Monthly archive

August 2022

July/August 2022 SDR – Voice for the Defense Vol. 51, No. 6

Voice for the Defense Volume 51, No. 6 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

I have political opinions. You know this well if you know me. And if you ever want to know them you can call me—I share them freely. TCDLA announced after the Dobbs opinion that it takes no position on abortion, and this makes sense. I say “samesies” in the SDR. We are an organization of conservative, liberal, and in‑between criminal lawyers. Whatever position an organization like ours could take would leave many asking, “what does the Dobbs opinion have to do with criminal defense?” But this begs a less rhetorical form of the same question “does it have anything to do with criminal defense?” If you haven’t read all 213 pages of the Court’s historic opinion, you should, and consider it in the context of its implications for criminal law.

Now, granted, Justice Alito proclaims throughout his opinion that the Court’s rationale doesn’t apply to anything other than abortion. But it doesn’t until it does. And other Justices on the Court are eager to say that it does. So, I say, back to the original question: “what does the Dobbs case have to do with criminal defense?” Well, the answer may be contingent on how many of our clients’ rights were “entirely unknown” “[u]ntil the latter part of the 20th century” and not “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

I have a few concerns as a criminal defense lawyer right off the top of my head.

Is the judge‑made exclusionary rule that has long been regarded as “implicit in the concept of ordered liberty” safe? Some judges had already begun giving it the Voldemort treatment well before a shift in the Supreme Court’s makeup. They refuse to call it by its actual name, and instead coined the phrase “the so‑called exclusionary rule.” See e.g. United States v. Beaudion, 979 F.3d 1092, 1097 (5th Cir. 2020); United States v. Fiseku, 915 F.3d 863, 869 (2d Cir. 2018); Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010). And I have the same question about the prophylactic rule created in Miranda v. Arizona. Does it stand on sufficiently firm footing for our new Court or is it merely a previous Court’s “own ardent views about the liberty that Americans should [but don’t necessarily] enjoy.”

Gideon v. Wainwright incorporated the Sixth Amendment right to counsel into the due process clause of the Fourteenth Amendment and made that right applicable to the States because it was implicit in the concept of ordered liberty. 372 U.S. 335, 342 (1963). Is Gideon safe? Is the right against self‑incrimination safe? Is double jeopardy? Is speedy and public trial, impartial jury, is confrontation? These were all incorporated as implicitly guaranteed to a citizen prosecuted by the State through the enactment of the Fourteenth Amendment. They were considered implicit in the concept of ordered liberty. But some of them were incorporated in opinions lacking the kind of historical reference the Court now demands.

I’m usually careful not to be an alarmist (sort of). But I am cautiously watching to see if Dobbs is more than just the end of a constitutional right and potentially the end of several. It is certainly a once‑in‑a‑generation case marking not only the end of the right to abortion, but also the beginning of an entirely new judicial attitude to‑ ward what courts have previously treated as settled and perhaps even sacrosanct.

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 related to criminal law since the last Significant Decisions Report. See my comment above.

Fifth Circuit

Willson v. Stroman, 33 F. 4th 202 (5th Cir. 2022)

Issue & Answer. Are the officials involved in the false arrest of Twin Peak bikers absolved of civil liability because a grand jury ultimately indicted some of the Twin Peak bikers? No. Not necessarily. 

Facts. This is an appeal arising from the civil rights lawsuit filed by bikers arrested following the Twin Peaks shootout in Waco, Texas. The plaintiffs are some of the 177 bikers arrested using a fill-in-the-name form affidavit presented to a magistrate. Some of the plaintiffs are also among the many bikers who were subsequently indicted by a grand jury for engaging in organized criminal activity (EIOCA). This appeal is similar to the appeal in Terwilliger v. Reyna, 4 F.4th 270 (5th Cir. 2021) brought by bikers who were arrested but not subsequently indicted. The federal district court distinguished between the two groups of bikers. Those arrested but not indicted in Terwilliger survived summary judgment. Those arrested and subsequently indicted in the instant case did not. The district court found “pursuant to the independent intermediary doctrine, the grand jury’s indictment served to break the chain of causation for any false arrest claim pertaining to the form affidavit and the arrest warrant issued by the magistrate.” In the trial court and in the instant appeal the plaintiffs argue that the independent intermediary doctrine should not apply because the grand jury was misled in the very same way as the magistrate who issued the arrest warrants. With respect to the two groups of bikers—arrested and indicted—arrested and not indicted—the district court found the instant group of indicted defendants not capable of sustaining their claims.  

Analysis. In Malley v. Briggs, 475 U.S. 335 (1986) the Supreme Court held that an officer can be liable for false arrest despite the issuance of an arrest warrant by a magistrate, if the officer presented an affidavit “so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” The “Malley wrong” is not false evidence, but the presentment of clearly insufficient evidence as probable cause. 

In Franks v. Delaware, 438 U.S. 154 (1978) the Supreme Court held that an officer can be liable for false arrest despite the presentment of a warrant affidavit facially establishing probable cause when the officer “deliberately or recklessly provides false, material information for use in an affidavit in support of [a warrant]” or “makes knowing and intentional omissions that result in a warrant being issued without probable cause.” 

The form affidavits in the instant case contain several key allegations: (1) members of the Bandidos or Cossacks instigated and were involved in the Twin Peaks shootout, (2) their conduct rose to the level of EIOCA, and (3) each individually named [filled into the blank] was a member or associate of the Bandidos or Cossacks involved in the shootout. In Terwilliger, the Fifth Circuit determined that the third allegation involved a deliberately reckless or intentional materially false statement and omission. Plaintiffs had denied affiliation with Bandidos or Cossacks, denied involvement with criminal street gangs, and denied wearing signs or symbols that would identify them as Bandido, Cossack, or any other criminal street gang. Plaintiffs alleged that law enforcement also withheld information about their actual affiliation in different motorcycle clubs as well as other video evidence and interviews that would have weighed against a probable cause determination. The Terwilliger court found that the plaintiffs had adequately presented a Franks (false/misleading information) false arrest claim. 

For a third-party intermediary [a magistrate] to act as a break the chain of causation in a false arrest, the third-party intermediary must be truly independent. He or she cannot be tainted by the actions of the defendant in his or her finding of probable cause. Both Franks and Malley are exceptions to the application of the third-party intermediary rule. When a second intermediary is involved—in this case, a grand jury— “a plaintiff need only show that the deliberations of the intermediary were tainted such that the second intermediary, like the first, did not have all of the facts before it necessary to render an independent determination of probable cause.” To survive summary judgment the plaintiff must show that all defendants are liable for the false arrest, but they need not show that all defendants also tainted the secret grand jury deliberations. Nor must the plaintiff show that the taint was malicious. The mens rea requirement applicable to taint exception is “deliberate or reckless.” In essence, if a plaintiff has adequately pled a Malley or Franks claim, the plaintiff has sufficiently pled the taint exception to the third-party intermediary rule whether applicable to a magistrate or grand jury. 

Here, the facts necessary to establish wrongdoing in the grand jury room are shrouded in secrecy, by law. The facts alleged will necessarily be speculation supported by facts supporting an inference. To support an inference that the defendants lied in the grand jury room, the plaintiffs alleged facts showing that they lied in their testimony during examining trials. Ultimately, the resolution of whether Franks violations occurred will depend on whether what was said about each individual defendant was true—they are not all similarly situated in this regard. This is a task for the district court to perform. 

Comment. The named defendants are Brent Stroman (Chief of Waco PD, individually), Manuel Chavez (Waco PD Detective, individually), Abel Reyna (McClennan County DA, individually), City of Waco, Texas, McClennan County, Texas, Robert Lanning, Jeffrey Rogers, Sergeant Patrick Swanton, Christopher Frost. 

Wearry v. Foster, 33 F.4th 260 (5th Cir. 2022)

Issue & Answer. Is a prosecutor entitled to absolute immunity in a civil suit alleging he participated in coercing and threatening a witness to adopt false testimony? No. 

Facts. In 1998 a high school honor student was brutally murdered in Livingston Parish. National media criticized local law enforcement for its inability to solve the murder for several years. Investigators initially ruled Wearry out as a suspect based on his alibi. But they later charged and convicted him based on informant testimony and without any physical evidence linking him to the offense. The United States Supreme Court overturned Wearry’s Louisiana capital murder conviction 16 years later based on undisclosed Brady evidence undermining the State’s case “which resembled a house of cards.” Wearry brought this civil rights suit alleging that the sheriff’s detective and the prosecutor fabricated evidence and intimidated and coerced a juvenile to adopt a false narrative. Wearry asserted that the prosecutor and detective concocted a fake story and, over the course of six meetings where they pulled a child from his classes, intimidated and coerced the child to adopt their story implicating Wearry. At one meeting the prosecutor and detective falsified the results of a photo array in which the child denied recognizing Wearry. At another meeting the prosecutor and detective took the child to the victim’s bloodstained car. After each meeting, the prosecutor and detective would confer on their efforts to persuade the child to adopt their fake story. The fake story was that the child saw Wearry get into the victim’s car moments before the murder. In reality, the child was somewhere else entirely and witnessed nothing. After the Supreme Court reversed Wearry’s conviction, the same prosecutor and Sheriff’s Office attempted to re-prosecute Wearry. The prosecutor and investigators again pressured their witness adhere to the false story and to avoid talking to Wearry’s defense attorneys or investigators. Ultimately the witness testified that his story was made up by the prosecutor and detective and he adopted it because he feared that he or his family would be harmed. 

The prosecutor’s name is Scott Perrilloux and the detective’s name is Marlon Foster. They both moved to dismiss Wearry’s civil rights suit claiming prosecutorial immunity. The district judge denied their motions. 

Analysis. “When a prosecutor joins police in the initial gathering of evidence in the field, he acts outside his quasi-judicial role as an advocate; instead he acts only in an investigatory role for which absolute immunity is not warranted.” Nor is the detective immune. As it pertains to the detective, the Supreme Court has made clear a police officer is not entitled to the same immunity as a prosecutor. 

Absolute immunity is a common law doctrine grafted into 42 U.S.C. 1983 by interpreting legislative intent. Historically it protected the prosecutor’s charging decision, but not the prosecutor’s investigative activities. The Supreme Court extends prosecutorial immunity to all of a prosecutor’s advocatory functions. There is a further distinction within investigative functions. Some investigatory functions involve organizing, evaluating, and presenting evidence. Others involve pure acquisition of evidence. Acquisition is investigation whereas management of already-gathered evidence remains advocatory and within the legitimate scope of prosecutorial functions. “There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand.” Buckley v. Fitsimmons, 509 U.S. 259 (1993). Participating in the search for false evidence, altering evidence, and concealing evidence are all acts unprotected by absolute prosecutorial immunity. The facts alleged in the instant case are far worse than those in cases which lend the guiding principles in rejecting the prosecutor’s claim. As it pertains to the detective, “the common law has never granted police officers an absolute and unqualified immunity.” Pierson v. Ray, 386 U.S. 547, 555 (1967). 

Dissent (Ho, J.). Agrees with the result but the law does not permit the majority’s result. Unfortunately, the law protects a prosecutor seeking false testimony. A prosecutor is entitled absolute immunity in conduct of investigating a witness if he does so after indictment or he intends to present the testimony of that witness at trial. 

United States v. Hamann, 33 F.4th 759 (5th Cir. 2022)

Issue & Answer. Should a trial court exclude under the Confrontation Clause incriminating hearsay testimony offered to give context for a warrant execution, but which also helps establish a defendant’s guilt? Yes. 

Facts. A jury convicted the defendant of conspiracy to possess with intent to distribute methamphetamine. The jury heard from seven government witnesses, including four investigators. One of the investigators testified to the facts giving rise to the probable cause for a warrant execution. Among those facts were accusations of a confidential source that he had conducted a controlled purchase from the defendant. The investigator gave details of the controlled purchase as they were described to him by other officers over radio transmission. The same investigator also testified that he had received information from different confidential sources that an individual named “Cali” was “moving multiple ounces of meth.” This investigator explained to the jury that other members of law enforcement knew the defendant by the nickname “Cali.” In closing the prosecutor emphasized the existence of the confidential informant, the reliability of the confidential informant, and the importance of the confidential informant. 

Analysis. “Today’s decision marks no sea change in our Confrontation Clause jurisprudence. In the last fifteen years, we have vacated at least six convictions and affirmed at least two writs of habeas corpus for kindred reasons. The most recent of those cases was decided just a year before Hamann’s trial. There, we reaffirmed what we had said many times: If the government elects to introduce out-of-court statements to attempt to provide context for its investigation, its use must be ‘circumspect’ and ‘limited.’ Trial courts must be ‘vigilant in preventing . . . abuse’ to avoid ‘the backdoor introduction of highly inculpatory statements.’ We affirm those principles today.” 

The Confrontation Clause analysis involves three questions: (1) did evidence introduce a testimonial statement by a nontestifying witness? (2) was the statement offered to prove the truth of the matter asserted, (3) was the nontestifying witness available to testify, or was the defendant deprived of an opportunity to cross-examine him? If the answer is yes to all three, then the Confrontation Clause is violated. “A statement is testimonial if its primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.” Here the detective’s testimony that “Cali was moving multiple ounces,” as well as his testimony about the circumstances of the controlled purchase, both violated the defendant’s right to confrontation. The government may offer hearsay evidence to provide context and a basis for the action of law enforcement but when that evidence links the defendant to the crime, “we have not been easily misguided” by the “government’s purported desire to give the jury context.” 

Comment. Confrontation objections are neglected by many trial attorneys. If you find yourself objecting to hearsay without objecting to confrontation, just know, hearsay is not getting reversed. Confrontation might.

Texas Supreme Court

Ex parte K.T., No. 20-0977 (Tex. 2022)

Issue & Answer. The Texas expunction statute prohibits the granting of an otherwise-eligible expunction if the offense for which the person was acquitted arose out of a criminal episode that are somehow connected or constitute the repeated commission of the same or similar offense. The Penal Code defines a criminal episode as the commission of two or more offenses. When a person is acquitted of an offense but has previously been convicted of the same or similar offense, can the State use the “same criminal episode” prohibition to prevent the granting of an expunction? No. 

Analysis. An acquittal cannot formulate the basis of a committed offense. “Absent clear language to the contrary, we cannot agree that the legislature would define “criminal episode” as the “commission” of multiple offenses if it wanted to include offenses where a jury has acquitted the defendant.” 

Comment. This was a dumb fight for the State to pick. As the Court described the State’s rationale: “[i]t would lead to results that would startle not just legislators but ordinary Texans.”

Texas Court of Criminal Appeals

Ex parte Edwards, No. PD-1092-20 (Tex. Crim. App. 2022)

Issue & Answer.  Is a statute-of-limitations challenge to a sexual assault indictment cognizable in a pretrial habeas writ? No.

Facts. In 2017 the State indicted the defendant for an aggravated sexual assault alleged to have been committed in 2003. The defendant filed an application for a pretrial writ of habeas corpus requesting dismissal of the case pursuant to a 10-year statute of limitations. The State argued that the 10-year limitations period was inapplicable because DNA evidence was collected, and it did not match the victim or any other person whose identity is readily ascertained. This meant it met an exception to the limitations period under Texas Code of Criminal Procedure Article 12.01(a)(C)(i)(b). The trial court denied habeas relief, but the court of appeals reversed citing the State’s failure to present evidence supporting the statute of limitation exception. 

Analysis. Pretrial habeas is unavailable when the resolution of a claim may be aided by the development of a record at trial. Pretrial habeas is generally not appropriate to challenge the sufficiency of the charging instrument. It is, however, available for claims involving a constitutional right to avoid trial. Pretrial habeas has also historically served as a mechanism to challenge an indictment that is shown barred by the statute of limitations, on its face. In 1985 the Texas Constitution was amended to define an indictment as “a written instrument presented to a court by a grand jury charging a person with the commission of an offense” which upon presentment to a court “invests the court with jurisdiction of the cause.” Tex. Const. art. V, § 12(b). The effect: an indictment is still an indictment even if it has a defect of substance (including an apparent limitation bar). After this amendment, the Court decided Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998). Proctor eliminated the requirement that the State must always disprove a limitation bar to prosecution. Instead, according to Proctor, a defendant may raise a limitation claim by motion to dismiss under Texas Code of Criminal Procedure Article 27.08, he may raise it at trial as a defense, or he may waive it. There are certain statutes of limitation which require the development of a factual record, such as here where the general statute is inapplicable when DNA evidence is collected in a sexual assault and produces no readily identifiable suspect. “An indictment returned outside a general statute of limitation may be reparable by resort to an exception [by way of amending the indictment]. When this is the case, then the statute-of-limitation claim is not cognizable on pretrial habeas.” It must be raised by motion to quash or defense at trial.

Dissenting (Yeary, J.). The indictment, on its face, does not appear to meet the statute of limitations. It contains no tolling language. It makes sense to permit pretrial habeas challenges in this instance because the law prohibits prosecution if the limitations period has expired. “[I]t is completely irrational to force a criminal defendant to endure a full-blown trial before he may be afforded an opportunity to vindicate his lawful right to avoid having to endure a full-blown trial.” The State is at no more disadvantage to prove facts that establish a limitations exception in the context of a pretrial writ of habeas corpus than any other mechanism preferred by the majority opinion. 

Comment. So sometimes a pretrial writ can be filed? Only if there exists no factual-based exception to a statute of limitations. I agree with Judge Yeary on this. What’s messed up? Did you tell everyone what’s messed up? Did they know how to un-mess it up when they went to court? 

State v. Baldwin, No. PD-0027-21 (Tex. Crim. App. 2022)

Issue & Answer. “Is generic, boilerplate language about cell phone use among criminals sufficient to establish probable cause to search a cell phone?” No. 

Facts. This is a State’s interlocutory appeal from a motion to suppress cell phone evidence in a capital murder prosecution. When investigating the murder, law enforcement received several tips that residents had seen two black men in a white four-door sedan “casing” the area of the murder and then ultimately drive away at a high rate of speed shortly after the murder. Investigators learned the vehicle was registered to the defendant’s father-in-law who informed investigators he had sold the vehicle to the defendant. After locating the suspect vehicle, law enforcement conducted a pretextual traffic stop and contacted the defendant. Police located the defendant’s cell phone during a consent search of the vehicle. Investigators applied for a warrant to search the defendant’s cell phone. That application detailed the basis of suspecting the defendant and contained only a boilerplate recitation regarding the evidentiary value of the cellphone: 

Based on your Affiant’s training and experience, Affiant knows that phones and “smartphones” such as the one listed herein, are capable of [storing evidence of crimes]. 

