in, finances, controls, supervises, or manages, (3) a prostitution enterprise, (4) that uses two or more prostitutes. The indictment did nothing more than track the language of the statute. Both the Texas and US Constitutions require the State to provide a defendant with fair notice which conveys information sufficient to allow the accused to prepare a defense. Chapter 21 of the Code of Criminal Procedure explains how this should be done: with plain intelligible words stating everything the State must prove in a manner that identifies conduct which may not be re-prosecuted upon judgment. Normally an indictment that tracks the criminal statute will suffice, but not always. Statutory language may not be “completely descriptive of an offense.” This is especially true when the statute provides more than one manner and means for committing an offense. Because aggravated promotion of prostitution can be committed by acts of owning, investing, financing, controlling, supervising, or managing, there is more than one manner and means identified by the statute. The statute alone is not completely descriptive of the offense. The indictment did not provide sufficient notice, nor did any actual notice by the State cure the deficient indictment.

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

10th District Waco

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

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

Turner v. State, No. 14-20-00041-CR (Tex. App.—Houston [14th Dist], Apr. 19, 2022)

Issue & Answer. An assault committed against a person “living together” in the “same dwelling” constitutes family violence because the victim is statutorily deemed a “member of the defendant’s household.” When a defendant sometimes stays overnight in a hotel room with a woman he has compelled into prostitution, are the two “living together” in the “same dwelling” for purposes of sustaining a family violence conviction? Yes.

Facts. The complainant met the defendant on a dating app. They texted each other for several months and eventually met in person. When the complainant was kicked out of her house, the defendant offered her a place to stay. The complainant attempted to move to Houston. She met with the defendant at a woman’s home, then went to a motel where she hung out with the defendant and other women. “The next day, appellant took [complainant’s] phone and posted Backpage ads offering [complainant] as a prostitute.” The complainant testified how the defendant compelled her into prostitution over the next several days. This three-week period ended in a violent assault where the defendant picked the complainant up by the throat and held her up, feet dangling, before throwing her to the ground. Defendant denied having a relationship with the complainant, but when he was arrested, officers found his clothes and personal property in the motel room the complainant used. He also denied living together and argued that he and the complainant only had “transient stays together in multiple motels for prostitution purposes.”

Analysis. Family violence can be established by proof that the victim is of the same household as the complainant. Proof is sufficient if it is shown the complainant and the defendant were “living together” in the same “dwelling.” “Living together” means to dwell, reside, or occupy a home together. A “dwelling” is a shelter to live in. The complainant testified that she and the defendant were constantly together, including overnight in various motels. The defendant’s personal belongings and clothing were found in the room where the assault occurred. The law does not require cohabitation for any specific period of time. The purported transient nature of the defendant’s cohabitation with the complainant is immaterial.

Comment. Considering that courts have considered homeless people sleeping in the same car as “living together” in the same “dwelling,” this result is not surprising.

Should You Ever Plead Misdemeanors Before Felonies?

How often does this happen: you have a defendant charged with felony possession of a controlled substance and misdemeanor possession of marijuana. The misdemeanor, of course, has a different court setting than the felony. The defendant wants to plead to the misdemeanor with an unresolved felony pending. What do you do? Common practice is to reset the misdemeanor until the felony is resolved. You can’t go wrong with that strategy. However, are there times when you should resolve the misdemeanor while the felony is still pending? The answer is “maybe,” “hell no,” and “maybe!” Below are some common scenarios most of us have run into that explain this in greater detail.

Scenario #1: A client has a prior felony conviction, but they offer probation on the misdemeanor. The prosecutor is not offering probation on the felony. Should you plead out the misdemeanor? Maybe. If the State has a good case, without suppression issues or material problems, it could be a good strategy for the client to plead out on the misdemeanor and get a good track record on probation. Then, a few months down the road, you can argue to the prosecutor that they have turned their life around and can be successful on probation. This works best if you also have a judge that may give probation to defendants who are not eligible for probation from a jury. A good track record on misdemeanor probation could be a solid argument for felony probation before the judge.

Scenario #2: The defendant has one lawyer on his misdemeanor and a different lawyer on his felony. The misdemeanor lawyer gets an offer from the misdemeanor prosecutor that the defendant wants to take. Should the misdemeanor lawyer advise the Defendant to plead to the misdemeanor without thinking about the felony consequences? Hell no! This is setting everyone up for a fall. The only exception might be if the client and both attorneys are in the loop about the adverse consequences of the plea, and the client understands this but still wishes to plead with everyone telling him not to! Get those admonitions about the dangers of that plea in writing or on the record. But this is clearly a situation in which you should not plead out the misdemeanor with a pending felony still open unless the defendant insists.

Scenario #3: A defendant has a pending misdemeanor with a time served offer. However, the labs are still out on the pending felony, so it can’t be resolved with the misdemeanor. The two offenses didn’t happen simultaneously, so one can’t be used in guilt/ innocence in the felony. The State makes an offer that the Defendant wants to take to get out of jail and stop missing work to come to court. Should the Defendant plead? Maybe. The misdemeanor conviction could be used at punishment for the felony when it goes around. However, a defendant is sometimes good for one charge but not the other. It can be a powerful argument when a defendant admits guilt on one charge at trial but not on the other if the facts and circumstances support it. So, with the proper admonitions, and so the Defendant can make an informed choice, this one is a maybe.

These issues are something we run into all the time in our practice. Most of us just set off the misdemeanor until the felony is resolved, which is usually the best practice. However, there can be thoughtful exceptions to this rule, which can benefit defendants in the long run. The critical term is “thoughtful exceptions!” As always, take care, good luck, and have fun!

The opinions expressed in our published works are those of the author(s) and do not necessarily reflect the opinions of TCDLA and/or its editors.

What’s in a name? That which we call weed/by any other name would smell as sweet

We all dread that one infamous line in an offense report: “I detected what I know through my training and experience to be the odor of marijuana.” This one sentence has stymied innumerable motions to suppress. Prior to 2018, Texas courts consistently held that the odor of marijuana alone provided reasonable suspicion to conduct an investigative detention and provided probable cause for a warrantless search of a vehicle or its occupants during a traffic stop.

Two recent pieces of legislation have radically altered the cannabis regulatory framework. For criminal defense practitioners, understanding these regulatory changes is critical to advancing the novel legal challenges to push back on “odor of marijuana” traffic stops and detentions.

Regulatory Changes

The federal “Farm Bill,” signed in 2018, and the Texas “Hemp Bill,” signed in 2019, both altered the definition of cannabis, a type of flowering plant in the Cannabaceae family. Prior to the passage of the Farm Bill, all cannabis plants were generally considered illegal substances under the federal Controlled Substances Act. The Hemp Bill amended the definition of “marihuana” in the Texas Health and Safety Code to exclude “hemp.” Hemp is defined as cannabis with a THC concentration at or below .3%. The possession of any usable quantity of marijuana—now defined as cannabis with a THC concentration higher than .3%‑‑remains a criminal offense.1 Possession of hemp is not.

What might at first glance read like a trivial definitional change has significant ramifications for criminal defense attorneys and our clients. “Hemp” and “marijuana” are functionally made‑up labels for different uses of the same plant. They are differentiated legally only by THC concentration. Determining the THC concentration of either substance requires lab testing. It is impossible to distinguish hemp from marijuana by human sight or by odor alone. More on this below, but dogs can’t smell the difference either.

As a result of the reforms to cannabis law, criminal defendants nationwide have begun challenging the “odor of marijuana” as a standalone basis for a reasonable suspicion or probable cause finding. Following passage of the Farm Bill and Hemp Bill, Texas courts have yet to clarify whether the “odor of marijuana” alone still provides reasonable suspicion or probable cause.

This is just beginning in Texas

The issue has been raised recently in at least one Texas court of appeals. In McAfee-Jackson v. State, the officer conducted a vehicle search after smelling the odor of marijuana coming from the vehicle during a traffic stop. A small amount of marijuana was located during the search. The appellant filed a motion to suppress, arguing that odor of marijuana alone did not provide probable cause for the search because the officer could have smelled legal hemp. At the suppression hearing, the trooper testified that he had probable cause to search the vehicle due to the odor of marijuana, but he conceded that he could not distinguish marijuana from hemp by either appearance or smell. The appellant was found guilty of possession of marijuana. On appeal, the appellant challenged the trial court’s denial of her motion to suppress. Unfortunately, the court declined to rule on the substantive issue because it was not properly preserved.

It will likely not be long before a Texas court of appeals is again confronted with the question of whether the odor of marijuana alone still provides reasonable suspicion or probable cause.

