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October 2022 SDR – Voice for the Defense Vol. 51, No. 8

Voice for the Defense Volume 51, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

I’ve begun giving a significant decisions CLE presented in interactive trivia fashion using a program called Slido. It’s about as much fun you can have with case law (outside of reading the SDR, of course). It’s been an eye-opening exercise of how unpredictable our case law outcomes can be, even to well-trained lawyers. Answers often evenly split among multiple choice options on how courts ruled on a particular issue. I think it is an indictment of the common law aspects of our criminal justice system. Perhaps it’s not living up to lofty ideals. Let’s try one here: how many days in a year? I highly doubt you will get this one right. Keep reading to get mad. 

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.

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

U.S. v. Harbarger, 46 F.4th — (5th Cir. 2022)

Issue & Answer. Is a 7.5-inch piece of bamboo with a fuse that is designed to blow up beaver dams an illegal explosive device? No.

Facts. Defendant possessed a 7.5-inch piece of bamboo with a short fuse that apparently explodes when lit. It is used to help him remove beaver dams. The U.S. Attorney for the Eastern District of Texas indicted him for having an explosive device. After the Government proved these facts together with conclusory statements that the device has no commercial application, the defendant moved for a judgment of acquittal. The trial court denied the defendant’s motion.

Analysis. The National Firearms Act prohibits the possession of an unregistered firearm. This includes a destructive device, defined as “any explosive, incendiary, or poison gas . . . bomb.” However, excluded from this definition is “any device which is neither designed nor redesigned for use as a weapon.” When there is doubt whether the device has some social value and legal use, there must be proof of scienter (defendant’s intent or knowledge) or proof the device can only be used for illegal purposes in order to sustain a conviction.

Comment. I mean why are we going after the beaver dam guy? I have clients in EDTX being shipped to northern Oklahoma for jailing. If holding beaver dam guy locally is the reason . . .

Texas Court of Criminal Appeals

Haskell v. State, No. AP-77,091 (Tex. Crim. App. 2022)

Issue & Answer. A party who loses a motion to suppress is entitled to findings of fact upon request.  When a party makes a request but fails to inform the trial judge his findings were overdue, has the party forfeited this right? Sort of. It’s a failure to preserve error rather than forfeiture.

Facts. The State secured a sentence to kill the defendant. The defendant lost his suppression hearing and requested findings of fact. Two months after his request the trial court sentenced the defendant without making the requested findings. Five months later the trial judge lost his primary election. Ten months later the trial judge left the bench. Appellate counsel (presumably appointed after sentencing) took no steps to secure findings until after the trial judge left the bench.

Analysis. The case providing for remand upon a trial judge’s failure to issue requested findings of fact and conclusions of law is State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Cullen turns on a civil rule. The civil rule requires a party requesting findings to notify a trial judge that the findings were past due within ten days after they were due. “But we need not adopt and apply the balance of that civil rule today and hold that the Cullen request here has been forfeited. More basic principles of error preservation come into play.” When a judge makes a favorable ruling, a party must object when that ruling is not enforced. Here the trial judge’s agreement to issue findings was a favorable ruling and the defendant needed to object when the trial judge did not issue them.

Comment. More judge protection rules in a system supposedly designed to strike a balance between the interests of society and the interests of individuals. Someone tell Thomas Hobbes and Jean-Jacques Rousseau they had the social contract all wrong; they forgot about the judges.

Ex parte Richardson, No. PD-0284-21 (Tex. Crim. App. 2022)

Issue & Answer. A jury could have convicted a defendant of murder under a theory of party liability but didn’t. The facts established that the defendant’s associate opened fire on Victim 1 and Victim 2 at two different locations. Victim 1 died but the evidence did not show which shooting caused the result. After a jury acquitted the defendant of all offenses relating to Victim 1, was the State collaterally estopped (under double jeopardy) from prosecuting the defendant for aggravated assault upon Victim 2? No.  

Facts. Defendant and a guy named Polk met with two guys at a gas station to sell them a gun (Victim 1 and Victim 2). Unbeknownst to Victim 1 and Victim 2, Defendant and Polk had sold the gun to another buyer before arriving at the gas station. Polk converted the meeting into an armed robbery. It was unclear whether the defendant knew Polk planned to rob the victims, but the defendant did hand Polk a gun before the two got into the backseat of the victims’ car. After successfully taking the victims’ money, Polk shot Victim 1 through the back. The defendant freaked out and ultimately offered to have the victims follow him to the nearest hospital. Trial testimony provided some indication that Victim 1 had died before the group departed for the hospital. All the same, they never made it. The defendant slowed his vehicle down somewhere in a residential area and Polk opened fire on the victims’ vehicle. Victim 1 received another bullet wound through the head and thigh. First responders found Victim 1 deceased upon arrival and took Victim 2 to the hospital where he eventually recovered from Polk’s gunfire. The State charged the defendant and Polk with capital murder (of Victim 1), murder (of Victim 1), and aggravated robbery (of Victim 1). A jury convicted Polk of capital murder but acquitted the defendant on all three charges (as a principal and as a party). After trial the State charged the defendant with aggravated robbery and aggravated assault of Victim 2. The defendant filed a pretrial writ of habeas corpus challenging the later prosecution on collateral estoppel double jeopardy grounds. The court of appeals reversed and held that “because [Victim 1] received fatal gunshot wounds during both shootings, to acquit, the jury must have found that Appellant was neither the shooter nor a party to either of the shootings.” In other words, the defendant argues that the jury necessarily found that he was merely present for all shootings.

Analysis. Protection against double jeopardy includes collateral estoppel. “[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” The court “must first determine whether the jury determined a specific fact, and if so, how broad—in terms of time, space and content—was the scope of its finding.” Because jury verdicts are general, the court must examine the pleadings, evidence, charge and other relevant matter.” If the record reveals a possibility that the jury based its verdict on an issue other than what the defendant seeks to foreclose from consideration, there is no collateral estoppel problem.  The touchstone case is Ashe v. Swenson, 397 U.S. 436 (1970). In Ashe, the State accused the defendant of robbing a poker game. When a jury acquitted Ashe of robbing one of the poker players the state brought charges against Ashe for robbing one of the other poker players. The logical issue before the jury in Ashe was whether the defendant was the person who committed the robberies, and so the State was collaterally estopped from trying to prove identity in a subsequent trial after a jury previously acquitted him. This case is slightly different than Ashe. Here, the State would be collaterally estopped if the jury found that Victim 1 was still alive when Polk opened fire in the residential neighborhood (the second shooting). Under this theory the jury would have acquitted the defendant as a principal or party to all the assaultive conduct resulting in the death of Victim 1. But the jury could have potentially found that Victim 1 had died before Polk opened fire in the residential area and treated the second shooting as superfluous information. In this scenario the jury’s acquittal would have been a finding absolving the defendant only of assaultive conduct occurring at the first location.

Comment. Did the State have an epiphany after trial that shooting someone with a gun is aggravated assault with a deadly weapon? Doubtful. I think this kind of strategic crap should be poured out on speedy trial grounds. Try the case and let justice prevail. It seems the State chose to delay the new prosecution for no other reason than to have a second bite at the apple if they lost the first case.

Lynch v. State, No. PD-1089-20 (Tex. Crim. App. 2022)(not designated for publication)

Issue & Answer. When a co-conspirator testifies and attempts to take full credit for drug possession, does a defendant open the door to the State’s use of the defendant’s prior convictions for drug possession under Rule 404(b)(limiting use of prior bad acts)? Yes. Is such evidence excludable under Rule 403 (unfair prejudice substantially outweighing probative value)? Not here.

Facts. When officers raided the defendant’s house and discovered a large quantity of cocaine, his girlfriend (“Girlfriend”) attempted to take responsibility. However, Girlfriend was unfamiliar with certain drug terms and ultimately implicated the defendant when she learned the potential penalty for the ownership she was attempting to claim. Girlfriend signed multiple post-arrest statements and ultimately testified at trial attempting again to take ownership of the cocaine. The trial court ruled that Girlfriend’s testimony opened the door to the State’s use of two of the defendants four prior drug convictions. The trial court agreed with the State that Girlfriend’s testimony advanced a defensive theory that the defendant did not have the intent to possess, nor did he know about the possession taking place in his own home. The court of appeals reversed the defendant’s conviction after finding the prior convictions substantially more prejudicial than probative. The court of appeals found it significant that the State waited to admit the prior convictions as standalone exhibits after Girlfriend testified rather than questioning girlfriend about the exhibits on cross-examination. Moreover, the court of appeals found that, without context, the convictions did little more than show that the defendant was a drug dealer, generally.

Analysis. Under Texas Rule of Evidence 404(b), evidence of prior bad acts is inadmissible to prove character conformity. But prior bad acts are admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. When a defendant opens the door, he does so by placing one of these issues into question. If evidence of a prior bad acts contributes even incrementally to proving an issue other than character conformity, the prior bad act is admissible. Relevant prior bad acts admissible under 404(b) may still be inadmissible under Texas Rule of Evidence 403 if probative value is substantially outweighed by unfair prejudice. Trial judges are afforded broad discretion in making Rule 403 determinations. Contrary to the opinion of the court of appeals, the absence of context surrounding the prior bad acts worked to minimize the prejudicial impact of the evidence. The trial court also gave two limiting instructions to the jury prohibiting character conformity use of the evidence. This minimal prejudice existed against the backdrop of the State’s need after Girlfriend essentially took the wind out of prosecution’s sails. The trial court’s admission of prior bad acts did not violate Rule 404(b) or Rule 403.

Concurring (Yeary, J.). The limited issue on appeal is whether the evidence was substantially more prejudicial than probative under Rule 403.

Comment. I mean at this point the only surefire way to not open the door is to abscond.

Lang v. State, No. PD-1124-19 (Tex. Crim. App. 2022)

Issue & Answer. Organized Retail Theft (ORT) does not require the State to identify an owner in the charging instrument—a conviction may rest on the mere possession of stolen property. With this being true, can ordinary theft (requiring proof of owner identity) serve as a lesser included offense of ORT? Yes.

Facts. The defendant stole items from HEB. The State charged her with organized retail theft (ORT). The indictment alleged that the defendant “conducted, promoted, or facilitated an activity in which she received, possessed, concealed, or stored stolen retail merchandise . . .” Evidence showed the owner of the merchandise was HEB, but the indictment did not allege an owner. Defendant acted alone and did nothing distinctive from committing typical shoplifting. Defendant previously appealed her conviction challenging the ORT statute as impermissibly allowing a conviction for “ordinary shoplifting of retail items by a single actor.” The Court of Criminal Appeals previously reversed her conviction upon a finding that the ORT statute must require some proof of activity distinct from an ordinary theft. Upon reversal the Court of Criminal Appeals instructed the court of appeals to consider whether her conviction could be reformed from ORT to ordinary theft. The court of appeals held that Theft is not a lesser included offense of ORT and this appeal ensued.

Analysis. The distinct question here is whether the appellate court, after finding an ORT conviction is inappropriate, can reform the judgment and convict the defendant of theft instead. The court sets out a four-step process for making this determination:

    1. The reviewing court finds the evidence insufficient to support the appellant’s conviction.
    2. The reviewing court determines that there is a lesser-included offense of the greater offense the defendant was convicted of.
    3. The reviewing court determines that the trial court, in convicting the appellant of the greater offense, necessarily found every element required to convict the appellant of the lesser-included offense.
    4. The reviewing court conducts a sufficiency analysis as though the appellant was convicted of the lesser-included offense at trial and finds the evidence sufficient to support the hypothetical conviction.

Whether an offense is a lesser-included of another requires a “cognate-pleadings approach.” This approach requires a comparison of the elements of the greater charged offense as stated in the indictment to the purported lesser-included offense. If the greater charged offense (1) alleges all the elements of the lesser-included offense, or (2) alleges elements plus facts from which all the elements of the lesser-included offense may be deduced, the purported lesser-included offense is appropriate. The elements of the lesser included offense need only be functionally the same as the allegations in the indictment. Appellant contends that because the name of the owner is an essential element of theft, the State having proven all elements of ORT does not necessarily mean they proved all elements of theft. But Appellant is using this court’s standard for determining elements of an offense which applies to sufficiency of evidence challenges (the hypothetically correct jury charge). When conducting the cognate pleadings approach to determining a lesser-included offense, the elements of the lesser-offense are only those defined by the statute. Here, theft requires proof of appropriation and appropriation can be deduced from the ORT allegation of exercising control over stolen property. Here, theft requires proof of intentional deprivation and intentional deprivation can be deduced from the ORT allegation of exercising control over stolen property. Contrary to the reasoning of the court of appeals, to satisfy the statutory elements of theft the State must only prove an owner existed and not the identity of the owner. And here the existence of an owner can be deduced from the ORT allegation of exercising control over stolen property that came from a retail establishment.

Dissenting (Yeary, J.)

Comment. What a journey. When it takes 2-3 pages to explain what a lesser-included offense is and 29 pages to apply the facts to the law, I don’t see how we can expect trial attorneys to adequately prepare for the eventualities of trial. Imagine yourself sitting down with a client who says, “what are the risks of trial?” and the first thing out of your mouth is “well, under the cognate pleadings approach . . .”

1st District Houston

Fields v. State, No. 01-20-00280 (Tex. App.—Houston [1st Dist.], Aug. 11, 2022)

Issue & Answer. This is a capital murder for committing multiple murders in a single transaction. The defendant was a driver, and his accomplices were the triggermen. The State’s theory of the defendant’s guilt is his party liability for the murder occurring within the scope of the robbery he agreed to participate in. The indictment did not mention robbery. Was it proper for the trial court to instruct the jury on party liability to an unindicted robbery without giving the jury a definition or the elements of robbery? No, but the error was harmless.

Facts. A jury convicted the defendant of capital murder (for the death of more than one person in the same transaction). The State’s theory and the jury’s conviction rest on the defendant’s party liability to a robbery turned murder. The defendant was not the shooter, but he was the driver and was involved. The State did not indict the defendant for robbery nor did their indictment for capital murder reference robbery. The trial court instructed the jury it could find the defendant guilty on a theory of party liability to a robbery. The trial court denied the defendant’s request to include the elements of robbery and denied the defendant’s request to include a lesser-included offense instruction on robbery.

Analysis. Generally, when the State intends to rely on party liability to a robbery as the basis for capital murder, they either indict the person as having committed murder in the course of a robbery or they indict the person for capital murder and a separate count of robbery. What the state did here is weird. They indicted the defendant for murdering more than one person (a distinct ground of capital murder), did not refer to robbery, then relied on defendant’s party liability to a robbery to convict. Only two cases appear to exist where a trial court instructed the jury that it could convict on a primary offense based on party liability to an unindicted offense. In both cases, the trial court defined the elements of the unindicted offense. Given that it is the trial court’s obligation to “deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case,” the omission of a definition for robbery “derail[s]” the process. The court’s omission was charge error, but it did not cause harm. The defendant was clearly a party to robbery. Witnesses saw the three men at the scene of the murder, the defendant admitted to planning a robbery, and counsel basically conceded the point in closing argument.

Comment. This case exposes how the rules of appellate review violate the Sixth Amendment (in my opinion). This was a trial before the appellate court. No juror determined whether the defendant committed robbery or was a party to a robbery—not even close. An appellate court just decided that he did in the name of an efficient judicial system.

Ex parte Vieira, No. 01-21-00464 (Tex. App.—Houston [1st Dist.], Aug. 16, 2022)

Issue & Answer. How many years is July 7, 2019 to July 9, 2021? Exactly two. 

Facts. The State charged the defendant with aggravated assault by a public servant. Because the underlying offense is an assault, the statute of limitations is 2 years. The State alleged the offense occurred on July 7, 2019 and filed their indictment on July 9, 2021. Defendant filed a pretrial writ of habeas corpus asking that the case be dismissed and alleging that the prosecution was time barred. The trial court denied relief.

Analysis. Article 12 of the Code of Criminal Procedure governs limitations. The computation of time does not include the date of the offense or the date of the indictment or information. The limitations period here is 2 years. The alleged offense day is July 7, 2019, therefore the first day of the limitations period counted is July 8, 2019. So, the two-year date was July 8, 2021. The State was required to file their indictment by the end of the day on the next calendar day: July 9, 2021. They did this, the trial court properly denied relief.