Additionally, . . . it is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications. Further, Affiant knows from training and experiences that someone who commits the offense of aggravated assault or murder often makes phone calls and/or text messages immediately prior and after the crime. 

Affiant further knows based on training and experience, often times, in a moment of panic and in an attempt to cover up an assault or murder that suspects utilize the internet via their cellular telephone to search for information. Additionally, based on your Affiant’s training and experience, Affiant knows from other cases he has investigated and from training and experiences that searching a suspect’s phone will allow law enforcement officers to learn the cellular telephone number and service provider for the device. Affiant knows that law enforcement officers can then obtain a subsequent search warrant from the cellular telephone provider to obtain any and all cell site data records, including any and all available geo-location information for the dates of an offense, which may show the approximate location of a suspect at or near the time of an offense. 

The trial court suppressed the cell phone evidence based on the affidavit’s failure to establish probable cause. The Fourteenth Court of Appeals affirmed, en banc. 

Analysis. “[C]onclusory allegations alone are insufficient to support a finding of probable cause . . . . an affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause . . .” Citing Illinois v. Gates, 462 U.S. 213 (1983). Law enforcement must cite specific facts connecting the item to be searched to the alleged offense in order for a magistrate to find probable cause. “To hold otherwise would condone the search of a phone merely because a person is suspected to have committed a crime with another person.” Here, the only “other fact” accompanying boilerplate conclusions was the fact that two black men committed the offense together. That the two might have used phones to coordinate the offense is pure speculation. Though the affidavit indicates the two men may have stopped by the neighborhood multiple times over multiple days, there is no evidence suggesting they planned the offense over multiple days via cellular communication. 

Dissenting (Keller, J.). Boilerplate generalities about cell phone usage by criminals are insufficient. But here there was more. The offense was committed by two people and the facts establish their planning took place over the course of multiple days. “[I]t should not come as a surprise that a cell phone would be used in the planning and commission of a crime such as the one before us, at least when the defendant had an accomplice.” 

Dissenting (Yeary, J.). “‘Boilerplate’ is not a dirty word.” Presiding Judge Keller is correct. And the trial court should not have thrown out all of the evidence acquired from the phone. Nobody disputes the existence of probable cause to believe the defendant committed the offense. One of the items the officer sought from the phone was the cell phone service provider—the warrant affidavit explained this would assist him in establishing the defendant’s location at the time of the offense. 

Comment. Boilerplate is most certainly a dirty word if a defense lawyer uses boilerplate to raise an issue and preserve it for appeal. But I do think Judge Yeary has a good point on the GPS location issue.

David v. State, No. PD-0307-21 (Tex. Crim. App. 2022)

Issue & Answer. When a person combines marijuana with toilet water and human waste has he “altered” physical evidence even when that evidence can be separated, dried, and still used as evidence against him? Yes. 

Facts. Police received an informant tip that someone was selling drugs from a motel room. During surveillance, the activity seemed to shift to other rooms in the motel. Officers attempted a knock and talk at the defendant’s motel room. Before they could knock on the defendant’s door a woman saw them and alerted the defendant. When officers announced their presence, someone inside the defendant’s motel slammed the door shut. Officers could hear multiple people making quick movements. Officers breached the room. It smelled strongly of marijuana and there was paraphernalia everywhere. Police could hear the defendant in the locked bathroom. They announced their presence again, but the defendant did not come out. After hearing shuffling movements, police breached the bathroom door. The defendant was standing between the shower and the toilet. Inside the toilet was marijuana mixed with water and excrement. Police believed the bulk of the marijuana had already been flushed. At trial, the investigating officer agreed that the remaining marijuana could have been collected and potentially tested. The court of appeals found this evidence insufficient to establish the element of “alteration” to sustain tampering with evidence conviction. 

Analysis. “Alteration” is one of the many acts by which a person commits the offense of tampering with physical evidence. “‘Alter’ has an expansive meaning in common usage,” and the court of appeals erroneously narrowed the definition to an act resulting in the change in the chemical composition of marijuana. That the marijuana could potentially have been revived (separated from the human waste, dried, and measured) is not significant to this analysis. An alteration may be permanent or temporary. 

Comment. This is a crappy case. A random comment by the court which caught my attention: “it seems like Appellant is arguing that Lt. Nava’s and Agent Carrasco’s testimony that the substance in the toilet bowl was marijuana is insufficient and that expert testimony is required. We disagree.” The offense occurred prior to the passage of the Hemp Farming Act, a statute making marijuana with low THC concentrations lawful to possess. I don’t know if the court meant to signal where they might be headed when a post-Hemp-Farming-Act sufficiency case reaches them or if they just weren’t thinking about the newly-crafted distinction.

Mason v. State, No. PD-0881-020 (Tex. Crim. App. 2022)

Issue & Answer. Must the State prove that a person knew their conduct was a violation of the Election Code in order to convict that person for illegal voting? Yes.

Facts. Defendant submitted an “Affidavit of Provisional Voter” form in 2004. The ballot form contained the following affirmation: “the voter had not been finally convicted of a felony, or if a felon, had completed all punishment including any term of incarceration, parole, supervision, or period of probation, or had been pardoned.” The completion of this form registered Defendant as a Tarrant County voter. Later, in 2013, Defendant was convicted of the felony offense of “conspiracy to defraud the United States.” She was sentenced to five years imprisonment and three years of supervised release. The Tarrant County Elections Administration (TCEA) received notification of the defendant’s final felony conviction and ultimately canceled her voter registration. The TCEA sent notice of the cancellation to her home, but while she was incarcerated and serving her federal sentence. Defendant finished her prison term and began supervised release. Defendant’s supervision officer testified that they did not discuss the loss of voting rights while on supervision. While on supervised release, Defendant went to her designated polling place for the November 2016 election. When poll workers could not locate her name on the voter roll, they permitted her to cast a provisional ballot accompanied by another “Affidavit of Provisional Voter.” The election judge reported his concern about the defendant’s ballot to the defendant’s precinct election judge who then reported the matter to the Tarrant County District Attorney. The defendant’s ballot was never counted. Tarrant County District Attorney Sharen Wilson indicted her for voting in an election in which she knew she was ineligible to vote and alleged she had not been fully discharged from her sentence. The defendant had a trial before Tarrant County District Judge Ruben Gonzalez. She argued that she did not read the admonishments in the Affidavit of Provisional Voter, the government did not advise her she was ineligible to vote, and she would not have voted had she been aware of her ineligibility. The trial court convicted and issued two findings that the State had proved the essential elements of the offense: (1) the State proved the defendant was ineligible, and (2) the State proved the defendant voted. Judge Gonzalez sentenced the defendant to five years of incarceration. Defendant raised several arguments before the court of appeals, including that evidence was insufficient without proof that the defendant knew she was ineligible to vote. The Second Court of Appeals affirmed her conviction and found that knowledge was not an element of the offense. While the defendant’s case was pending PDR to the Court of Criminal Appeals, the Legislature passed a bill stating that a person may not be convicted “solely upon the fact that the person signed a provisional ballot . . .” and made this language retroactive to all individuals except those whose convictions had become final. 

Analysis. In the Election Code, when the requirement of knowledge is not explicitly tied to the circumstances making conduct illegal, the requirement of knowledge means “that the actor is aware, not just of the particular circumstances that render his otherwise innocuous conduct unlawful, but also of the fact that undertaking the conduct under those circumstances in fact constitutes a violation of the Election Code.” Delay v. State, 465 S.W.3d 232 250 (Tex. Crim. App. 2014)(construing “how far down the sentence the word knowingly is intended to travel” in an Election Code offense). Here, the relevant statute makes it an offense to “vote . . . in an election in which the person knows the person is not eligible to vote.” The court cannot presume a voter knew she was ineligible to vote, and the court of appeals’ opinion effectively converted the statute into one requiring only negligence about a person’s status as a voter. Moreover, in this case, the court of appeals contravened the legislative intent. In amending the statute in 2021, the Legislature expressly stated that the Second Court of Appeals erred in interpreting the statute to require strict liability:

REP. J. TURNER: I know her case is now on appeal. . . . But it seems to me that it is appropriate, given the fact that we adopted and then accepted the removal of the Cain amendment, to explain ourselves to some degree and express the sense of the house about the issue it dealt with. Do you agree that is appropriate here? 

REP. D. BURROWS: I think it is, and I think that we are reiterating and restating what is the current law. Obviously the courts are about to decide what it is, but my interpretation of current law is you have to have a mens rea element. As we said, this is not a strict liability-type issue. . . . 

Here it was not enough to show that Appellant was on supervised release and ineligible to vote. The State had to prove that she “actually realized that these circumstances in fact rendered her ineligible to vote.” 

Concurring & Dissenting (Yeary, J.). Agrees with the majority holding that the statute requires knowledge of voter ineligibility. There was no need to construe an ambiguous statute the way the Court did in Delay. The statute was not ambiguous. The State need not prove that the individual understood the nuances of the Election Code. They must merely prove the individual knew they were ineligible, from whatever source that may be. The Legislature’s determination to make their amendment retroactive may violate the Texas Constitutional prohibition on retroactive laws. Casting a provisional ballot does not constitute “voting” in an election. 

Dissenting (Slaughter, J.). The illegal voting statute merely requires knowledge of ineligibility to vote and allows the fact-finder to reasonably infer the defendant’s subjective knowledge based on the evidence. Here the evidence was sufficient to support this inference. When the defendant filled out her provisional ballot nine years preceding the instant offense, she swore that she was not a felon and thus learned of the requirements to vote, knowledge which should be imputed to her nine years later in the instant prosecution. 

Comment. This is a ridiculous prosecution by the Tarrant County District Attorney’s Office and I can’t say anything nice about the opinion from the Second Court of Appeals. I think it went to a whole different level when the DA continued prosecuting the appeal after the legislature (both Republican and Democrat) said “hey you’re wrong on this one.” This is a good opinion from the Court of Criminal Appeals. Though I can’t say I agree 100% with the notion that walking up to an election clerk and saying “I don’t know if I’m eligible can I cast this provisional and you guys figure it out” counts as a “vote” (as Judge Yeary put it, “a provisional ballot is . . . well, provisional). Had the Court not required the additional mens rea here, the implication of the Second Court’s holding would have been astounding: every person who ever cast a provisional ballot that was subsequently rejected (for whatever reason) is a felon. This was essentially the State’s theory and it kind of makes you wonder why we are prosecuting just this specific individual.

The Court addressed and rejected two additional issues in this case. First: whether the prosecution of an individual casting a provisional ballot violates the Help America Vote Act of 2002 (HAVA). HAVA tied the receipt of federal funds to the establishment of state procedures for casting provisional ballots. The Court found no conflict between the prosecution of a person accidentally casting a provisional ballot and the requirements of HAVA which are silent on whether a person can be prosecuted for accidentally casting a provisional ballot. Second: whether casting a provisional ballot that is rejected constitutes “voting.” The Court held that the plain meaning of “vote” means to express your choice in an election and does not depend on whether the “vote” was ultimately counted. 

Stredic v. State, No. PD-1035-20 (Tex. Crim. App. 2022)

Issue & Answer. Article 36.28 of the Code of Criminal Procedure permits a trial court to read testimony back to a jury that cannot agree on the testimony of a witness. May the trial court provide the jury with a transcript of the testimony as well? No. But harmless here. 

Facts. The defendant drove around in his car with three friends. They stopped at a gas station. The defendant retrieved a shotgun from his trunk and pointed it at the victim. The shotgun fired. The victim died. The defendant also shot and wounded his other friend. The wounded victim testified at trial and explained that the defendant intentionally shot the victim without any apparent provocation. The defendant testified that his friends were smoking PCP, he tried to get them out of the car, but they would not do so upon his demand, he retrieved the shotgun to scare them and to protect himself. The defendant explained that the shooting was an accident. According to the wounded friend, his injury was sustained after the defendant drove away and then returned to the scene. The defendant testified that he shot the wounded friend in self-defense when the wounded friend charged at him, and that this occurred immediately after he shot and killed the deceased victim. The video footage corroborates the wounded friend’s version of events. During the trial the jury had a disagreement about the “statement of a witness” and asked, “can we see the court reporter’s notes when Vincent Stredic was the witness, when the State Attorney was questioning him, regarding his statement on if Vincent felt threatened by Christopher Barrier and Rodrick Harris [deceased victim and wounded victim].” After reviewing this transcript, the jury convicted the defendant of murder. The court of appeals found that Article 36.28 of the Code of Criminal Procedure allows the oral readback of the reporter’s notes but does not authorize giving the jury a written transcript. The court of appeals reversed. 

Analysis. Article 36.28 of the Code of Criminal Procedure authorizes the trial court to read testimony to the jury if they cannot agree regarding the statement of a witness. It does not authorize the submission of a transcript to the jury. The State’s contention that the trial court retains discretion on how to conduct a trial absent a specific statutory prohibition is unpersuasive. The statute clearly prescribes the method of resolving a jury dispute–they “may” have the testimony “read to them.” Supplying a transcript draws more attention to a specific piece of evidence than the Legislature intended when it crafted the remedy for disputed testimony. However, the incremental harm did not rise to the level of affecting the defendant’s substantial rights such that the error was sufficiently harmful to warrant reversal. If the jury needed the defendant’s testimony to determine whether his testimony was inconsistent with the video, a readback would have accomplished this. If the jury needed the defendant’s testimony to determine whether the defendant’s testimony was internally inconsistent, the transcript actually established that it was not. It was beneficial to the defendant.

Concurring (Yeary, J.). The history of the statute suggests that providing the jury with a transcript is fine. Either way, it’s harmless. 

Dissenting (Walker, J.). Providing a jury with a transcript is structural error. “There is no way to evaluate the harm resulting from the violation.” Rule 606(b) prohibits juror testimony about deliberations.

Comment. This is a complicated issue. It gets even trickier when the jury is vague about what they want to hear. For instance, if the jury requests a witness’s testimony regarding XYZ, should they be provided only the direct examination testimony on XYZ? What if the cross-examination only covered X and Y but not Z? 

Martell v. State, No. PD-1234-20 (Tex. Crim. App. 2022)

Issue & Answer. Code of Criminal Procedure Article 42A.109 provides an affirmative defense to a failure-to-report probation violation when the defendant can show that the State failed to attempt in-person contact with the probationer. When the State permits a person to reside in Mexico during their probation, is that probationer estopped from arguing the State failed to attempt in-person contact? Not resolved, remanded for the court of appeals to answer.

Facts. A trial court placed the defendant on deferred adjudication probation and he “absconded” by failing to report while residing in Mexico. 20 years later the State found him and arrested him. The trial court revoked his probation and sentenced him to 10 years of incarceration. The court of appeals reversed, finding that the State violated its statutory duty of due diligence under Code of Criminal Procedure Article 42A.109, an argument raised by the defendant in the trial court. Article 42A.109 creates an affirmative defense to revocation based on failure to report if the State fails to attempt in-person contact with the probationer before seeking revocation. The State claims the court of appeals erred by failing to consider its estoppel argument–that the defendant cannot raise the statutory requirement of due diligence in this case because the State permitted him to move to Mexico and report in-person in El Paso. The State contends on appeal that it was impossible for the State to make in-person contact with him. 

Analysis. The State did not clearly raise the issue of estoppel in the court of appeals. Nonetheless, they raised it by implication by arguing that the rule of in-person contact should not apply in cases where they permit a defendant to live outside of the country. Because a trial court’s ruling should be upheld when it is the right ruling for the wrong reason, the State’s argument should be considered on appeal. The case is remanded to the court of appeals to consider the State’s estoppel argument. 

Comment. His probation was running the entire time, meaning he could not receive an extension of probation (statutorily there is no additional time left to add). Upon a filing of a speedy trial motion, the case should have been dismissed. See Carney v. State, 573 S.W.2d 24 (Tex. Crim. app. 1978). 

Ex parte Rivers, No. WR-44,786-06 (Tex. Crim. App. 2022)

Issue & Answer. Before 1996 the Parole Board was required to release all eligible inmates on mandatory supervision after good time and actual time equaled their total sentence. After 1996 the Legislature added some discretion to deny mandatory supervision. In a case where an inmate is serving both a pre-1996 mandatory supervision sentence and a post-1996 discretionary mandatory supervision sentence, can TDCJ deny release on the mandatory supervision case because the inmate has not become eligible on the discretionary mandatory supervision case? No. 

Facts. The defendant is serving two sentences. One involves automatic mandatory supervision (based on pre-1996 offense date). The other involves discretionary mandatory supervision (based on post-1996 offense date). Prior to 1996, the Parole Board was required to release all eligible inmates whose good time plus actual time in prison equaled their total sentence. This requirement was nondiscretionary and applied even when the Parole Board thought an inmate was a danger to society. In 1996 the Legislature repealed the mandatory supervision statute and replaced it with discretionary mandatory supervision whereby the Parole Board could reject mandatory supervision upon two findings: (1) the inmate’s good conduct time is not an accurate reflection of the inmate’s potential for rehabilitation, and (2) release would endanger the public. Pursuant to mandatory supervision, the Parole Board released the defendant on his pre-1996 sentence. While on supervised release, the defendant committed a new offense in 2013. A trial court sentenced the defendant on his new offense to 10 years confinement to run concurrent with his pre-1996 offense. When an inmate is serving concurrent sentences, TDCJ must identify a “holding offense” for purposes of determining eligibility for parole–the holding offense affects the outcome of parole eligibility. In 2020 the Parole Board reviewed the post-1996 offense for discretionary mandatory supervision and denied defendant’s release. Later that year the defendant’s pre-1996 offense became eligible for mandatory supervision. TDCJ notified the defendant that he would not be released until he became eligible on all sentences running concurrently. TDCJ had originally identified the defendant’s holding offense as the pre-1996 mandatory supervision offense. However, when evaluating his pre-1996 mandatory supervision offense, TDCJ switched the holding offense to the post-1996 discretionary mandatory supervision offense. 