Looking for guidance outside Texas

Courts in other jurisdictions with more liberal cannabis laws provide a useful point of comparison. In states that have legalized cannabis, courts are consistently holding that the odor of marijuana alone cannot justify a detention or search.

The Superior Court of Pennsylvania held that the odor of marijuana does not “always” establish probable cause for a search but rather may be “a factor” when assessing probable cause in a totality‑of‑the‑ circumstances test. In Commonwealth v. Grooms, an officer conducted a vehicle search based solely on the odor of fresh marijuana coming from the vehicle. Two months prior to the search, Pennsylvania legalized dry‑ leaf marijuana for medical purposes. The driver of the vehicle filed a suppression motion, which the trial court denied. On appeal, the appellant argued that the mere odor of marijuana is not alone suggestive of criminal activity in Pennsylvania. The Court agreed: “[T]he odor of marijuana alone, absent any other circumstances, cannot provide individualized suspicion of criminal activity,” due to the fact that “the police cannot discern lawful from unlawful conduct by the odor of marijuana alone.”

The Court of Special Appeals of Maryland recently addressed the question of whether the odor of marijuana alone may justify an investigative detention, or Terry stop. In In re D.D., police conducted a “stop and frisk” of a juvenile after an officer claimed he smelled the odor of marijuana coming from the juvenile. Defense counsel filed a motion to suppress the initial detention.

The trial court denied the motion. On appeal, the juvenile argued that the odor of marijuana alone is not an indicator of criminal activity. Important in the court’s analysis was the fact that in 2014 the Maryland legislature had decriminalized possession of less than 10 grams of marijuana. In the court’s reasoning, because possession of less than 10 grams of marijuana was no longer a crime, and odor alone cannot indicate the quantity of marijuana in someone’s possession, the odor of marijuana “cannot, by itself, provide reasonable suspicion that the person is in possession if a criminal amount of marijuana or otherwise involved in criminal activity.”

Other courts in states that have decriminalized small quantities of marijuana have held that the odor of marijuana alone no longer provides reasonable suspicion of criminal activity. The Supreme Court of New Hampshire concluded that following the passage of a marijuana decriminalization statute, the odor of marijuana alone does not, per se, support a reasonable, articulable suspicion of criminal activity. However, the Court left open the possibility that the odor of marijuana “remains a relevant factor” in a reasonable suspicion analysis, if additional factors of potential criminality are present.

Similarly, the Supreme Judicial Court of Massachusetts held that following the passage of a marijuana decriminalization statute, the odor of marijuana alone does not provide reasonable suspicion of criminal activity.

Don’t forget the dogs

Legal reforms of marijuana law also have implications for probable cause searches supported by dog sniff “alerts.” The Fifth Circuit previously held that a dog alerting to the presence of narcotics inside a vehicle establishes probable cause to search the vehicle. As explained by the Supreme Court, open‑air dog sniffs that could only reveal the presence of contraband are not “searches” and do not implicate the Fourth Amendment.

Dogs that are trained to alert to marijuana could alert to a substance that is legal to possess. Dogs cannot distinguish between marijuana and hemp when making an alert, and a dog will alert the same if it has detected marijuana, methamphetamine, cocaine, or any substance it is trained to detect. In Texas, the Austin Police Department have reportedly directed officers to use a positive alert as only one piece in establishing probable cause for a search. Following the passage of the Hemp Bill, no Texas appellate court has directly addressed the question of whether a positive alert from a canine that is trained to detect the presence of marijuana—which could be easily confused by the canine for legal hemp—still establishes probable cause for a search. However, if a narcotics dog could alert to a perfectly legal substance, such as hemp, it cannot be assumed that the dog could only alert to contraband. Therefore, the dog’s “sniff ” is now a search implicating Fourth Amendment rights, and the “alert” would not, on its own, provide probable cause of criminal activity.

Takeaways

Many Texas counties continue to prosecute the possession of even small amounts of marijuana, despite the practical reality that state laboratories still appear to have challenges with determining the concentration of THC in a substance. Local law enforcement in many counties will use the odor of marijuana as the sole basis for conducting a probable cause search of a vehicle. Despite changes in the law which legalize the possession of low‑ level THC cannabis (hemp), no Texas court to date has addressed the issue of whether the odor of marijuana alone still provides reasonable suspicion or probable cause, or whether a positive canine “alert” to cannabis provides probable cause to search. If Texas follows the reasoning of other state courts in similar predicaments, Texas is likely to modify its bright‑line rule regarding the odor of marijuana and probable cause. The odor of marijuana—which is indistinguishable from that of legal hemp—cannot alone provide reasonable suspicion of criminal activity since the police cannot distinguish lawful from unlawful conduct based on odor alone. When it comes to the human (or canine) nose, cannabis is cannabis, regardless of its THC concentration.

END NOTES

  1. Taylor State, 20 S.W.3d 51, 55-56 (Tex. App.— Texarkana 2000, pet. ref’d).
  2. Razo State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979).
  3. Jordan State, 394 S.W.3d 58, 64-65 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
  4. Agriculture Improvement Act of 2018, L. No. 115‑ 661, § 10113 (codified at 7 U.S.C. §§ 1639o—1639s).
  5. H. B. 1325,86th Leg., (Tex. 2019), https://capitol.texas.gov/tlodocs/86R/billtext/pdf/HB01325F.pdf#navpanes=0.
  6. Rupasinghe, H., Davis, A., Kumar, S. K., Murray, B., & Zheljazkov, V. D. (2020).“Industrial Hemp (Cannabissativa subsp. sativa) as an Emerging Source for Value‑Added Functional Food Ingredients and Nutraceuticals.” Molecules (Basel, Switzerland), 25(18), 4078. https://doi.org/10.3390/molecules25184078.
  7. Molitor v. City of Scranton, CV 3:20‑1266, 2021 WL 3884463, at *5 (M.D. Pa. Aug. 31, 2021).
  8. Tex. Health & Safety Code Ann. § 481.002(26).
  9. Tex. Agric. Code § 121.001.
  10. Tex. Health & Safety Code § 481.121(a).
  11. Evaluating the Impact of Hemp Food Consumption on Workplace Drug Tests, (“The primary difference is that marijuana has a higher concentration of the psychoactive compound cannabinoid delta 9tetrahydrocannabinol, more commonly known as THC”).
  12. McAfee-Jackson State, No. 09‑19‑00430‑CR, 2021 Tex. App. LEXIS 7297, at *1 (Tex. App.—Beaumont Sep. 1, 2021, no pet.).
  13. Commonwealth v. Grooms, 247 A.3d 31, 41 (Pa. Super. Ct. 2021).
  14. In re D.D., 250 A.3d 284, 286 (Md. Ct. Spec. App. 2021) cert. granted, 257 A.3d 1162 (2021).
  15. State v. Francisco Perez , 239 A.3d 975, 985 (2020).
  16. United States v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir. 2003).
  17. Illinois v. Caballes, 543 U.S. 405, 408 (2005).
  18. Mark Wilson, Law and Odor: Police Hazy on How to Use Drug-Sniffing Dogs Under Texas Hemp Law, STATESMAN (Jul. 12, 2019), https://www.statesman.com/news/20190712/law‑and‑odor‑police‑hazy‑on‑how‑to‑use‑drug‑sniffing‑dogs‑under‑texas‑hemplaw [https://perma.cc/9C8J‑GWNX].
  19. Law, STATESMAN (Jul. 12, 2019), https://www.statesman.com/news/20190712/law‑and‑odor‑police‑hazy‑on‑how‑to‑use‑drug‑sniffing‑dogs‑under‑texas‑hemplaw [https://perma.cc/9C8J‑GWNX].
  20. Michael Barajas, Texas (Kinda, Sorta) Accidentally Decriminalized Weed. Now What?, TEX. OBSERVER (Aug. 20, 2019), https://www.texasobserver.org/texas‑kinda‑sortaaccidentally‑decriminalized‑weed‑now‑what/ [https://perma.cc/WE9G‑JTE3].

Pretty Maps & Plea Bargains: Tips on Handling Cellular Records Analysis in Criminal Defense Cases

I’m going to be blunt from the start: If you are not using a trained, qualified, experienced and knowledgeable analyst for cellular records analysis (i.e., historical cell site location), then you are doing your client a large disservice, regardless of the side you’re representing. Furthermore, if you’re taking what the other side tells you as 100% truth, you’re already behind the curve.

Why do I say this? Because I’m coming off the likely second murder acquittal in about a year where the government used analysts to try and pinpoint their suspect’s location using historical cell site location data to illustrate that the Defendant was in or around a relevant location (i.e., crime scene) at or around the incident being investigated and prosecuted. Both of these analysts were from federal 3‑letter agencies and had allegedly analyzed the same records I was provided. I’ll get more into the specifics later. Do I have your attention?