Comment. A year is:

    1. Twelve calendar months beginning January 1 and ending December 31. — Also termed calendar year.
    2. A consecutive 365-day period beginning at any point; a span of twelve months.

YEAR, Black’s Law Dictionary (11th ed. 2019). 2 years is 730 days (365 x 2). July 8, 2019 to July 8, 2021 is 732 days. The State filed an indictment for an assault offense occurring on July 7, 2019 on July 9, 2021. That’s 734 days. Subtract 2 (first day and last day don’t count statutorily). That’s 732 days (or 2 years and 2 days). What am I doing wrong? Is there some exception written in the Mayan codices? Was the crime committed on a leap year?

Thomson v. State, No. 01-20-00434-CR (Tex. App.—Houston [1st Dist.] Aug. 18, 2022)

Issue & Answer 1. A defendant gave consent to an officer to access his phone and verify it cannot make a phone calls. Did the defendant’s scope of consent include the assumption of risk that the officer might misnavigate to the images on the phone and discovery illegal activity? Yes.

Issue & Answer 2. When a jury suppression issue is raised at trial focusing on whether an officer intentionally accessed the photo gallery or misnavigated to the photo gallery, does the post-trial disclosure of the officer’s prior termination from the district attorney’s office for using a government database for unauthorized investigations of a personal nature require the granting of a new trial? Yes.

Facts. An officer stopped the defendant who was out after midnight. The defendant appeared to be over 40 years old, and he had a passenger in his vehicle that appeared to be a minor (actually 18). The officer quizzed the defendant and the passenger until their stories did not match. He removed the defendant from the vehicle, conducted a Terry frisk, and discovered a marijuana pipe and a cell phone. The officer searched the defendant’s vehicle and discovered knives, duct tape, bungie cords, screwdrivers, binoculars, powdered Benadryl, bar soap, and another cell phone. The defendant told the officer he used these items working as a chicken farmer. The defendant told the officer that the second cell phone stored pictures only and that it did not have cellular service. The officer was suspicious of this claim because the home screen had a 3G icon as though it was connected to cellular service. The defendant unlocked his phone so the officer could confirm the phone was not working by attempting to make a phone call. The officer’s body camera went silent for 15 seconds and then the officer confronted the defendant with the following statement: “Dude, I’m trying to shut your phone, and there’s pictures of naked little girls and little girls in sexually explicit positions. What’s up with that? The officer testified in a suppression hearing that his personal phone was an iPhone with a center button that you press to go back to the home screen. Defendant’s phone was an Android and didn’t function the same way. The officer attempted to return the phone back to the home screen to store it and because it was an android it just pulled up all of the defendant’s child pornography. Experts testified at trial regarding the operation of the defendant’s phone. The experts explained how the stored images are accessed by hitting the gallery button located one row above where the officer may have been legitimately clicking to lock out the phone. The State’s expert showed how the crack in the defendant’s screen could permit access to the photo gallery by only clicking near the icon. The defendant’s expert testified that the officer should have never been on the icon screen if all he was doing was making a phone call and then trying to lock the phone as the officer described. After trial, the district attorney discovered Brady material pertaining to the officer. The officer had resigned from the Grimes County District Attorney’s Office after being confronted about his unauthorized use of a government database to spy on his wife and his new girlfriend’s lover during their divorce proceedings. The defendant moved for new trial and after a hearing the trial court denied relief.

Analysis 1. The trial court’s ruling is best upheld by characterizing the defendant’s consent as broad enough to include inadvertent misnavigation. An officer may inadvertently cause things to fall into plain view. Consent to use a certain function on the phone is consent to inadvertently misnavigate to other areas of the phone. Thus, the officer discovered images of child pornography within his legitimate plain view of the phone.

Analysis 2. Texas Code of Criminal Procedure Article 40.001 requires a trial court to grant a new trial “where material evidence favorable to the accused has been discovered since trial.” Here, because the defendant requested and received a jury evidentiary suppression instruction under Texas Code of Criminal Procedure Article 38.23, the question of whether the officer truly stumbled upon the defendant’s child pornography by accident was important. Evidence that he once perused a government database without authorization in the past was therefore material. Article 40.001 has additional requirements, though. The newly discovered evidence must be admissible. Here the parties focused their arguments on the permissible use of prior bad acts. Rule of Evidence 404(a) prohibits the use of character evidence to prove conduct conformity. The State argued in the trial court that the use of prior bad acts is limited by the Rule itself to proving bias, self-interest, or a motive to lie. The State further argued that the defendant may not rely on Rule 404(b) “for a pathway to admissibility independent of admissibility through Rules 607 through 609.” The trial court erred to rely on this articulation of the rule. The State’s analysis of the interplay between Rules 404, 607, 608, and 609 is unsupported in the law. It is true that Rule 404(a) provides a limited mechanism for the use of character evidence to prove certain things. That said, Rule 404(b) is a thing unto itself—it provides a mechanism for using prior bad acts to prove something other than character conformity. Here the evidence had probative value on a point in controversy: whether the officer’s access of the defendant’s pictures was truly inadvertent.

Comment. What kind of weapon feels like a marijuana pipe or a cell phone? I mean that’s what a Terry frisk is, right? To find weapons?

2nd District Fort Worth

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

3rd District Austin

Ex parte Bornhop, No. 03-22-00033 (Tex. App.—Austin, Aug 11, 2022)

Issue & Answer. Extradition rules require the production of certain documents supported by affidavit. Must the supporting affidavit comply with technical requirements of the Rules of Civil Procedure? No.

Facts. The defendant had warrants in Missouri for burglary and theft. When he was arrested in Austin, he demanded the State produce a governor’s warrant for his extradition. The Texas Governor issued a governor’s warrant upon the documentation provided by the State of Missouri. The defendant filed a writ of habeas corpus challenging the sufficiency of the documentation provided by Missouri. The defendant argued that the request by Missouri did not coincide with an affidavit sworn before a magistrate as required by Texas Code of Criminal Procedure Article 51.13 § 3.

Analysis. Article 51.13 § 3 describes the documents that the requesting state must send to the Texas Governor. The list includes things like an affidavit sworn before a magistrate and a copy of the indictment. The list is disjunctive, meaning the requesting state need not provide every item on the list. Here the State of Missouri provided certified copies of the felony complaints. The State of Missouri also included a statement of probable cause signed by an officer before a magistrate who notated his finding of probable cause. An affidavit is merely a sworn statement before a person authorized to administer oaths. The strict civil rule of affixing a seal of office by the oath administrator is not required here.

Borders v. State, No. 03-21-00545-CR (Tex. App.—Austin, Aug. 18, 2022)

Issue & Answer. When a defendant is engaged in both legitimate and illegitimate financial transactions over a long period of time, does an indictment which fails to identify the illegitimate transactions on which the State intends to rely provide sufficient notice? No. Does the State cure the lack of notice by appending a response to a motion to quash with specific transactions? Yes.

Facts. The defendant worked for the volunteer fire department. He had a fire department credit card. He used that credit card to purchase personal items and to withdraw cash. The defendant admitted to using the credit card for cash withdrawals but explained to detectives that he used the cash for fire department purchases. Investigators discovered $30,000 in cash deposits at the defendant’s bank but estimated combined withdrawals and purchases for approximately $45,000. The State alleged an aggregated theft amount of $30,000 to $150,000 and only generically explained the basis of its accusation (appropriated currency belonging to the fire department). The defendant filed a motion to quash. In his motion he conceded that the State need not allege every fact upon which it intends to rely. But the defendant argued that the discovery was voluminous, unorganized, and provided an insufficient basis for preparing his defense. The State took exception to this characterization. The State explained that it intended to focus on the debit card withdrawals during the relevant time period and attached to its response evidence contained within the discovery purporting to prove the allegation. The State also pointed to the bank records provided to the defendant in discovery with relevant transactions highlighted.

Analysis. Sufficient notice may be provided by means other than the indictment. Here the State responded in writing to the defendant’s motion to quash and attached supporting documentation. The defendant contends that he should not have to “ferret out the illegitimate from the legitimate transactions” combined in the State’s supporting documents. The State should be compelled to specifically list the illegitimate transactions on which they intend to rely. The defendant was correct to file a motion to quash. Case law supports the contention that a defendant accused of mixing legitimate financial transactions with illegitimate ones should not be forced to prepare a defense for every single transaction. But when the defendant filed his motion to quash the State pointed to the discovery it had provided the defendant and pinpointed the transactions it planned to prove were illegitimate.

Comment. Here’s my beef with the rule that the State can provide notice through documents other than the indictment. The indictment serves many purposes, notice being one of them. But the indictment can serve (should serve) to limit the issues at trial and hone what the defendant must prepare for. If a defendant accused under a generic or broadly worded indictment cannot raise an objection to testimony adding incriminating conduct outside the scope of the discovery, then courts should not be able to point to the discovery and say “there’s your notice.”

Melton v. State, No. 03-21-00416-CR (Tex. App.—Austin, Aug 31, 2022)

Issue & Answer 1. In a murder prosecution, when a defendant testifies that he did not mean to shoot the victim, did not know the gun was loaded, and did not put his finger on the trigger, is he entitled to a lesser-included instruction on criminally negligent homicide? Yes. Was the error harmless because the jury received and rejected an instruction on the lesser-included offense of manslaughter? Yes.

Issue & Answer 2. Self-defense is a confession and avoidance defense where the defendant must essentially admit to the conduct of the offense (though not necessarily every element). Is a defendant entitled to a self-defense instruction where he admits to retrieving and wielding a gun, but denies putting his finger on the trigger and maintains that the shooting was an accident? No.

Facts. The state charged the defendant with murder. The defendant and three other individuals were talking on his front porch. A fight broke out and, according to the defendant, the victim held a knife to him. The defendant explained that he went inside, retrieved a shotgun, pointed it at the victim, and told him to never pull a knife on him again. According to the defendant the shotgun went off and struck the victim in a “freak accident.” The defendant indicated that he did not intend to shoot, did not put his finger on the trigger, and did not personally load the gun. Witnesses at trial refuted the defendant’s story and law enforcement explained how they were unable to make the gun misfire in their investigation. The defendant and another member of the altercation testified that the shooting was accidental. The defendant requested but the trial court denied jury instructions on criminally negligent homicide and self-defense.

Analysis 1. “The key to criminal negligence is the failure of the actor to perceive the risk created by his conduct.” Here the defendant testified that the gun discharged accidentally, he never touched the trigger, that he did not check to see if the gun was loaded, that he did not think it was loaded, and that he did not intend to shoot the victim. “Evidence suggesting accidental discharge of a firearm does not necessarily raise the issue of criminally negligent homicide.” But there are several cases where a charge on criminal negligence was required. Here it was an error to deny the requested instruction. Typically, a denied lesser-included offense instruction will result in sufficient harm to warrant a reversal because it forces the jury to convict or acquit on the greater charge without the lesser third option. But here the jury was provided a third option, a lesser included offense with a culpable mental state between the one requested and the offense of conviction. Because the jury rejected the lesser offense it was provided, there is no logical reason to conclude they would have accepted an even-lesser offense. 

Analysis 2. Though the defendant testified that he felt he was endangered, he repeatedly and consistently denied shooting the victim. He also denied pointing the gun at the victim. He did not sufficiently admit to the alleged conduct.

Comment. I think the courts of appeal are lagging significantly behind the Court of Criminal Appeals’ trends in the area of confession and avoidance. Some on the high court have indicated in the past several years that they don’t hold the doctrine in the highest regard. Recently in Rodriguez v. State, No. PD-1130-19 (Tex. Crim. App. 2021) the court reversed the denial of a self-defense instruction where the a defendant claimed nearly the same thing as the defendant in this case – that he pulled a gun in the middle of a fight, he only meant to scare everyone away, but the gun went off by accident. I’m not sure this case holds up if PDR is sought.

4th District San Antonio

Martinez v. State, No. 04-19-00745-CR (Tex. App.—San Antonio, Aug. 31, 2022)

Issue & Answer 1. Investigators could not locate a murder weapon but two days before trial a witness disclosed information suggesting that it could have belonged to the father of the State’s key witness. Under these circumstances, was the trial court required to grant a continuance for purposes of defense investigation? No.

Issue & Answer 2. Is there probable cause for murder if you make a cell phone call to the murder victim moments before the murder? Yes. Is there probable cause to obtain 74 days’ worth of GPS location data? No. Is it harmless? Yes.

Facts. A jury convicted the defendant of murder. The State showed the defendant to be a heroin dealer who had conscripted the victim, a college student and heroin user, to help him finance his heroin business. The defendant’s friend Dalton testified that he picked the defendant up from the location of the murder shortly after it occurred. Investigators used cell phone location and call logs to link the defendant to the location of the murder and the victim herself. The defendant also met the vague description of an eyewitness who had seen a Hispanic male at the location of the murder moments before the murder occurred. During an interview with investigators, the defendant confirmed that he was a heroin dealer, that he sold the victim heroin, that he was friends with Dalton, and that the cell phone police were investigating belonged to him. Days before trial the prosecutor learned and disclosed to defense counsel that the yet-to-be-recovered murder weapon may have belonged Dalton’s father. The defendant requested and the trial court denied a continuance to investigate. The trial court asked counsel what he intended to investigate, and counsel requested to provide that information ex parte so as to not disclose his strategy. The trial court declined to conduct an ex parte proceeding. In a motion for new trial counsel revealed his intended strategy. He explained that “investigation of the information in the Brady notice was critical because it could either place a weapon of the same type used in the murder in Dalton’s hands or, if the statement were proven untrue, impeach Dalton’s credibility.” Dalton’s father testified at the motion for new trial hearing that Dalton is a liar and the bulk of what Dalton had told the prosecutor shortly before trial was untrue.

Analysis 1. The defendant raised the specter of the murder weapon potentially belonging to Dalton’s father. The defendant contends that the trial court’s denial of continuance denied him the ability to investigate. His argument follows “the inability to investigate could have had a significant impact on the trial because it could have shown that Dalton had physical possession of the type of weapon used in the murder.” However, investigators determined that the murder weapon was a revolver and Dalton’s father testified he had never owned a revolver. The defendant’s denied investigation would not have been fruitful. Nor was he entitled more time to develop impeachment evidence of Dalton or Dalton’s father. “[A] trial court does not abuse its discretion by denying a continuance to allow a party to discover impeachment evidence.”

Analysis 2. There is no reasonable expectation of privacy in the numbers a person texts or calls as such information is disclosed to that person’s cell phone provider. This disclosure belies a claim of privacy under the third-party doctrine. However, cell phone location data is not subject to such a waiver of privacy. Cell phone location data must be acquired pursuant to a warrant supported by probable cause. Here the investigating officer articulated phone calls between the victim and the defendant just before the murder occurred and nobody in the victim’s family was familiar with the defendant’s phone number. Defendant contends this is not probable cause, however “[t]he magistrate could have reasonably concluded there was a fair probability that the location of the device involved in those communications would provide evidence of the crime in the investigation of the murder described in the affidavit.” Probable cause notwithstanding, the 74-day period of cell phone data was too broad and not supported by sufficient evidence. But still the warrant was too broad. This error was inconsequential, however. The investigator relied in good faith on his warrant. At the time he applied, neither Texas nor the Fifth Circuit recognized a reasonable expectation of privacy in cell phone location data. Thus, the investigator was fine to obtain permission to seize evidence outside the scope of the probable cause he articulated. Moreover, the information obtained which exceeded probable cause was minimal. The investigator rightfully obtained information which put the defendant’s cell phone at the scene of the murder. Any error in the court’s denial of suppression was harmless.

Comment. This is a weak case for probable cause. And I can usually chalk opinions like this up to any number of agree-to-disagree reasons. But I become suspicious of potentially result-oriented judicial analysis when the judge describes the exclusionary rule (which has existed since 1789) as “the so-called exclusionary rule,” or the “judicially created federal exclusionary rule” as Justice Chapa does in her opinion. None of the rules of error preservation or harmlessness used to reject the defendant’s appeal were described in the opinion as “judicially created.” Either tell us why the exclusionary rule shouldn’t be a rule or just call it the “exclusionary rule.” Otherwise, it just looks like you hate it and wrote an opinion to get around it.