Analysis. TDCJ has no discretion to deny release on the pre-1996 mandatory supervision offense. The statute is unequivocal—“an eligible inmate whose actual calendar time plus accrued good conduct time equaled the term of his sentence is automatically released on mandatory supervision.” By switching the defendant’s holding offense from the pre-1996 mandatory supervision offense to the post-1996 discretionary mandatory supervision offense, “TDCJ is delaying [mandatory supervision] release on the first sentence until the entire period of the second sentence has passed.” The holding offense should be defendant’s pre-1996 mandatory supervision offense. TDCJ’s refusal to release the defendant on that charge has resulted in a punishment longer than the law at the time permitted. “This will be a ‘paper parole’–a designation by TDCJ that Applicant is on mandatory supervision release on one of his convictions–but is not an actual, physical release of Applicant from TDCJ custody.” 

Concurring & Dissenting (Yeary, J.). “Paper parole” is not relief. Habeas corpus is the “great writ” for freeing individuals restrained of their liberty. 

Comment. I get such a tired head when I think of concepts defined by internally inconsistent phrases . . . “discretionary mandatory.” I fully and incompletely understand this case. 

Romo v. State, No. PD-0456-21 (Tex. Crim. App. 2022)

Issue & Answer. Defendant possessed a video labeled as documentary in nature and “fully legal.” It depicted underaged girls in some sort of nudist community partaking in a beauty pageant. Did the portrayals of genitals in this video constitute a lewd exhibition? Yes. 

Facts. Defendant was under investigation for sexually abusing his daughter. Law enforcement discovered a DVD in his office title “Nudist HDV.” It was entirely in French and labeled “100 percent genuine, fully-legal nudist documentary, Miss Jr. Teen Beauty Competition.” Prior to the opening scene a caption appears stating “Portrays Nudist Life in Simplicity; Violates No Federal Laws!!; From European Camps, Clubs and Areas; Depicts Entire Families; Is Not Sexually Oriented or Adult in Nature; Documentary and Educational Material.” The scenes portray naked children participating in a nudist beauty pageant. Several shots capture the genitals of young girls participating in the beauty pageant. Some of them have partially shaved pubic hair. At least once the cameraman panned his shot downward to show a child’s genitals. The youngest girl won the competition. She did not appear to have reached the age of puberty. Most of the girls looked nervous and uncomfortable. The court of appeals found the video sufficiently documentary in nature to not constitute a “lewd exhibition of genitals.” 

Analysis. To determine whether depictions of naked children are “lewd” for the purposes of child pornography, the court relies on six factors articulated in United States v. Dost, 636 F.Supp. 828 (S.D.Cal. 1986):

    1. whether the focal point of the visual depiction is on the child’s genitilia or pubic area;
    2. whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
    3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
    4. whether the child is fully or partially clothed, or nude;
    5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
    6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

A child does not have to be engaging in sexual activity for the depiction to constitute a lewd exhibition. This Court has found that when a defendant took a picture of a famous painting of a nude girl and cropped his copy to focus on the child’s genitals, he converted a piece of art into child pornography. Here there were several attempts to focus on the genitals of children but not enough to state the video’s focus is specifically on the genitals. The girls’ poses do not suggest sexual activity. The setting–an outdoor picnic area–is not sexually suggestive. All of the girls in the competition were naked and thus their attire was inappropriate. Nothing about their depictions suggested sexual coyness. Notwithstanding this analysis, the court of appeals failed to analyze whether sufficient evidence suggested that the video was designed to elicit a sexual response from a pedophile viewer. “The video is not what one would normally think of as child pornography. . . . It is not overtly ‘nasty.’ But the video’s exhibition of naked girls does appear to be designed to elicit a sexual response in a viewer who is specifically looking for videos featuring young, naked girls.” The fact that the video portrays a beauty pageant designed for the sole purpose of judging the naked bodies of underaged girls is significant, as well. The evidence sufficiently supported a finding of lewd exhibition. 

Comment. Well now I have to call all the clients I told to label their drugs “100% Not Drugs.”

 Joe v. State, No. PD-0268-21 (Tex. Crim. App. 2022)

First Issue & Answer. Cargo is defined as goods moving in commerce anywhere between the point of origin and final destination. If goods are in the originating shipping yard, have they become cargo? Yes. 

Second Issue & Answer When a person completes some but not all the steps of hooking a truck to a trailer to steal cargo, but has not completed sufficient steps to carry that cargo away, has that person taken sufficient possession to constitute theft of cargo? Yes. 

Facts. The defendant drove his semi-truck to a loading dock and began the process of connecting it to a shipment of mattresses. The mattress company uses JB Hunt to ship their mattresses to retailers. Sometimes the mattress company uses independent contractors, but those contractors still use JB Hunt trucks. Defendant does not work for JB Hunt and was not in a JB Hunt truck. He entered the loading dock area by tailgating another truck through a gate which required a code to gain entry. When the loading dock security guards became suspicious, they confronted the defendant. The noted he did not have a license plate on his truck and the information identify the truck had been concealed. Defendant claimed he was a contractor handling a shipment, but he could not produce any paperwork for his purported shipment. Prior to this confrontation with the security guard, the defendant had not completed the process of hooking his truck to the trailer. Defendant argued that the goods did not constitute cargo and that he did not exercise control or appropriate the goods because he never completed hooking his truck to the trailer. The court of appeals affirmed his conviction finding that the goods were “moving in commerce” and that it was irrelevant whether defendant had completed all the necessary steps to drive away with the cargo because “asportation” is not an element of theft in Texas. 

First Analysis. Were the mattresses “cargo?” Cargo is defined as “a commercial shipment of freight moving in commerce.” A shipment is “moving in commerce if it is located at any point between the point of origin and the final point of destination regardless of any temporary stop that is made for the purpose of transshipment or otherwise.” Defendant contends the mattresses never left their point of origin and therefore never became cargo. This argument assumes that the shipping yard is necessarily part of the “point of origin.” A rational jury could have found the point of origin to be the factory in which the mattresses were manufactured and the shipping yard a temporary stop. 

Second Analysis. A rational jury could conclude that possession occurred when the defendant backed his truck under the trailer. Possession does not require exclusive control or removal. 

Nawaz v. State, No. PD-0408-21 (Tex. Crim. App. 2022)

Issue & Answer. A defendant inflicted a single blow or assault upon a child, and it caused brain damage, retinal damage, and developmental delays. The injury to a child statute defines the offense in three different ways. One way is by the infliction of serious bodily injury. Another way is by the infliction of serious mental injury. If the defendant’s single blow or assault causes both serious mental injury and serious bodily injury, may the State obtain a conviction on both results? Yes. 

Facts. A jury convicted the defendant of two counts of injury to a child. One count alleged an injury of serious bodily injury, the other count alleged an injury of serious mental deficiency, impairment, or injury. Evidence at trial showed the child suffered abusive head trauma from a whiplash type of mechanism, potentially involving violent shaking or slamming her into a soft surface. The child suffered brain bleeding which caused developmental delays. She also suffered retinal bleeding in both eyes causing near blindness. The State could not establish the specific act(s) causing the child’s injuries. Defendant argued his two convictions were barred by double jeopardy because the jury found he caused one head injury which resulted in both physical and mental damage. The Court of appeals agreed and reversed the defendant’s conviction. 

Analysis. When a defendant is convicted under different subsections of the same statute, the Court does not employ the Blockburger one-different-element test. “Instead, the Court simply conducts an allowable units of prosecution analysis.” The gravamen or focus of the offense is what controls and defines whether individual subsections constitute distinct allowable units of prosecution. Injury to a child (disabled or elderly) is a result-of-conduct offense. The Legislature was unconcerned with how the offense is committed; its focus was on the types of harm it sought to avert. Thus, each subsection of the injury to the child statute (serious bodily injury, serious mental injury, bodily injury) are different theories of criminal liability constituting distinct units of prosecution. In Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999), the court set out a factor test for determining whether an offense should be regarded as the same or different for multiple punishments double-jeopardy purposes. But this factor test accounts for a gravamen analysis of distinct offenses appearing in different subsections of the same statute. Despite the existence of eight factors, the gravamen of the offense has always controlled when analyzing same-statute/different-subsection cases. 

Comment. If you see the word “gravamen” in a case, the defendant loses. I think the word means, something like “this is about to get unnecessarily complicated.” Look it up, I’m not 100 percent sure that’s right. What ever happened to actus reus and mens rea? If you did one thing there should be one crime. If the one bad thing you did caused lots of bad results, there should be enhancements to the punishment.

1st District Houston

Ex parte Moon, No. 01-18-01014-CR (Tex. App.— Houston [1st Dist.], May 12, 2022)

Issue & Answer. A juvenile court cannot transfer an adult juvenile offender to district court if there has been an adjudication on the alleged offense. If a district court previously convicted a juvenile certified to stand trial as an adult and that certification (and transfer order) is later found insufficient, can the juvenile certify again on remand after the defendant’s 18th birthday? No.

Bullet-point Procedural history. [because it’s complicated]

    • Juvenile court waived jurisdiction over the defendant when he was 16. 
    • Juvenile court certified the defendant to stand trial as an adult
    • A jury convicted the defendant and the defendant appealed.
    • Court of appeals reversed on the basis of an invalid transfer order.
    • The Court of Criminal Appeals affirmed. 
    • Juvenile court certified again on remand after juvenile’s 18th birthday.
    • Defendant filed the instant writ of habeas corpus. Trial court denied.

Facts. The defendant was accused of a murder he committed when he was 16. When the juvenile court originally certified him to stand trial as an adult, it stated minimal facts in its transfer order. A jury convicted the defendant in district court and the defendant appealed. The First Court of Appeals found transfer order was not supported by sufficient evidence. The Court of Criminal Appeals affirmed finding the error to be one in the order itself–it failed to sufficiently state the facts upon which it relied. Both courts found the juvenile case remained pending in the juvenile court upon entering their judgments. The Court of Criminal Appeals suggested the juvenile court might cure its defect, but only upon the outcome of the direct appeal declaring the juvenile court never lost jurisdiction. On remand, the State filed a second motion to waive jurisdiction under a different provision applicable to those who are 18 or older at the time of the certification hearing. The defendant contested the new certification and transfer on various grounds. Ultimately the juvenile court certified and issued a transfer order with several findings, including: no adjudication concerning the offense has been made, the state exercised due diligence to certify the defendant before the age of 18, certification before the age of 18 was impracticable because of the appellate reversal. As it pertained to the finding of “no adjudication” the juvenile court reasoned that its original defective transfer order meant that it never effectively transferred jurisdiction to the district court and the district court’s adjudication was a nullity. 

Analysis. As applicable to this case, to obtain a transfer to district court, the Family Code required the State to prove, among other things, that there has been no adjudication or hearing of the alleged offense. While the instant appeal was pending the Court of Criminal Appeals reversed its holding in Moon I and issued several pieces of rationale which impact the instant proceeding: (1) review of jurisdictional claims are cognizable on habeas corpus, (2) a juvenile transfer order without factual findings does not render the order void or deprive the district court of jurisdiction, and (3) a transfer order entered after a transfer hearing that comports with the Family Code constitutes a valid waiver of jurisdiction by the juvenile court. When the State fails to establish the appropriate criteria for transferring a now-adult juvenile offender to district court the juvenile court lacks jurisdiction to transfer a case to district court. Here the issue is whether the district court’s adjudication (conviction and sentence) was a nullity because it never acquired jurisdiction. The State contends that Moon I stands for the proposition that it did not ever acquire jurisdiction and that this was part of the rationale for the reversal. But now that Moon I is overruled by Thomas, Thomas controls. And, according to Thomas, the district court did acquire jurisdiction and its adjudication (conviction and sentence) was not a nullity, but rather a reversible conviction. 

Comment. Where am I? I think I blacked out. This summary may be wrong, but you’ll never be able to explain to me how. I re-read this summary many days after writing it, and I have to admit, I feel sorry for anyone who got as far as this comment.

McField v. State, No. 01-20-00739-CR, (Tex. App.— Houston [1st Dist.], May 24, 2022)

Issue & Answer. Must the individual who swears to a misdemeanor complaint and information be the person who made the complaint to the district attorney and have personal knowledge of the facts underlying the accusation? No. 

Facts. The complaint attached to the defendant’s information charging him with a misdemeanor offense was sworn to by the district attorney’s administrative assistant. The administrative assistant did not have firsthand knowledge of the facts underlying the accusation. The trial court granted the defendant’s motion to quash and set aside the information after a hearing at which the administrative assistant testified. The administrative assistant explained that she swears to each and every complaint individually and swears that everything is correct. However, the administrative assistant had no personal knowledge of the facts underlying the accusation or which appeared in the district attorney’s case management software. 

Analysis. A complaint’s affiant does not have to be the person who originally complained about the alleged offense to the district attorney. Nor does the affiant need first-hand knowledge of the underlying facts. Texas Code of Criminal Procedure Article 15.05 provides that a complaint is sufficient if it states the name of the defendant, shows that the defendant has committed some offense, states the time and place of commission of the offense, and is signed by the affiant by writing their name or affixing their mark. As such, the court of appeals reversed the trial court’s decision and remanded it for further proceedings. The complaint must be sworn by a credible person and may be done before an assistant district attorney. 

Ledford v. State, No. 01-19-00967-CR, (Tex. App.— Houston [1st Dist.], May 26, 2022)

Issue & Answer. Does a defendant’s Batson challenge fail if the defendant offers no rebuttal to a prosecutor’s race-neutral reasons for excluding a juror? Yes.

Facts. The State exercised its peremptory challenges to remove what appears to be the only African Americans on the jury panel with a potential to sit as jurors. Defendant raised a Batson challenge under the Equal Protection Clause. The State offered an explanation as to each of their strikes. As to the first juror, the State articulated concern with her perspective on the law of parties. As to the second juror, the State cited the juror’s responses to several ranked agree-disagree type responses asked by defense counsel. The second juror’s ranked agree-disagree responses indicated that he would be a neutral juror and the State articulated a concern about neutrality resulting in a non-unanimous jury. Some non-minority jurors had the same ranked responses or ones less favorable to the State who were not struck.

Analysis.  A Batson challenge is valid if the defendant can prove that the state improperly used peremptory strikes against members of the jury pool based on their race. The defendant has an initial burden to make a prima-facie showing of racial discrimination. Then the State must articulate a race-neutral explanation for its peremptory strike. The trial court then must consider several factors in evaluating whether the strike was based on purposeful discrimination: (1) statistical disparity in jurors race, (2) whether the record supports the purported race-neutral reason, (3) whether the race-neutral reason relates to the facts of the case, (4) whether the attorney questioned the struck minority panelists, (5) whether there was disparate questioning of the minority panelists (whether they were targeted with questions other jurors were not), and (6) whether there was disparate treatment for minority panelists (whether the attorney’s purported race-neutral reason equally applied to non-minority jurors). Here the defendant made a prima facie case. The State’s concern for the neutrality of the African American juror is legitimate and the defendant did not offer any rebuttal to the State’s concern for this juror’s neutrality. The defendant cannot argue for the first time on appeal that the State’s articulated reason is bogus. 

Comment. I don’t buy it. “We struck this juror because we were concerned he was too neutral.” I guess, according to this prosecutor, nothing is more pernicious in judging evidence than neutrality. Come on.

Munoz v. State, No. 01-20-00469-CR (Tex. App.–Houston [1st Dist.] Jun. 28, 2022)

Issue & Answer. In the First Court of Appeals, does failing to maintain a single lane require the State to prove both that the defendant (1) did not drive as nearly as practical within a single lane, and (2) that the movement was unsafe? Yes. But they did here.

Facts. Law enforcement stopped the defendant for failing to maintain a single lane. He left his lane of travel and straddled two lanes for several seconds. He returned to his lane of travel and drove on the fog line for several seconds. He drove through an intersection with his turn signal activated. He veered and crossed the lane divider again and straddled the two lanes briefly. The defendant signaled all of his maneuvers even though he failed to ever constitute a complete lane change. 

Analysis. Texas Transportation Code 545.060 provides that “[a]n operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.” In a plurality opinion, four judges on the Court of Criminal Appeals held that each clause—the maintain lane clause and the safe movement clause—constitute independent bases for a traffic violation. Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016). This Court disagrees. “The two clauses are joined by the conjunctive ‘and,’ which means that to violate the section, a motorist must both fail to drive as nearly as practical within a single lane and fail to make that movement safely.” Here, the State satisfied that burden. The record established that there was traffic on the road on which the defendant was traveling. The defendant’s erratic driving prevented the arresting officer from passing him. The arresting officer also had concern that the defendant would veer off the road. 

Dissent (Landau, J.). Section 545.060 does require proof of both of its elemental clauses. However, the arresting officer did not articulate anything unsafe about the defendant’s driving – just a hunch that something bad might happen in the future. 

Comment. This may not constitute a comprehensive list, but it appears the courts following the Leming plurality (maintain lane and safe movement are independent infractions) are: El Paso, Waco, Tyler, Fort Worth, Eastland, Amarillo. Those declining to follow the Leming plurality (State required to show both failure to maintain lane and unsafe movement) are:  Corpus Christi, Houston [1st Dist.], Houston [14th Dist.].

2nd District Fort Worth

Hallman v. State, No. 02-18-00434-CR (Tex. App.–Fort Worth, Jun. 16, 2022)

Issue & Answer. In a classic he-said she-said prosecution, is the State’s failure to disclose prior inconsistent statements of a key witness that directly refute that witness’s trial testimony sufficiently harmful to warrant a mistrial? Yes. 

Facts. The defendant and his ex-wife (“Ex-Wife”) were married for 20 years. During this period, they had several children together. They also took turns calling the police on one another. Their tumultuous relationship involved restraining orders and CPS intervention.  Two years before their daughter (“Original Victim”) made a delayed sexual assault outcry, the defendant and Ex-Wife were involved in an altercation which resulted in domestic violence charges against the defendant. At that time, several witnesses gave statements, and none of them expressed concern for sexual abuse. Two years later a different child got upset with Ex-Wife and decided to live with her dad, the defendant. Three days later Original Victim purportedly made her outcry of sexual assault. Several months later Ex-Wife filed for divorce but did not mention the purported outcry of sexual assault. After Original Victim became reluctant to testify, a different daughter (“New Victim”) made an outcry of sexual assault. This occurred three days before the defendant’s trial. The defendant’s trial was delayed to accommodate for the new accusation. The jury acquitted the defendant of continuous sexual abuse of Original Victim and New Victim but convicted the defendant of numerous sexual offenses involving New Victim. At the trial on punishment, the State disclosed for the first time a family-violence packet completed by Ex-Wife in the domestic violence arrest. Ex-Wife was a key witness for the State at trial. Ex-Wife’s statements in the family-violence packet contradicted her trial testimony in which she indicated that she told the police on the night of the defendant’s domestic violence arrest that she had concerns the defendant had been sexually abusing New Victim. The defendant asked the elected judge presiding over punishment to declare a mistrial. Upon the State’s late disclosure, the defendant made an oral motion for mistrial and specifically asked that the elected judge either review the record or assign the motion for mistrial to the visiting judge. The elected judge would only permit the defendant recall the Ex-Wife in punishment trial and ruled that that nothing could be done about the jury’s guilty verdict. Defendant filed a post-trial motion for mistrial. 