Historical Cell Site Analysis at a Glance

Before we get into specific case examples, we should define and discuss briefly what historical cell site location records are and are not. There are volumes of articles and at least one book written on the topic, but I’ll try to trim the fat off the conversation to a simple explanation:

Cellular companies keep records of activity on their network. This activity often involves the phone’s use (calls, texts and data) and listing of particular cell sites (i.e., towers) used for these events, which are most commonly divided into three sectors in a 360‑degree radius. This means that each sector on most cell sites covers an area of roughly 120‑degrees. Please note, there are exceptions to this. However, with the data that is acquired in the investigation and litigation process from the cellular provider, we can map these cell sites, using their verified GPS coordinates, and use the sector‑ specific information contained in the records to map generalized location of a cell phone that is allegedly tied to a Defendant or litigant.

Depending on the timing of the request to the cellular provider, we can also potentially receive and map what are commonly referred to as “specialized location records,” which attempt to estimate the GPS (longitude & latitude) coordinate estimates of the phone itself, within a certain confidence level detailed in the records. These records can be problematic when used as evidence, but this is where the knowledge and competence level of the analyst also becomes crucial.

It should be noted that these records were never intended to be used in litigation. They are held by the cellular providers to help increase the user experience and efficiency on the cellular network. It just so happens that the ubiquitous nature of cell phones in daily life has led to the location of a cell phone (and potentially the person carrying it) translating to valuable data in criminal and civil litigation when analyzed and presented competently.

Not All Analysts Are Created Equal

Just like in the practice of law, medicine, auto mechanics, etc., it is a truism in cellular analysis that not all analysts possess the same work ethic, knowledge, training, capability or level of competence. The vast majority of historical cell site data analysts work for the government, and as such, can present their data and analysis with an air of confidence and authority. But I have seen multiple cases where this simply is not the case. Consider the following examples:

Case study #1: A homicide where data records were used to try and tie the Defendant to the phone. Defendant’s primary phone in use was not in question, but the government attempted to illustrate that the “burner” or “drop” phone with which the victim last communicated also belonged to the Defendant by correlating the location of the two phones (known phone and burner phone) together over time, as well as attempting to tie the burner phone and defendant to the area where the victim’s body was located.

Defense Counsel hired a private‑sector analyst (me) to conduct an independent analysis of the records and confirm or refute the assertions of the government with regard to this analysis. The problem was obvious ‑ the 3‑letter agency’s analysis contradicted itself without explanation See the below image that was entered into evidence as part of the larger initial analysis:

Pretty map, isn’t it? The problem, as is highlighted in the red boxes (upper left and lower right), is that this map puts the burner phone (events cited in the red boxes and wedges) miles apart at virtually the same time. No explanation was provided in the report for this. When this was brought forth in cross‑examination of the government’s analyst, they testified that their agency calls this “teleportation.” And no, sadly, that’s not a joke. There’s actually a very reasonable explanation for this, which was not relayed to the jury until the analyst was called back to the stand in rebuttal of my testimony and, as coincidence would have it, produced a much more detailed map. Regardless, the Defendant was acquitted of the murder charge. Was it because of this? I have no idea. But I’m sure this didn’t help the jury’s confusion about this data… Nor did the “teleportation!”

Case Study #2: A homicide where the Defendant was accused of the murder by assisting the shooter (who was found guilty prior to our Defendant’s trial) in getting away from the crime scene. The 3‑letter agency analyst produced a very short report/analysis, which lacked many things. Take a look at one of the images and I’ll explain what’s lacking:

Another beautiful map! But what’s missing? First, the crime scene is barely visible amongst the other noise on the map. The map is hard to decipher. Second, two crucial pieces are missing – the illustration of other cell sites in the area as well as any other potentially other relevant locations. And not simply alibi locations either – basic things like the Defendant’s home, which is actually within this map view, but you’d never know it because it wasn’t included in the illustration. Simply put, this is an incomplete analysis. It seeks to prove a theory and disregards the context.

What are the cell sites and why is that important? There are dozens of cell sites in the area of the above map (#2), some of which are closer to the crime scene. And while I cannot emphasize strongly enough that it is not 100% true that the phone always connects to the closest cell site, without the illustration of where the other cell sites are located, we don’t even have enough information to scrutinize. It’s an analysis in a bubble. The green and red dots on map #1 ‑‑ Those are the cell sites in a fairly populated metropolitan area, similar to the area in the map #2. Here’s the same event from map #2 in the same area from the same case, but with the context added (and easier to decipher).

Those orange dots are all cell sites for this cellular carrier in the area not used for this event. The other potentially relevant locations, as well as the crime scene, have also been added to this map. The final potentially relevant piece is the terrain of the area. While not a large issue in this particular example, geographical features like terrain can have an effect on which cell site the cellular device chooses to use. For further context, this usage event was 4 minutes after the shooting (as verified by surveillance video time stamp). As you can see, there are several cell sites in between this event and the crime scene, but again, the cell phone will NOT always connect to the closest cell site, rather the cell site with the best signal. That said, the cell site in use is over 2 miles away from the crime scene in a fairly densely populated area.

This map was generated as a more complete view of the relevant data and presented in comparison to map #2 for presentation to the Jury. The exclusion of this information in map #2 is inexplicable.

Why is Any of this an Issue?

I have been engaged in historical cell site records analysis in litigation for approximately 6 years, and in the practice of forensic data analysis (computers, cell phones, etc.) for 13 years. In that time, I’ve conducted dozens of analyses of carriers of all types, cases spanning from  insurance  investigations  to  divorce/custody disputes to criminal prosecution and defense. The practice of historical cell site analysis is not “junk science”, no matter what snake‑oil salesman “defense expert” may try to tell you. It works in most cases, if done properly. And if it didn’t work, no one would use it. Further, location of the phone is but one use of these records. There are multiple applications for these records related to behavior and activity of the user of the phone.

That said, the problem I’ve seen repeatedly with criminal investigations utilizing historical cell site analysis is that Defense Counsel may be misinformed or lacking in their knowledge about what is presented to them by the government’s analyst. When a client is charged with a serious crime and the government gets the historical cell site location records and requests the [insert 3-letter law enforcement agency name here] to conduct an analysis and produce pretty maps showing that your guy was likely there at the wrong time, it tends to force a plea bargain because it looks good and it’s relatively technical. This happens regularly and can often not be in the best interest of the client.

So, what can help your client? A thoughtful and informed conversation with an independent, experienced historical cell records analysis expert who can look at the records and provide a practical assessment. To be clear, you do not want a “defense expert”. You want an independent expert who will take in all of the available data and conduct as thorough analysis as possible, given what is available through discovery. And there’s more to “available data” than simply the records in most cases.

A Few Tips from Experience

I’m not perfect, and I don’t know everything. On top of that, I’m not a lawyer. However, I have worked many large litigation cases with these types of records and I’ve learned a few tips along the way that could help the process along more smoothly:

  • Consider obtaining the records allegedly associated with the target of the investigation independent of discovery. This assists in the ability for you to introduce the records and your expert’s analysis at trial, even if the government chooses not to do so. If the government never enters the records into evidence, it may not be possible for the hard work of your analyst to be presented to the judge or Obtaining these records can be done via Court Order and should be done as soon as possible and in consultation with your independent expert for proper terminology of the request. Some carriers don’t retain certain records for a long period of time, so obtaining the records in a timely manner is crucial.
  • The value of illustrating these usage events on a map can be compelling evidence, but static maps don’t always tell the whole story. Consider using an expert who has access to tools that will help animate the movement in the usage to help paint an overall clearer picture of the cellular location evidence in your case. To date, I’ve not seen a government analyst use animations to illustrate the records. I have, however, conducted analysis for the government using animations.
  • Be careful with your stipulations prior to trial. Stipulating to the authenticity of the records is probably Anything beyond that, including stipulating to the other analyst’s credentials, may cause issues down the road during trial testimony and presentation of evidence.
  • Don’t forget that there is probably relevant data in more than one place. While it’s true the government has likely tried to cover all of their bases on this – particularly in a major criminal case – that doesn’t mean that there won’t be information to help confirm or refute alibis, alternate location data, etc. that is stored on the cell phone itself or potentially in cloud data sources. If your cellular analyst doesn’t also have experience with analysis of these items, I’d suggest finding someone who has the ability to conduct this “holistic” type of analysis incorporating all potentially relevant pieces of data.
  • Look closely at what isn’t provided. I’ve learned that there is almost as much (if not more) value in looking at the evidence that ISN’T presented than there is at looking at evidence that IS If something obvious – like data from the Defendant’s cell phone (i.e., the device itself) was obtained, analyzed and not presented as evidence, that probably means there may be something on that phone that is not favorable to the other side’s case. Look at this closely.