Traylor v. State, No. 04-21-00258-CR (Tex. App.—San Antonio, Aug 31, 2022)

Issue & Answer. When the state impeaches a defendant’s testimony using a prior conviction identical to the offense of prosecution and already has strong evidence supporting their allegation, does the trial court err when overruling the defendant’s Rule 403 undue prejudice objection? Yes, but harmless.

Facts. A jury convicted the defendant of aggravated robbery. The defendant and his daughter testified that at the time of the robbery he was dropping his daughter off at school. The trial court permitted the State to impeach the defendant with a prior conviction for aggravated robbery over the defendant’s Rule 403 undue prejudice objection. The State did nothing more with the defendant’s prior aggravated robbery conviction than represent that it existed.

Analysis. Under Rule 609 a party can impeach a witness using a prior conviction to the extent the prior conviction is probative of truthfulness. The offense must be a felony or crime of moral turpitude. Rule 609 has an inverse Rule 403 balancing test where exclusion is favored over admissibility—probative value must outweigh prejudicial effect. Here the defendant only objected under Rule 403, but the trial court’s ruling was error under either balancing test. Violent offenses are less probative of untruthfulness than those involving deception. The impeachment offense being identical to the offense of prosecution raises some concern about the jury’s improper use. But ultimately, the fact that the State had ample other evidence establishing guilt militated most strongly against admission. The State had the defendant’s palm print at the scene of the offense, law enforcement discovered clothing matching the perpetrator’s disguise at the defendant’s home, the defendant gave a faulty alibi, and an eyewitness identified him. The fact that the State’s case was so strong also made the trial court’s Rule 403 error harmless.

Concurrence (Rios, J.). Wouldn’t even entertain whether the trial court erred if it were harmless.

Comment. The opinion writes the final prong of a 403 balancing analysis out of existence: “the force of the proponent’s need for the evidence.” If the existence of already strong evidence cuts against admissibility but also renders erroneous admission harmless, then is it really even a factor for consideration anymore?

5th District Dallas

Dies v. State, No. 05-20-00951-CR (Tex. App.—Dallas, Aug 4. 2022)

Issue & Answer. When a State’s witness had COVID-19 and both the State and the defendant moved for continuance before trial in response, does the trial court violate the defendant’s confrontation rights by forcing him to confront his accuser by Zoom? No. Not in this case.

Facts. On October 15, 2020, the State announced at a pretrial conference that two of its witnesses could not testify in-person. The State’s forensic interviewer had been exposed to and would later contract COVID-19. The State’s extraneous abuse witness was 38 weeks pregnant and the State articulated concern for her health and safety. The court suggested Zoom testimony and the defendant objected. The State moved for continuance and the trial court denied the request. The trial court cited the need to “get the cases moving” and the defendant’s right to a speedy trial which he did not appear to have even invoked. The defendant then moved for a continuance and expressly cited his need to preserve his right to conduct in-person confrontation. The trial court called its own technology witness who put on the record how amazing the technology in the courtroom was. Both witnesses ultimately testified via Zoom. The extraneous abuse witness covered the defendant up on her screen, so she did not have to see him completely. The forensic interviewer could not see the defendant at all.

Analysis. “[T]he right to a physical face-to-face [confrontation] is not absolute and must occasionally give way to considerations of public policy and the necessities of the case.” The Court of Criminal Appeals recently described face-to-face confrontation as not easily disregarded and a right which exists “at the core of the Confrontation Clause.” But, applying the touchstone case of Maryland v. Craig, 497 U.S. 836 (1990), Texas Courts have permitted virtual testimony in the following scenarios: child witnesses, a witness on active military duty, a seriously ill witness, and a witness with high-risk pregnancy. Whether virtual testimony is “necessary” is a case-by-case determination. It must satisfy an important public policy interest and the “reliability of the testimony [must] otherwise assured.” Here the public policy interest was sufficient. The pandemic was ongoing and a vaccine had not yet become available. Reliability was assured because the procedure for remote testimony met the “salutary effects” requirements of confrontation, namely: there was an oath, there was an opportunity for cross-examination, the factfinder could observe the witness’s demeanor, and there was no increased risk of false accusation or identification.  The defendant contends that there could be no necessity when a continuance could have cured the problem, but at the time there was no way to stay safe from the virus except by wearing masks, social distancing, and good hygiene. A vaccine would not be available to the public until two months later and the trial court had no way of knowing about the rollout of the vaccine.

Comment. In my opinion, the Fifth Court of Appeals just gets this wrong, as does probably several cases it cited in support. There can’t be a necessity if there was another solution such as a continuance. That the witnesses partially or completely could not see the defendant was significant as well. The court relies on very thin logic to dismiss the defendant’s contention that a continuance would have cured the necessity. The contention that trial courts in October of 2020 could not have known the vaccine would soon be available is just a legal fiction.

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

Carbajal v. State, No. 08-20-00069-CR (Tex. App.—El Paso, Aug. 5, 2022)

Issue & Answer. If the State alleges two counts of sexual assault, committed in the same statutory manner, committed on the same on-or-about date, without distinguishing either count, does it violate double jeopardy for the State to convict on both counts? Yes.

Facts. The State prosecuted the defendant under a 13-count indictment. The jury convicted on all 13 counts. There appeared to be 4 offenses underlying the various counts: (1) continuous sexual abuse of a child under 14, (2) sexual assault of a child, (3) indecency with a child by sexual contact, and (4) sexual assault. As it related to two of these offenses, the State alleged the exact same offense on the exact same on-or-about date. Prior to trial the defendant filed a motion to quash the multi-count indictment and insisted the State be compelled to elect the which of the seemingly overlapping offenses it intended to rely upon for conviction. The trial court denied the defendant’s motion.

Analysis. All but two of the State’s 13 counts can be logically separated based on the age of the victim or the on-or-about date. However, the State alleged the same on-or-about date for two counts that allege the same offense. Because the State did nothing to distinguish these two offenses, both convictions cannot stand under double jeopardy.

9th District Beaumont

Rafiq v. State, No. 09-20-00094-CR (Tex. App.—Beaumont, Aug 31, 2022)

Issue & Answer. When officers seize a phone without a warrant and hold it pending acquisition of a search warrant, is the seizure analyzed as one requiring probable cause and exigent circumstances or as reasonable suspicion? In the Ninth Court of Appeals, reasonable suspicion.

Facts. A jury convicted the defendant of murder. Before trial the defendant filed a motion to suppress the seizure of his cell phone. Officers suspected the defendant and set up a missing person interview with him. During the interview the defendant gave a detective consent to look through his phone, requested it back, then gave it to the detective again at which point the detective declared he was seizing the phone. The detective testified he was not prepared to arrest the defendant during the interview and was concerned [based on the context of the interview] the defendant would erase the contents of the phone. After seizing the phone, the detective obtained a search warrant to search the phone.

Analysis. The parties argued exigent circumstances at trial, but the seizure is not properly analyzed under the exigent circumstances exception. This was a brief seizure lasting only long enough to obtain a search warrant. The United States Supreme Court has “frequently approved warrantless seizures of property . . . for the time necessary to secure a warrant, where a warrantless search was either held to be likely or likely would have been held impermissible.” The detective only needed reasonable suspicion to seize the phone. Here they had an accusation against the defendant, the defendant confirmed some details of the accusation, the defendant nervously scrolled his phone when asked about his phone, and the defendant admitted he used his phone to communicate with a person the police believed to be a co-conspirator at or around the time of the offense.

Comment. The court acknowledges that not all courts of appeal follow this rationale. I don’t think if the court analyzed the issue of exigent circumstances the seizure would stand. Police can’t create their own exigency. Police had a witness who had accused the defendant of killing the victim. They ultimately found that witness credible and they corroborated details of that witness’s accusation. They had probable cause to arrest the defendant at the same time they seized the phone. Also, by virtue of the State’s exigent circumstances argument, the police had to have probable cause—probable cause is a necessary element of the exigent circumstances exception. The police created their own exigency by alerting the defendant they believed he was a suspect and then by not arresting him at the end of the interview.

10th District Waco

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

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

State v. Garcia, No. 14-20-00801-CR (Tex. App.—Houston [14 the Dist], Aug. 23, 2022)

Issue & Answer. Does a court of appeals have jurisdiction over a State appeal raising erroneous award of jail-time credit? No.

Facts. The defendant punched the head coach of the Houston Rockets [I think they mean New Orleans Pelicans] in the face during a game. The defendant entered a guilty plea and received a 365-day sentence with jail time credit for 365 days. According to the State, the State did not indicate in the plea paperwork that the defendant had 365 days credit, nobody represented to the trial court that the defendant had 365 days credit, and the defendant did not in fact have 365 days credit. The State filed a motion for judgment nun pro tunc but the trial court declined to rule. This appeal followed.

Analysis. Appellate court jurisdiction in State appeals is defined by statute. The State can appeal an illegal sentence, but this is not an illegal sentence. “A sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.” This includes the facts of the punishment itself, the commencement date, the duration, the concurrent or consecutive nature, and the fine if any. If the State is correct, what the trial court did was unlawful. But here the appellate court has no jurisdiction. Credit for time served is a factor that affects the sentence, not the sentence itself.

Concurrence (Spain, J.) The State should have the ability to review a judgment and object.

Comment. Houdini!

Chapter & Verse: Duties of District Attorneys


Well, here it is. We’ve made it through the first chapter in this behemoth of a cursed code. It’s just the beginning, and I’m feeling like Lawrence Sterne’s character, poor old Tristram Shandy, trying to write his wretched memoirs but each day he recalls takes him two days to write down, the insurmountable stack of memories piling up behind him as the stack of papers in front of him fails to keep up the pace. Sterne’s novel – in nine mind-numbing volumes – was once the talk of the 1760’s, with Shandy weighting in on everything from definitions of honor to how to best make button-holes. But now, it is relegated largely to the halls of academia where bored graduate students are forced to push through it at the behest of tenured faculty and their insistence on the importance of proper buttonholing.

Today, though… today we make some real headway, and we start an all-new chapter. TCCP Art. 2.01 “Duties of District Attorneys.” Please read along if you can, but the pertinent part is the part I will quote here, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” You see that, “progressive” prosecutors? You see that, Chief of Capital Misdemeanors? You see that, sleeping intake DA? PRIMARY. That means first. Your FIRST duty is to make sure justice is done. Tell me the last person at the DAO who was promoted because of their compassion, high dismissal and alternative diversion rate, and ability to see and solve problems that are creating continued interactions with the criminal courts. That’s not the rubric for promotion, of course.

Art. 2.01 is the statutory version of Brady for us. It doesn’t give us quite as much – notice that the language is “capable of establishing the innocence…” – as Brady’s more generous, “tends to establish.” (Emphasis added). See:  Brady v. Maryland, 373 U.S. 83 (1963). That said, it’s not the definition of the evidence that I think is the biggest chasm here between defense and State. It’s the definition of the word “justice.” 

I am sick of banging my head against this Article. Sick of listening to ADA’s with little life or legal experience tell me what my client “deserves” with no awareness of what the State can actually prove. Sick of ADA’s, casually pleading away people’s lives, negotiating years like dollars, like a kid’s poker game for candy.

The Texas defense bar has long let political infighting and competition for appointments prevent them from wielding the power that the defense bar should have in matters of how our clients are treated and how we are treated, but that needs to end.  No matter how many cases a beleaguered defense attorney, public or private, carries, an ADA will always carry more. We have the power to set things for trial, to give them motion sickness, to challenge and claw and fight each step of the way if we don’t get what we want. TCDLA does a great job of organizing, supporting, and connecting us, but we need to utilize our resources better. Let’s actually pull stuff out of the motions bank, contribute our own motions, and push for more and better discovery earlier and harder. Don’t get bogged down in local custom that exists just because it always has, even though it’s not in our clients’ interest.

I know it’s a slog. I know you’re busy. I know you think you don’t have time. But really, I’m not talking about inefficiency – I’m talking about extreme efficiency. Learning the law, learning the things we can do for our clients and how we can do them in a way that is heard, that is effective, and that is not just waiting until the next setting to try and ask the DA for discovery again and then getting a reset. We all have something to offer the defense bar and the other people in it. Part of the reason prosecutors handle things the way they do is because we let them. We are a legion of skilled, educated professionals with a lot of unique experience among us, and we need to demand what they are obligated to give our community but often refuse to: Justice. We can’t let the buttonholes at the DAO get in our way.

Love Always, Allison

Timing Like a Hawk

A good trial lawyer is one who watches for and takes advantage of valuable opportunities. Trial lawyers are opportunists. Spotting the opportunity takes the skill of a hawk. Recognizing the exact moment to exploit the opportunity requires quick action. If you miss the moment, you lose your prey. The most successful trial lawyers are the ones who know the most and who are the most prepared. They put themselves in a position to crush their opponent by being prepared for that one opportunity. When it exposes itself, they swoop in for the kill.

These opportunities present themselves in and out of trial every day. While we need to pay close attention to them in trial, many times we can avoid trial and obtain favorable outcomes for our clients if we are on our game at all times. Consider the following examples from the different phases of the life of a case.

1.   Plea negotiation with the right person and the right judge. How many times have you felt like you were pounding your head against a brick wall over and over when you were trying to negotiate a reasonable plea bargain for a client? You knew the case was not a trial case, and you were practically begging for a normal, run-of-the-mill plea that any other prosecutor in the court would give you except for the one assigned to your case. It’s frustrating, and it feels unfair. It feels like you are being singled out. Then low and behold, on one court setting, that specific prosecutor is on vacation or is out sick and you get the deal you want, plea the case, and never look back. The timing was right, and you seized the opportunity. The same holds true for certain “obstacle” judges. Be patient and the opportunity will come at the right time.

2.   The State drops the ball. Have you ever been in trial and the state overlooked a crucial element they must prove? For example, in a DWI Consent Blood Draw case, Tex. Trans. Code 724.017 must be proved up for the blood result to be admissible. Many times, the states fails to provide actual proof of the blood drawer’s qualifications as well as the blood being drawn in a sanitary place. This type of evidence cannot be offered through a police officer over a valid hearsay objection or without the state proving up his qualifications to offer such an opinion (which I’ve never had them do). Yet, I see this happening in almost every trial I watch. There are real opportunities here to keep the blood out of evidence. You have to know the statute backwards and forwards, know the case law, wait for the state to drop the ball, and then you’ve got them. But keep quiet and wait for trial.

         When I see this happen, I keep my mouth shut, realizing that the state is not going to call any other witness to try to prove up the requirements of Section 724.017. They have not subpoenaed the blood drawer, either out of over-confidence, simply misunderstanding their burden, or because the blood drawer is no longer available.

         When argued correctly, this fumble by the state is that opportunity you were waiting for. Now . . . this is a two-step victory so don’t mess it up by excitedly and prematurely jumping out of your seat to object to the admissibility of the blood result right when the state passes the witness. Be patient. Wait. The opportunity presented itself, but the timing isn’t right yet. If the state releases the witness from the stand and he leaves the room, the timing is still not right. Wait, be patient. When the blood analyst is called to the stand next and the state starts asking background questions and starts going into the theory of Headspace Gas Chromatography . . . Wait, be patient. The timing is still not right.

         Now . . . after the state has just put the jury to sleep with talk about dual columns, retention time, and acetone peaks, they are finally ready to try to admit the almighty BAC lab report that could potentially destroy your case.

         NOW is the time to object. You have remained silent and maintained a good poker face up until this point. Ask the judge if you may approach, object to the admissibility of the lab report, and ask for a hearing about it outside the presence of the jury. If the judge questions if you are raising a motion to suppress and asks why you didn’t have a written motion on file, just cite Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977) (“The defendant’s counsel may either file a pretrial motion to suppress evidence or he may wait until the trial on the merits and object when the alleged unlawfully obtained evidence is offered”). The importance of the timing here is that you want to make sure (1) that the officer is long gone from the courthouse by now and can’t easily be called back to fill in any gaps in the state’s testimony, and (2) you certainly don’t want to give the state any time to call an additional witness at the last minute to fix their problems. You want to press the issue at that moment when you argue your objection and ask the Court to rule. If you had objected earlier on, right after you became aware of the opportunity, you would likely have lost because the timing wasn’t right. Being an effective trial lawyer requires a good poker face and lots of patience.