This court previously reversed the defendant’s conviction and held that a mistrial should have been granted because of the State’s discovery violation under Texas Code of Criminal Procedure Article 39.14. The Court of Criminal Appeals remanded the case to the court of appeals for reconsideration of the materiality of the State’s failure to disclose in light of Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021)(setting an even more defendant friendly standard for materiality). This court requested supplemental briefing on “the proper harm analysis.” 

Analysis. At the outset the court notes that it cannot conduct a de novo review of the facts simply because the judge making the call on the mistrial was a different judge than the one who presided over the trial. The absentee judge is still entitled deference despite not viewing facts from the vantage point of a judge who actually observed the witnesses and their demeanor. 

To show an abuse of discretion in denying a mistrial premised on the prosecutor’s failure to disclose evidence, the defendant must show: (1) pretrial prejudice, (2) substantial impairment to his defensive posture at trial, (3) an explanation of how his defensive posture would have been materially improved with the undisclosed evidence. An Article 39.14 violation is evaluated as statutory error and subject to Texas Rule of Appellate Procedure 44.2(b)—it is disregarded unless it affected the defendant’s substantial rights (causing a substantial and injurious effect on the verdict). The trial court should grant a mistrial in rare cases after considering: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. 

This case is a classic he-said, she-said sexual abuse allegation which turned entirely on witness credibility. There is no indication in the record that the judges took any steps to mitigate the harm associated with the State’s failure to disclose evidence. Nor is there any suggestion in the record that the elected judge took any steps to familiarize herself with the guilt-innocence proceedings before denying the defendant’s mistrial. “The objective facts, viewed in the light most favorable to the trial judge’s ruling, show that the elected judge did not appreciate the size of the shadow cast by the [allegations reported to police during the earlier domestic violence arrest].” The State interwove the importance of credibility from voir dire to closing arguments. Credibility ultimately controlled the outcome. There was no better evidence to impeach Ex-Wife’s testimony than her own written words which the State failed to disclose. 

Concurring (Walker, J.). The majority opinion seems to suggest that 39.14(a) is not at issue (involving statements of witnesses). This is not correct. The majority uses this distinction to navigate around the Watkins materiality requirement but then declare the evidence material anyway. The error is on the State and is statutory error analyzed under Texas Rule of Appellate Procedure 44.2(b) and not the standards for denying mistrial. 

Dissenting (Womack, J.). Rule 44.2(b) applies to the State’s discovery error, not the standards for mistrial. The defendant already impeached the credibility of Ex-Wife through the testimony of the investigating detective who explained that he did not recall her saying anything about sexual abuse. The value of her own written statements is minimal. 

Comment. There should be zero tolerance when it comes to material discovery violations. Where enhanced scrutiny should apply is to the question of whether subsequent prosecution should be barred under double jeopardy. The rules of harm analysis are judge-made rules, and they can be judge-unmade just as easily. The interests in finality of judgments and burdens of retrial should not be foisted above that of the implementation of rules to ensure the fairness of the proceedings and the ability to defend oneself against an opponent with near limitless resources.

3rd District Austin

Clifford v. State, No. 03-21-00040-CR, (Tex. App.— Austin, May 12, 2022)

Issue & Answer. None of the witnesses to the instant robbery case could identify the defendant, yet the defendant never raised the issue of identity before the jury. The State offered an extraneous offense occurring one hour prior where a witness could identify the defendant’s unique tattoo. (1) Was the admission of this extraneous offense erroneously admitted to rebut the defense of mistaken identity? No. (2) Was the probative value of this extraneous offense evidence substantially outweighed by its prejudicial effect? No. 

Facts. A jury convicted the defendant of robbing a convenience store. He entered wearing a green hoodie with a skull facemask and wielding a handgun. Witnesses were not able to identify the defendant. The State presented evidence of another robbery committed 65 miles away in Midland an hour prior. The suspect in that case was wearing a green hoodie with a skull face mask and was accompanied by a man wielding a handgun. A witness to the Midland robbery described the man wearing the green hoodie as a white guy with tattoos resembling spikes around his eyes. The State called a co-defendant who testified that he committed both the instant robbery and the Midland robbery with the defendant. The State also offered a photo of the robbers taken by the co-defendant before the robberies. The defendant was wearing clothes matching those of the robbery suspect in both cases. However, a different co-defendant testified that he drove the suspect vehicle to the locations of the robberies but that he was alone when he did so. Before the State offered the extraneous Midland robbery, the Defendant had not argued misidentification. He made no opening statement and had not cross-examined the State’s witnesses on the issue of identity. 

Analysis 1. Texas Rule of Evidence 404(b) prohibits the use of prior bad acts to show that a defendant acted in conformity in the instant prosecution. The exceptions almost swallow the rule, and they include permissible use to establish the identity of the defendant as the person who committed the offense in question. The exceptions are all triggered by the advancement of a defensive issue which necessitates the use of such evidence (they are triggered by the defendant opening the door). Despite the defendant having not raised the issue of identity before the jury (either in opening or cross-examination of the State’s witnesses), the Defendant did raise the issue in a hearing outside of the presence of the jury. He explained to the trial court that the main defense was “going to be a simple question of identity.” Moreover, the State’s witnesses were really struggling to identify the defendant as the robber. Thus, the defendant sufficiently raised the issue of identity to justify the State’s use of extraneous offense evidence. But this is only half of the equation. “When the extraneous offense is introduced to prove the identity by comparing common characteristics, it must be so similar to the charged offense that the offenses illustrate the defendant’s distinctive and idiosyncratic manner of committing criminal acts.” Here the instant offense and the Midland offense shared significant similarities: green hoodie, skull mask, black gloves, light colored jeans, black shoes, pointing pistols at victims, threatening to shoot, multiple perpetrators, and proximity. 

Analysis 2. There were significant similarities between the instant offense and the Midland offense. They happened in close proximity. The suspect in the instant case wore the same clothes as the suspect from the Midland offense and a witness of the Midland offense was able to describe the Midland suspect as a white man with spike-looking tattoos around his eye. The defendant was white and had spike-looking tattoos around his eye. The State needed this evidence because none of the instant offense witnesses could identify the defendant. Nothing made the evidence unfairly prejudicial. 

Comment. One step closer to “the look on counsel’s face opened the door.” 

Sample v. State, No. 03-19-00817-CR, (Tex. App.— Austin, May 25, 2022)

Issue & Answer: Defendant had two cases pending simultaneously for arrests which occurred within a month of one another. After more than 40 months of delay the trial court granted a speedy trial dismissal in one of the cases but denied the same relief in the other. With this near-identical delay, was the trial court’s denial of speedy trial relief in error? No. 

Facts. The timeline of prosecution is as follows:

    • July 2015: arrested for digital penetration of 15 year old (“First Arrest”)
    • August 2015: released from jail
    • September 2015: Indicted on First Arrest
    • August 2015: arrested for a June 2015 sexual assault of an adult (“Second Arrest”)
    • August 2015: released from custody
    • November 2016: DNA negative result
    • February 2017: further DNA discovery produced
    • June 2017: indicted on Second Arrest
    • August 2017: Defense expert report produced
    • October 2018: arraigned on both arrests. 
    • October 2018: New counsel substituted. 
    • November 2018: New counsel moved to dismiss both cases on speedy trial grounds. 
    • February 2019: Trial court dismisses the Second Arrest (sexual assault of an adult) but denies motion to dismiss the First Arrest because the defendant did not request a trial, used delay strategically, and engaged in plea bargaining.
    • September 2019 Trial on the instant case (First Arrest) began.

Analysis. The Barker v. Wingo factors for analyzing speedy trial claims are: (1) length of delay, (2) reason for the delay, (3) assertion of the right, and (4) prejudice to the accused. No single factor is necessary or sufficient to establish a violation–it is a balancing test combined with common sense. The length of delay acts both as a triggering mechanism for considering the remaining factors, and as a factor in its own right. “A lengthy delay reduces defendants’ burden to show prejudice but increases their burden to show that they timely asserted the right.” Courts can weigh differently a defendant’s knowing choice not to object to delay and an attorney’s acquiescence to delay without adequately informing the defendant. The prejudice the right is designed to prevent is (1) oppressive pretrial incarceration, (2) minimization of anxiety and concern, (3) impairment of defense. 

Defendant’s main contention with the trial court ruling is that trial counsel did not inform him of his speedy trial right, and thus the failure to assert it should not be weighed heavily against him. 40 months of delay was the product of DNA testing challenges, original trial counsel’s unease with setting the case for any disposition without full discovery, and prosecutors’ unwillingness to set the case for arraignment without the defendant’s agreement. Original counsel sought more details on the exculpatory DNA test as a plea bargain strategy. Defendant sought a plea deal that would not require him to register as a sex offender. New counsel did not demand a trial, but instead moved to dismiss. Because it is unclear whether defendant was an active participant in this strategy, the “assertion of the right” factor weighs only somewhat against the defendant. The defendant ultimately did not show significant prejudice, however. He cited several ways the case has impacted him but failed to show how a speedier process would have mitigated his articulated prejudice. 

Comment. This is a good all-around blueprint demonstrating all the moving parts of a speedy trial issue.

Ex parte Ramirez, No. 03-21-00409-CR (Tex. App.–Austin, Jun. 30, 2022)

Issue & Answer. Was counsel ineffective in his representation of a defendant who insisted on entering a guilty plea after three weeks of representation and in the face of counsel’s insistence that the defendant not enter a guilty plea? No. 

Facts. Defendant pled guilty to a felony DWI. Three weeks before his guilty plea the court granted a substitution of attorney. Defendant’s new attorney made a record at the guilty plea hearing consisting of his informing the trial court that he had yet to review discovery, that was not aware of what the previous attorney had done in the case, that he recommended not pleading guilty until after he had an opportunity to review discovery, and that entering a plea of guilty could result in his revocation of parole in a separate case. The defendant insisted on proceeding and entering his guilty plea. Several months later the defendant filed the instant writ of habeas corpus claiming involuntary plea and ineffective assistance of counsel. The defendant claimed that his counsel should have sought a continuance and should have filed a motion to suppress. 

Analysis. “As an initial matter, we note that Ramirez’s claims regarding certain acts that his trial attorney allegedly failed to perform do not address how his decision to plead guilty affected the ability of his trial attorney to perform those acts.” The record establishes that the defendant entered a guilty plea against the advice of counsel. Whether to plead guilty is a client decision. The court cannot conclude that when a defendant enters a plea against the advice of counsel, that counsel’s performance is deficient under the Strickland standard. 

Ex parte Highsmith, No. 03-22-00074-CR (Tex. App.–Austin, Jun. 30, 2022)

Issue & Answer. If the State has yet to fully comply with its discovery obligations, can the State casually announce “ready” for trial to defeat a defendant’s request for release under Texas Code of Criminal Procedure Article 17.151 (mandatory release for delay in prosecution)? Yes. 

Facts. The State indicted the defendant for murder in January 2021. In May 2021 Defendant filed a writ of habeas corpus seeking release for delay in prosecution under Texas Code of Criminal Procedure Article 17.151 (mandating release when the State is not ready for trial within statutorily prescribed 90 days). The defendant’s contention was that the State could not announce ready for trial because the State had not fully complied with its discovery obligations under the Michael Morton Act, Texas Code of Criminal Procedure Article 39.14. Specifically, the State had not yet produced the medical examiner report. 

Highsmith argues that the Act’s purpose of preventing wrongful convictions would be undermined by a system that allows the State to “casually announce ‘ready’ for trial” but withhold discovery because it would force defendants to choose between proceeding to trial without effective assistance of counsel or enduring additional confinement after requesting a continuance. Highsmith also asserts that if prosecutors can disregard timely disclosure requirements before the expiration of the 90-dayreadiness deadline, then the State will be “running a patchwork discovery system in which some defendants get more justice than others,” resulting potentially in wrongfully convicted individuals.

Analysis. The defendant contends that Article 17.151 readiness for trial is read in pari materia (as though of the same subject matter) with Article 39.14 discovery rules. But nothing in Article 39.14 indicates that discovery obligations are a component of the State’s readiness for trial. Moreover, the State cannot be faulted for not producing a medical examiner report that did not yet exist because the medical examiner (editorial comment: who is a state actor) had not yet prepared it. 

Comment. If the State does not produce discovery, it likely results in a mistrial. A mistrial is not a trial. If the State does not produce discovery but announces ready for trial, it has announced ready for a mistrial and therefore has not announced ready for trial. Man . . . I’d write some pretty simple one-pagers if I were on the court.

4th District San Antonio

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

5th District Dallas

State v. Conatser, No. 05-21-00061-CR (Tex. App.–Dallas, Jun. 6, 2022)

Issue & Answer. In a speedy trial analysis, can the trial court attribute pandemic-related delays to the State? No. 

Facts. This case is a run-of-the-mill Barker v. Wingo speedy trial case which incorporates the impact of the COVID-19 pandemic. The defendant claims that the blame for delay in proceeding to trial should be attributed to the State. The defendant identified some additional non-COVID-19 delays and provided some minimal testimony regarding the prejudice caused by delay. The trial court granted his motion to dismiss on speedy trial grounds. 

Analysis. The resolution of this case is not strictly dependent on whether blame for pandemic delay can be laid at the feet of the State. Defendant failed to identify sufficient prejudice. However, as it pertains to the pandemic delay: 

These months in 2020 were dominated by the unforeseeable initial impact of the Covid-19 pandemic. Conatser argues that “[t]he existence of a threat to public health does nothing to offset the interests of one accused of a crime” and contends that videoconferencing “became prevalent for the conduct of business well before September 2020.” Of course conducting “business” and conducting jury trials are very different undertakings. Indeed, Conatser himself acknowledges that “even if [he] wanted a contested trial, the Covid-19 pandemic effectively demanded that in order to get one he would have to waive his right to a jury trial, as no jury trials were occurring between April 8, 2020 and September 17, 2020.” Delay caused by the onset of a pandemic cannot be attributed as fault to the State.

Comment. I don’t think this is a black-and-white issue. First, I think there is a tendency to limit the guarantee of a speedy trial to a consideration of whether the prosecution did something to cause delay. Speedy trial is a right which must be guaranteed by the justice system, regardless of who is responsible for its denial. As early as three months into the pandemic the Office of Court Administration developed procedures for conducting safe jury trials. Many courts just decided it was easier to have none. It was either deemed too difficult/costly to implement or in some cases involved the implementation of procedures that judges and politicians were politically unwilling to implement. This included, in some jurisdictions, complications with adopting procedures that mandated the wearing of facemasks. In these cases, if a defendant was sufficiently insistent and the courts did not make an attempt to accommodate, I think the State failed to afford a citizen a guaranteed right.

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

Cummins v. State, No. 10-21-00303-CR (Tex. App.–Waco, May 11, 2022). 

Issue & Answer. What’s the deal with Anders briefs in the Tenth Court of Appeals? 

Analysis. In Anders v. California, 386 U.S. 738 (1967) The U.S. Supreme Court explained the duties of appointed appellate counsel: “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Counsel’s brief must cite to the portions of the record that might arguably support the appeal. The brief must be accompanied by a motion to withdraw. With this in mind, the court outlines the history of its holdings implementing the Anders requirements: 

    • One brief per judgment is required
    • Historically, counsel could request a nonreversible modification of judgment while still filing an Anders But this procedure denies the State an opportunity to reply.
    • To address the preceding problem the court began reviewing these hybrid Anders briefs in hybrid fashion: “this Court will conduct an independent review of the record for reversible error involving the defendant’s conviction and sentence and treat the briefed nonreversible error as a merits issue.” This hybrid Anders brief is referred to as an Allison Allison v. State 609 S.W.3d 624 (Tex. App.–Waco 2020, order). 
    • Sometimes appointed appellate attorneys file briefs raising only nonreversible judgment-reform issues and fail to accompany the brief with an Anders brief and motion to withdraw. This prevents the appellate court from performing its Anders duty to conduct an independent review of the record for reversible error. This also prevents the appellant from raising a pro se brief raising issues rejected by counsel as frivolous. To resolve this dilemma, appellate counsel should file an Allison
    • In a hybrid/Allison brief (raising nonreversible judgment-reform accompanied by Anders briefing) the appellant cannot file a pro se brief regarding the nonreversible judgment-reform issues because hybrid representation is prohibited.  
    • The State can respond to the nonreversible judgment-reform issues raised in a hybrid/Allison brief
    • The court of appeals can review the record for nonreversible judgment-reform issues sua sponte when an Anders brief or Allison brief is filed–so long as it is the type of error which can be reviewed as unassigned error or reviewed without an objection. 
    • An Allison brief is still accompanied by a motion to withdraw and when appropriate, the court of appeals must grant the motion to withdraw, notwithstanding counsel having raised legitimate nonreversible judgment-reform issues. 

Comment. Someday I am going to open a legal-themed restaurant with references nobody gets. In fact, it will be so high-brow, people probably won’t even know it has a legal theme. The bathrooms won’t be “Men” and “Women” it will be “Anders” and “Allison.” I’ll be wetting my pants in laughter. Everyone else will be wetting them because they don’t know what bathroom to go into. 

Deggs v. State, No. 10-20-00068-CR (Tex. App.–Waco, May 18, 2022)

Issue & Answer. Do the illusory protections of Article 38.37 of the Code of Criminal Procedure render that statute unconstitutional as applied to a defendant who was convicted after the State relied on Article 38.37 to present evidence of a 22-year-old extraneous offense? No.

Facts. The defendant sexually assaulted two young girls over a six-month period. At trial the State offered evidence of a 22-year-old extraneous offense. The State relied on Article 38.37 of the Code of Criminal Procedure—a legislative override to the operation of Texas Rule of Evidence 404(b)(excluding extraneous offense evidence to prove character conformity). Article 38.37 permits the admission of extraneous offenses upon a showing of relevance. 