Conclusion

I was in law enforcement for nearly 15 years, and I still travel the country teaching cops in any number of different subjects, including this one. Many of my former (and current) law enforcement compatriots may read this article and conclude that I’m trying to give the defense a “leg up” or reveal some trade secrets. Nothing could be further from the truth. My goal in relaying this information is simply to do my part to ensure the right people go to prison and the innocent people do not. This involves hard work, no matter who the victim is or what the circumstances of their death or attack may have been. I work many cases for the prosecution. I work many cases for the defense. The truth is always the ultimate goal, and should be for everyone involved in this process.

Attacks and Hypocrisy During the Confirmation Hearings of Associate Justice-to-be Ketanji Brown Jackson

On March 21, 22 and 23 of this year, over 9 million viewers tuned in to Fox News, MSNBC or CNN to watch the confirmation hearings of Judge Ketanji Brown Jackson, a nominee for the office of Associate Justice of the Supreme Court.1 After being confirmed by a vote of 53-47, she and Justice Sotomayor will be the only members of the Court with experience as federal trial judges.2  From the moment that Judge Jackson was nominated, it was almost foreordained that her nomination would be confirmed.  In the absence of an unforced error, the votes for her confirmation were there – and there were no unforced errors.  It helped, of course, that Judge Jackson was imminently qualified: 

The U.S. Senate has already confirmed Judge Jackson three times with bipartisan support on each occasion.  Since June 2021, Judge Jackson has served with distinction on the U.S., Court of Appeals for the D.C. Circuit.  Prior to her elevation to the D.C. Circuit, she spent eight years as a district court judge on the U.S. District Court for the District of Columbia.  Before her judicial service, she served as vice chair of the U.S. Sentencing Commission from 2010 to 2014.  Judge Jackson worked as an assistant federal public defender in the Office of the Federal Public Defender in the District of Columbia and as assistant special counsel at the U.S. Sentencing Commission.  She has also worked in private practice as of counsel at Morrison & Foerster and as an associate at the Feinberg Group, Goodwin Proctor, and Miller, Cassidy, Larocca & Lewin.  She also helped train future lawyers, teaching classes on trial advocacy and federal sentencing at Harvard Law School and George Washington School of Law, respectively.  A graduate of Harvard University and Harvard Law School, she clerked for Judge Patti Saris of the U.S., District Court for the District of Massachusetts.  Judge Bruce Selya of the U.S. Court of Appeals for the First Circuit, and Associate Justice Stephen Breyer of the Supreme Court.3

As a former federal defender, she will join a small number of other federal defenders who have been appointed to serve as federal judges and will be the first to serve on the Supreme Court.

According to a study by the libertarian think tank Cato Institute, prosecutors dominate the ranks of the judiciary.  As of April 2021, 318 former prosecutors were sitting as federal judges, more than one-third of the 880 total across the country.  This was followed by 243 lawyers who had represented the government as ‘noncriminal courtroom advocates.’  Among the smallest fractions of those who became federal judges were former criminal defense attorneys – about 76 total – and former public defenders, who numbered only 58, less than 7 percent of all judges.4

Judge Jackson, as anticipated, showed patience and grace in the face of inane or posturing questions, personal attacks, misstatements of what she had said and written as a judge and the less than courteous treatment of her by some of the senators.

Their first attack on Judge Jackson was for her service as a federal defender; e.g.,

  • ‘Sen. Ted Cruz… cast Jackson’s work as a public defender as revealing a character flaw.

‘People go and do that because their heart is with criminal defendants, their heart is with the murderers, with the criminals, and that’s who they are rooting for,’ Cruz said on Fox News last weekend.  He added that ‘public defenders often have a natural inclination in the direction of the criminal’ and claims Jackson ‘carried it onto the bench when she became a criminal judge.’5

  • Senator Mitch McConnell,… the minority leader, has doubled down on his suggestion that Judge Jackson’s experience as a public defender could influence her view of the law and lead her to favor criminal defendants.

‘Her supporters look at her resume’ and deduce a special empathy for criminals,’ Mr. McConnell said in a lengthy floor speech in which he argued that her work on behalf of the accused was a blot on her record.  ‘I guess that means that government prosecutor and innocent crime victims start each trial at a disadvantage.’6

  • On Tuesday, Sen. Tom Cotton… went so far as to liken Jackson’s representation of Guantanamo detainees to representing Nazis in the Nuremberg Trials.

‘You know, the last Justice Jackson’ – Robert H. Jackson – ‘left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis,’ Cotton said. ‘This Judge Jackson might have gone there to defend them.’

Cotton took care to note not only the cases Jackson was assigned as a public defender, but also briefs she filed while in private practice.  One was on behalf of 20 former federal judges who wanted to make a point about the admissibility of evidence gained via torture.  Another was on behalf of outside groups, including the libertarian Cato Institute.  In her hearings, Jackson said she was assigned the case while working for a big law firm, which had itself been assigned the case.7

If Senator Cotton had done even the slightest bit of research on Justice Jackson, he might not have spoken of the former Associate Justice.

It’s true the justice left the court temporarily to prosecute Nazis at Nuremberg after World War II.  But here’s the thing:  Jackson not only supported the Nuremberg defendants’ right to counsel, he was a key part of the governing body that enshrined it into international law.

On May 2, 1945, President Harry S. Truman appointed Jackson to lead an American delegation to prepare and prosecute war crimes charges against European Axis powers.  The appointment of such a high-ranking official prompted the other Allied powers to take the trials seriously, according to St. John’s University law professor and Jackson scholar John Q. Barrett.

But before trials could even start, the international delegation had to agree on a framework.

* * *

The constitution of the Nuremberg trials was a constitution [Jackson] wrote. ‘He believed in it seriously.’

Section Four, Article 16 concerned safeguards for a fair trial, including that a ‘Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.’

Not only were defense attorneys guaranteed, ‘they were on the U.S. payroll,’ Barrett said.  Most of the defense attorneys were German professionals, and ‘the U.S. gave them housing and mess privileges.  Germany was in rubble, so it was a good deal to be one of those defense attorneys.’

* * *

‘Justice Jackson believed everyone has the right to a fair trial, which includes a vigorous defense,’ said Kristan McMahon, president of the nonprofit Robert H. Jackson Center, adding, ‘And without that, a trial would not be fair.’8

Although I was surprised at these attacks on Judge Jackson as a federal defender, both she and her handlers should have anticipated them.

Shortly after her nomination was announced, the Republican National Committee issued a statement criticizing her public defender experience, specifically citing her work representing detainees being held at Guantanamo Bay.9

Also, at the earlier confirmation hearings for district court nominees Nina Morrison and Adriana Freeman, Senators Cotton, Hawley and Cruz made comments similar to those made at Judge Jackson’s hearings; e.g.,

  • Last month, Sen. Tom Cotton… asked Biden judicial nominee Nina Morrison, who worked for decades on the Innocence Project, which seeks to appeal convictions, ‘Are you proud that you encouraged such defiance in convicted murders?’
  • And just a few weeks ago, Sen. Josh Hawley … asked another nominee, Arianna Freeman, about having represented a convicted murderer and getting him off death row: ‘Do you regret trying to prevent this individual who committed these heinous crimes from having justice served upon him?’ 
  • Ted Cruz … told Freeman that she had ‘devoted your entire professional career to representing murderers, to representing rapists, representing child molesters.’10

Their second attack on Judge Jackson was for the sentences that she had imposed in child pornography cases; e.g.,

  • Senate Judiciary Committee member Ted Cruz expanded on his questioning of Supreme Court nominee Ketanji Brown Jackson’s rulings Tuesday on ‘Hannity.’ Cruz, R-Texas, told host Sean Hannity that in nearly every sex offender case she was involved in, she handed down ‘substantially’ weaker sentences that the guidelines provided.  Cruz said that Jackson’s average sentencing was 48% less than what prosecutors asked for in all cases allowing judicial discretion, referencing one case where she sentenced the offender to three months in jail, when the federal sentencing guidelines said 10 years.11
  • Senator McConnell said, ‘In the specific area of child exploitation crimes, the nominee was lenient to the extreme.’12
  • Senator Graham attacked Jackson as she outlined her concerns with the federal sentencing guidelines for child pornography possession and distribution. When Jackson explained that the guidelines could result in 50 years of confinement for 15 minutes spent on a computer, Graham shot back, ‘Good! Good.  Absolutely, good.  I hope you go to jail for 50 years if you are on the Internet trolling for images of children…’13

and

‘Every judge who does what you are doing is making it easier for the children to be exploited,’ said Senator Lindsey Graham,…picking up the line of attack.14