         A word of caution: Some judges, even in light of the strong authority in Roberts, will NOT allow you to raise ANY motions to suppress during trial unless they were filed in writing beforehand in accordance with CCP 28.01. Article 28.01 deals with deadlines for filing pretrial motions. It requires motions to suppress be filed seven days before an official 28.01 pretrial hearing set by the court. If not filed accordingly, the judge may exclude any motions to suppress after that date even if raised during trial. If there is never an official Article 28.01 hearing, the rule arguably doesn’t apply at all, though. Also, the judge still has discretion to allow a motion to suppress to be raised after the deadline for good cause. The takeaway is this: Pay attention to your pretrial settings; if none of them are official 28.01 hearings, then you are on solid ground for raising an oral motion during trial. If you practice in a jurisdiction that follows the code in this manner, file a written motion, but remember: You don’t have to give away the house. All Article 28.01 requires is a written motion. It does not dictate how specific it must be or how much of your argument you must disclose to opposing counsel. I suggest a generic motion citing that the evidence was illegally obtained under state and federal laws and constitutions.

4.   Trial with the right judge. Always, always, always go in advance of your trial day and ask around about who will be presiding over your trial. Then come back right before and ask again. You plan your case with the judge in mind. You should already be familiar with the judge’s tendencies on rulings and inclinations on potential punishment. This is the only way you can properly prepare and advise your client on the best course of action. Nothing can screw up your plan and your advice to your client more than walking into the courtroom on trial day and seeing a different face in that black robe. Sometimes you are delighted, but many times your stomach sinks and you are knocked off balance and scrambling to figure out a solution at the last minute. As defense attorneys, we are usually the last to know important information about what’s going on with our case. We must know more than the other side, and we should perform thorough “pretrial recon” to ensure we are not blindsided with a different judge on trial day. We must know this information ahead of time so that we may adjust our opportunity radar and avoid pitfalls that we may have fallen into otherwise. If not, we are unable to take advantage of opportunities, and our timing will be thrown off. It won’t be the right time, and we may lose out on opportunities we could have had.

5.   Expired blood vial presentation in trial. One good example of being patient, realizing the opportunity, and properly timing that opportunity can happen in DWI Blood Draw cases. This scenario occurs when the lab has gone through several analysts (due to them quitting or being fired), and then by the time they retest the blood to be used as evidence in trial, the blood vials have been expired for months. When this happens, we should always be aware of the issue. The state is typically not. For example, in one case we did not ask a single question on cross about whether the expiration of the vial would have caused a higher BAC. We knew the state’s lab witness would not give us a good answer. So be it. Don’t ask a question that you know (or should know) will give you a bad answer. All we had to do was make sure at least one photo was admitted into evidence that showed the vial expiration date. When the state offered the photos, we did not object and acted completely unconcerned. We did not want to draw any attention to the picture and let the state catch onto our impending closing argument. When the time came in closing, our argument went something like this:

“In opening, I asked that you please wait until the very end of this case, until now, to make up your mind. I told you that there would be something important I wanted to show you at the end that would change your mind. The blood vials used in this case had been expired for nine months before the lab tested them. How is that okay? That is like a person going to a doctor and the doctor telling you that you may have cancer and need to have part of your organs removed to stop it from spreading. They tell you that they will do a blood test, and based on the results of that blood test he will decide what surgery to perform. You find out that they took your blood in old or defective vials and then let the vials sit around for even a couple months longer before it was analyzed. Now he comes back and tells you that you should trust the blood result completely . . . from THOSE vials (point to the exhibit). How many of you are okay with that? Now in this case, the state is asking you to saddle John Smith with a criminal conviction for the rest of his life, based on the results from THOSE vials!”

        That two-word verdict was all about Opportunity and Timing!

6.   Other opportunity and timing tips for success:

a. Be conscientious about the timing of appearing in THAT jurisdiction. Know the practices of the court, know the staff, the prosecutor, and the judge before you start any proceedings. You won’t get many opportunities, and the timing won’t be right if the first time you see any of the faces in the court is day one of your trial. You probably don’t want to raise a novel issue in the wrong place at the wrong time with the wrong judge in the wrong jurisdiction. Make sure the timing works for you and your client. Also, with respect to plea bargains, sometimes you must wait, wait, and wait some more until the stars align and all the right people are in court one day. Timing is key!

b. Know when it’s time to stop talking. I’m constantly amazed at opposing counsel, colleagues, and even at my­self when we don’t know to keep our mouth shut—whether things are going our way or not. When more ar­gu­ment is just making things worse, or we have already won, and you can tell that the judge’s mind is made up—that’s the time to stop talking. Nothing more needs to come out of our mouth. Talking too much doesn’t always create more opportunities for yourself, and the timing of your additional arguments may just kill your chances.

c. Knowing when to argue and jump up and down about a state’s continuance. One last comment on timing and opportunity. Remember, we work in an adversarial arena. From time to time, however, we need favors from the state—and the state needs favors from us. When you have asked for a few continuances on a trial case and the state has asked for none, don’t jump up and down and scream and holler the first time the state comes to court on trial day and they have an officer out in training. You certainly don’t have to announce that you are “unopposed,” but now is not the time or the opportunity to try to take advantage of state witness problems. Oppose the motion on behalf of your client and let the judge decide. Sometimes the judge will surprise you and start grilling the state about their continuance, and it may end up going your way. Now, if you have always announced ready and the state continues to show up on trial day with excuse after excuse, that is the time to take advantage of an opportunity to try to have the state’s continuance denied. Too many lawyers argue and oppose things when the timing just isn’t right and there is no opportunity. Sun Tzu teaches us: “Even the finest sword plunged into salt-water will eventually rust. He will win who, prepared himself, waits to take the enemy unprepared.” You can rarely force a good opportunity into existence.

There have been numerous cases won during trial because the trial warrior announced ready and then seized that one opportunity at just the right time. This only comes through tremendous planning and preparation. 

There have also been numerous trial cases dismissed on or just before trial day because the lawyer’s timing was right on, and he took advantage of an opportunity that presented itself. Remember the teachings of Sun Tzu as they relate to our art and subduing opposing counsel: “Supreme excellence consists of breaking the enemy’s resistance without fighting.”

Fate whispers to the Warrior, you cannot withstand the Storm. The Warrior whispers back, I am the Storm!

—old Viking battle cry

How Lubbock’s “Prairie Dog Lawyers” Seminar Got Its Name

Your Honors, this case was tried before the Honorable James N. Browning, Judge of the 47th Judicial District, but that is not the only reason it should be reversed.

—Prairie Dog Lawyer Tom Turner, circa 1900
Argument before the Amarillo Court of Appeals

The Lubbock Criminal Defense Lawyers Association’s upcoming 37th annual seminar—set January 5–6 at the Texas Tech University School of Law—has been an important and popular continuing legal education event for decades. About ten years ago, a new name was adopted for the course: “The Prairie Dog Lawyers Advanced Criminal Defense Seminar.”

Most folks naturally assume the name is an innocuous reference to Lubbock’s semi-famous Prairie Dog Town, a third-rate tourist attraction teeming with the semi-cute little furry creatures. Instead, the title carries quite a bit more weight. The Prairie Dog Lawyers were a celebrated generation of pioneer attorneys and judges who brought a measure of justice to 19th century West Texas, generating many inspiring and humorous narratives.

The most famous Prairie Dog Lawyer was Temple Lea Houston, youngest son of the iconic Texas hero Sam Houston. The younger Houston’s adventures as a Panhandle trial lawyer in the 1890s inspired several books and an NBC television series starring Jeffrey Hunter, “Temple Houston” (1963–1964).

I’m not entirely sure how it was decided to name our annual seminar the “Prairie Dog,” but I believe it evolved from a conversation I had in about 2006 with Austin lawyer Keith Hampton, a fellow legal historian. We were comparing notes on an old book, The Prairie Dog Lawyer, by Charles E. Coombes, published in 1945. The manuscript is a treasure-trove of stories about law practice on the Texas South Plains and the Panhandle from the 1880s through the turn of the last century.

The foreword, written by Amon Carter—founder of the Fort Worth Star-Telegram—includes a transcript of a delightful speech delivered by the noted humorist, 7th Court of Appeals Judge R. W. Hall, at the 1929 Texas Bar Association meeting at Amarillo. Though filled with archaic language and sometimes offensive humor (which has been deleted here), the text is essential Texas legal lore:

The Prairie Dog Lawyer
By Judge R. W. Hall

        I have been requested to respond to the usual toast “The Prairie Dog Lawyer,” one of whom I am and proud of it. As applied to those of our profession who came to the wide-open spaces of Northwest Texas when they were peopled with prairie dogs, coyotes, jackrabbits, bad men, and worse women, the phrase “Prairie Dog Lawyer” was not intended in any sense to be laudatory or eulogistic. As then used and intended, it was a nickname, and worse, for it was often applied as an epithet. While it originated in a spirit of ridicule, many of those who were so classified made it famous and respected, just as others in the past who have been called in derision Quakers, Methodists, Crusaders, Rebels, Yanks, Cowpunchers, Clodhoppers, and Sky Pilots have made such names honorable and have baptized and christened them in martyrs’ blood and glorified them by deeds of heroism and sacrifice. This is emphatically true of most of those original old pioneer Prairie Dog Lawyers who lived and died in the years that are gone and whose cases have been appealed to the bar of the Judge of all the Earth. Because I knew and loved them I approach my subject with bowed head and my hat in hand.

        Prominent among such heroes were Judge Frank Willis, Governor Jim Browning, Senator Bill Plemmons, Judge Will Boyce, Senator John Veale, Sam Madden, Lorenzo Dow Miller, Dave Hill, Temple Houston, Gip Brown, B. M. Baker, S. P. Huff, H. H. Wallace, Woodman, and others whom I might mention and who have gone over the Great Divide. When measured and weighed by the Decalogue and the Sermon on the Mount they were not all perfect, but they were strong, rugged characters, true to their clients and their profession; their sterling qualities, their loyalty to each other and the eternal principles of justice, is a rich heritage, of which those of the tribe who are still here are justly proud. While they came here from other sections of Texas and from other States, they were always true to the best interests of the Panhandle. In the stormy days of the “Land Jumpers,” and “Fence Cutters,” and “Cattle Rustlers,” they stood in solid phalanx battling for the law and its supremacy. They were like the Irishman who said, “Every man should be loyal to his native country whether he was born there or not.”

        To paraphrase what someone has said of Texas—it is impossible to tell a lie on the Prairie Dog Lawyer. Whatever you say, be it good or bad, it is true of some of them, sometime, somewhere, somehow, and to some extent.

        With few exceptions, the typical Prairie Dog Lawyer never saw even the outside of a law school, and in his estimation a diploma would have been a woeful waste of good shoestring material. The State Examining Board is trying to change all that. The only sheepskins in his possession covered his “Sayles’ Justice’s Guide” and “White & Wilson’s,” four omniscient, omnipresent, and omnipotent volumes, all which legal Pentateuch he could find good law on either side of any question. The ubiquitous law-book man with his decennial revisions and annual supplements is changing that.

        The Prairie Dog Lawyer was a powerful advocate. He was sorter weak on the law occasionally, but strong and long and awfully loud on the facts, so he didn’t need much written law in his business, though he frequently had to appeal to the unwritten law in behalf of his client.

        On one occasion Lorenzo Dow Miller and Hoover had a case in a remote county before an alleged justice of the peace. His Honor ran a saloon on the lower flood and had what was denominated a hotel in the second story. Court was held in the back end of the saloon. When the testimony was all in, Hoover vehemently insisted that the law was one way. Then Miller went into eruption and with more vehe­mence, insisted that the law was the other way. His Honor, who was both judge and jury, drummed on the poker table with his fingers while he listened to the flow of legal lava. Finally Miller pulled out his fee in the case, which happened to be a $10.00 gold piece, threw it on the table in front of the judge and said, “Here’s $10.00 to back up what I say is the law. Now, Hoover, put up or shut up.” There wasn’t a law book within 60 miles. Hoover only had $2.00 in his pocket. But, assuming all the dignity of the King of Clubs (which Hoover can do if necessary) he told the judge that such a proceeding was an insult to the intelligence of the court and that was no way to decide a question of law. His Honor drummed on the table for a few minutes and then said: “Well, Mr. Hoover, money talks. You must ante or drop out of the game. If you ain’t willing to back your judgment on what the law is, she goes again’ you.” And Hoover lost his cause.

. . .

        Few Prairie Dog Lawyers could tell you the difference between an executory devise and a contingent remainder, but they all knew the difference between two pairs and a bobtail flush. Right here I pause long enough to beg you not to be too severe in your judgment. This was long ago when there was no radio, no yo-yo, automobile, country club, moving picture show, Sunday baseball, or cow-pasture pool, and the boys had to play something. The eternal triangle with its glaring headlines didn’t monopolize the front page, because there wasn’t any front page. Wives had not organized the Mutual Aid Societies for semiweekly pistol practice, because women had not commenced to wear children’s clothes in those good ole days. Speer on Marital Rights had not been written, and they didn’t know they had any rights. So, all things considered, while a friendly game of draw with a nickel ante and a two-bit limit was neither strictly legal nor ethical, it was far better than organizing oil-less oil companies, hot air gas trusts, and promoting blue sky corporations to fleece an unwary public.

        In those days horse stealing and cattle rustlin’ were the two unpardonable sins in this country. If a fellow stole a horse, and the evidence was sufficient to convict (to use modern judicial nomenclature), his case was not justiciable. Why waste time and money trying a thief? If the evidence was weak and there was danger of an acquittal, the culprit was hanged to the first cottonwood limb and there was no case to try. If a man was suspected of using his branding irons in the dark of the moon, and a calf with his brand on it was found sucking another man’s cow, the calf’s testimony against him was conclusive and indisputable. The case was not considered judiciable and the county was saved the expense of a trial. To state it in the judicial phraseology and nomenclature of today, the “Basic Data” shown by the partiality of the cow for her mal-branded offspring and the super-imposed inferences to be drawn from the calf’s drawing upon his differently branded source of supply was a postulate marked by unequivocation and provided a concept which negated the implication of innocence or mistake in handling a branding iron. “In other words” the “collaboration” of the cow and calf “intersee” left an “evidentiary margin” for the presumption of innocence, but ex vi necessitate was proof, ex Cathedra as it were, “justifying a decretal presently enforceable” and “resultant”—and they hung the thief forthwith.

        As I have indicated, there was no such thing as a law library in all this broad expanse of country and what few we knew were not rigidly enforced. But, we could advise our clients what the law was today, with reasonable assurance that it would be the same next Wednesday.

        As in the time Israel’s greatest apostasy, those were the days in which “every man did that which was right in his own eyes,” and most men settled their legal and equitable difference by an appeal to the stern arbitrament of a Colt’s fourth-some-odd, which hung conveniently in its holster on his hip.

. . .

        In his rounds, the district judge, as a matter of form, carried the revised statutes of ’79 with him. On one occasion, in going from one county seat to the other, it was necessary for Judge Willis and the lawyers to wade the Canadian River. The stream was badly swollen, but not navigable, at which time the quick sands were extremely treacherous. Woodman, who was more than six feet tall, was leading the procession, holding the statute above his head in both hands to keep it dry. In fact, the code was the only dry thing in the procession . . . Judge Willis, who was short and stumpy complected (he was undressed in one-piece-bathing-revue-costume), was wading immediately behind Woodman. Willis stepped into the quick sands and commenced to sink. He called to Woodman for help. Woodman insisted that with the precious statute in his custody, he could not help the Court. The Court said: “Woodman, drop the statutes. Let the law go to Hell and save the Court.”

        This is still the slogan in many localities. When it becomes necessary to save the Court, the law is secondary consideration and must be thrown overboard, always.

        They tried cases under high pressure. They fought like gladiators and contested every inch of the ground. They practiced law because they loved it and not for revenue only. The profession had not then been commercialized and a lawyer’s ability was not measured by the size of his fees and his balance in the bank.