Analysis. “This Court has held that Article 38.37, Section 2(b) is facially constitutional because of the protects set forth both in Article 38.37, Sections 2-a and 3 requiring timely notice prior to trial and a hearing conducted outside the presence of the jury for the trial court to determine that the evidence would be sufficient for a reasonable juror to find that the extraneous offense was committed beyond a reasonable doubt, with the requirement to conduct a Rule 403 balancing test upon request by the defendant.” The defendant claims that Article 38.37 is unconstitutional as applied to him in this case because the Rule 403 protection is illusory and that only one court of appeal has ever found that evidence admissible under Article 38.37 should have been excluded under Rule 403. Defendant argues that his 22-year-old offense should have been excluded under Rule 403. However, evidence of separate sexual offenses is probative of the defendant’s intent and propensity to commit sexual assaults on children. “[I]f sufficient evidence is provided regarding the extraneous offense, the probative value of sexual offenses committed against other children is generally not substantially outweighed by the danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” That the allegation is 22 years old does not sufficiently diminish the probative value of the prior offense that it should not survive Rule 403 scrutiny.

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

Ex parte K.W., No 13-20-00291-CR (Tex. App.— Corpus Christi / Edinburg, May 12, 2022)

Issue & Answer 1. Do the COVID-19 emergency orders issued by the Texas Supreme Court authorize remote grand jury proceedings, and is this constitutional? Yes and yes.

Issue and Answer 2. Do the COVID-19 emergency orders issued by the Texas Supreme Court permitting trial courts to extend deadlines also permit the trial court to extend the deadline for the State to return an indictment and announce ready for trial (and thus prevent a defendant’s release on personal bond) under Article 17.151? Yes.

Facts. The State arrested the defendant for capital murder. Before the expiration of 90 days of pretrial incarceration the State returned an indictment using a grand jury partially empaneled via Zoom. Immediately after the expiration of 90 days of pretrial incarceration the defendant filed a writ of habeas corpus seeking release for pretrial delay pursuant to Article 17.151 (release on PR bond mandatory if State is not ready for trial within 90 days of defendant’s arrest). The State cited three bases for why the defendant’s writ should be denied: (1) the Supreme Court lawfully and constitutionally authorized remote grand jury proceedings, (2) the trial court, relying on the Supreme Court order permitting the extension of deadlines, extended the Article 17.151 period from 90 days to 120 days by standing order, and (3) Governor Abbott suspended Article 17.151 by executive order. The defendant argued that the Texas Supreme Court COVID-19 emergency orders authorizing virtual “court proceedings” did not authorize virtual grand juries. The defendant also argued that modification of Article 17.151, by executive or judicial decree, violated the separation of powers and the Texas Constitutional prohibition on non-legislative suspension of statutes under Article 1 Section 28.

Analysis. Before the State can announce ready for trial and defeat a defendant’s Article 17.151 writ, the State must return an indictment. The defendant’s argument that the indictment in his case is void stems from his contention that the grand jury met remotely. The Supreme Court’s COVID-19 emergency orders authorized remote court proceedings, but according to the defendant, a grand jury proceeding is not a court proceeding because a judge does not preside over the grand jury and the grand jury operates independently from the judiciary. Contrary to the defendant’s argument, a grand jury does constitute a court proceeding. “The grand jurors were summoned and organized by the McClennan County court system to continue the administration of justice during a deadly pandemic.” Moreover, the defendant’s constitutional arguments against remote grand jury proceedings are unsupported by the law. If a witness can testify remotely without offending the confrontation clause in necessary scenarios, a grand jury should be able to meet remotely during a pandemic.

Analysis 2. Article 1 Section 28 of the Texas Constitution prohibits non-legislative branches from suspending laws. When the judicial branch uses emergency powers to extend a legislatively created deadline, they do not suspend the operation of the statute, they just stop it from being implemented as written. In the place of the law that the legislature wrote, the judicial branch rewrites it in a way the judicial branch deems appropriate under the circumstances of the emergency. This does not violate the separation of powers, because it is just an extension of a deadline. As it pertains to the constitutionality of Governor Abbott’s prohibition of automatic release under Article 17.151, defendant did not raise this issue in the trial court and this court will not consider it.

Comment. The Thirteenth Court bit off more than they should have chewed in this case and in the process gets the Texas Constitutional issue wrong. After deciding that the grand jury can convene remotely, there was no reason to address the constitutional issue.

14th District Houston

State v. Espinosa, No. 14-20-00751-CR (Tex. App.–Houston [14th Dist.] May 10, 2022)

Issue & Answer. People discovered the defendant passed out and drunk in her vehicle parked in the school pick-up line, but nobody saw her drive and nobody knew how long she had been there. Without any additional clues or circumstances, did there exist a sufficient temporal link between the time of driving and time of intoxication to justify a probable cause arrest? No.

Facts. The defendant was passed out in her vehicle in the school pick-up line. When parents and teachers discovered her, she was intoxicated with keys in the ignition and engine running. The vehicle was in park. Nobody saw the defendant drive the vehicle. The trial court granted the defendant’s motion to suppress her arrest because the State could not prove that the defendant operated the vehicle and if she had, whether she was intoxicated when operation occurred.

Analysis. The State failed to prove that the defendant operated a motor vehicle and that any such operation coincided with a period of intoxication. The State failed to produce evidence of when the defendant arrived at the location she was discovered and how long she had been there. Cases cited by the State finding probable cause where no witness observed a defendant operating a motor vehicle all involved some context clues that the operation was recent or probably overlapped with the period of intoxication. Here there were no such clues. There was no temporal link.

Dissenting (Jewell, J.). The majority conflates the probable cause standard with legal sufficiency. A reasonable person could conclude that the defendant had only recently operated her vehicle.

The following District Courts of Appeals did not hand down any significant or published opinions since the last Significant Decisions Report.

  • 4th District San Antonio
  • 6th District Texarkana
  • 7th District Amarillo
  • 8th District El Paso
  • 9th District Beaumont
  • 11th District Eastland
  • 12th District Tyler

Fighting the TSA and Getting Off with a Warning

Background:

I was court‑appointed to represent a non‑citizen who will be referred to by the pseudonym Mr. Juan Pérez on the State criminal charge of Criminal Trespass upon the Austin Bergstrom International Airport (ABIA) grounds.

Mr. Pérez immigrated to the U.S. from El Salvador. He lived in Arizona with his mother, but had moved to Austin, Texas. Upon contact with his mother, Ms. Juana Pérez, I discovered that she had received a letter written in English with an emboldened title which read “SENSITIVE SECURITY INFORMATION” on U.S. Department of Homeland Security ABIA (AUS) letterhead. Neither Mr. Pérez nor his mother spoke or read in English. This document was a formal notice of a “Letter of Investigation” with an Enforcement Investigative Report (“EIR”) case number stating that the TSA was investigating alleged violations by Mr. Pérez of the Transportation Security Regulations (TSR), in Title 49 Code of Federal Regulations (CFR) §1540.105(a)(1) and §1540.105(a)(2). The letter further stated that said violations are subject to a Civil Penalty of up to $13,910.00 per each violation. There was no mention that a written “Warning” could be issued in place of a fine.

The Law – Alleged Violations of the TSR:

Transportation, 49 C.F.R. §1540.105: Security Responsibilities of Employees and Other Persons

  1. No person may:
    1. Tamper or interfere with, compromise, mod‑ ify, attempt to circumvent or cause a person to tam‑ per or interfere with, compromise, modify or at‑ tempt to circumvent any security system, measure or procedure implemented under this subchapter. Transportation, 49 C.F.R. §1540.105 (2008) https://ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑C/part‑1540#p‑1540.105(a)(1).
    2. Enter, or be present within, a secured area, AOA (Air Operations Area), SIDA (Security Identification Display Areas) or sterile area without complying with the systems or procedures being applied to control access to or presence or movement in, such areas. Transportation, 49 C.F.R. §1540.105 (2008) https://www.ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑C/part‑1540#p‑1540.105(a)(2).

Civil Penalties:

§ 1503.401 Maximum Penalty Amounts: Transportation, 49 CFR §1503.401 (2009) https://www.ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑A/part‑1503/subpart‑E/section‑1503.401#p‑1503.401(a).

The Civil Penalties are subject to the Enforcement Sanction Guidance Table https://www.tsa.gov/sites/default/files/enforcement_sanction_guidance_policy.pdf.

Warning Notices and Letters of Correction:

§ 1503.301 Warning Notices and Letter of Correction: Transportation, 49 CFR §1503.301 (2009) https://www.ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑A/part‑1503/subpart‑D/section‑1503.301.

Working The Case:

The client interview revealed that he had had some sort of psychotic break. He did not appear to be competent to stand trial. I sought an expert for the competency evaluation through our private Managed Assigned Counsel organization rather than the CCP Article 46B Court Appointed Expert route. Mr. Pérez was found incompetent to stand trial but likely to regain competency with treatment in a competency restoration program.

Discovery on the Criminal Trespass case revealed that Mr. Pérez had caused the ABIA Airport runway to be shut down for several hours. On consecutive days, Mr. Pérez is alleged to have attempted to circumvent a security system, measure, or procedure at the ABIA by gaining unauthorized access to the secured area of the airport. Then the following day, he is alleged to have gained unauthorized access to the Air Operations Area (AOA) of the ABIA.

The TSA “Letter of Investigation” was offering Mr. Pérez the opportunity to submit in writing his side of the story regarding the allegations within 20 days from the date of the letter. This writing was to be submitted to the Transportation Security Inspector for the ABIA. However, the letter was written in English and was sent to Mr. Pérez’ Mother in Arizona. TSA at the ABIA did not have the required documents or paperwork in Spanish. At this point, I realized that in addition to my usual duties and obligations as a criminal court‑appointed attorney, I was going to handle this TSA Civil Violation matter for my client on a pro bono basis. Fortunately, I’m fluent in Spanish and can interpret and translate for Mr. Pérez.

Ms. Pérez (mother) received the TSA letter around the 1st of the month. I became aware of said letter on the 16th of the month. The due date was four days away on the 20th of the month. I located contact information for the Transportation Security Inspector at the ABIA. After three detailed voicemails over two days, the Inspector returned my call late on a Friday night. I Introduced myself. I explained that Mr. Pérez had not received the TSA letter as it was sent to his mother in Arizona. I further in‑ formed the inspector of the language barrier and that I would be writing and presenting Mr. Pérez’ response. I further requested an extension of time. The Inspector responded that my request would be presented to the Assistant Federal Security Director.

The next day I was informed that the Director granted my request. I now had until the 30th of the month to submit the letter of response.

After completing discovery and investigation in the related criminal case, I did a quick review of the DSM‑5 (5th Edition of the Diagnostic and Statistical Manual of Mental Disorders). Mr. Pérez’ mental health status, the language barrier, including the fact that TSA had Mr. Pérez sign a Criminal Trespass Notice that he could not read or understand because it was written in English and no official interpreter was provided to properly trans‑ late was key to obtaining a “Warning” rather than a Civil Penalty from TSA. I sat down and began to write. The following is based upon the actual statement that I wrote to TSA on Mr. Pérez’ behalf:

The Statement to TSA: Statement on Behalf of Mr. Juan Pérez
Re: Letter of Investigation Case No.: EIR 2021 AUS0000

I was court‑appointed to represent Mr. Juan Pérez on the related State criminal charge of Criminal Trespass upon the Austin Bergstrom International Airport (ABIA) grounds. Said charge is alleged to have occurred on 00/00/21 .

I am writing this statement on Mr. Pérez’ behalf because he does not speak, read or write English. In addition, he is currently incarcerated in the Travis County Correctional Complex on the charge referenced‑above and on a Writ of Attachment for transportation to a State Hospital for competency restoration. Mr. Pérez was found Incompetent to Stand Trial on 00/00/21 per Competency Evaluation.

Mr. Pérez suffers from a delusional disorder that, to my knowledge, had not been formally diagnosed or treated until this incident. Delusional disorder is defined in the 5th Edition of the Diagnostic and Statistical Manual of Mental Disorders, DSM‑5, section 297.1 (F22). It is a psychotic disorder in which the patient has delusions, i.e., thoughts and beliefs that have no basis in reality. He is currently prescribed and taking psychotropic medication. I spoke to the forensic psychologist yesterday who reports that Mr. Pérez’ symptoms appear to be intensifying which necessitates a change in medication. The diagnosis has changed to Schizophrenia Unspecified, defined in the DSM‑5 section 298.9, which is a psychotic disorder manifested by delusions and a rift in perception of reality.

Mr. Pérez moved to Austin from Arizona to live with a cousin. The cousin asked Mr. Pérez to return to Arizona due to Mr. Pérez’ erratic mental health behavior. On the day of arrest, Mr. Pérez was at an HEB grocery store in Austin. He claimed he had been at the bus station and walked to the HEB. He said that a large group of people were following him and threatening to kill him. He made his way to the HEB parking lot and was asking customers for help because people were after him. The police responded. Mr. Pérez continued to point out customers and particular vehicles that were after him. The Austin Police Department (APD) placed Mr. Pérez on a Police Officer Emergency Detention (POED) due to his paranoid behavior. Sadly, he was later released. In my opinion, APD should have deployed their CIT (Crisis Intervention Team) officers who are trained to handle situations like Mr. Pérez’, i.e., mental health crisis and make appropriate referrals for treatment, e.g., possibly held on an Order of Protective Custody (OPC) in the Austin State Hospital where he would receive psychiatric treatment.

Mr. Pérez contacted his mother in Arizona. She arranged to meet her son at the airport to fly him back home to Arizona. She arranged an Uber ride for him to ABIA. Mr. Pérez claims that the Uber driver was threatening him and kicked him out of the Uber car near the perimeter fencing/gate area by the Air and Terminal Operations. He said that he jumped the fence into ABIA property. Mr. Pérez says he was approached by ABIA officials and detained. He was told to sign some papers that were in English (Criminal Trespass Notice). He did not understand what he was signing. Adding to his confusion, he was allowed to stay at ABIA by the same ABIA officials to wait for his mother to fly in the next day.

Mr. Pérez began feeling paranoid. Somehow, he ended up outside of the fenced ABIA AOA (Air Operations Area) area and fell asleep. The next morning, he panicked because he thought he had missed his mother’s arrival. He climbed the fence in an effort to try to reach the terminal as soon as he could to search for his Mother. As an immigrant from El Salvador, he does not read English. He did not know that he was in an unauthorized area. He was experiencing delusions as well. He claims that people started chasing him so he climbed the fence to leave the airport property. He was eventually detained just outside ABIA property and arrested by APD officers for Criminal Trespass.

It should be noted that APD Investigator, John Doe #1234, tried to interview Mr. Pérez. However, Investigator Doe stated that Mr. Pérez was too agitated and erratic. He stated that Mr. Pérez thought that the officers were taking him away to kill him. He further stated that Mr. Pérez was trying to get to the terminal to meet his Mother. Investigator Doe was unable to have a coherent conversation with Mr. Pérez. Investigator Doe stated that he requested that the jail have Mr. Pérez evaluated for paranoia and thoughts that police officers were going to kill him.

Based upon the foregoing and in the interest of justice, I respectfully request that Mr. Pérez be issued a “Warning” rather than a Civil Penalty. He is obviously mentally ill due to his delusional disorder which appears to be worsening. He intended no harm to anyone or to ABIA. He is an immigrant who may know a few phrases in English. However, he neither speaks, reads or writes in English. In my many years of representing Spanish speaking non‑citizens, it is my impression that law enforcement often mistakenly assume that these immigrants comprehend English just because they can speak a few phrases in English. This assumption is wrong and often leads to mistreatment and illegal detention/arrest of non‑citizens for violations of laws, warning signs and failure to comply with verbal commands of Law Enforcement. In reality, the language barrier is to blame.

Moreover, Mr. Pérez is indigent as evidenced by the fact that I am court‑appointed to represent him. This indicates that Mr. Pérez was vetted by the State Court and deemed to be indigent. Therefore, paying the costly TSA Civil Penalty will be impossible.

Conclusion:

The day after this statement was tendered to the Inspector, he informed us that the case file would be submitted to the General Attorney for TSA. The General Attorney would decide how to proceed. According to the Inspector we could expect a decision in a few weeks. However, four days later, we received an email with an attachment that stated a recitation of the allegations and the following:

WARNING NOTICE RE: Case No.: 2021AUS0000

“In view of the circumstances in this case and the Letter of Response from the Attorney at Law Suzanne M. Spencer on your behalf, received on the 30th day of the month of 2021, we have elected to send you this Warning Notice rather than seek a Civil Penalty. The Warning Notice is now a matter of record and part of your compliance history. A Warning Notice is not a formal adjudication or a legal finding of the matter and, therefore, there are no rights to appeal this Notice.”

“A repeat incident of this type would be an extremely serious matter and would call for a more severe sanction which may include the assessment of a Civil Penalty.”

By this time, Mr. Pérez had regained competency as evidenced by an Order of Restoration signed by the County Court at Law Presiding Judge. Mr. Pérez’ mother arranged a trip to Austin to collect her son and fly him back to Arizona. Mr. Pérez was cleared by TSA for air travel. In addition, the Criminal Trespass case was dismissed in the interests of justice. Mr. Pérez was very grateful and happy with the resolution of these matters. My work here was done.

Op-Ed: Finding my Voice as a Female Criminal Defense Attorney

Recently I was thrilled to be asked to be a faculty member at the TCDLA trial college. Paul Tu, a brilliant lawyer and I were both asked to do demonstrations of a closing argument on the same case. We purposely chose different styles to show the students. Paul’s argument was logical and methodical, it attacked the evidence and how it did not meet the standard of beyond a reasonable doubt. My argument was more emotional, I spoke of a young woman who had worked hard for all her success and status, but when accused of a crime was not given the benefit of the doubt or an opportunity to be heard. When I was finished speaking, I was approached by three young female students. All three female attendees had the same question for me. How do you speak strongly and passionately, yet still be effective as a female attorney without being perceived as the emotional woman in the courtroom?

Their questions have stuck in my head and when I was asked to write an article on women’s issues in our profession, I began to think of how I could answer female defense attorneys who have this concern.

My own journey as a lawyer started out with me doing all I could to be unnoticed as a female. Right out of law school the only requirement for the suits I bought was that they looked professional. Nothing too girly, no pretty pastels, only dark blue and black, and nothing that would indicate I had curves of any kind. The skirts were to my knees or I wore pants. I did my makeup subtly, and I put my hair back in a ponytail. My nails were always subtle colors, my earrings small pearls or diamonds, nothing dangling, nothing distracting.