  • Senator Josh Hawley…said he would not consider a below-guidelines child porn sentence ‘acceptable’ from a nominee…15

and

‘In fact, in every case for which I can find records and Judge Jackson had discretion, she gave child porn offenders sentences below the guidelines and below what the prosecutors were requesting,’ Hawley wrote.  ‘This isn’t a one-off.  It’s a pattern.’16  (emphasis added)

and

Hawley maintained her sentences were not long enough.  When Jackson gently reminded him her sentences were consistent with those imposed by other judges, Hawley ultimately responded that what Congress really wanted was the restoration of mandatory guidelines.17

Senator Hawley’s comments are disturbing for they constitute an attack on our independent judiciary.  It has been 17 years since the Supreme Court held that the United States Sentencing Guidelines are advisory rather than mandatory.18  Judges are, in fact, required to impose a sentence sufficient, but not greater than necessary rather than to impose a Guidelines sentence.19

If Senator Hawley had reviewed the annual report of the United States Sentencing Commission,20 he would have learned that Judge Jackson’s sentencing record was in the mainstream in comparison with the records of other United States District Judges in these cases.

The U. S. Sentencing Commission, the bipartisan body created by Congress to set federal sentencing rules, explained in its 2021 report that suggested prison terms for defendants convicted of possessing child pornography – as opposed to producing the materials – have ‘been subject to longstanding criticism from stakeholders and has one of the lowest rates of within-guideline range sentences each year.’

‘Less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range in fiscal year 2019,’ the reporter said.

If and when we properly contextualize Judge Jackson’s sentencing record in federal child porn cases, it looks pretty mainstream,’ wrote Doug Berman, a leading expert on sentencing law and policy at The Ohio State University School of Law.

‘Federal judges nationwide typically sentence below the [child porn] guideline in roughly 2 out of 3 cases,’ Berman noted on his blog, and ‘when deciding to go below the [child porn] guideline, typically impose sentences around 54 months below the calculated guideline minimum.’

Berman also points out that government prosecutors often request below-range sentences, including in most of the Jackson cases that Hawley cited.21

Although Senator Hawley earlier said that he would not consider a below-guidelines sentence from a nominee to be “acceptable,” he and his colleagues had, in fact, raised no such issues during the confirmation hearings of judges nominated by then President Donald J. Trump or in the earlier confirmation hearings for Judge Jackson when she was nominated to serve as a judge on the D.C. Circuit.

An ABC News review of federal judges appointed and confirmed during the Trump administration found nearly a dozen had handed down below guideline sentences in cases of defendants viewing, possessing, transporting or distributing child pornography.22

…Mr. Hawley, Mr. Graham, Mr. Cotton and Mr. Cruz all voted to confirm judges nominated by President Donald J. Trump to appeals courts even though those nominees had given out sentences lighter than prosecutor recommendations in cases involving images of child sex abuse.  Mr. Graham had also voted to confirm Judge Jackson to the U.S. Court of Appeals for the District of Columbia Circuit in 2021 in spite of the sentencing decisions she had made as a district judge. (emphasis added)

In 2017, Judge Ralph R. Erickson was confirmed by a 95-1 vote to the U.S. Court of Appeals for the Eighth Circuit, with Mr. Cotton, Mr. Cruz and Mr. Graham voting in the affirmative.  (Mr. Hawley was not yet a senator.)

Judge Amy J. St. Eve was confirmed by 91-0 vote in 2018 to the U.S. Court of Appeals for the Seventh Circuit.

Most recently, Mr. Cotton, Mr. Cruz and Mr. Hawley voted to confirm Judge Andrew L. Brasher to the U.S. Court of Appeals for the 11th Circuit in 2020.  (Mr. Graham was not present for the vote.)23

The questions of Senators Hawley and Graham, in particular, and their comments to the media cause me to be concerned that there could be a rush to pass legislation that would provide for a mandatory minimum sentence for the offense of possession of child pornography.  Currently, the punishment provision for that offense does not provide for a mandatory minimum sentence.24

This would be a tragedy.  Anyone who possesses child pornography has received it and anyone who receives child pornography has possessed it.  Currently, the punishment provision for the offense of the receipt of child pornography provides for a mandatory minimum sentence of 5 years.25

Because possession cases currently do not have a mandatory minimum and receipt cases do, Assistant United States Attorneys have the ability to limit a district judge’s sentencing discretion in these cases by their charging decisions.  What should be a possession case to one Assistant United States Attorney might be a receipt case to another and there is often no consistency within a United States Attorney’s office. At the present, we can at least try, during plea negotiations in these cases, to avoid a mandatory minimum sentence for our clients by seeking a possession count rather than a receipt count.

The current climate in Congress during this election year, perhaps exacerbated by Judge Jackson’s confirmation hearings, has doomed the passage of the Equal Act which would eliminate the current 18-1 disparity in sentencing for crack cocaine versus powder.  That will also deny significant relief to more than 7,600 inmates.  This will come as a disappointment to those of us who have followed the progress of this legislation.

Washington — The Equal Act would appear to be a slam dunk even in a badly divided Congress.

The legislation, which aims to end a longstanding racial disparity in federal prison sentences for drug possession, passed the House overwhelmingly last year with more than 360 votes.

* * *

But with control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt.

* * *

The legislation would eliminate the current 18-1 disparity in sentencing for crack cocaine versus powder.  The policy that can be traced to the ‘war on drugs’ mind-set of the 1980s, which treated those trafficking in crack cocaine more harshly.  It resulted in a disproportionate number of Black Americans facing longer sentences for drug offenses that white Americans, who were usually arrested with the powder version.

* * *

The United States Sentencing Commission has said that passage of the legislation could reduce the sentences of more than 7,600 federal prisoners.  The average 14-year sentence would be cut by about six years, it estimated.

* * *

Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through.  He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.

‘My opposition to the Equal Act will be as strong as my opposition to the First Step Act,’ Mr. Cotton said.26

* * *

I understand the senators’ attacks on Judge Jackson for her sentences in child pornography cases.  Child pornography is so repugnant that there is a knee jerk response even to the mention of the words.  From their perspective, it was just good politics. 

In their attacks on criminal defense lawyers, the senators were simply exploiting a truth that we often ignore.  Many – including our friends – do not understand what we do or why we do it.  They can applaud our representation of the young or previously virtuous in cases that do not involve violence, but they cannot understand how, for example, we can raise an insanity defense when it is so obvious that our client committed the offense or how we can represent the defendant in a capital murder case when what our client is alleged to have done is so horrible.  We are an easy target.  So, what do we do in response to their attacks?  We can ignore their slings and arrows or we can recharge our batteries.

For me, I began with the Texas Lawyer’s Creed.  One of the first sentences in the creed reads, “I am passionately proud of my profession.”  I would hope that we can all say that.

Next, I reminded myself of my duty to each of my clients.  Our current Texas Disciplinary Rules of Professional Conduct gives us this guidance:  “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”  Paraphrasing the quote of former vice president John Nance Garner, that is about as exciting as warm spit.27

I prefer the charge of old Canon 5 which stated: “A lawyer who undertakes the defense of a criminal case shall raise every defense under the law in order that no man may be deprived of life or liberty without due process of law.”28  That was the Canon in effect when I was admitted to the practice of law in 1963 and it has guided me since that date.

Lastly, I looked for some inspiration and found it in the legal work of John Adams.  In his review of the new book John Adams Under Fire:  The Founding Father’s Fight for Justice in the Boston Massacre Murder Trial, Christopher Klein, writes,

The blood remained fresh on the snow outside Boston’s Custom House on the morning of March 6, 1770.  Hours earlier, rising tensions between British troops and colonists had exploded into violence when a band of Redcoats opened fire on a crowd that had pelted them with not just taunts, but ice, oyster shells and broken glass.  Although the soldiers claimed to have acted in self-defense, patriot propaganda referred to the incident as the Boston Massacre.  Eight British soldiers and their officer in charge, Captain Thomas Preston, faced charges for murdering five colonists.

Not far from the Custom House, a 34-year-old Boston attorney sat in his office and made a difficult decision.  Although a devout patriot, John Adams agreed to risk his family’s livelihood and defend the British soldiers and their commander in a Boston courtroom.  At stake was not just the fate of nine men, but the relationship between the motherland and her colonies on the eve of American Revolution.29

Dan Abrams and coauthor David Fisher detail what they call the ‘most important case in colonial American history’ and an important landmark in the development of American jurisprudence.