        To them the jury was the court of last resort, and its verdict was generally final. There were few appeals. They had no court stenographer and the district was 200 miles wide and 400 miles long. An appeal took lots of time and labor. A new lawyer drifted into the district who knew how to appeal. He was at once frowned upon and ostracized because, as Amos Fires expressed it, “That fellow is going to work us all to death with his fool appeals.” Although they were fighters to a finish the verdict was usually the finish, and as soon as the smoke of battle had cleared away and the dust had settled in the arena, all parties (including the Court) repaired to that popular corner where the cowpuncher made his headquarters when in town; and together the one drowned his disappointment and the other celebrated his victory, with their feet on the same rail. The most genial spirit of fraternity prevailed and no one harbored malice or ill-will because of what happened during a trial.

        Tom Turner appealed one case, and when he went to argue it in the Appellate Court, he said: “May it please Your Honors, this case was tried before the Honorable James N. Browning, Judge of the 47th Judicial District, but that is not the only reason it should be reversed. There are twenty-seven others in the record.” Someone told old big-hearted, lovable Jim what Tom had said, and it took Jim nearly all day to get in a good humor again.

        Many of them, like the saddle-bag lawyer of East Texas did years ago, went around the immense district with the Court, but they traveled in buckboards and in hacks. Their lodging place was wherever the shadows of night overtook them and with a Parker to sleep on and a Suggins for a cover, they dreamed under the star-spangled canopy of heaven to the music of the coyote’s chilling serenade.

            But my time is limited. In conclusion let me say that when the Epic of the Panhandle has been written by some genius who has dipped his pen in inspiration and has faithfully portrayed in flowing words the thrilling scenes of those old days that are gone never to return, the Prairie Dog Lawyer will be the central figure in that grand picture.

Jury Trials—Is It Witch Science?

Many of the Americans living in the Southwest are, of course, of Mexican descent. Though many families have lived in the United States for several generations, there is a continual influx of new immigrants from Mexico. As a result, many cultural phenomena brought from Mexico continue to thrive in the barrios (neighborhoods) of the Southwest. This is as true in San Antonio as anywhere else in the region. These cultural phe­nomena affect the food we eat, the music we listen to, the customs we adhere to, and, in their most important manifestation, what we believe.

The curanderos, for example, are believed to possess magical powers and special knowledge of plants and herbs, with the power to do great good or great evil according to the way in which they are mixed or prepared. This tradition is as much alive in San Antonio as in the villages of Mexico whence it sprang.

The attitude toward curanderos is a curious mixture of awe, fear, and ambivalence. The “hip” educated side of us knows intellectually that they do not possess magical powers, but our hearts simultaneously fear that perhaps our heads just don’t understand.

We’ve all heard the stories from the old folks of how some unbeliever such as ourselves has been cursed and lived to rue the error of his ways, brought under the power of a voodoo-like spell.

I once had a robbery by assault with firearms case (aggravated robbery now) in which a curandera played a very important role—as a juror. She had come to court dressed completely in black and wearing a shawl over her head, and we had all simply assumed her to be a widow, wearing black to honor the memory of her deceased husband. That practice still exists among some families of Mexican descent, and women dressed like she was are still a fairly common sight around here.

We later learned that she was wearing black as part of a spell she was in the process of casting. However, the jurors didn’t know that until they were in the jury room, and neither the judge nor the lawyers became aware of that fact until after the jury had been dismissed (without a verdict having been reached) as being hopelessly deadlocked.

At that time, we learned that the jury had very quickly found itself divided 11–1 in favor of conviction, and that the lady in black was the lone holdout for acquittal. So far as the jury could gather, her basis for voting Not Guilty was a combination of her special ability to perceive the truth and the State’s failure to produce the gun with which the robbery had been committed.

Now, a skeptic could be forgiven for concluding that the lady’s ability to perceive the truth was no better than yours or mine, and I won’t comment about that.

What I will tell you is that the State’s inability to produce the gun was legally and logically irrelevant. That an armed robbery had occurred, and that the unfortunate victim had been severely pistol-whipped by the perpetrator of the robbery, had not been contested. The defense was, quite simply, that somebody else had committed the crime and not the defendant on trial. (This is sometimes referred to as the “SODDI” defense—“some other dude did it.”)

The defendant, a young black man without a job, who simply “hung out” on the streets, had been unable to produce a meaningful alibi—such young men never are. Their days are all ill-defined amalgams of time spent on various street corners, in miscellaneous pool halls, and on basketball courts around the neighborhood, and all that time is spent with others very much like themselves.

Typically, they have no idea where they were last Thursday at 4 o’clock in the afternoon, or who they were with. If they could remember, the guys who were with them can’t, and if they can, nobody believes their testimony anyway, because they too are unemployed black youths who just “hang out.”

Our defense had been very straightforwardly based on the defendant’s chin. He had the most unusual chin I have ever seen, in that it was split by a cleft so deep that it actually appeared that he had sustained a serious injury. Although the victim, who had been badly injured, could and should be forgiven by a jury for not remembering every detail of his assailant’s appearance, we thought the defendant’s chin to be so unusual that anyone accosted by him would have mentioned his chin.

The victim had made no mention of his assailant’s chin and couldn’t remember anything memorable about it even when I specifically asked about his assailant’s chin (while the defendant blocked his chin with his hand).

He had nevertheless insisted that the defendant was his assailant, and 11 of the jurors had believed him.

When the twelfth juror explained her “reasoning,” so far as I could tell from talking with the other jurors later, they had broken into three groups. The largest group thought the woman was crazy and there would be no reasoning with her. A couple apparently became about half-convinced that the absence of the handgun was important, and a couple were either concerned that perhaps she did possess special powers to perceive the truth, or that crossing her might end up getting them cursed. Whatever the basis, there could be no question but that jury was hopelessly deadlocked.

The case was tried again and upon essentially the same evidence the second jury was also unable to agree upon a verdict. This time the split was 10–2 for Not Guilty, so the State dismissed the case rather than try it a third time.

This case troubled me at the time I was handling it, and continues to trouble me as I try to interpret what it tells us about our jury system.

After 24 jurors had heard the evidence in the case, 13 thought the defendant was guilty and 11 thought he was not guilty. However, 11 of the 13 who thought he was guilty sat on the first jury, and if only one vote had changed he would have been found guilty. If found guilty, he was facing up to a life sentence. He thus quite literally was one vote away from spending a very long time in the penitentiary, but ended up being freed.

On the other hand, if the first jury had voted 10–2 for acquittal, as the second jury did, the case would probably have been dismissed by the prosecution at that point, and there would have been no second trial.

The defendant, being poor and charged with a very serious offense, was unable to post bail, and thus had been in continuous custody from the time of his arrest until after the second trial. In all, he spent about eight months in custody on an offense that was ultimately dismissed.

Whoever committed this offense richly deserved a long prison sentence. If the defendant was the culprit, he got off very, very lightly, the undeserving beneficiary of a noteworthy chin and an unobservant victim.

On the other hand, if the defendant was in fact innocent, our system held him in confinement for eight months for nothing, and he has been greatly wronged. Moreover, whoever actually committed the offense got away with it.

As a practical matter, once a victim has committed himself to identifying one person as the perpetrator of the offense, there is no way a successful prosecution of anyone else could occur.

What we learn from this case, ultimately, is that our system—like all others—is fallible, and that injustice is bound to occur in any fallible system.

The system became fallible, by the way, in the year 1215. No, not because of the Magna Carta, although that is the year that the English nobility extracted that charter from King John. Rather, it was because of Pope Innocent III’s Fourth Lateran Council, which also occurred that year.

Trials in England, until that time, had been by battle or by ordeal. Knights and nobility would settle their matters in the lists, on the Field of Honor, by the lance.

Lesser folk would be bound and thrown into the lake, to see if they sank; if they did not, they were clearly being rejected by the water, were thus plainly guilty, and were promptly hanged. If they sank, they were accepted by the water and thus plainly innocent, and if they were lucky, they were pulled from the water before they drowned.

There were other trials by ordeal. Some would be required to walk barefoot across a bed of coals, others to grasp a hot poker in their bare hand. In each case, guilt or innocence would be determined by the extent of injury and the rapidity and extent of recovery.

It was also true that the nobility began to use mercenaries (what were then called “champions”) to defend their honor with lance and sword.

What made all this infallible was the participation by priests of the church, who would invoke the presence and judgment of the Almighty in these various proceedings to insure that Right would Prevail and Truth be Upheld. These were the days, you will recall, when second and third sons, being denied all right of inheritance by the law of primogeniture, had to make their ways as best they could, either as knights errant or clergymen.

Occasionally, a clergyman could be found who might be persuaded (upon payment of a proper indulgence) of the justice of one’s cause. Perhaps, despite appearances to the contrary, the water did accept one; mayhap, the scarring from the poker, severe to the untrained eye, reflected God’s judgment of innocence to the eye made more perceptive by study of things sacred and the secret beneficence of the purse.

Enter Innocent III, with his narrow-minded Continental point of view. Thenceforth, he decreed following the Fourth Lateran Council, priests of the church shall not participate in those godless rituals known only to the barbarous English and called trials by battle and by ordeal.

The English—and we, the progeny of their legal system—have been fallible ever since.

DNA Evidence—New Tactics to Use in Challenging

Who, in defending a case involving DNA evidence, has not heard testimony from the State’s expert to the effect that there is a one-in-3 billion chance of a match to someone other than the defendant? It does not matter that all 13 alleles do not match; the testimony is essentially the same. Invariably.

Powerful evidence. It instantly creates the impression in the mind of the jury that it would take over 3 billion people being tested before a match occurred. But, as you will see, it can be a false impression. A very false impression.

Or worse, the State’s expert offers testimony to the effect that: “The frequency of an unrelated African American (both appellant and Franklin are African American) having the same DNA pattern as that found on the cigarette butt consistent with the major contributor’s DNA was approximately one in 118 billion.”1

Worse yet, the State’s expert offers testimony to the effect that: “The complainant could not be excluded as a contributor to the bloodstain on the bill. The chances of another contributor are 1 in 30 quintillion Caucasians, 1 in 56 quintillion African-Americans, and 1 in 343 quadrillion Hispanics.” And, “The chances of another contributor are 1 in 191 quintillion Caucasians, 242 quintillion African-Americans, and 1 in 273 quintillion Hispanics.”2

Never mind that some of these chances are “derived” after testing alleles at only 6 of the 13 loci that are normally tested!3,4 Or that European agencies usually use two extra markers, D2 and D19, to make 15 loci (16 if you include AMEL) that are tested.5 Or that Taiwan now tests allelles at 23 markers because of matches at 13 alleles that turned out to be exclusions when 23 markers were tested.6 Or that there is no uniform methodology for determining those chances within the field—not even within the same lab!7 Or that the policies of some agencies requires their employees to testify—when only two alleles match—that the person cannot be excluded.8

So, how do you challenge this testimony?

Before listening to the presentation of Greg Hampikian, PhD, at the National Child Abuse Defense and Resource Center’s seminar last October, we were relegated to using the tried (tired?) tactics to challenge this one-in-however-many billion, trillion, quadrillion, or quintillion chance testimony. These tactics include: (1) challenging the methodology used in testing the sample(s), especially when a mixture of DNA was tested; (2) challenging chain of custody or errors in sampling; (3) challenging the technician on his or her methodology in light of known errors; (4) challenging the degradation of the DNA specimen; (5) challenging the methodology of calculating the chances; (6) challenging the underlying study that is used to calculate these chances; (7) challenging the possibility of contamination of the sample; (8) challenging the lab based on its history of past errors, etc.9 This is not an exhaustive list, but those of us who have challenged DNA know them all.

Wouldn’t it be nice to have some new “bullets” to put into your cross-examination “gun”?10 Or to have some additional aces (bullets) to lay down when playing poker with the State’s experts on DNA?11 Or to be able to force the State’s expert to have to bite the bullet and concede that their opinions are flawed, if not outright wrong?12

Dr. Hampikian gave everyone who attended the NCADRC seminar several new aces (bullets) to use when playing poker with the State’s expert and trying to trump the State’s expert’s testimony on DNA evidence.13

Dr. Hampikian’s First Bullet

The first bullet was to get us lawyers to understand the difference between chance and probabilities (statistics).14

For instance, take the question of what is the number of people you have to have in a room to have a better than 50% probability of two of them sharing the same birthday? Call this the birthday problem. People will guess at anywhere from 366 to 183 and they will be wrong. This is a simple example of how people (jurors) confuse chance with probabilities (statistics).

The birthday problem asks how many people you need to have at a party so that there is a better-than-even chance that two of them will share the same birthday. Most people think the answer is 183, the smallest whole number larger than 365/2. In fact, you need just 23. That’s right, 23.

The answer 183 is the correct answer to a very different question: How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?

If there is no restriction on which two people will share a birthday, it makes an enormous difference. With 23 people in a room, there are 253 different ways of pairing two people together, and that gives a lot of possibilities of finding a pair with the same birthday.

Here is the precise calculation. To figure out the exact probability of finding two people with the same birthday in a given group, it turns out to be easier to ask the opposite question: what is the probability that no two will share a birthday—i.e., that they will all have different birthdays? With just two people, the probability that they have different birthdays is 364/365, or about .997. If a third person joins them, the probability that this new person has a different birthday from those two (i.e., the probability that all three will have different birthdays) is (364/365) x (363/365), about .992. With a fourth person, the probability that all four have different birthdays is (364/365) x (363/365) x (362/365), which comes out at around .983. And so on. The answers to these multiplications get steadily smaller. When a twenty-third person enters the room, the final fraction that you multiply by is 343/365, and the answer you get drops below .5 for the first time, being approximately .493. This is the probability that all 23 people have a different birthday. So, the probability that at least two people share a birthday is 1 – .493 = .507, just greater than ½.15

Carrying this out to 30 people and the answer you get drops to approximately .293. So the probability that at least two people share a birthday with 30 people in the room is 1 – .293 = .707, or greater than 70%. Carrying this out to 35 people and the answer you get drops to approximately 0.185. So the probability that at least two people share a birthday with 35 people in the room is 1 – .185 = .815, or greater than 80%. Carrying this out to 40 people and the answer you get drops to approximately 0.108. So the probability that at least two people share a birthday with 40 people in the room is 1 – .108 = .892, or almost 90%. Carrying this out to 44 people and the answer you get drops to approximately .007. So the probability that at least two people share a birthday with 44 people in the room is 1 – .007 = .993, or greater than 99%.

Changing the birthday problem slightly, ask how many people you need to have at a party so that there is a virtual certainty that two of them will share the same birthday. The answer to this question is 45, because with 45 people in the room, the probability that at least two people share a birthday is greater than 100%!16

A similar problem is presented by the “Children Puzzle.” I tell you that a couple has two children and that (at least) one of them is a boy. I ask you what is the probability that their other child is a boy. Most people think the answer is 1/2, arguing that it is equally likely that the other child is a boy or a girl.17 But that’s not the right answer for the question I have asked you. Here’s why. In terms of order of birth, there are four possibilities for the couple’s children: BB, BG, GB, GG. When I tell you that at least one child is a boy, I rule out the possibility GG. That leaves three possibilities: BB, BG, GB. With two of these, the other child is a girl; so the probability of the other child being a girl is 2/3. Leaving the probability of the other child being a boy at 1/3.18

A similar problem is presented by these questions: What is the probability of tossing a coin and having it come up heads 10 times in a row versus what is the chance (probability) that on the tenth flip of the coin, it will come up heads? The first probability is (½)10—one-half to the tenth power. The second probability is ½. But most people will answer both questions as ½.

These are just three examples of how people (jurors) confuse chance with probabilities. Getting jurors to understand the difference between chance and probabilities (statistics) is very important. Getting the State’s expert to talk in terms of probabilities (statistics) instead of chances is even more important.

Dr. Hampikian’s Second Bullet

Which brings us back to DNA in the courtroom and the second bullet that Dr. Hampikian gave us. The State’s DNA expert is going to testify that there is a one-in-3 billion chance that there would be a match on the alleles that were tested and which matched.19 Or, as there are fewer than 13 alleles that match, that your client cannot be ruled out.20

What do you do?

First, if it’s a one-in-3 billion chance testimony, we would recommend that you file a Rule 702 challenge to any such testimony. Why? Because chance is not probability.

You need to reframe the question or the expert’s statement. The question or statement is, more properly, Is a coincidental match to the DNA database possible? And if so, what is the probability of that coincidental match?

If a profile has a random match probability of one-in-3 billion, how big does the database have to be before a “random match” is expected (over 50% chance)? The answer is about one and one-half billion. Using the “birthday problem” above, you see that this is the “How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?” answer.