When I moved to Corpus Christi, TX about twelve years ago, I began taking court appointments. I was new in a small town and excited to learn. I remember paying special attention to my appearance and trying not look too feminine when I went to the jail or was in court. Mostly, I wanted to be seen as a lawyer.

I was lucky to receive the mentorship and friendship of two well established male lawyers with great reputations who took me under their wings. I learned so much from them but did not know how to navigate the one big difference. I did not know what to do with my femininity. Should I embrace it or hide it? Early on in my career, I had heard one prosecutor nicknamed me “Legal Barbie.” I was upset by the nickname because it labeled me and took away my worth in the courtroom as an advocate. No one would be worried about going to trial against “Legal Barbie” and how would any client feel comfortable with their case in my hands. I spent hours correcting myself. I did not want to appear too emotional, yet not overly rational to be perceived as cold. I wanted to be aggressive, but not too aggressive. If I was angry about a case, I couldn’t appear too angry. However, if I appeared too calm I could be perceived as not caring.

Recently the subject of my femininity as a defense lawyer was challenged again. I was speaking at a CLE on the topic of: Sexual Assault Cases in the Post Me‑Too Movement Era. I knew that the topic itself would be controversial, but I wanted to explore it, as I have many of these cases pending and think we need to address the situation. I spoke as a criminal defense lawyer, not as an advocate for feminism. I began my talk asking the audience, how many men in here feel comfortable telling a woman in the workplace she looks pretty? Many said they did not. I then asked, how many of you think twice before offering to carry a woman’s belongings, opening her doors, etc.? Many did. The point of my questions was to show how we are now unsure of rules in the face of changing times. What we once believed was polite or mannerly may now be considered offensive or suggestive. I told the crowd that I like being complimented and called pretty. It’s true, I do. I like to be feminine. I wear dresses. I spend time on my appearance, and it matters to me. Others do take offense to such things, and I think with our current juries we have to discuss these issues and address them head on to be effective lawyers. We have to be open and willing to deal with the uncomfortableness of not knowing what is acceptable, yet still emphasize the burden of proof has not changed despite changing attitudes.

After I spoke, I was leaving the CLE to check out of my room and an older woman approached me. She said that my talk had offended her. Once I decided to let go of my ego, I listened to what she had to say. She was sitting with another woman about my age who said she was not offended. I found their contrasting opinions to my talk interesting.

The older lawyer said that she did not think women should be called pretty in the workplace. She said she would be offended by that. She explained that she used to go to NOW meetings as a young woman and she fought to be heard, respected and valued, not for her gender, but for her mind. She told me the story of a being a young lawyer and a judge had taken her into chambers and “stuck his tongue down her throat.” She stated that some young female lawyers today offend her by their behavior and appearances. She does not think women should post photos of themselves online in bikinis or suggestive outfits and expect to be respected as attorneys. She told me the story of her being in trial once and the prosecutor against her was wearing a low‑cut revealing blouse and she told the prosecutor to go change. Apparently, the prosecutor listened and returned from the bathroom with her shirt turned around.

The younger female attorney and I were shocked by her statements. Isn’t the point of the feminist movement not to criticize and judge other women’s choices? That all women can do whatever they want because we have that freedom? I explained to her we were grateful for her fight but isn’t the goal of the fight for the freedom to do what we wanted? Couldn’t we now wear pants, wear a dress, stay home, go to work… be however we feel most comfortable? She disagreed with the statement and felt that those behaviors were setting the woman’s movement back.

I left the CLE and while I was driving home, I thought about her words. I didn’t want to disrespect the struggle she went through but didn’t agree that telling other women to not be feminine if they chose to was the answer either. I still don’t have answers for this debate, but her words have stuck in my head.

These recent events, both at the Trial College and speaking at the CLE, had me thinking again about my how my voice as a female lawyer would be perceived. When the younger lawyers asked me how I found my own way, I answered them as truthfully as possible. I told the students that one day I just stopped caring. I got so angry about what was happening constantly to my clients, about the injustices and inequities in the system, that I just eventually stopped worrying about myself or how I was perceived. My evolution has caused me to see myself as a tool to tell my client’s story. My mentor, Jimmy Granberry, taught me this lesson a long time ago when I was worried before a trial, he said, “It’s not about you… get over yourself.” I now say those words to myself before every trial. It helps me to not think about my ego, or my fears and doubts but to concentrate on my client. Once I got over myself, I became effective.

These recent events have made me think more and more about all the women who came before me and all those who will come after me. I do not believe I can tell a female how to own her power in the courtroom, how feminine to be or what not to do. However, I do believe we have gifts to do some things very effectively, like cross examine other women and children as only a woman can do. I believe we have a strength that I cannot describe in words when we own who we are, in whatever form we come in. It is my hope that my own evolution will reassure some young woman out there who struggles like I did. My advice is simple and not much different than that of my male mentor. I just had to discover it on a different journey ‑ it’s not about you, it’s not about your appearance, it’s not about what you wear or how emotional you are, it’s about telling the story. Embrace yourself, in whatever form you come in, and focus on using yourself as the unique tool that you are.

2022 Declaration of Independence Readings: Memories and Media Mentions

Waco, McLennon County: But what a different country we could have created! What a more universally prosperous society we could have advanced. What a better existence for all our people could have been established. And here is how it could have happened.

In his original draft of the Declaration of Independence presented to the convention, Thomas Jefferson listed the King’s abuses. He saved the worst for last. I venture to say you never heard of it or were taught about it.

It said: “He has waged a cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him; captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation hither.”

At the insistence of South Carolina and Georgia, this Article condemning slavery was stricken.

For 246 years we have reaped the bitter harvest of this original sin of slavery. So let us resolve to breathe life into the Declaration and the Bill of Rights as we continue the great experiment called America. Ladies and gentlemen, our Declaration of Independence.

—David Bass

Bastrop, Bastrop County: I enjoy reading the Declaration of Independence in the Texas July heat in Bastrop, Texas. I meant to memorize the Declaration after reading each year. Maybe next year will be the time. Each July, reading at the courthouse is a reminder to me of how important our rights are. My only spectator this year, aside from an occasional passerby, was a silent robotic lawnmower. That does not make my reading experience any less significant to me. People are dying to get to our country and enjoy the opportunities that this document protects. Reading the Declaration of Independence aloud is a great way to honor it.

—Eric Toberson

Reading of Declaration of Independence Reminds Community of Freedoms

Harrison County: Defense lawyers performed the annual recitation of the Declaration of Independence on Friday for Harrison County community members.

“The Texas Criminal Defense Lawyers Association, which is the statewide criminal defense bar association, puts this on. I’ve read the Declaration probably almost 8 times,” said Kyle Dansby, a local criminal defense attorney, and coordinator of the celebration. “And even though you’ve read it multiple, multiple times, when you read certain parts of it, in particular the big bold language that we know about, it’s still important, it still affects me.”

This is the tenth year the Declaration of Independence has been read in downtown Marshall during the Fourth of July weekend.

Harrison County can count on its local defense attorneys to uphold citizens’ freedoms and honor the Declaration of Independence. This holiday event served as a reminder to the public of the responsibilities and rights that all Americans share. “I’ll still get a feeling, still a little chill because we deal with these things every single day,” Dansby said, “As defense attorneys, the reason we read the Declaration of Independence around the fourth of July is to remind the public that we are here actually helping to enforce those rights on behalf of people who are accused by the State of Texas of committing crimes.”

Bonnie and Bob of Marshall gave a declaration of their enjoyment of Dansby’s recitation, feeling especially proud of the complete and correct pronunciation of such difficult words as those found in the historical document. “He did a wonderful job. He pronounces every word perfectly and some of those words are really difficult,” Bonnie said, noting the solace defense attorney Dansby provided throughout the celebration.

—Sadiq King, The Marshall News Messenger

Coldspring, San Jacinto County: I read the Declaration of Independence this morning (July 1, 2022) in Coldspring, Texas—the seat of San Jacinto County. Rain threatened. One guy yelled at me in code. Could have been Ku Klux Klan, QAnon, or something else. We must keep carrying the light to the dark forests. It has been done before.

—Bobby Scott Maybry

Olney, Montana: After attending the (excellent) Lubbock County Declaration reading, I drove 24 hours, 1745 miles to northwest Montana with my dog Penny. On July 4th in Olney—human population 191—I read members. County community in front of the Ranger station as a few fascinated squirrels, deer, moose and bear watched. Then I was off to Polebridge, population 100. I could not take the short‑ cut across Red Mountain because snow still blocked the road, but I arrived in time for the Independence Day festivities. The guy in the parade wearing a pink tutu and huge man breasts got more attention than me reading the Declaration. Understandable, I suppose.

—Danny Hurley

Lockhart,  Caldwell County: There were eight of us in Lockhart today, representing three law offices. Our “lead” reader was 13‑year‑old Ethan Garza, son of my long‑time investigator, Joe Angel Garza. Although he got away before we were able to get a name or his agency, there was a “press” photographer taking photos. The only newspaper out there is the “Lockhart Post Register.” We have tipped them off in the past but, presuming this fellow is from that agency, this year was the first time they’ve ever appeared. We all gathered at Black’s for great barbeque following the reading.

—David Schulman

Brady, McCollough County: Daughter Lindsey Craig and grandson Rocky and I trekked south through the hinterlands to read the Declaration in Post, Sweetwater and Brady. It’s become a tradition. In 2016, we did the same thing in Big Spring, Gail and Garden City. The three of us have participated in Lubbock Criminal Defense Lawyers readings as well. Trust me, ten‑year‑old Rocky can tell you the true meaning of Independence Day better than 95 per cent of the population. What a wonderful patriotic family experience!

—Chuck Lanehart

Weatherford, Parker County: Tom Vick and Dan Carney report: Mission Accomplished. My granddaughter Ashtyn Carney Sweatt, Senior Texas A & M Executive Officer Squadron 23, stood alongside me. She has participated in years past as well. She intends to enter law school after graduating TAMU next spring. So Proud.

—Dan Carney

San Diego, CA: Today we read in San Diego. This year, we also commemorated Juneteenth by reading General Order 3, the order issued at Galveston, Texas that began Juneteenth. We read General Order 3 before we read the Declaration, acknowledging that the Declaration was an aspiration, a hope for the future. As was General Order 3. And we can acknowledge that the journey from the Declaration to General Order 3 continues on to today, and what we do as defense attorneys continues that quest to affirm that all people are created equal and equally de‑ serving of justice. That kept the ceremony to a short time frame (one of its beauties).

—Knut Johnson

Rockport, Aransas County: I read in the front entry of Aransas County’s makeshift lo‑ cation for court and other county offices. We lost the old court‑house in late August of 2017 (Hurricane Harvey). It is always a reminder of the hardships and sufferings that led our forefathers to break away from the rule of England. It is easy to forget.

—James E. Teague

Paint Rock, Concho County: The Concho County District Clerk, JP, and Sheriff ’s Deputy were more interested in the Revolutionary War rifled musket I brought than the reading! The court‑ house cat was missing this year, probably off on a trophy mouse hunt.

—Tip Hargrove

Declaration of Independence Reading to Happen Friday

June 28, 2022—The Texas Criminal Defense Lawyers Association announces that the United States Declaration of Independence will be read aloud on the front steps of the county courthouses of Texas counties prior to July 4, 2022.

In Shelby County, the Declaration will be read by local lawyers, Deck Jones, Jeff Adams, Stephen Shires and April Prince. The reading will take place at the main entrance to the historic Shelby County Courthouse at 1pm, Friday, July 1, 2022.

Shelby County News

Cameron, Milam County: Unprompted, my intern Makenzie Mays set up pocket Constitution pamphlets on the prosecutor’s table. This was after of our TCDLA Declaration Celebration. Clearly, she has learned a few things this from fearful men.

The signers of the Declaration refused to be ruled by tyrannical kings and aristocrats and instead replaced them with servant representatives—and placed us in charge.

We are not descended from fearful men, so let us remember that our leaders are not kings—they are our servants and we must promptly rid ourselves of any representatives, at the local, State, and national level, who choose to act like rulers—rather than our humble servants. summer. (The State moved the pamphlets to an area for defendants.)

—Matthew Wright

Gilmer, Upsher County: This morning I read the Declaration of Independence within the cool confines of the Upshur County Commissioners Court meeting. The County Judge asked that we not do it outside as it was hot, so instead I performed my reading inside prior to the adjournment of the meeting.

My completion was greeted with a standing ovation, and I received many hearty handshakes (no laurels) during my exit from the Commissioners Courtroom, and departure from the building.

What an amazing experience! I suffered a few chills down my spine during my reading, as the words were so amazingly powerful.

I was also able to plug TCDLA and specifically the reading to be held in Gregg County during my interview with KLTV.

Happy Independence Day to all my fellow warriors.

—Brandon Winn

Childress, Childers County: Edward R . Murrow said, “We are not descended from fearful men.” The signers of the Declaration of Independence showed tremendous courage and bravery by signing a document that they knew could result in their deaths, but they signed anyway. They signed because liberty and honor are worth more than life and fortune.

Today we must remember that we are not descended from fearful men.

The signers of the Declaration refused to be ruled by tyrannical kings and aristocrats and instead replaced them with servant representatives—and placed us in charge. We are not descended from fearful men, so let us remember that our leaders are not kings—they are our servants and we must promptly rid ourselves of any representatives, at the local, State, and national level, who choose to act like rulers—rather than our humble servants.

Today, as we read the Declaration of Independence and the Bill of Rights, let the words wash over you as though you are hearing them for the first time. Really absorb them because this was a revolutionary document that led to a revolutionary war that led to this great nation. Because we are not descended from fearful men.

—Bethany S. Stephens

Grosebeck Limestone County: We had a HUGE crowd at the Groesbeck 4th of July parade in Limestone County. I was standing one block from the courthouse at the parade announcer’s stand. We had lots of support from the crowd. Seemed appropriate for this criminal defense attorney to pose in front of a police car. I tear up every time I start and end the reading. It’s just one of my favorite times of the year!

—Michelle Latray

Fort Worth, Tarrant County: The reading gives me goosebumps every year, such a moving experience. And I was honored to organize it this year.

—Emily LaChance

Local attorneys to read Declaration of Independence

In anticipation of Independence Day, local attorneys will take time next week to read the words that hailed the birth of a new nation.

Members of the Hunt County Bar Association, along with judges from the county’s state district courts and county courts‑at‑law, intend to participate in the reading of the Declaration of Independence on the steps of the Hunt County Courthouse at noon Friday, July 1.

About a dozen attorneys participated during the event last year, held during a few falling raindrops. Each attorney took a turn at one or more sections of the document. A small crowd gathered to watch the reading and then joined in the Pledge of Allegiance.

The event has been held seven times in the past eight years. It was canceled in 2020 due to the COVID‑19 pandemic.

The event is sponsored by the Texas Criminal Defense Lawyers Association, which has been presenting readings of the Declaration since 2010. During 2016, for the first time, the readings were conducted outside of courthouses in each of the state’s 254 counties.

—Brad Kellar, Greenville Herald‑Banner

Levelland, Hockley County:

July 4th, 2022, We lawyers knew what to do.
We traveled Texas county to county,
With flags and readings and patriotic bounty.
Aloud we recited our forefathers idea of great sense,
Our American Declaration of Independence.
Five counties we did see,
Starting with Cochran and Hockley.
Then around West Texas the words we did carry,
Out to county Yoakum and on to Terry.
On final reading with our work fam,
Was up north to county Lamb.
We shared the day with judges and local friends,
Artists and singers and hot summer winds.
We sweated a bit and shook lots of hands,
Clapped each other’s backs and prayed for these lands.
I’m so proud of the freedoms we’ve fought for and won,
And those who carry on what our forefathers have done.

Happy July 4, 2022!

—Anna and Philip Ricker

Houston, Harris County: Friends: I view the Declaration of Independence as an imperfect document, at least in large part because it was written by a slave owner talking about liberty. It also bothers me that Native Americans are referred to as “savages.”

Even with its inherent flaws the Declaration is fundamental as to who we are. We are people who reject tyranny no matter the source. The Declaration was the beginning in our national struggle for liberty. It’s part of a continuum. It was followed by the Constitution, Bill of Rights, Emancipation Proclamation, 13th Amendment, Civil Rights Movement, the Women’s Movement, the fight for Gay Rights and most recently Black Lives Matter.

I think as criminal defense lawyers we are part of the continuum. We are the natural heirs to our Founding Fathers, as we are the only people who daily fight to protect our neighbor’s liberty.

There will always be tyrants, some in robes. There will always be those who stand up to fight the tyrants. That’s us.

In 2010, when we stood with our backs to the Courthouse, we sought no permission. We just did it. We were fighting lots of abusive judges then. When we read it, when I heard “king,” I thought judge. To me it’s an annual opportunity to remind the tyrants in the courthouse and elsewhere that we don’t accept their tyranny and we will fight them for as long as takes.

—Robert Fickman

Congratulations to these 2022 Declaration of Independence Organizers

TCDLA and statewide Declaration coordinators Robert Fickman of Houston and Chuck Lanehart of Lubbock thank the following folks who organized Declaration readings in some 144 places in Texas, California, Louisiana, Peru and elsewhere this year.

This 13‑year‑old tradition continues to inspire the public, the media and most importantly those who participate in these patriotic celebrations of liberty. The Great Document probably means something different to each person who reads. However, regardless of our political and social backgrounds, we all read to protect the rights and liberties that we hold dear and that we fight to defend every day.

Robb expressed his personal opinion in his introductory remarks to the Houston reading, “To me it’s an annual opportunity to remind the tyrants In the court‑ house and elsewhere that we don’t accept their tyranny and we will fight them for as long as takes.”