MM Nussbaum relates the conclusion of the case and the pride that Adams had in his representation of those British soldiers.

In the trial that ensued, Adams argued that Captain Preston had never issued the order for his soldiers to ‘fire,’ and that those who had shot into the crowd did so entirely in self-defense.  Adams called those within the mob that provoked the soldiers ‘outlandish Jack tars,’ among other things.  Adams’ persuasion won the day, and Preston and six of his soldiers were acquitted of all charges.  Two soldiers were found guilty of manslaughter and were punished by having their thumbs branded.

Ultimately, Adams was proud of his service to the British soldiers.  Later in his life he wrote:

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough.  It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.  Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.  As the Evidence was, the Verdict of the Jury was exactly right.  This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here.  But it is the strongest Proofs of the Danger of Standing Armies.30

If there had been a Colonial Criminal Defense Lawyers Association, John Adams would surely have been one of its leaders.  Now, I am inspired.  It is time to put the attacks aside and to go back to representing our clients.

Current Issue: June 2022

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Features

21 | Should You Ever Plead Misdemeanors Before Felonies? – By Dean Watts
23 | What’s in a Name? That Which We Call Weed/by Any Other Name Would Smell as Sweet – By Rick Cofer & Megan Rue
26 | Pretty Maps & Plea Bargains: Tips on Handling Cellular Records Analysis in Criminal Defense Cases – By Patrick Siewert
32 | Attacks and Hypocrisy During the Confirmation Hearings of Associate Justice-to-be Ketanji Brown Jackson – By Buck Files

Columns

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

Departments

4 | CLE Seminars and Meetings
38 | Significant Decisions Report

President’s Message: Room at the Table

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What an honor to be writing my first column as President of Texas Criminal Defense Lawyers Association! I remember how this journey began in the fall of 1999, when I was a proverbial baby lawyer in the Collin County Courthouse in McKinney, Texas. I was proud to have been assigned to my very first court‑appointed case and determined to figure out how on earth I was going to actually try the case. My partner in crime at the time, Darlina Crowder, and I were newly‑licensed, but so hungry, and it showed.

After court, we were heading onto the elevator with our shiny new briefcases, and we were lucky enough to be approached by a couple of great lawyers, John Hardin and Chris Hoover. They said we should sign up for this organization called TCDLA. We even got a discounted rate, so why not? I filled out my application and faxed—yes faxed—it back the same day. The rest, as they say, is history.

My 23‑year TCDLA journey has been filled with many great adventures, some challenges along the way, but most all, many cherished friendships. And I’m grateful for every single second of the journey so far. My family and I are so blessed to be part of this incredible group of people.

I would also like to thank the Past‑Presidents who have led this organization with such valor, especially immediate Past‑President Michael Gross, who has paved the way for me. Michael, I have said this before, you are one of the finest lawyers I’ve ever known. You were a fearless leader, and as always, an officer and a gentleman. Thank you for your service.

Over the next year, I want to work relentlessly to make sure that everyone in TCDLA‑‑all 3,500 of us‑‑is afforded the same experiences and opportunities I have had. My vision is simple: to make sure there is room at the table for everyone. I hold in the highest esteem the tenets of inclusion, diversity, and the institutional knowledge that we all bring from our wealth of experiences – inside the courtroom and beyond.

What does that vision entail, you ask? Well, first and foremost, I want everyone to realize they have an individual seat at the table. All lawyers who are committed to protecting the individual rights of the criminally accused are welcome in TCDLA ‑ whether you have been practicing for less than a year, or for many decades. We want to celebrate – and tap into – the fresh ideas and innovation of all the younger lawyers as well as the institutional knowledge of those that are seasoned and battle‑tested. The TCDLA tent is as enormous as the State of Texas, and all are included inside.

I also truly value and want to recognize our diverse membership ‑not just because that is the progressive thing to do these days‑ but because diversity breeds excellence. Proverbs teaches us that “Iron sharpens iron; one person sharpens another.” And to me, that is the beauty of a diverse tent – diversity that is celebrated by including every gender, race, ethnicity, geographic background, political and religious belief – and perhaps most especially – diversity of thoughts, ideas and dreams. The more diverse we are, the more inclusive we become, the more room we make at the table – our organization becomes even greater, we become even better lawyers and we thrive more as individuals. Iron truly sharpens iron.

I see this upcoming year as the greatest opportunity of my career… to serve all of you. My TCDLA journey, which started many years ago when those elevator doors opened in a Collin County Courthouse in McKinney, Texas, is only complete when I have finished doing all I can to help every TCDLA member fulfill their lifetime journey.

Executive Officer’s Perspective: Welcome to the Family

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“One thing I know for sure is that family is not defined by blood.”

—Jessica Scott

TCDLA is proud to celebrate the 35th Annual Rusty Duncan Advanced Criminal Law Course, scheduled for June 16‑18, 2022, in San Antonio. Named for the late Honorable M. P. “Rusty” Duncan III of the Texas Court of Criminal Appeals, this course is designed to cover state law and scholarly topics as well as cases from the past year that impact your practice today. Who is Rusty Duncan? you ask.

Honorable Maurice Palmer “Rusty” Duncan III celebrated life between 1945 and 1990. He ended his career as a judge on the Texas Court of Criminal Appeals, 1987–1990. Before becoming a judge, Rusty was Board Certified in Criminal Law and practiced criminal defense out of Denton, Texas. He volunteered in a number of ways: chair, State Bar’s Committee on the Study of the Insanity Defense in Texas, 1982–1983; co‑chair, State Bar’s Penal Code and Criminal Procedure Committee, 1982–1984; member, Senate Committee on Development of a Criminal Code of Evidence, 1983–1984; and editor, Voice for the Defense, 1984–1987. For a more exciting and detailed story about Rusty, go to TCDLA’s website → Voice → archives → June 2019 article.

At the end of Rusty Duncan, our current don of TCDLA, Michael Gross, will pass on the TCDLA legacy to incoming President Heather Barbieri. It has been a pleasure working with Michael this year. During the Board meeting we will swear into the TCDLA family the new slate of officers, seven renewing board members, and 13 new board members. Afterward, everyone will head to Rosario’s for a time‑honored traditional lunch. Together TCDLA will continue becoming stronger as we unite, supporting and protecting each other.

Under President Michael Gross’s leadership, the Executive Committee, TCDLA Board, and committees have continued to meet and work hard despite the craziness of everyone having to go back to court all at once. It has been wonderful to work with each group this year. Read next month’s article to see highlights of our committees’ efforts this year. If you want to become more involved as a TCDLA member, we are accepting Committee Interest forms for 2022‑2023, due July 1, 2022. We have more than 25 committees to consider! The form can be found on the website—or email ksteen@tcdla.com.

A huge thanks to TCDLEI Chair Laurie Key and the TCDLEI Board Members for providing more than $50,000 in scholarships for attorneys enduring hardships, travel stipends, and a 3L scholarship. We will have a silent auction at Rusty Duncan to raise funds for next year. It is YOU who can make this happen!

April showers brought exceptional CLE blooms. For two days in Austin we presented Women in the Law and Their Male Allies—with course directors Betty Blackwell, Jessica Canter, Julie Hasdorff, Michelle Ochoa, and Cynthia Orr—and Race in Criminal Justice—with course directors Thuy Le and Monique Sparks. The interactive events presented outstanding speakers, resulting in stellar evaluations. We thank the Texas Court of Criminal Appeals for funding this event and allowing travel stipends for many who had not been to these events (or any) in a long time. It was a great group to be with—very empowering.

Another special event in April featured our third cohort of Future Indigent Defense Leaders (FIDL). TIDC,  HCPDO, and TCDLA  joined to present FIDL 3.0. After four years, the partners were able to bring Gideon’s Promise to Texas. The class, meeting April 22 to May 3 in San Antonio, consisted of 30 Texas attorneys who all practice in a public defender office or whose practice consists primarily of indigent defense. Gideon’s Promise involved an intense two‑week training in teaching new attorneys a client‑centered holistic approach.

Each session began with entrants at breakfast together and ended with dinner and evening activities. There were no breaks during the day to maximize all available hours. Faculty planned each night for an hour or two after group events and returned bright and early to prepare their rooms. I had the opportunity to participate, and I was amazed by how close everyone became by the second day. The presentations and group activities were inspiring— leaving me wanting to get out into the world and make a difference.