Second, you need to ask the State’s expert whether he has ever examined the FBI’s DNA database or even the Texas DNA database to see if there were any random matches and, if so, on how many alleles the profiles matched. Being the cynics that we are, we would expect the expert to announce that, in fact, he had done so. Which then leads to how did he get access to the database when no one else has been able to do so, were those results were published in a peer-reviewed scientific article, etc.

Of course, this leads to the fertile ground of cross-examination: How many DNA profiles are in the FBI database? Or the Texas database?

Which brings us back to, what is the chance (probability) that there is a random match somewhere in the DNA database?

If a DNA database has a number of profiles that each has about a one-in-3 billion random match probability, the question becomes: How big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

Remember, the FBI has the world’s largest DNA database, but it has never made its database available to independent scientists to examine. The authors have searched online and have been unable to find any definitive answer to even the question of how many DNA profiles it has in its database.21

So, how big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

According to Dr. Hampikian, the answer is 65,493. That’s right—65,493. Not one and one-half billion people. Not a billion people. Not five hundred million people. Not a million people. Slightly more that 65,000 people!

So, where did Dr. Hampikian come up with that number? Arizona. That’s right—Arizona.

Well, actually, it was the examination of the Arizona DNA database that was performed by Steven P. Meyers, MS, with the California DOJ Jan Bashinski DNA Lab. Dr. Hampikian showed those slides to the audience at the NCADRC Seminar in October 2014.22

You see, among all of the states that have DNA databases, only Arizona has made its DNA database available to scientists to examine. In that examination, the scientists were able to find the following matches:

  • 122 pairs match at 9 of 13 loci
  • 20 pairs match at 10 of 13 loci
  • 1 pair matches at 11 of 13 loci (full siblings)
  • 1 pair matches at 12 of 13 loci (full siblings)

And that’s in a database of only 65,493 profiles!

Which suggests to the authors that if you are defending someone on a crime where DNA is being used to “finger” your client, it might be time to ask for discovery of the State of Texas’ DNA database, so that your expert can examine it to determine whether Texas has similar matches that have not been disclosed.23 This alone could be critical in showing that the State’s expert’s pontifications as to chances of a match are nothing other than something that the expert has pulled out of an orifice somewhere.

And, in light of what was uncovered in the Arizona database, it could be argued that the prosecutors are withholding Brady material for at least two separate reasons. First, the Texas DNA database is supposedly larger than the Arizona database, so one could presume that there are matches in the database that are similar to those found in Arizona. Second, the Arizona matches will have been submitted to CODIS, which means that those matches are in CODIS. This is impeachment evidence that the prosecutor has access to and it should be turned over under Brady.

Dr. Hampikian’s Third Bullet

Which brings us to the third bullet that Dr. Hampikian gave those in attendance at the NCADRC Seminar last October. It is the case of Chen Long-Qi out of Taiwan.24

The facts of that case are as follows: On March 24, 2009, two escorts were raped between 4 to 6 a.m. in a warehouse that Chen and his friend rented for agricultural products distribution. The victims failed to identify the assailants due to alcohol intoxication.25

Chen always maintained his innocence during the investigation and trial. He claimed that he left before the crime to pick up his wife, Ko, at her workplace. Ko’s timesheet corroborated Chen’s words. An eyewitness also testified that Chen was not at the scene. Despite no testimony linking Chen to the crime, the district court and high court found him guilty of gang rape with the other two co-defendants. The decision was solely based on a DNA test concluding that Chen “cannot be excluded” from the semen stain found on one of the victims’ underwear. Chen was convicted of gang sexual assault and was sentenced to 4 years in March 2013.26

With help from the Taiwan Association for Innocence, Chen filed a motion for retrial in June 2013 seeking to retest the DNA evidence. The court authorized a 23 loci STR test on the original mixture DNA sample. The new test result showed that Chen “can be excluded” from the DNA sample. Based on this new piece of evidence, the court granted his motion in December 2013.27

According to Dr. Hampikian in his presentation at the NCADRC Seminar, Chen was acquitted on April 15, 2014. As Dr. Hampikian explained: “Last year the Taiwan Association for Innocence director showed me the case of a man convicted of gang rape through DNA evidence. While that first DNA test was accurate, it was a complex mixture, and newer testing is more discriminating. Through a court hearing the National Crime Lab agreed to do further testing with newer kits, and they were able to exclude Chen Long-Qi.28

Dr. Hampikian’s Fourth Bullet

Dr. Hampikian’s fourth bullet dealt with the problem with statistics. He used the case of Donny Denman to illustrate.

Who is Donny Denman? Donny Denman is the man who the FBI pronounced dead after they examined the DNA in some bones found in New Mexico. Since Donny Denman had been missing for years and since they did not have Donny’s DNA, they used Donny’s siblings to test the mitochondrial DNA. And the FBI concluded that the DNA matched and the bones were Donny’s.

Donny had a funeral. The Pastor gave the eulogy. A death certificate was issued in Donny’s name. There was only one problem: Donny was still alive.29

Granted that using mitochondrial DNA is not as effective in distinguishing individuals as the more common nuclear DNA process, there was a coincidental match, nonetheless. What’s really interesting to the authors is that the FBI said that Denman’s case was the first time the FBI lab has had a “coincidental match.”

The reason that statement is so interesting is that the Arizona DNA database, supra, would have been submitted to CODIS. Are we to believe that the DNA samples that led to the matches that Steven P. Meyers, MS, found in the Arizona database, supra, somehow did not make it into CODIS?

Or are we to believe that FBI is telling the truth when they state that they have never had a “coincidental match.” Remember, these are the same people who tell us that fingerprints are unique and who incorrectly identified Brandon Mayfield, a lawyer from Portland, Oregon, as the Madrid train station bomber.30

Related to this is that experts say there is no way to tell what the odds are for a coincidental match. But courtesy of the coincidental matches that Steven P. Meyers found in the Arizona DNA database, we know that the odds of a coincidental match at 9 of 13 alleles is 122/65,493. We also know that the odds of a coincidental match at 10 of 13 alleles is 20/65,493. We also know that the odds of a coincidental match at 11 of 13 alleles is 1/65,493. And we know that the odds of a coincidental match at 12 of 13 alleles is 1/65,493.31

That’s nowhere near a one-in-3 billion chance! Not even in the same ballpark. Not even on the same planet.

Dr. Hampikian’s Fifth Bullet

Dr. Hampikian’s fifth bullet dealt with the problem of contamination of the samples in the laboratory.

Dr. Hampikian gave several examples of cases where people were identified as the perpetrator but the identification was flawed by contamination occurring in the laboratory.

One such case was the case of Carlton Gary, the so-called Columbus Stocking Strangler. He spent almost 30 years on death row in Georgia, and in 2009, hours before he was to be executed, the Georgia Supreme Court ordered DNA testing. Ultimately, the Georgia Bureau of Investigation laboratory conducting the tests reported it had tainted the DNA evidence.32

The interesting corollary is that when the DNA was re-tested, it did not match anyone in the CODIS database. Two years later, a gun crime was committed in Georgia and the DNA from the suspect in that gun crime was submitted to CODIS. A match was found, so that suspect was interviewed and he was excluded from the Columbus stocking murder cases due to his age—he couldn’t have committed those crimes back in the ’70s. It turns out that the samples in both cases were contaminated at the Georgia Bureau of Investigation Crime Lab with the same DNA evidence. And it turns out that the DNA that contaminated both samples was from a semen sample produced by someone who works in that lab—a sample produced as a quality control!33

Dr. Hampikian’s Sixth Bullet

Dr. Hampikian’s sixth bullet dealt with the problem of contamination of the samples that occurs outside the laboratory.

In his presentation at the NCADRC Seminar in October 2014, Dr. Hampikian talked about the need for crime scene technicians to change their gloves between each piece of evidence they handle so as to avoid transferring DNA from one piece of evidence to another. This, alone, presents a fertile ground for cross-examination.

Dr. Hampikian also talked about the “phantom of Heilbronn.”34 This is the debacle suffered by the German police when they spent 16 years chasing a woman who never existed. The unnamed woman was suspected of being a serial killer who over 16 years carried out a string of six murders, including strangling a pensioner. It turns out the misidentification was caused by swabs used to collect DNA samples having been contaminated by an innocent woman working in a factory in Bavaria.


The take-away from Dr. Hampikian’s two presentations is this: There are forensic DNA errors; there are statistical and interpretative errors; and there are contamination errors. Now you have six new aces to lay down on the table when you want to trump the State’s expert in your quest for justice for your clients who are being “fingered” by DNA.


1. Brown v. State, 163 S.W.3d 818 (Tex. App.—Dallas 2005, pet. ref’d).

2. Owolabi v. State, 448 S.W.3d 148 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

3. Brown v. State, 163 S.W.3d at 825—826.

4. CODIS identifies genetic markers at 13 STR loci, plus Amelogenin (AMEL) to determine sex. See (last accessed January 22, 2015).

5. Id.

6. (last accessed January 22, 2015).

7. Presentation by Greg Hampikian, PhD, at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at:|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

8. Dr. Hampikian notes that the experts from the Georgia Bureau of Investigation will testify, when only two alleles match, that the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See

9. In his presentation at TEDx Boise 2015, Dr. Hampikian discusses the problems associated with contamination of the samples, including the possible sources of contamination.

10. Two the authors are attorneys, licensed in Texas, proud possessors of a CHL, who can often be found exercising the privileges that come with a CHL. It seemed appropriate to them to use the term “bullet,” in the sense of the metal cartridge that one inserts into a pistol. This term was not suggested by Dr. Hampikian, and to the authors’ knowledge, he has never referred to his points as bullets—not even when he was using a PowerPoint presentation containing what would otherwise be called bullet points.

11. In cards, an ace is referred to as a bullet. Random House Dictionary, Random House Inc., 2015. The NCADRC seminar is usually held in Las Vegas, and the authors have been known to participate in the games of chance offered in the casinos. There has been more than one occasion when they each would have been more than happy to have had one more of these bullets to play.

12. “Bite the bullet”: to force oneself to perform a painful, difficult task or to endure an unpleasant situation. Random House Dictionary, Random House Inc., 2015.

13. The authors are grateful to Dr. Hampikian for his assistance in the prep­a­ra­tion of this paper and his providing the slides referred to in this paper together with the link to his TEDx 2015 presentation. His assistance was limited to check­ing the paper for errors, and he did not have any input into the final draft or its terminology or the words used.

14. Again, the term “bullet” is used in the sense defined in note 11—an ace.

15. (last accessed January 3, 2015).

16. As you will see in this paper, this question can be rephrased: How many people’s DNA profiles do you have to have before you are virtually certain to have two people who match at 9, 10, 11, or even 12 loci.

17. That answer is the answer to the question of what is the chance that the other child is a boy.

18. Id.

19. Or in a trillion, a quadrillion, a quintillion, or in a whatever chance. For simplicity, the authors will keep it to a one-in-3 billion chance.

20. As noted by Dr. Hampikian, the experts from the Georgia Bureau of Investigation will testify that when only two alleles match, the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See

21. The authors are not, by this statement, claiming to be the absolute best online researchers.

22. The authors have tried to attach Dr. Hampikian’s PowerPoint presentation on this study but have been unable to do so. If you will email L. T. Bradt at , he will be happy to share the PowerPoint presentation that Dr. Hampikian shared with him.

23. This raises an interesting Brady issue. But that is for another time and another article.

24. (last accessed January 22, 2015).

25. Id.

26. Id.

27. Id.

28. See also (last accessed January 27, 2015).

29. (last accessed January 24, 2015).

30. (last accessed January 24, 2015).

31. As to both the 11 of 13 alleles matching and the 12 of 13 alleles matching in the Arizona database, these profiles involved full siblings. Remember, the RMP assumes that people are unrelated, so if you use these examples, the State’s expert may throw it back in your face.

32. (last accessed January 24, 2015).

33. Greg Hampikian’s presentation at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

34. See Dr. Hampikian’s presentation at TEDx Boise 2015, found at|-Greg-Hamp . See also (last accessed January 25, 2015).

A History of Accomplishment: Lubbock Criminal Defense Lawyers Association Celebrates 35 Years

There are basically two types of people: people who accomplish things, and people who claim to have accomplished things. The first group is less crowded.
–Mark Twain.

In 2015, the Lubbock Criminal Defense Lawyers Association (LCDLA) will celebrate its 35th year in conjunction with the 34th annual Prairie Dog Lawyers Advanced Criminal Defense Seminar January 8–10 at Texas Tech University School of Law’s Lanier Center. Highlighting the festivities will be a 1980s-themed dinner and dance Friday evening, January 9, at Kershner’s Four-Bar-K, south of Lubbock. About 18 surviving charter members of LCDLA will be honored.1

Now is a good time to take a look back at LCDLA’s history of accomplishment.

Ancient History

Upon the organization of Lubbock County in 1891, the village of the same name was home to fewer than 200 souls, including as many as four lawyers. All were general practitioners who dabbled in criminal law, but there was little crime and very little litigation at the courthouse. When criminal cases were litigated, the pioneer criminal defense lawyers seemed to do very well.

Lubbock County’s first felony jury trial was in June 1892. Jim Vance was accused of stealing a horse from the IOA Ranch the previous November. Vance—described as just a boy—was placed in the custody of his lawyer, W. C. “Connie” Henderson, to await trial.2 The defense was necessity and lack of criminal intent.

“They are after me for killing two Mexicans,” read the note Vance left for the horse owner. “My horse broke down, and I think you would let me have yours if you was here. I will send her back or give you $60.” Apparently the mare was neither returned nor paid for, but Henderson’s defense worked. Vance was acquitted.3

State vs. William E. Taylor, tried in December 1912, was Lub­bock’s first murder trial. Taylor was an assistant city marshal who gunned down two unarmed men in a saloon two months earlier. Nevertheless, Taylor claimed self-defense, as his attorney attacked the characters of the dead inebriates, “Poker Tom” Collins and “Jug” Reynolds. After 3 hours of deliberation, a 12-man jury turned Taylor loose. His lawyer, William H. Bledsoe, went on to become state senator, and is credited with bringing Texas Technological College to Lubbock.4

Over the ensuing few decades, the practice of criminal law in Lubbock was unremarkable. After mid-century, criminal defense lawyers began taking it on the chin, both literally and figuratively. In 1961, District Attorney George Gilkerson became enraged when criminal defense lawyer Byron Chappell made an objection—as a spectator from the gallery—in a felony DWI trial Gilkerson was prosecuting. Gilkerson charged over the rail at Chappell, caught him with a left to the chin, and Chappell went down.5 The judge claimed he dropped his pencil on the floor, looked down to pick it up, and did not see the fracas. The incident was reported by all of the local media. Chappell recovered, and the two adversaries made up over dinner with their wives, but Gilkerson left office soon after the incident.

Without much fanfare, Blair Cherry and Alton Griffin swapped spots as the DA over the next couple of decades. With the death penalty on a hiatus, civil litigation in a high-stakes, drawn-out wrongful foreclosure trial that seemingly involved all Lubbock’s major players dominated the headlines.6 Then, in the DA election of 1978, Griffin was defeated by a brash, upstart young lawyer, John T. Montford.

The times, they were about to change.

LCDLA’s Early Years

Montford, age 36, took office as the Lubbock County Criminal District Attorney on January 1, 1979, and quickly began implementing his “get tough on crime” campaign promises. Soon after, several unsolved homicide cases were presented to the Lubbock County grand jury, resulting in indictments of at least a half-dozen individuals for murder or capital murder. Early on in his term, Montford first-chaired a handful of high-profile felony trials with maximum sentences meted out for the defendants. The media quickly became enamored with the new DA, and he earned a nickname, “John T. 99,” reflective of the number of years in prison defendants always seemed to receive in cases he prosecuted.

The criminal defense bar was reeling, and clients were anxious.

Brown was active in the Texas Criminal Defense Lawyers Association (TCDLA), formed a decade earlier. He felt a local association similar to TCDLA could help educate and motivate the criminal defense bar, and the citizen accused would be more likely to receive effective assistance of counsel. Brown and a few other Lubbock lawyers spent several months planning the creation of a new association.