These intrepid Declaration organizers are to be congratulated:

City , County and Name:

Abilene, Taylor Co., Jenny Henley
Amarillo, Potter Co., Joe Marr Wilson, & Vaavia Rudd
Anson, Jones Co., Jenny Henley
Archer City, Archer Co., Dustin Nimz
Athens, Henderson Co., Shana Stein Faulhaber
Austin, Travis Co., Bradley Hargis
Ballinger, Runnels Co., Karl Vancil
Bandera, Bandera Co., Gary Trichter
Bastrop, Bastrop Co., Eric Torberson
Beaumont, Jefferson Co., Dustin Galmor
Bellville, Austin Co., David Moody
Belton, Bell Co., James Stapler
Benjamin, Knox Co., Dustin Nimz
Big Lake, Reagan Co., Stephen Dodd
Big Spring, Howard Co., Reina Cisneros
Bonham, Fannin Co., Myles Porter
Boston, Bowie Co., Brent McQueen & Mac Cobb
Brady, McCulloch Co., Chuck Lanehart & Lindsey Craig
Brenham, Washington Co., Robbie Charette
Brownfield, Terry County, TX, Anna Ricker & Phil Ricker
Brownsville, Cameron Co., TX, Sheldon Weisfeld
Brownwood, Brown Co., TX, Judson Woodley & Todd Steele
Bryan, Brazos Co., TX, Sarah Wilkinson
Burnet, Burnet Co., TX, Michelle Moore
Caldwell, Burleson Co., TX, Shelly Megan Shaw
Cameron, Milam Co., TX, Matthew Wright
Canton, Van Zandt Co., TX, Jeff White
Canyon, Randall Co., TX, Joe Marr Wilson & Vaavia Rudd
Carrizo Springs, Dimmit Co. TX, Ted Rodriguez
Center, Shelby Co., TX, Deck Jones
Centerville, Leon Co., TX, Michelle Latray
Channing, Hartley Co. TX, Rick Russwurm
Childress, Childress Co., TX, Bethany Stephens
Clarksville, Red River Co., TX, Laura McCoy
Cleburne, Johnson Co., TX, Don Bonner
Coldspring , San Jacinto Co. , Bob Mabry
Comanche, Comanche Co., TX, Judson Woodley
Conroe, Montgomery Co., TX, Amanda Webb & Josh Zeintek
Cooper, Delta Co. TX, Brent McQueen
Corpus Christi, Nueces Co., TX, Lisa Greenberg
Corsicana, Navarro Co., TX, Kerri Donica
Crockett, Houston Co. TX, Jody Griffith
Crowell, Foard Co., TX, Dustin Nimz
Cuero, De Witt Co., TX, Joseph Sheppard
Daingerfield, Morris Co., TX, Brent McQueen, Laura McCoy & Mac Cobb
Dalhart, Dallam Co., TX, Rick Russwurm
Dallas, Dallas Co., TX, Deandra Grant
Denton, Denton Co., TX, Haylee Brown
Dumas, Moore Co., TX, Rick Russwurm
Edinburg, Hidalgo Co., TX, Lucia Regalado & Joseph Connors
El Paso, El Paso Co., TX, Jim Darnell, Jeep Darnell, & Cris Estrada
Emory, Rains County, TX, Brent McQueen
Fairfield, Freestone County, TX, Michelle Latray
Fort Stockton, Pecos County, TX, Christiana Valadez
Fort Worth, Tarrant County, TX, Emily LaChance
Franklin, Robertson County, TX, Christopher Smitherman
Fredericksburg, Gillespie County, TX, Tammy Schmidt Keener
Gatesville, Coryell County, TX, Allen Place, Shea Place, Paul Harrell
Georgetown, Williamson Co., TX, Robert Maier
Giddings, Lee County, TX, David Moody
Gilmer, Upshur Co., TX, Brandon Winn
Goldthwaite, Mills Co., TX, Judson Woodley
Greenville, Hunt Co., TX, Katherine Ferguson
Groesbeck, Limestone Co., TX, Michelle Latray
Halletsville, Lavaca Co., TX, James M. Reeves
Hempstead, Waller Co., TX, David Moody
Henrietta, Clay Co., TX, Katie Woods
Hereford, Deaf Smith Co., TX, Vaavia Rudd
Houston, Harris Co., TX, Robb Fickman, Jed Silverman
Huntsville, Walker Co., TX, Wyvonne Hill
Jefferson, Marion Co., TX, Brent McQueen & Mac Cobb
Johnson City, Blanco Co., TX, Michelle Moore
Jourdanton, Atascosa Co., TX, Megan Harkins
Kermit, Winkler Co., TX, Alvaro Martinez
Kerrville, Kerr Co., TX, Gary Trichter
Kingsville, Kleberg Co., TX, Sam Fugate
La Grange, Fayette Co., TX, David Moody
Lampasas, Lampasas Co., TX, Greg Hupp
Laredo, Webb Co., TX, Roberto Balli
Leakey, Real Co., TX, Nathaniel Munier
Levelland, Hockley Co., TX, Anna Ricker, Phil Ricker
Linden, Cass Co., TX, Brent McQueen
Littlefield, Lamb Co., TX, Anna Ricker, Phil Ricker
Lockhart, Caldwell Co., TX, David Schulman & Roger Nichols
Longview, Gregg Co., TX, Lew Dunn & Brandt Thorsen
Lubbock, Lubbock Co., TX, Rusty Gunter & Chuck Lanehart
Madisonville, Madison Co., TX, David Moody
Marfa, Presidio Co., TX, Dick DeGuerin
Marshall, Harrison Co., TX, Kim Ryan, Kyle Dansby
McKinney, Collin Co., TX, Justin Wilson & Mito Gonzales
Meridian, Bosque Co., TX, Matthew Wright
Midland, Midland Co., TX, Latawn White
Morton, Cochran Co., TX, Anna Ricker, Phil Ricker
Mount Pleasant, Titus Co., TX, Laura McCoy
Mount Vernon, Franklin Co., TX, Laura McCoy
Muleshoe, Bailey Co., TX, Matt Morrow
Nacogdoches, Nacogdoches Co., TX, Sean Hightower & Tim James
Odessa, Ector Co., TX, Lane Haygood
Ozona, Crockett Co., TX, Stephen Dodd
Paint Rock, Concho Co., TX, Tip Hargrove
Palestine, Anderson Co., TX, David Moody
Paris, Lamar Co., TX, Jerry Coyle
Pearsall, Frio Co., TX, Katie & Grady Roberts Jr.
Pittsburg, Camp Co., TX, Laura McCoy
Plains, Yoakum Co., TX, Anna Ricker, Phil Ricker
Plainview, Hale Co., TX, Paul Holloway
Port Lavaca, Calhoun Co., TX, Joshua Maseda
Post, Garza Co., TX, Chuck Lanehart, Lindsey Craig
Quitman, Wood Co., TX, Donna Bloom
Rankin, Upton Co., TX, Stephen Dodd
Richmond, Fort Bend Co., TX, Paul Tu
Rio Grande City, Starr Co., TX, Gema Lopez
Rockport, Aransas Co., TX, James Teague
Rockwall, Rockwall Co., TX, Justin Hall
San Angelo, Tom Green Co., TX, Tip Hargrove
San Antonio, Bexar Co., TX, Adam Kobs, Warren Wolf
San Augustine, San Augustin Co., TX, Sean Hightower & Tim James
San Marcos, Hays County, TX, Charmaine Wilde, Chevo Pastrano, Scott Co., Matthew Maldonado
Seguin, Guadalupe Co., TX, Joshua Maseda
Seminole, Gaines Co., TX, Paul Mansur
Sinton, San Patricio Co., TX, Joel Thomas
Stanton, Martin Co., TX, Chris DeAnda
Stratford, Sherman Co., TX, Rick Russwurm
Suphur Springs, Hopkins Co., TX, Brent McQueen
Sweetwater, Nolan Co., TX, Chuck Lanehart, Lindsey Craig
Tyler, Smith Co., TX, Brian Rollings, Edward Estrada
Uvalde, Uvalde Co., TX, Emmett Harris
Vernon, Wilbarger Co., TX, Dustin Nimz
Waco, McLennan Co., TX, David Bass
Waxahachie, Ellis Co., TX, Chad Hughes & Theresa Peel
Weatherford, Parker Co., TX, G. Thomas Vick , Dan Carney
Wichita Falls, Wichita, James Rasmussen
McAllen*, Hidalgo Co., TX, Lucia Regalado, Joseph Connors
Texarkana, TX*, Bowie Co., TX, Brent McQueen & Mac Cobb
Texarkana, AR*, Miller Co., Arkansas, Brent McQueen& Mac Cobb
San Diego*, California, Knut Johnson
Robstown*, Nueces Co., TX, Sheldon Weisfeld
Polebridge*, Flathead Co., Montana, Danny Hurley
Olney*, Flathead Co., Montana, Danny Hurley
Banff*, Alberta, Canada, Tyler Flood
Galapagos Island*, Ecuador, Robert Miller
Shreveport*, Caddo Parish, Louisianna, Brian Alexander
Montell*, Uvalde Co., TX, Liz Rogers
Horseshoe Bay*, Llano Co., TX, Tom Stansbury & Chuck Lanehart

*not Texas county seat

Current Issue: July/August 2022

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DOWNLOAD PDF VERSION

Features

20 | Fighting the TSA and Getting Off with a Warning – By Suzanne Spencer
27 | Op-Ed: Finding my Voice as a Female Criminal Defense Attorney – By Lisa Greenberg
30 | Declaration of Independence Readings: Memories and Media Mentions – By Chuck Lanehart
35 | Congratulations to the 2022 Declaration of Independence Organizers – By Chuck Lanehart

Columns

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

Departments

4 | CLE Seminars and Meetings
37 | Significant Decisions Report

President’s Message: A Dream Worth Fighting For

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Every lawyer has a personal story and journey of how they entered this profession. I love hearing others’ stories as much as I like sharing my own. I am a fourth generation, first female attorney in my family. And I’ve dreamed of being a lawyer since I was a little girl. Like many members of the bar, we believe this isn’t just our job, it is our deep‑rooted calling in life and we’ve weathered many storms to get where are today.

Some achieved the dream of being just like their dad, who they idolized their whole life. Others courageously persevered while growing up in extreme poverty in inner‑city slums to beat the odds for the chance to practice law. Still others’ journey involved overcoming tragedy, even being the victims of violent crimes, and rising from the ashes to become fierce advocates in the court‑ room. Others tell beautiful stories of immigrating to the United States from impoverished countries to achieve the American Dream, and are serving this country with honor. There are many inspirational stories. Whatever the story is, we all have a special one worth preserving.

However, what occurred in the aftermath of June 24th threatens to turn our stories into epic tragedies. Following the reversal of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization – six days after I became TCDLA President – took direct aim at and put a chink in the armor of our sacred profession. The actions that ensued threaten to not only destroy our dreams and what we have worked so hard to achieve, but also trample on the very rights and freedom that we swore to safeguard.

Regardless of your personal or political beliefs regarding abortion, what we must rally behind is to fight against the groundswell of support by some state politicians who wish to pass legislation which would impose a mandatory disbarment of Texas lawyers for any involvement they may have as employers regarding their employees’ participation in abortions.

In the short time I have served as your TCDLA President, I have been privileged to dialogue with so many of you with very different, oftentimes very ardent, opinions surrounding abortion. Diversity of opinion is one of the aspects that makes this organization great and one of the core values I pledged to honor, and which I discussed in my previous Voice article. I am asking that we set aside differences in our personal beliefs and be cognizant that with the stroke of a pen, politicians can threaten to destroy our dreams and the great work that we do every day to fight for our clients.

Thankfully, we have an unstoppable organization with countless talented, devoted fighters. Part of our strategy to combat this threat will be a task force to handle this head‑on. I’ve asked our well‑respected colleague, Nicole DeBorde Hochglaube, to chair this committee. We will be strong and look to partner with other organizations throughout the country to ensure we relentlessly fight the impending overcriminalization that is eerily brewing.

Taking a stand now is not optional. If left unchecked, this latest foray into overcriminalization can quickly spread like wildfire. Even though it can be an uncomfortable conversation, we must work together to de‑ fend against the rising storm of overcriminalization that is headed our way. At this time, we need to stand in solidarity and recall the words of the great Dr. Martin Luther King, Jr.: “Injustice anywhere is a threat to justice everywhere.”

TCDLA: let us be united in our efforts to fight against this latest tale of injustice. The very stories of the next generation of lawyers may well be depending on us.

Executive Officer’s Perspective: 2021-2022 TCDLA Committee Highlights Thank You

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“No one who achieves success does so without acknowledging the help of others. The wise and confident acknowledge this help with gratitude.”

—Alfred North Whitehead

TCDLA has more than 40 committees and 200 committee members. Committee members meet via zoom and in person to create resources, support our members, and serve in the front line of defense! If you are passionate in a particular area and want to join a committee, visit the website for a full list of possibilities. Committee‑interest forms can be found online—or just email me. Thank you to our members who contribute their time and talents.

Affiliate | Co-Chairs Laurie Key & Susan Anderson: The Affiliate Committee has kept communication open with local bars and assisted with training and recruitment. They have also reached out to local bars who are not affiliates to help or to convince them to join TCDLA.

Amicus (Brief) Curiae | Chair Niles Illich & Vice Chair Kyle Therrian: The committee was consulted on ten cases of statewide significance. Most recently they have been looking to provide amicus support for attorneys representing individuals affected and detained under Operation Lone Star. The Committee is looking to expand its efforts by the addition of attorneys willing to volunteer and write one brief per year as a committee member.

Awards Committee | Co-Chairs David Botsford & Betty Blackwell: The Awards Committee, which meets every March, selected the Hall of Fame inductees (subject to Board approval), the Percy Foreman Lawyer of the Year, and the Charles Butts Pro Bono Lawyer of the Year. The committee did not bestow the Rodney Ellis Award in 2022.

Budget and Financial Development | Chair Nicole DeBorde & Vice Chair Clay Steadman: The Budget and Financial Development Committee put together a successful budget. Committee members met throughout the year to review the income and expenses for accuracy and to ensure TCDLA stays on budget. Over 2,500 checks are signed by the treasurer and check signers.

By-Laws | Chair Adam Kobs: The By‑ Laws Committee was tasked with clarifying two items: qualifications to run for the officer chain and length of time a termed‑out board member must wait before once again applying to be a director. Both amendments were approved by the membership.

Cannabis | Chair Don Flanary: In November of 2021, the Texas Attorney General’s Office (AG) requested that TCDLA provide an Opinion regarding the legality of Delta‑8 THC. The TCDLA Cannabis Committee drafted an Opinion in response which was adopted by the TCDLA Board and send to the AG. TCDLA concluded that concentrated or synthesized Delta‑8 THC is currently illegal under sections 481.103, 481.113, 481.116 as well as section 481.106 (c) of the Texas Health and Safety Code. The exclusion set out in section 481.002(5) for “tetrahydrocannabinols in hemp” is limited to the minute quantities of delta‑8 THC which are naturally occurring in hemp plants. Essentially, Delta‑8 THC is illegal to possess in Texas, however given the exclusions in section 481.002(5), viable defenses to possession do still exist.

Capital Assistance | Chair Greg Westfall & Vice Chair Scott Pawgan: The Capital Assistance Committee assisted in selecting speakers and topics for three seminars throughout Texas.

Client Mental Health | Chair Alyse Ferguson & Vice Chair Melissa Shearer: The Client Mental Health Committee put together three mental health seminars along with a monthly virtual Mental Monday CLE. In addition, the committee met to brainstorm on resources to provide members and clients. The committee also produced several free cheat sheets and sundry mental health resources.

Corrections & Parole | Chairs Bill Habern & David O’Neil: This year the co‑chairs served as course directors for the Post‑Conviction Seminar in Austin. The committee has also continued work on legislative proposals to create an independent board to supervise SCFO. The committee began work on a draft bill that would permit a pardon for individuals granted clemency, filling a gap in current law. At the invitation of its director, the co‑chairs met and provided input on how the TDCJ Parole Division could streamline the blue warrant process. Throughout the year, committee members have provided updates on TDCJ and Parolee Board matters of interest, while also fielding listserv questions on parole and corrections.

Criminal Defense Lawyers Project | Chair Adam Kobs & Vice Chair Monique Sparks: This past year, the CDLP committee saw some 325 speakers travel to over 40 seminars throughout Texas, training more than 5,000 criminal defense lawyers. Operating with the theme “Getting Game Day Ready,” the team went undefeated!

Diversity, Justice & Inclusion | Chairs Thuy Le & Monique Sparks: The Diversity, Justice & Inclusion Committee spread the word with statements highlighting various holidays and underrepresented groups. In addition, the committee reviewed suggested changes to the SBOT Lawyers Creed. Thuy and Monique served as course directors for the third annual Race Seminar.

DWI Resource | Chairs Mark Thiessen & Frank Sellers: The DWI Resource Committee continued to fight the good fight against the State and bad law. DWI 2nds acquittals are now eligible for expunction thanks to excellent appellate lawyering. DWI Committee also updated the rules flash card and created a checklist that will be available for purchase soon.

Executive | Chair Michael Gross & Vice Chair Heather Barbieri: The Executive Committee reviewed all business written and approved by committees, bringing items to the TCDLA Board for approval when required. This year the committee met in person quarterly and otherwise handled business virtually—altogether a productive and successful year.

Ethics | Chair Robert Pelton & Vice Chair Brent Mayr: The Ethics Committee monitored and responded to the dedicated Ethics Hotline via email, ethics@tcdla.com, and phone, (512) 646‑2734. The committee responds within 24 hours, responding to multiple inquires daily, and over 100 inquires per year. In addition, the committee members submit articles monthly for the standing ethics column in the Voice.

Health  &  Wellness | Chairs  Mark  Griffith & Savannah Gonzalez: The Health and Wellness Committee met to brainstorm on ways to support our members. The committee will implement and program to be held in the evening.

Indigent Client Defense | Chair Jani Maselli Wood & Vice Chair Allison Mathis: The Indigent Defense Committee reviewed and provide comment on several AG opinions. In addition, the committee created a Court Cost Workgroup Booklet.

Judicial Conduct | Chairs Ed Mallett & Philip Wischkaemper: The Judicial Conduct Committee reviewed the several cases where a former Midland Assistant D.A., Ralph Petty, received extra compensation from the County’s judicial budget for being a “law clerk” to the judges. In the central case where the Los Angeles California Federal Defenders, Capital Habeas Unit, discovered the double‑dipping and inherent conflict of interest, they sought a deposition and Petty claimed his Fifth Amendment rights. The death row defendant prevailed on his writ. TCDLA filed Complaints with the Commission on Judicial Conduct against the seven judges still in service who had participated in the scheme. A recent report from our sources in Midland has informed us that one of the judges, who was tangentially involved, received notice that his complaint had been dismissed. Also, during the year, the committee advised members on a variety of issues, including motions to recuse, for change of venue, for continuance when experts became unavailable, and similar, often confidential, matters.