Our 16 faculty members, led by Jon Rapping, Sean Mayer, and Zanele Ngubeni, came from all across the country, including several from Texas. Staff members Kathleen Casey Gamez, Sarah Grace, Rick Wardroup, and Keri Steen worked endless hours behind the scenes to make sure the first‑ever Texas Gideon’s Promise was a success. We are now working towards TCDLA hosting a Texas program. Thank you to the faculty who traveled from far and wide, as well as to our Texas TCDLA members, staying a week or better for these intense sessions!

Our May DWI Defense Project seminar also proved its usual resounding success. Course directors Larry Boyd, David Burrows, and Frank Sellers and their speakers elaborated on the Yellowstone seminar theme: “The whole world’s a test, son.”

Also, on tap was the May 13 SBOT induction, featuring over 1,000 attorneys. TCDLA staff attended and welcomed each of those new attorneys interested in criminal defense.

Want to get to know the TCDLA family better? Join us in South Padre Island July 13 for Trainer of Trainers. The new format this year will be interactive (and did I mention fun?). Come if youwant to become a speaker or pick up new skills from veteran speakers. Each year the Trainer of Trainers program plays an essential role in providing the best quality speakers! The event also includes two additional days of Fun‑in‑the Sun CLE, with speakers from all over the State. Besides training, relationships are renewed or built, and families get to know each other and make plans for the next Padre gathering. There are many opportunities for you to participate if you want, or you can just take some “me” time. On the last day, we host a TCDLA, TCDLEI, and CDLP orientation. If you are not already on one of the boards or committees, you are still welcome to attend and learn more about them.

Finally, I look forward to working this year with Heather Barbieri as she takes over the presidential responsibilities in June. Under her leadership, we will continue developing and maintaining solid bonds, supporting Texas criminal defense attorneys and, most importantly, our TCDLA family! Always remember: The TCDLA staff members are here to assist. If it’s information you need or a service we can provide, don’t hesitate to contact us.

Editor’s Comment: June 2022

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Anymore I dread turning on the news every morning. I used to be a news junkie, but I just can’t handle it. I used to watch the news on TV while I got ready, and then I’d listen to NPR on my way to drop my oldest son off at school and then on my way to the office. Aside from the fact that each day’s news seems to only be more depressing than the day before, I have reached my limit on the injection of political ideology into the legal system. I know ‑ it’s always been there, and it always will be, but it seems that the American legal system has recently become the pawn in the game of politics. And that’s a dangerous path to traverse. The issue has become so pervasive that I have asked my friend and former Editor, Sarah Roland, to co‑write this column.

Take for example Operation Lone Star; no greater waste of money and resources may have ever been undertaken just so the Governor can use human beings as puppets to try to claim victory for his party and mouth off to the President of the United States. And now, the Governor is helping fund  this  Operation with over $30 million diverted from the already troubled Juvenile Justice Department. Meanwhile, the rights of hundreds, if not thousands, of criminal defendants hang in the balance while a few of our brothers and sisters, like Angelica Cogliano who is a member of this editorial board, fight to protect their bare minimum constitutional rights. Thank you to those in this fight.

Another example is the recent leak of the draft opinion from the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization. It’s unprecedented. There’s no real point to address the merits of the legal analysis in Dobbs yet since this is just a draft, after all. And we’re not here to argue whether abortion should be legal or not (you can likely guess both of our viewpoints), but how are we to feel confident in our system of justice if the highest court in the land no longer has dignity and is simply playing politics, or worse, has become relegated to a political pawn of whichever party is in power. Let us be clear, whichever side of the political spectrum leaked the opinion, it was wrong. Unprecedented. And what real purpose did it serve other than to further fuel a raging, incessant fire? However, should we be surprised? Please read Buck Files’ article in this issue regarding the embarrassment that was the Ketanji Brown Jackson confirmation hearings. This may have been the straw that broke the camel’s back. Not only was an unquestionably qualified judge attacked, but our criminal justice system and the very work we all do every single day was blistered by the senators who played politics to demean her; not her credentials but her character. What was the character flaw that she was attacked so vehemently for? Being a criminal defense attorney. Protecting the constitutional rights of people in the most impossible of situations. Ensuring that our constitution means something for everyone. Since the SCOTUS does hear criminal cases, what a welcome relief that there will now be one justice who has done what we do. A justice who understands what it’s like to not just stand beside, but stand up for, the constitutional rights and protections that all of us enjoy and that many often take for granted. The very realistic hope is that Ketanji Brown Jackson will bring a different perspective to the Court. There are three sitting justices who were once prosecutors. Now there will be one former public defender.

How are we supposed to fight the ever‑unpopular political problems that we deal with every day; like our clients’ mental health problems and how that plays into their defense, or Veterans in the criminal justice system, or marijuana cases and the discrepancies in how those cases are treated state‑wide, when the very fact of doing the work we do regardless of the subject matter of a particular case is under attack in the halls of congress? It feels like we are in a whirlwind these days with everything in the news and with courts rushing to unclog the COVID backlog as if it can be done in a matter of a few months. We are going nonstop and making that ever uphill climb. But we have to remember to take care of ourselves. This month – May – is Mental Health Awareness Month. And we are all acutely aware of the criminalization and warehousing of those who suffer from mental illnesses. That’s the appalling reality of our criminal justice system. We fight against it every day one case at a time. But we can’t be effective advocates if our own mental health hangs in the balance.

So, let’s take care of ourselves and lean on each other and continue the fight to which we have all been called. We need to encourage each other and build each other up. Let us support each other and be sensitive to one another. We continue to learn from each other by using resources like this magazine and the countless CLE opportunities TCDLA makes available each year. It’s good that it’s almost time for Rusty so we can gather with the folks across this State who take the same punches we do on a daily basis and break bread together and maybe imbibe a little and rejuvenate our batteries. We’re in this together.

Jeep Darnell & Sarah Roland

Ethics and the Law: Conflicting Interest in Criminal Cases

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As we all know, the privilege of being an attorney comes with a lot of responsibilities.

In the same way that doctors and nurses are more effective in treating their trauma patients if they, themselves, are not vicariously wounded, we as attorneys are most effective when we are able to retain a certain level of professional detachment from the trials and tribulations of our clients. We still serve their best interests, of course, and we may care a great deal about them and the outcome of their case(s), but we never actually become one of the, per se, adversaries in the legal conflict.

As part of this, society places certain demands on us. These aren’t just window dressing. Rather, the rules put in play by these societal demands are what have allowed our profession to survive and even thrive over a large portion of human history.

The interplay between societal expectations and an attorney’s professional independence and need for income can often leave the criminal defense attorney feeling they are subject to moving targets of conduct.

Criminal defense attorneys are often solo practitioners with small offices and small staff, but the standards we must uphold are just as high as any white‑collar attorney in the largest firm in the state.

The Texas Disciplinary Rules of Professional Conduct (“TDRPC”) puts those societal expectations into the rules governing attorneys licensed to practice in Texas. One of the tenets of these expectations is that we will be able to represent our clients zealously, free from any conflict of interest.

  1. You cannot represent opposing parties.
  2. You cannot agree to representation if the work
    • involves a substantially related matter where the new client’s interests are materially or directly adverse to another client or the firm; or
    • reasonably appear that it is or will become adversely limited by your responsibilities or interests
  3. Representation okay in (b) if no material affect to either client and each affected/ potentially affected client gives fully informed consent.

The general rule on conflicts is found in TDRPC 1.06. Part (a) is easy enough and self‑explanatory.But (b) starts looking like some of our statutes, so it may be more easily understood in reverse and using an example.

  1. My law partner represents Client A against Adversaries X, Y, and Z.
  2. X later comes to me and asks me to represent him in a new matter against/involving Client A, I must turn away X as a potential new client (“PNC”) if I conclude that the new matter is related, in some substantive way to the already existing matter where Client A is the existing client and PNC X is the adversary.

This is because the new matter with X would be substantially related to the preexisting matter with Client A and PNC X’s interests are already materially and directly adverse to the interests of another client (Client A). Restated—if a new matter, with a new client, would be directly and materially adverse to a current client of the firm (here Client A), is factually unrelated to any current or previous representation of A, there is no conflict of interest, and no waiver is needed. However, in typical fashion, the comments urge you not to take on such representation—even though the rules just said it’s okay. Rule 1.06, cmt 11.

It is also important to note that the above applies only in state court. In federal court, the Dresser doctrine applies, which requires consent from an existing client before the attorney/firm can take on any new matter adverse to the existing client—whether it is related or unrelated. (Following ABA Rule 1.7)

Since a conflict of interest can result in an attorney being required to withdraw from all representation, return funds, lose out on future funds, and face potential complaints, the best practice is simply to avoid conflicts from the beginning—but how?