In February 1980, about 30 lawyers met in the Lubbock Club on the top floor of the First National Bank building, and the Lubbock Criminal Defense Lawyers Association was formed. The purpose of the new organization was to “encourage cooperation among local lawyers to achieve the purposes of the Texas Criminal Defense Lawyers Association; sponsor educational programs and seminars . . . ; receive reports on legislation . . . ; promote local court rules and procedures in furtherance of the common good; promote relations among local judicial and law enforcement officers; maintain a local brief ‘bank’; and otherwise further the common goals, interest and education of the criminal defense bar . . .”8

Clifford Brown was elected LCDLA’s first president. Other officers and directors were Gerald Anderson, Tom Cannon, Alton Griffin, Mark Hall, Dennis McGill, Albert Perez, and Bill Wischkaemper.9 Meetings were held on the third Thursday afternoon of each month at 5:30. The meeting places varied and over the years included the Lubbock Club, the Inn Town Inn, the Holiday Inn Civic Center, the Godbold Center, the law offices of O’Shea, Hall, Hart & Forcum, the law offices of Chappell & Lanehart, Bleacher’s Sports Bar, and the Blue Light Bar.

According to legend, LCDLA bylaws were amended to provide that no meeting of the Association would ever be held in a place where alcohol was not readily available. There is no evi­dence that such a bylaw amendment was reduced to writing, but the unwritten booze bylaw has seldom been violated.

By the end of 1980, LCDLA members were sharing ideas and strategies, learning new trial techniques, and generally becoming more prepared as advocates. They began having success against Montford and his prosecutors in the courthouse, and clients felt more confident with their attorneys.10

Over the ensuing decades, LCDLA developed many services for its members, including a huge form motions catalogue, a local strike force, an email listserve, a website, a brochure program encouraging misdemeanor defendants to hire LCDLA members rather than represent themselves, and even a courthouse closet for clients in need of free trial apparel. In addition, LCDLA has a long-standing tradition of senior attorneys serving as mentors to the “puppy lawyers.”

LCDLA’s educational effort, notably its annual seminar known as Prairie Dog, is no doubt the group’s greatest accomplishment.

Evolution of Prairie Dog

Until 1985, there was no mandatory requirement that Texas lawyers maintain continuing legal education hours. Nevertheless, LCDLA’s early efforts to provide quality CLE were immediately successful. In May 1981, LCDLA’s first seminar, “Criminal Defense,” was presented at Texas Tech University School of Law (TTUSL). The course director was Mike Brown and tuition was $35.11

Out-of-town presenters were Texas Court of Criminal Appeals Judge John Onion on “Recent Significant Decisions,” Dallas lawyer Vincent Perini on “Criminal Attorney Fees,” and Tyler attorney Weldon Holcomb on “Preserving Error and Protecting the Record.” Local luminaries on the agenda were Ralph H. Brock, George Gilkerson, Alton Griffin, Dale Jones, Dennis McGill, Travis Shelton, and Bill Wischkaemper, all LCDLA charter members. In addition, local judges J. Q. Warnick Jr., John McFall, Robert Wright, and William Shaver appeared on the program.

In 1983, the third LCDLA seminar drew more than 100 attendees, this time at the Holiday Inn Civic Center. The 1983 seminar also marked the first time LCDLA hosted the quarterly TCDLA board of directors meeting in conjunction with the seminar, now titled “Criminal Practice Update.” I served as course director, and I remember a “who’s who” of statewide criminal defense talent featured on the agenda: Rusty Duncan of Denton, Texas Court of Criminal Appeals Judge Chuck Miller, Warren Burnett of Odessa, Tim Evans of Fort Worth, Tom Sharpe of Brownsville, Gerald Goldstein of San Antonio, and Bill Habern of Riverside.

Aside from the remarkable speaker lineup and the huge attendance, I have two vivid memories of the 1983 course, both related to the budget. First, the hotel charged about $75 for each vat of coffee. Thereafter, LCDLA opted to use the much more economical law school as the venue for most of its seminars. Following the event, I received a travel expense voucher from presenter Gerald Goldstein for several thousand dollars. It seems he had rented a Lear Jet in San Antonio, made a couple of stops around the state picking up his buddies, flew on to Lubbock to speak, and then the whole entourage took off for an Aspen vacation. Goldstein’s bill amounted to much more than the entire budget for our little conference, so I was horrified: I thought I had bankrupted LCDLA! Of course, it was Goldstein’s idea of a joke, and of the many times he has anchored our seminar over the years, I cannot remember him ever asking for a dime in re­im­bursement. The seminar was a financial success.

Over the next two decades, LCDLA hosted a seminar each year. Some were large events in conjunction with TCDLA. Others were smaller affairs with small budgets designed for and presented by local lawyers.

In 2005, LCDLA celebrated its 25th birthday in grand fashion, ushering in a new era of legal education. The huge event, “25 Years of Wild, Western Justice,” offered not only a star-studded seminar at the law school, but also a blowout of a party featuring Austin country recording artists the Derailers, plus LCDLA souvenir T-shirts and other memorabilia, a tailgate party, and tickets to an Oklahoma State vs. Texas Tech basketball game. The affair (co-hosted by TCDLA) was a huge success, drawing folks from all across Texas: About 170 attended the seminar and almost 400 attended the party.12 Profits from the event funded an LCDLA donation of $10,000 to the TTUSL Foundation, which went to benefit the law school’s new criminal defense clinic. The State Bar of Texas later recognized LCDLA with its “Star of Achievement” award for the accomplishments produced through the 2005 event.13

The popular new title chosen for the Lubbock conference in 2006 reflected the roots of rural criminal defense, dating to late 1800s South Plains advocates known as “prairie dog lawyers.” Thus, LCDLA’s Prairie Dog Lawyers Advanced Criminal Law Seminar was born.14 LCDLA’s little legal powwow has gained a well-deserved reputation as the second-best criminal defense seminar in Texas, sometimes nicknamed “Rusty Duncan North,” a flattering comparison to TCDLA’s flagship seminar, the Rusty Duncan Advanced Criminal Law Course, held annually in San Antonio. The Prairie Dog has grown in attendance and in stature, solidifying LCDLA’s reputation for producing top-quality legal education.15 Via the seminar, annual party, and other efforts, LCDLA has helped raise almost $100,000 for the TTUSL Foundation, which benefits the Brendan Murray Scholarship Fund.16

LCDLA’s Unpopular Causes

In LCDLA’s first year, there was very little controversy to stir the membership to collective action. This would soon change, as a tradition began to develop. LCDLA: the champion of honorable, though often unpopular, causes.

LCDLA vs. Church of Christ Minister, 1981

Dennis McGill was LCDLA’s second president. Early in his term, an article appeared in the Lubbock Avalanche-Journal about a local Church of Christ minister’s reaction to the verdict in a highly publicized Lubbock capital murder case in which a DPS trooper was killed. LCDLA member Floyd Holder obtained a life sentence for his client, Billy Wayne Alexander.17 The minister, Grover Stevens, preached sermons and published pamphlets for the public condemning the sentence. Reverend Stevens argued the death penalty should have been imposed, and he blamed Holder. The minister was quoted in the newspaper article saying Holder was “as guilty as Alexander because of his efforts to prevent the death penalty.”18

The LCDLA board authorized President McGill’s response, which was published under banner headlines in the A-J: “Lubbock Lawyers Condemn Minister’s Remarks.” McGill used strong language in outlining the obvious reasons the minister was so misguided. “Every person in our community, state, and nation should be outraged at the commentary by Mr. Stevens; for to follow his advice would return us to the dark ages.”19

The minister never recanted his remarks, of course, but LCDLA had strongly and publicly stood against intolerable legal and moral abuse. It was just the beginning.

Gilmore vs. Lubbock County, 1981–1982

A new Lubbock County Jail Annex was constructed in 1980. Although the new facility included rooms for attorney-client visitations, Sheriff D. L. “Sonny” Keesee refused to allow attorneys to use the rooms, citing safety concerns, as prisoners would have to be transported to the rooms through a security corridor used by jailers. Defense lawyers were relegated to public jail visitation areas and forced to confer with clients through glass walls via telephone as public visitors sat nearby. There were no provisions for private attorney-client conferences.

President McGill and Alton Griffin spearheaded LCDLA’s public response to the sheriff’s position, petitioning the Lubbock County Commissioners and CDA Montford for relief. But LCDLA’s concerns fell on deaf ears.

In August 1981, on behalf of clients of LCDLA members, Mike Brown and Danny Hurley filed a federal class-action lawsuit against Lubbock County, the sheriff, and the commissioners, citing constitutional complaints about the lack of attorney-client visitation facilities.20 Litigation followed, forcing a settlement in favor of the plaintiffs that was reached in the summer of 1982.21 Space in the adjacent old county jail facility was converted, and five new attorney-client conference rooms were constructed. The new visitation cells, with no glass and no telephones, provided for face-to-face visits between attorneys and clients.

The 1982 visitation facilities served the needs of Lubbock lawyers and their clients for almost 30 years, until the new Lubbock County Detention Center was opened in 2010. The sheriff during construction of the 2010 facility, David Gutierrez, made it a point to confer with LCDLA representatives before planning new inmate visitation cells.

Stearnes vs. Clinton, 1987–1989

Carlton McLarty and I were appointed to represent a young man named Michael Stearnes, one of four accused in a high-profile drug-related triple murder case in 1987. Damon Richardson was the first co-defendant to face trial. He was convicted, largely on the testimony of one Anita Hanson—known as “Snowgirl”—who said she witnessed the murders. Richardson was sentenced to death.22

Snowgirl had been held in “protective custody” until the verdict in the Richardson trial. After her release, Snowgirl called McLarty asking for legal advice. McLarty declined, but Snowgirl agreed to an interview with McLarty. He appeared at her home with Quinn Brackett, an attorney for another co-defendant, and a legal assistant armed with a tape recorder. At first, Snowgirl cooperated and answered all of McLarty’s questions. However, midway through the interview, she secretly called an assistant Criminal District Attorney. The prosecutor soon appeared at Snowgirl’s home with police and ended the interview.

Outraged, McLarty and I immediately filed a motion to take Snowgirl’s deposition. However, at the hearing on our motion, something unexpected happened. The Lubbock County Criminal District Attorney, Travis Ware, alleged that McLarty had tampered with his “protected witness,” and that the attorney had violated the CDA’s rule “to ask permission before interviewing a state’s witness.” Judge Thomas Clinton agreed, stated on the record that McLarty and I lacked experience to handle the case, and fired us as Stearnes’ attorneys.

Stearnes stood to address the Court, “I ain’t gonna stand for no shit like that!”

The judge replied, “You keep a civil tongue in your mouth or I will have you up for something else besides capital murder.”

Stearnes: “Well, this is wrong!”

LCDLA agreed with Stearnes: What Judge Clinton did was very wrong. At an emergency special meeting, members passed the hat to send LCDLA Vice President for Court Liaison Mark Hall and me to TCDLA headquarters in Austin to seek help from the TCDLA strike force. The result: Austin lawyer David Botsford volunteered to join LCDLA lawyer Ralph H. Brock to file a mandamus action on behalf of Stearnes. The National Association of Criminal Defense Lawyers (NACDL) and the NAACP Legal Defense Fund would join the effort as well.

After the dust settled, the Texas Court of Criminal Appeals granted mandamus relief in a landmark opinion, holding zealous representation requires even a court-appointed lawyer to interview witnesses, and “the power of the trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to remove counsel at his discretionary whim.”23

Once reinstated as Stearnes’ counsel, we demolished Snowgirl’s credibility. We also attacked the credibility of another prosecution witness, Dr. Ralph Erdmann, a local pathologist who seemed to tailor his testimony in every case to favor the prosecution. Stearnes was acquitted.24

Revelations in the Stearnes trial helped clear the remaining two co-defendants, and a new trial was eventually ordered for Richardson, who settled for a life sentence.25 Dr. Erdmann’s scandalous body of work came under intense scrutiny, including a memorable CBS “60 Minutes” exposé by Ed Bradley in 1992.

“The Range Wars,” 1992–1994

About the same time, two West Texas criminal district attorneys who promoted Erdmann’s fabricated evidence brought vindictive prosecutions against famed Georgia criminal defense lawyer Millard Farmer and two Lubbock police officers who had criticized Erdmann.26

Once again, members of LCDLA, including Rod Hobson, Danny Hurley, Brian Murray, and Denette Vaughn—joined by volunteers from TCDLA and NACDL—jumped into the fray on behalf of Farmer and the police officers. Murray and Hobson were also threatened with grand jury action, so David Botsford and I volunteered to assist, and the LCDLA lawyers dodged indictments.

The prosecutors found themselves the subject of a federal racketeering lawsuit, which resulted in injunctions halting their prosecutions against Farmer and the police officers and a $300,000 civil judgment against Lubbock, Randall, and Potter counties.27 The prosecutors were defeated in the next election, and Erdmann went to prison for faking autopsies.28

Victim’s Memorial, 2005

In April 2005, local victims advocacy groups erected a granite monument on the west lawn of the Lubbock County Courthouse, along with two benches and a stone flower garden. The monument carried an inscription that read, “Justice will not be served until those who are unaffected are as outraged as those who are.” The quote was misattributed to Benjamin Franklin.

The members of LCDLA were not pleased. LCDLA President Pat Metze, along with Alton Griffin and Rusty Gunter, led the charge to have the memorial removed. “It encourages people to become enraged,” Metze said in a newspaper interview.29

Griffin, a former Lubbock County CDA, told the newspaper he had a great deal of sympathy for victims of crime. “However, our country is based upon the fact that a defendant is entitled to a fair trial. Victims don’t have any liberty at all without that.”30

When the Lubbock County Commissioners Court ignored LCDLA’s request to remove the memorial, the organization threatened to file a lawsuit. Within days, the commissioners capitulated, and the monument was demolished.31 LCDLA members kept chunks of the smashed granite as souvenirs.

LCDLA vs. The Party Patrols, 200732

The annual return of Texas Tech students each August is historically known to cause an increase in minor alcohol-related crimes, but 2007 was quite different. That fall, citations issued by Lubbock law enforcement for minor in possession, minor in consumption, public intoxication, and violations of the local noise ordinance reached record numbers. According to Lubbock Municipal Court records, about 1,300 of the tickets were issued in the first month of the semester. The figure reflected an increase of about 500 percent for alcohol-related violations from the same time period the previous year.33

LCDLA members began hearing stories of outrageous con­duct engaged in by the Lubbock Police Department’s ag­gres­sive “Party Patrol.” One student reported that revelers refused consent for a Party Patrol officer to enter an apartment to investigate a noise complaint. The officer climbed a ladder to reach the apart­ment balcony, entered through an unlocked door, and issued citations to everyone at the party. Another officer crawled under a garage door opened only 12–18 inches to gain access to a home where a party was in progress, and gave everyone present at the gathering some kind of citation. There were many reports of large parties being busted—50, 60, or even more students—and every individual received some sort of citation. Minors were typically issued possession or consumption tickets. Those of age were issued noise ordinance tickets.34

LCDLA initiated a pro bono effort to assist the young people accused by the Party Patrol. LCLDA member Jill Stangl, Director of Student Legal Services at Texas Tech, recruited about 20 members to offer their expertise free of charge for those impacted by the Party Patrol’s enforcement efforts. Several hundred students were served by the LCDLA volunteers.35

The pro bono group successfully caused enough havoc to return the enforcement of minor alcohol offenses and noise ordinance tickets to their usual levels. Of the hundreds of cases accepted by the LCDLA volunteers, very few resulted in any sort of sanction.

Ben Webb vs. Jim Bob Darnell, 200936

In June 2009, young LCDLA member Ben Webb was subpoenaed by the Lubbock County CDA’s office to testify in the punishment phase of a trial involving a former client. The prosecutor wanted Webb to provide information that involved attorney-client communications in order to prove up an unindicted felony.

Webb, who had been licensed but three years at the time, sought the counsel of more experienced members of LCDLA be­fore appearing in court. Their advice and willingness to stand and fight with Webb gave him the confidence to do the right thing. When called to the stand, he refused to testify. Furious, Judge Jim Bob Darnell of the 140th District Court ordered Webb to jail.