Juvenile | Chair Kameron Johnson: The Juvenile Justice Committee worked on juvenile legislation by serving as experts and a resource for the legislature. This included juvenile‑specific trainings by the newest Juvenile Training Immersion Program (JTIP) specialist and a toolkit developed for certification cases with Lone Star Justice. The committee also held case staffing and reviews for attorneys throughout the state with complex juvenile cases, also creating juvenile cheat sheets and working on creating e‑filing for Texas attorneys (although not completed, we have laid the groundwork for jurisdictions and district clerks to start utilizing). The committee also has published juvenile related articles in the Voice.

Law School Students | Chair Anne Burnham: The Law School Students Committee organized and presented “Pathways to Criminal Defense Practice,” a pan‑ Texas law school virtual Interactive career day event; created a law school students public website page with student‑specific resources; hosted a law student reception at Rusty Duncan, in collaboration with the New Lawyers Committee; and facilitated TCDLA speaker presentations at individual law schools.

Legislative | Chair Bill Harris: The Legislative Committee met at least monthly this year and spent endless hours at the Capitol during the session. Often committee members and those testifying didn’t leave until after midnight. The committee continues to update members with the legislative cheat sheet, presentations, and materials with the latest laws (including Bail Reform), as well as traveling to affiliates’ local bars and maintaining the Legislative Update listserv and dedicated email().

Listserv | Chair Jeep Darnell & Vice Chair David Moore: The Listserv Committee has the incredibly endless job of reading over 20,000 posts annual on the TCDLA listserv (TCDLA offers more than 20 different specialty areas), spreading awareness of the rules when needed and fostering group respect. Staff are also notified immediately if members need assistance as well.

Long Range Planning | Chair Nicole DeBorde Hochglaube & Vice Chair Monique Sparks: Researching process and structure of the committee for an end of year working session. Including TCDLEI in the process to work towards complimenting mission statements and goals.

Media Relations | Chairs Lisa Greenberg & John Torrey Hunter: The Media Relations Committee is the first to respond to recent events following the Covid‑19 pandemic, Supreme Court decisions, and the recent appointment of a Supreme Court justice. Committee members throughout the state create press releases quickly, fostering relationships with their local media outlets and reporters to assist in getting our voice and perspectives heard when needed.

Membership Benefits | Chair Gene Anthes: The Membership Committee this year sponsored four quarterly members socials throughout the state, including the Cowboys stadium tour, a hockey game, a baseball game, and wine tours.

Memo Bank | Chair Tip Hargrove & Vice Chair Warren Wolf: The Memo Bank Committee was the brainchild of two old tech‑incompetent lawyers who didn’t know how to save a darn thing from the list‑ serv. Past President/Hall of Famer Vee Perini and Tip Hargrove wanted to preserve the best of the recurring posts of general interest to our membership. Committee members review all posts and flag items for inclusion on a section called “Listserve Saved—the good stuff.” This is in the members‑only section, which has expanded to also include the Voir Dire and Motions banks.

New Lawyers | Chair Thuy Le & Vice Chair Rick Flores: The New Lawyers Committee assisted in a Career Day virtual interactive event and hosted a New Lawyers meet‑and‑greet at Rusty Duncan.

Nominations | Chair Heather Barbieri & Vice Chair John Hunter Smith: The Nominations Committee met several times throughout the year to review the process, as well as to encourage members and districts to apply. The committee reviews applications and will meet to select the slate for 2022–23. This year the committee voted on twelve new members and seven renewals for the Board of Directors, ratified at the Annual Members meeting in June. The committee will prepare an analysis report for next year to ensure Texas‑wide representation.

Past Presidents | Chair Betty Blackwell: The Past Presidents Committee meets to keep former presidents abreast of TCDLA issues and to make use of their institutional knowledge for innovative solutions.

Prosecutorial | Chair Lance Evans & Vice Chair David Moore: The Prosecutorial Committee reviewed several grievances submitted by members and proceeded as necessary.

Public Defender | Chairs Jessica Canter & Clifford Duke: The Public Defender Committee focused this year on continuing to strengthen public‑defense ties around the state. Using our annual meeting in San Antonio, we were able to concentrate on networking our new and expanding Public Defender, Regional Defense, and MAC offices with the common goal of superior indigent defense. Our trainings addressed the nuts‑and‑bolts integral to daily defense, but also the growing need to recognize diversity and a holistic defense for indigent clients. We’re looking to TCDLA as the linking organization for these growing offices as we continue to help each other statewide.

Rural Practice | Co-Chairs John Hunter Smith & Clay Steadman: Meeting throughout the year, the Rural Practice Committee worked on a checklist, creating a format for a quarterly virtual roundtable and addressing member needs and monitoring the Rural Listserv.

Strike Force | Chair Nicole DeBorde: Strike Force receives calls and emails from TCDLA members almost weekly. We are proud to serve members under attack for their performance of the criminal defense function in their representation of the accused. Strike force has appeared in person and remotely throughout the state rep‑ resenting our members and has spent many hours brain‑ storming with criminal defense lawyers under attack.

Technology | Chair Jeremy Rosenthal: The Technology Committee this year focused on helping master old technology and finding new technology tools for members to use. Check out the TCDLA website for our bank of “How To” videos for daily tech tasks and their use. Also keep an eye out for new tools coming from TCDLA—one to keep track of Brady and another providing ammunition for cross‑examination—as we work to create a centralized statewide database for members.

Transcript Database | Chair Carmen Roe: The Transcript Database Committee met to strategize the collection and organization of transcripts.

Veterans Assistance | Chair Terri Zimmerman & Vice Chair John Convery: The Veterans Assistance Committee works to serve as a resource for TCDLA members on accurate information about legal issues in‑ volving active duty, reserve, retired, or former military members. Our biggest event of the year is the Annual Veterans Justice Clinic held in February. Speakers include experts discussing topics such as the physical and psychological effects of combat, the workings of the Veterans Administration, developments in military law, confusing military paperwork such as the discharge certificate (DD‑214), and the operations of the various Veterans Treatment Courts around the state.

Voice | Editor Jeep Darnell & Assistant Editors Anglica Cogliano, Amanda Hernandez, Sarah Roland, Jeremy Rosenthal & Clay Steadman: The Voice editorial committee reviews over 100 articles a year, edits content, and checks citations. After the articles are finalized, the committee goes through the proofing process on each of the ten, 46‑page Voice magazines annually. They also reach out to authors to offer assistance or request articles on current events or resources related to criminal defense.

Women’s Caucus | Co-Chairs Betty Blackwell, Julie Hasdorff & Cynthia Hujar Orr: The Women’s Caucus Committee put together a women‑specific seminar and hosted a Women’s Caucus at Rusty Duncan. The committee also kept members engaged on the listserv, and members submitted articles for the Voice. In addition, the Women’s Caucus had a round table discussion with other women practitioners and will launch zoom calls to move these discussions and mentorship opportunities forward.

Editor’s Comment: July/August 2022

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Do you know what’s fun? Going to Rusty Duncan. Do you know what’s not as fun? When your youngest son tests positive for COVID the week of Rusty and you’ve been exposed and can’t attend Rusty.

You know what else is fun? Shooting off fireworks on the 4th of July with family and friends. Do you know what is less fun than that? Testing positive for COVID the week of 4th of July and then having your oldest son test positive on the 4th of July.

As I write this article we are hoping beyond hope that we can clear all of our protocols and make it to the annual TCDLA Members Trip in South Padre Island from July 13‑16. That trip is also fun. Aside from catching up on discovery I had not yet reviewed, I am spending my COVID‑cation working on making reservations to the Kalahari Resort for the Fall Board meeting held in con‑ junction with the Post‑Pandemic Trial Preparation CLE from September 15‑17 in Round Rock, Texas. That will also be fun.

So, aside from having to read about me feeling sorry for myself, what is the point? Well, the point is that if you haven’t ever engaged in TCDLA as a member and truly worked to get to know the members of this Organization you are missing out. Sure, there are many a lawyer who has a bit too much to drink at Rusty, but that’s not the extent of the human engagement side of being a part of TCDLA. If you’ve got a family, bring them to the Members Trip. My kids look forward to that trip every year. My oldest son comments every year about how he can’t wait to go to South Padre and swim in the frog pool (if you’ve been you know) and have breakfast with John Hundred Smith (otherwise known to the rest of us as John Hunter Smith). He’s also been bugging me incessantly about the upcoming meeting at the Kalahari because we’ll get to see that guy who’s my friend whose kids go to South Padre and Kalahari and they are fun (otherwise known in our world as Paul Tu). The fact of the matter is that my kids feel like this is their family as much as I do. So does my wife; heck she’s made fun of Clay Steadman more than I have and he likes her better than he likes me. But three trips within a matter of a few months aren’t the only opportunities that exist to get more involved with TCDLA and to become part of the family. While Mark Snodgrass has as much to do with making me a part of the TCDLA family as anyone by bringing me inside the tents at South Padre, there are tons of members across the State who would gladly bring you into the fold if you have the desire. Our Membership Committee has undertaken the awesome idea of having non‑CLE events just for the very purpose of getting us together to have fun. Let’s be honest, we all work too hard every day. There’s no question that a big part of our camaraderie comes from the common ground of hardship we endure every day at work. But that doesn’t define our only way of engaging with each other. I promise, if you get engaged and show up and meet people then you’ll have your own stories to tell about this wonderful organization and you’ll get to experience your own sense of the family that is TCDLA. Not many members can say that they had the treat of taxiing our new TCDLA President’s kids and mother to the hotel in South Padre the very first year I attended. But I did and I can say that I probably have that to thank for counting Heather as my friend.

Be safe
Jeep Darnell

Ethics and the Law: Ethical Issues Dealing with an Incompetent Client

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At one point or another, you will be faced with a client with a mental condition that raises an issue as to whether they are competent. The constitutional standard for competency to stand trial asks whether the defendant has a sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding and whether they have a rational as well as factual under‑ standing of the proceedings against them.1

Often times, there are going to be cases where there is no doubt about the client’s competency or lack thereof. But what about the close cases? Even more difficult, what about the client who is adamant that they are competent when there is evidence to suggest otherwise? Or the client whose mental illness impairs their ability to make critical choices about their case?

These specific scenarios raise numerous ethical questions that are not easy to address or answer. These include, in no particular order, questions about the duty of loyalty, the duty of candor to the court, and the need to maintain confidentiality.

Don’t Go Runnin’ to the Court (Except for Funding)

When confronted with a client — appointed or retained — who appears to lack that fundamental “reason‑ able degree of rational understanding,” it is important for criminal defense lawyers to first embrace one of our most fundamental obligations: maintaining the confidences of the client. This is critical to developing an effective defensive strategy, while ensuring that the client’s rights are protected.

Many times, we see where lawyers, upon learning that the client has some mental illness or appears to have some mental illness, immediately notify the court (which inevitably places the State on notice) of what they have learned in their discussions with their client about their possible mental impairment. This is presumably due to the requirements set out in Article 46B of the Code of Criminal Procedure. Triggering those statutory requirements, however, may either not be necessary or punitive to the client. For instance, if a client is released on bond but is found to be incompetent and ordered to be transferred to a mental hospital, that is a substantial restriction on their freedom. Even worse, it is typically not due to any conscious choice or decision on their part. The more prudent course of action is utilizing an ex‑ pert that operates under the umbrella of the attorney‑client relationship and is able to consult with both the client and the attorney confidentially about the client’s mental condition. If you are appointed to represent a client or the client does not have the funds to retain a forensic psychologist, you should first file an ex parte motion for the assistance of an expert pursuant to Ake v. Oklahoma to evaluate the client before going to the court and invoking the procedures set out in Article 46B.004. You want to be careful to include enough information to get the court to approve the funding (e.g. “funding is needed for the appointment of a psychologist to help assist counsel evaluate any possible mental conditions and their impact on the defendant’s role in the alleged offense”), but not blatantly “suggest” the defendant may be incompetent to stand trial so as not to trigger the requirements of Article 46B.

All this is consistent with newly implemented Rule 1.16 of the Texas Disciplinary Rules of Professional Conduct titled “Clients with Diminished Capacity.” This rule, which upon closer inspection was obviously in‑ tended to apply to clients in the context of non‑criminal settings, nevertheless encourages lawyers to rely on others to “protect the client” with diminished capacity.2

This course of action is also preferable because it allows you to rely on an expert in the field of psychology to support or dispel any belief you as the criminal defense lawyer may have about the client’s mental capacity and ability to consult with you, rather than have to make those difficult determinations on your own.

To Disclose or Not Disclose?

Once you have the insight and opinion from your psychological expert regarding your client’s mental capacity, the next ethical conflict deals with whether there is an ethical obligation to disclose that information to the court and the prosecutor.

Again, as discussed previously, upon the court being presented with a suggestion that the defendant is incompetent, the court is required to take certain steps including appointing a “disinterested expert” to examine the defendant and report on their competency. In certain circumstances, however, a finding of incompetency could result in further harm to the client. What, if any, ethical obligation is there to disclose the fact that a defendant does not possess the required mental capacity to understand the proceedings against them? What happens when, for instance, during a plea colloquy, the court inquires of the attorney whether they believe the defendant is competent to enter their plea?

Rules 3.03 and 3.04 of the Texas Disciplinary Rules of Professional Conduct speak about, as titled, “Candor Toward the Tribunal” and “Fairness in Adjudicatory Proceedings,” but, like other rules, give little explicit guidance with how to deal with a situation like this. Comment 1 to Rule 3.03 makes it clear that “The advocate’s task is to present the client’s case with persuasive force.” However, “[p]erformance of that duty while maintaining confidences of the client is qualified by the advocate’s duty of candor to the tribunal.”

In some cases, disclosing the client’s incompetency to the prosecutor can be beneficial. Once the prosecutor realizes the possible impediment they face to prosecuting the defendant, a prosecutor might be compelled to dismiss the charges or offer an alternate resolution that does not require a plea or a trial. However, what happens when the disclosure has the opposite effect? Instead of agreeing to dismiss the charge, the prosecutor could insist on commitment or other harsh alternative to try and restore the defendant’s competency. In the federal criminal justice system, for instance, upon a finding of incompetency, the court “shall commit the defendant to the custody of the Attorney General” who “shall hospitalize the defendant for treatment in a suitable facility.”3 What if the defendant is released on bond (as is the presumption in federal cases) and suffers from an intellectual disability that cannot be treated with medication or therapy? One can see the harmful and cruel consequence that comes from disclosing the client’s incompetency in that scenario.

Again, there is no clear guidance from the Rules, their commentary, or any Ethics Opinion with how to make these determinations.

Who Gets to Call the Shots?

Only adding to these dilemmas, what happens when the client’s lack of competency or other mental impairment leads them to make choices that you, as the criminal defense lawyer, knows is not in the best interest of the client. For instance, what if the client does not want to be found incompetent even though your expert and your diligent review of that expert’s opinion leads you to conclude otherwise?

In the Preamble to the Rules, in the Section titled, “A Lawyer’s Responsibilities,” it states generally, “In all professional functions, a lawyer should zealously pursue client’s interests within the bounds of the law.” Comment 6 to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct, states,

Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer.

That is a lot of power and responsibility for us as lawyers to assume. But what about the role the client plays in the attorney‑client relationship?

Rule 1.02 of the Texas Disciplinary Rules of Professional Conduct sets out limits for both the lawyer and the client. The Rule starts with the mandatory provisions where the client has the ultimate power to make decisions. As they relate to us as criminal defense lawyers, a lawyer shall abide by a client’s decisions (a) “concerning the objectives and general methods of representation,” and (b) after consultation with the lawyer, “as to the plea to be entered, whether to waive jury trial, and whether the client will testify.” The Rule then continues with the exceptions, which provide, among other things, that “A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.” Comment 1 to the Rule explains the interplay between the role of both the client and the attorney:

Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the objectives to be served by legal representation, within the limits imposed by law, the lawyer’s professional obligations, and the agreed scope of representation. Within those limits, a client also has a right to consult with the lawyer about the general methods to be used in pursuing those objectives. The lawyer should assume responsibility for the means by which the client’s objectives are best achieved. Thus, a lawyer has very broad discretion to deter‑ mine technical and legal tactics, subject to the client’s wishes regarding such matters as the expense to be incurred and concern for third persons who might be adversely affected.

One must ask themselves whether these same principles apply to a client who is incompetent. In McCoy v. Louisiana, ‑‑ U.S. ‑‑, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018), the Supreme Court held that the defendant in that case had absolute control over the decision to admit guilt despite his lawyer “reasonably assess[ing] a concession of guilt as best suited to avoid the death penalty.”4 This decision by the client was sacrosanct despite the client being “an unruly client” who “faced a strong government case.”5 It is worth noting, however, that the Court considered that the trial court “had determined that McCoy was competent to stand trial.”6

This is where the first step in dealing with a potentially incompetent client — obtaining a psychological expert to assist in your defense — can be of assistance. By having your own expert with their own observations of your client’s mental capacity, it will be easier to justify the decisions that you as the lawyer make to accomplish what is in the client’s best interests. In other words, if some mental illness is affecting the client’s ability to make certain decisions about the case, from an ethical perspective, it will help you making those decisions when you have the input from an expert in that field to weigh in and support your decisions.

However, there are always going to be situations where you must weigh the client’s autonomy and ability to decide for themselves what is in their best interest. In this regard, it is important to note that competency is not always clear and distinguishable. While a client’s mental illness may impede their ability to make certain decisions such as whether to plead guilty or not, they may possess enough capacity to set out what their objective is.

Even though the court’s assessment of a defendant’s competency to stand trial is a black and white determination, competency exists in degrees.7 A client may be competent enough to participate in a murder trial and yet that same client may not be competent to stand trial for a complicated financial conspiracy case. A client may be able to understand the roles of the actors in the court room and yet think aliens are coming to testify against him. As Justice Blackmun once stated, “Competency for one purpose does not necessarily translate to comptency for another purpose.”8

When addressing the court’s inquiry, keep in mind the continuum that competency exists on; then deter‑ mine whether for the purposes of the case the client is competent to proceed with trial, such that they can understand the charges against them, the roles of court officers, and be able to assist in their defense to the degree that their participation is required.

Conclusion

Dealing with a client with mental illness that lacks competency undoubtedly presents a criminal defense attorney with numerous ethical dilemmas. Only complicating matters is the lack of clear guidance from the Rules and their commentary, as well as differing perspectives as to what the attorney’s role is when representing an incompetent client. To help navigate this difficult territory, it is always best to have a psychological expert to assist both the attorney and the client. But one must be prepared — and well read on this issue — in order to ensure that the attorney is not only complying with the law, but their ethical obligations as well.

As always, the TCDLA Ethics Committee is here ready to advise and assist you with these ethical dilemmas.