  • Interview carefully
  • Know your clients
  • Client Acknowledgements
  • Secure additional counsel
  • Don’t forget the “former” clients
  • Document, document, document

Facts: In 2017, wife meets with lawyer A to discuss a potential suit for divorce. They have a 45‑minute consultation. Wife doesn’t hire Lawyer A and doesn’t take any further action to file for divorce. This summer, husband comes into see Lawyer B—who is Lawyer A’s long‑time partner. Husband wants to file for divorce. Lawyer A doesn’t remember anything about the consult and did not keep any documentation.

Question: Can Lawyer B represent Husband?

Answer: No. Tex. Comm. Prof. Ethics, Op. 691 (2021).

Explanation: Under TDRPC 1.06 (b)(2), the duty of confidentiality extends not just to current clients, but former clients and even prospective clients. Id. This duty may attach even without an attorney/client relationship. Id. Lawyer A owes Wife the duty of confidentiality, which limits his ability to represent Husband in a suit for divorce from Wife, against Wife’s wishes. Id.  Lawyer A’s disqualification is imputed to Lawyer B. Id.

Rule 1.06(b)(2) is not limited to conflicts between a prospective client and an existing one. Id. Rule 1.06(b)(2) forbids representations that reasonably appear to be “adversely limited by the lawyer’s or law firm’s responsibilities to . . . a third person.” Opinion 691, supra. A lawyer’s duty of confidentiality to a prospective client is the kind of “third‑person” responsibility that may result in a conflict under Rule 1.06(b)(2). Id.

The fact that the Lawyer A claims to be unable to remember all or some of the information disclosed by Wife is not determinative of whether a conflict exists under Rule 1.06(b)(2). Id.

In the opinion of the Committee, based on the limited facts presented, Lawyer A’s previous consultation with Wife creates a conflict of interest that would prevent Lawyer A from representing Husband in divorcing Wife. Given that Lawyer A’s consultation with Wife lasted 45 minutes and related to the same matter as the proposed representation of Husband, the Committee believed a reasonable lawyer would conclude that Wife likely shared confidential information during the consultation  that  could be significantly harmful if revealed or used against her in a divorce from Husband. Accordingly, the Committee concluded that Lawyer A’s duty of confidentiality to Wife reasonably appears to adversely limit his ability to represent Husband in divorcing Wife and that Rule 1.06(b)(2) therefore prohibits that representation.

Opinion  691,  supra. Rule 1.06(f) provides for the vicarious disqualification of Lawyer B: “If a lawyer would be prohibited by this Rule [1.06] from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.” Id., TDRPC 1.06. Since Rule 1.06(b)(2) prohibits Lawyer A from representing Husband in divorcing Wife, Rule 1.06(f) automatically extends that limitation to Lawyer B and any other lawyer currently in Lawyer A’s firm. Opinion 691, supra.

The Committee noted that “[t]he firm‑wide imputation of conflicts arising from relatively brief prospective client interviews may in some cases lead to harsh results, but the language of Rule 1.06(f) currently allows for no exception.” Id., compare TDRPC 1.06(f) with ABA Model Rule 1.18 (limiting imputation of prohibition arising from consultation with prospective client, subject to certain conditions).  The Committee has proposed adding a new rule modeled on ABA Model Rule 1.18, but as of May 1, 2022, the proposed Texas Rule has not yet been adopted. See 83 Texas Bar Journal 618 (September 2020).

In the above scenario, it was assumed that Wife was unwilling to consent to Lawyer A’s or Lawyer B’s representation of Husband. However, it should be noted that a lawyer may be able to proceed with a representation generally prohibited under Rule 1.06(b)(2) with the effective consent of both the former prospective client and the proposed client. Opinion 691, supra. Effective consent under Rule 1.06(c) can only exist if: (1)“the lawyer reasonably believes the representation of each client will not be materially affected;” and (2) consent is given only after “the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any” is disclosed to all parties. TDRPC 1.06(c). It should also be noted that Wife may place limitations on its consent, such as an agreed screening arrangement whereby Lawyer A would be prohibited from participating in the representation or disclosing Wife’s confidences to any other person. Opinion 691, supra. Screening will not avoid a “former prospective client” conflict unless all parties consent to the arrangement, as required by 1.06(c). Id.

Former clients can be excellent sources of referrals, but they can also be the source of a conflict.

TDRPC 1.09 governs conflicts of interest with former clients.

  1. Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former
    1. in which such other person questions the validity of the lawyer’s services or work product for the former client;
    2. if the representation in reasonable probability will involve a violation of Rule 1.05; or
    3. if it is the same or a substantially related matter
  2. Except to the extent authorized by Rule 1.10 (Govt to private employment), when lawyers are or have become members of or associated with a firm, non of them shall knowingly represent a client if anyone of the practicing alone would be prohibited from doing so by paragraph (a)
  3. When the associated of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyers shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a) (1) or if the representation in reasonable probability will involve a violation of Rule 1.05 (Confidentiality)The following situation was recently posed to the TCDLA Ethics Committee:

Facts: Court appointed Lawyer to represent Client A in a criminal matter. Case is set to go to trial. Client A has been detained at the local jail pending trial and has recently been accused of perpetrating sexual assaults against other inmates.

During an interview about the extraneous allegations, Client A tells Lawyer that he was the victim of sexual assaults at the jail, including by Mr. X, who is a former client of Lawyer’s.

Prosecutor wants to introduce extraneous sexual assault allegations in punishment. Mr. X is not the victim of the extraneous that the State intends to produce, but rather the perpetrator of another, separate incident. The State is not aware that Mr. X exists at this time, and Mr. X would not likely be called to testify against Client A, unless the State chose to call him to rebut Client A’s evidence of sexual assault in the jail.

Client A would use the evidence of being sexually assaulted in jail for mitigation purposes as well as to rebut the allegation of sexual assault on him (i.e., that he has been sexually assaulted several times in the past to bolster his argument that he was the victim rather than the perpetrator of the offense).

Lawyer has no continuing obligations or responsibilities to X other than Lawyer’s obligations to X arising from X’s status as a former client.

Question: Is there a conflict under TDRPC 1.09(a)(2)?

Answer: Quite likely, yes.

Explanation: Rule 1.09(a)(2) prohibits representation of A in a matter adverse to X if there is a reasonable probability that (continued) representation of A will involve a violation of TDRPC 1.05.

Here, it seemed likely that the accusation against X would come out in trial. If that happened, it was quite plausible to believe something Attorney had learned about X during his representation of X may now be beneficial to A but adverse to X. While it was possible that Attorney might have been able to bring on secondary counsel for the guilt/innocence phase, who could then take over fully on punishment, such a situation would still likely trigger an investigation should a grievance be filed.

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may continue to represent a client in a proceeding after learning that the conduct of the lawyer’s former client may be material to the proceeding if: (1) the matter is not adverse to the former client; or (2) the matter is adverse to the former client but the representation does not question the lawyer’s work for the former client, the representation does not involve a matter that is the same as or substantially related to the matter for which the lawyer represented the former client, and the representation will not in reasonable probability involve a violation of Rule 1.05 with respect to confidential information of the former client. TDRPC 1.06. Regardless of whether the representation of the current client is adverse to the former client, the lawyer may represent the current client in the matter only if the lawyer complies with obligations under Rule 1.05 not to reveal confidential information of the former client and not to use confidential information of the former client to the former client’s disadvantage unless the former client consents after consultation or the information has become generally known. See Tex. Comm. Prof. Ethics Ops. 584 (Sept. 2008); 579 (Nov. 2007); 578 (July 2007); 527 (April 1999); 615 (April 2012); 608 (Aug. 2011); 598 (July 2010); 574 (Sept. 2006); 538 (June 2001); 494 (Feb. 1994); 607 (July 2011); 691 (June 2021); 627 (April 2013); 637 (Aug. 2013); 645 (Sept. 2014); 650 (May 2015); and 659 (July 2016).

“In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interests.” TDRPC Preamble.

In preparing this Article and the presentation that it stemmed from, I found myself going back to Attorney’s situation with Clients X and A and what I learned from the discussion with others on the TCDLA Ethics Committee. Our goal isn’t to win the grievance, it’s to avoid it entirely. In terms of avoiding a conflict, bringing on secondary counsel to take over punishment completely did exactly that. Since the evidence would only come out at punishment, and Attorney would no longer be representing A at that point, conflict would be averted. But the best bet for avoiding a grievance was for Attorney to get out entirely before trial on guilt/innocence. The Bar wouldn’t know the details up front and would almost certainly upgrade to investigate. This means a lot of stress on Attorney, hours spent answering the grievance, and maybe hiring of counsel. That’s a loss of time, money, and well‑being. Why chance it?