Following the contempt allegation, Webb’s attorney, Rod Hob­son, fought aggressively to prevent a finding of contempt at the hearing to follow.37 Throughout the process, members of LCDLA were there to offer their time, expertise, and encouragement to Webb and Hobson.38 In the end, the CDA’s office and Judge Darnell backed down and signed off on an Agreed Finding of Not Guilty on the contempt allegation. At the hearing to enter the order, LCDLA filled the courtroom to capacity in a show of continued support and solidarity as a group.39

Lubbock County Frequent Courthouse Visitors Badge Program, 2010–present

In May 2010, Lubbock County officials authorized a security system utilizing conveyor-belt scanners and metal detectors at the main entrances of the courthouse. The Lubbock County Sheriff implemented a screening policy that allowed county employees and many other designated classes of courthouse visitors to bypass the security system. Sheriff Kelly Rowe did not include private lawyers among courthouse visitors allowed to bypass security devices.40

Beginning long before the new security measures were

implemented in 2011, LCDLA representatives met informally with the sheriff in an attempt to establish a procedure to allow private attorneys to bypass security devices. The meetings continued, eventually involving the lobbying efforts of Lubbock Area Bar Association leaders and State Senator Bob Duncan. In October 2012, the sheriff decided local attorneys would not be

included among those exempted from the security procedures.41

In November 2012, LCDLA led a collaborative effort to establish a security bypass program to be approved by the Lubbock County Commissioners Court, pursuant to Government Code § 291.010. Six bar organizations, representing more than 500 local and area lawyers, joined in the planning and formulation of the Lubbock County Frequent Courthouse Visitors Badge Program (LCFCV).42

The Lubbock County Commissioners were individually briefed on the proposal in the fall of 2013, and LCFCV committee members participated in a work session with the full Commissioner’s Court earlier this year. The Commissioners are scheduled to vote on the measure before the end of the 2014.

The Lubbock Private Defender Office43

LCDLA established and oversees one of the largest undertakings of any local bar organization in Texas, the Lubbock Private Defender Office (LPDO). LPDO evolved from the Lubbock Special Needs Defender Office (LSNDO), a pilot program created in 2007 to serve the needs of offenders with a mental health diagnosis.44

Within four years, LSNDO had proven so successful, expansion of the pilot program was sought to include all indigent defense in Lubbock County other than juvenile and capital murder cases. In 2011, Lubbock County sought a grant from the Indigent Defense Commission to assist with expansion of the program and put out a request for proposals, seeking an entity to run the program. LCDLA rose to the occasion, forming a non-profit 501(c)(3) corporation to accept the county and state funds and oversee the Managed Assigned Counsel Program, administered by the LPDO.

Modeled after a similar program in San Mateo, California, the LPDO opened for business in October 2011. It was the first of its kind in Texas, and only the second nationwide. Working much like a public defender office, the LPDO receives referrals from the courts and assigns the cases to various private attorneys based on the level of experience of the assigned attorney. Since its inception, the office has averaged processing between 6,000 and 7,000 cases each year, utilizing an average of 75 private contract attorneys, all LCDLA members, to handle the representation of the clients.

The program, operating on a $2.7 million budget, has proven to be a win-win situation. Lubbock County pays a fair and foreseeable price for indigent defense, clients are represented by well-trained and effective advocates, and lawyers are fairly compensated for their services. There is a general consensus that the local justice system has been well served by the LPDO.

LCDLA Statewide Leadership

The Lubbock criminal defense bar has produced a great number of statewide bar leaders. Prior to the 1980 formation of LCDLA, Travis Shelton had served as president of the State Bar of Texas. George Gilkerson was a founding member of TCDLA and its third president.

Since 1980, LCDLA members Clifford Brown, Bill Wischkaemper, and Danny Hurley have each served as president of TCDLA, and Mark Snodgrass is the current treasurer of TCDLA. Numerous LCDLA members have served as directors and associate directors of TCDLA. Others have volunteered as seminar speakers statewide, and have helped other legal communities establish similar local organizations across Texas. In addition, Ralph H. Brock and I each served as director of the State Bar of Texas, District 16.45

Softball and Other Diversions

In the summer of 1980, LCDLA President Cliff Brown suggested LCDLA organize a softball team and challenge the Lubbock County CDA’s office to a game. Brown felt friendly competition might create a bit of comradery among the fierce advocates, and it might give the defense attorneys a chance of winning against prosecutors who were regularly hammering LCDLA’s best lawyers in the courtroom. And, it might be a lot of fun.

The CDA’s office agreed to the challenge, and the two sides took the field on a sunny Saturday afternoon at Mose Hood Park near downtown. CDA Montford managed the prosecutor’s team, and Brown managed the LCDLA team. Brown was 60 years old at the time, but he penciled himself in as the starting pitcher. He was also a switch-hitter and batted left-handed his first and only trip to the plate, swatting a double to right field. Advocates on both sides now claim victory, but the actual outcome of the game is lost in history. What is certain is that a good time was had by all, and Brown’s plan to create a comradery among the participants was quite successful.

The softball games continued sporadically through about 1990, and there was even an LCDLA vs. CDA basketball game in 1985. Following each game, a party was usually held so the two sides could socialize. At one particularly wild party held at Bill Wischkaemper’s home, some legendary fraternization among opposing advocates occurred, too graphic to be recounted here. The softball tradition faded, and there were no LCDLA vs. CDA sporting events for years.

LCDLA President Pat Metze suggested reviving the softball tradition in May 2005. New jerseys were ordered, including Metze’s special manager’s jersey (number .08). The game was well-attended, even drawing media attention from the courthouse beat reporter of the Lubbock Avalanche-Journal, present perhaps in hopes of documenting some bench-clearing brawls. There was nothing to see other than a lot of fun. LCDLA’s version of the San Diego Chicken made an appearance. Several local judges served as umpires, drawing catcalls for their perceived blindness. Adult beverages were smuggled into the dugouts in coffee mugs. In the end, the prosecutors won the first game of the doubleheader 8-4. The second game was taken by the defense lawyers 10-8 after a walk-off home run in the 9th inning by Dwight McDonald. Following the game, Bill Wischkaemper again hosted the post-game party, though this time the prosecutors mostly stayed away, perhaps wary of the palpable trouble that was expected to follow.46


Since its inauspicious beginnings, LCDLA has come a long way. Membership has grown from about 30 original members to more than 120 dues-payers in 2014. LCDLA has been offered as a paradigm for others hoping to form similar local criminal defense organizations. The educational efforts sponsored by LCDLA have no doubt dramatically improved the effective assistance of counsel rendered by those in attendance. LCDLA’s willingness to step in and act when injustice arises has resulted in dramatic rightings of wrongs. Thirty-five years is a short time for a small organization to have made such a big difference in the way criminal law is practiced in a community. Those of us who are longtime members of LCDLA are justifiably proud of our accomplishment, and we are eager to see those who follow us build on our remarkable history.


1. Surviving charter members of LCDLA are Gerald Anderson, David Bass, Mike Brown, Judge Tom Cannon, Judge Mark Hall, Judge Mackey Hancock, Judge Kevin Hart, Bob Jones, Dale Jones, Chuck Lanehart, Dennis McGill, Carlton McLarty, David Martinez, Carolyn Moore, Albert Perez, Everett Seymore, Jack Stoffregen, Tommy Turner, and Bill Wischkaemper. Deceased LCDLA charter members are Jim Aldridge, Jim Alexander, Lane Arthur, Dan Benson, Quinn Brackett, Ralph H. Brock, Clifford Brown, Byron Chappell, Ralph Daniel, George Gilkerson, Alton Griffin, Rusty O’Shea, Travis Shelton, and Wanda Wray.

2. Max Coleman, From Mustanger to Lawyer, Part B, 170 (Carleton Printing Co., 1953).

3. State v. Jim Vance, Cause No.10, 50th District Court of Lubbock County, Texas (1891).

4. Chuck Lanehart, “The Trial of William E. Taylor,” Voice for the Defense (June 1990). Bledsoe also founded the Lubbock law firm now known as Crenshaw, Dupree & Milam.

5. Jerry McCarty, “DA Punches Attorney in Court Row,” Lubbock Avalanche-Journal, January 28, 1961, at A1.

6. Broadus Spivey and Jesse Sublett, Broke Not Broken (Texas Tech University Press, 2014).

7. Clifford Brown was a charter member of TCDLA, later served as TCDLA president, and was enshrined in the TCDLA Hall of Fame. Other elders of the Lubbock criminal defense bar in 1980 included former Lubbock County CDA Alton Griffin, past president of the State Bar of Texas Travis Shelton, and past president of TCDLA George Gilkerson. Shelton and Gilkerson—both former Lubbock County DAs—were charter members of TCDLA, and Shelton was later enshrined in the TCDLA Hall of Fame. Byron “Lawyer” Chappell, eldest of LCDLA’s charter members, was in 1989 the first inductee into the LCDLA Hall of Fame, and was awarded the Lubbock County Bar Association’s Distinguished Senior Lawyer Award in 2000.

8. Original Bylaws of the Lubbock Criminal Defense Lawyers Association, Article II, approved February 21, 1980.

9. News Release Lubbock Criminal Defense Lawyers Association, Voice for the Defense, March–April 1980, at 13.

10. Montford said in a 2014 telephone interview the Lubbock criminal defense bar was the best he encountered as a lawyer. He served one term as CDA, then became a popular and effective State Senator, later was appointed the first Chancellor of Texas Tech, and then became President of AT&T. Now a business consultant in San Antonio, Montford fondly remembers his years as CDA in Lubbock, and most of the defense lawyers from that era respected him as prosecutor. “I remember Lawyer Chappell coming to see me when I took office,” Montford recalled with a chuckle. “He said I’d make a good DA if I learned the difference between crime and sin.”

11. Mike Brown remembers LCDLA’s early CLE efforts: “Continuing legal education was sparse for criminal lawyers on the South Plains in the 1980s. The first seminar developed from necessity. I organized the initial seminar, with the able help of Ralph H. Brock and Mark Hall, among others. The budget was modest, and the speakers donated their time and efforts. The goal was educational, not financial. The custom continues. Ambitious vision prevailed over perceived limitations, and LCDLA staged a successful program that exceeded expectations. The seminar began to draw lawyers from beyond the Caprock. Soon, Lubbock lawyers were invited to speak statewide. The Prairie Dog seminar remains one of LCDLA’s most ambitious, significant, and successful projects.”

12. Chuck Lanehart, “LCDLA Celebrates 25th Birthday in Grand Fashion,” Lubbock Law Notes, February 2005, at 11.

13. Chuck Lanehart, “Defense Lawyers vs. Prosecutors Softball Doubleheader a Big Hit,” Lubbock Law Notes, August 2005, at 20.

14. Austin lawyer Keith Hampton and I are both avid history buffs. Separately, we had studied old manuscripts describing the colorful South Plains and Panhandle lawyers of the late 1800s. The lawyers often had no formal offices. Instead, they followed the district judge on his circuit from town to town, carrying the tools of their trade—statutes, pen, and ink—in saddlebags. These tough, transient, mostly self-taught advocates became known as “prairie dog lawyers.” (The black-tailed prairie dog, a type of ground squirrel native to the Lubbock area, resides in colonies of burrows known as “towns,” but often relocates when conditions become difficult.) When Keith and I got together in Lubbock in 2005, we compared notes about our history research on prairie dog lawyers, and somehow the idea was hatched to rename the LCDLA annual conference the Prairie Dog Lawyers Advanced Criminal Law Seminar. Meanwhile, LCDLA had already adopted the prairie dog as its mascot and symbol. During Mike Brown’s term as LCDLA president (1990), he asked renowned Lubbock cartoonist Dirk West to create a new logo for LCDLA, and the now-famous LCDLA prairie dog logo was born.

15. Since 2009, LCDLA has been privileged to utilize the new Mark and Becky Lanier Professional Development Center at TTUSL for its annual seminar. The 34,000-square-foot facility includes a lecture hall with a capacity of about 300 and a teaching courtroom featuring the latest in trial technology.

16. The Brendan Murray Criminal Defense Scholarship was created following his tragic death on September 14, 2006. Brendan, son of longtime LCDLA and TCDLA member Brian Murray and wife Lynne, was a 22-year-old Texas Tech law student and TCDLA employee. He was a zealous advocate for the poor and oppressed throughout his life. The scholarship benefits worthy law students attracted to defending God’s children who have not yet attained perfection from those who have. To date, the fund has reached more than $90,000 in donations.

17. State v. Billy Wayne Alexander, No. 21744 (137th Dist. Ct. Tex., 1980).

18. Pat Graves, “City Lawyers Respond to Minister’s Charges,” Lubbock Avalanche-Journal, February 27, 1981, at A12.

19. Pat Graves, “Lubbock Lawyers Condemn Minister’s Remarks,” Lubbock Avalanche-Journal, February 28, 1981, at A12.

20. Vernon Ray Gilmore and Ricky Laverne Smith v. Lubbock County et. al., No. CA-5-81-130, (D. N. Dist. Tex., Lubbock Div., 1981).

21. Mike Brown remembers the back story: “After initial pleadings, U.S. District Judge Hal Woodward called a chambers conference with me, Hurley, and a representative of the CDA, Yvonne Faulks. The judge opined that his order would garner only grudging compliance from Sheriff Sonny Keesee, and foot-dragging in the future. Judge Woodward explained to Faulks that LCDLA would likely get the order they requested. He encouraged discussion and settlement, which promptly ensued. LCDLA got its way.”

22. State v. Damon Richardson, No. 87-406,922 (72nd Dist. Ct. Tex. 1987).

23. Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989).

24. State vs. Michael Stearnes, Cause No. 87-406,927 (99th Dist. Ct. Tex. 1987). Brock, Botsford, McLarty, and I were each honored with the TCDLA President’s Commendation “in recognition of outstanding service on behalf of the citizen accused that exemplifies the highest standards and goals of this association and promotes justice through law.”

25. Jason Womack, “Richardson Deal Could Bring Parole,” Lubbock Avalanche-Journal, August 3, 2005, at A1.

26. Joe Gulick, “Indictments Hit Police Sergeant,” Lubbock Avalanche-Journal, October 22, 1992, at A1.

27. Farmer, et al. v. Sherrod, et al., No. 2:93-cv-00017-J (D. N. Dist. Tex., Amarillo Div., 1993). See also .

28. State v. Ralph Rodney Erdmann, No. 92-415,716 (364th Dist. Ct., Tex. 1992).

29. Rana Sharkaway, “Crime Victims’ Memorial Comes Under Fire,” Lubbock Avalanche-Journal, June 27, 2005, at A1.

30. John Reynolds, “Monumental Disagreement Between Attorneys, County Unresolved,” Lubbock Avalanche-Journal, July 22, 2005, at A2.

31. John Reynolds, “County Sacks Monument, Keeps Garden,” Lubbock Avalanche-Journal, July 22, 2005, at A1.

32. Jill Stangl assisted in writing this chapter of LCDLA’s history.

33. Chuck Lanehart, “Lubbock Lawyers Volunteer to Oppose ‘War Against College Kids,’” Lubbock Law Notes, November 2007, at 1.

34. Mary Alice Robbins, “Tech Students Fight Party Patrol Citations with Pro Bono Help,” Texas Lawyer, November 5, 2007, at 1.

35. Id.

36. Ben Webb assisted in writing this chapter of LCDLA’s history.

37. Rod Hobson, a former president of LCDLA, had previously participated in the Range Wars, supra, involving Dr. Ralph Erdmann.

38. LCDLA members who assisted Webb included Ralph H. Brock (who previously participated in Stearnes v. Clinton, supra), Danny Hurley (who previously participated in the Range Wars, supra), Everett Seymore, Ted Hogan, David Guinn, and me.

39. Logan G. Carver, “Attorney Who Refused to Testify Against Client Cleared of Contempt,” Lubbock Avalanche-Journal, September 30, 2009, at A1.

40. Chuck Lanehart, “Commissioners to Consider Courthouse Security Bypass Program,” Lubbock Law Notes, May 2014, at 1.

41. Id.

42. Id.

43. Philip Wischkaemper assisted in writing this chapter of LCDLA’s history.

44. The LSNDO was the brainchild of Jim Bethke, Executive Director of the Task Force on Indigent Defense (now the Indigent Defense Commission), who approached Lubbock County with the idea in 2006.

45. LCDLA member Roger Key is the current chair of the SBOT Board of Directors. Roger practices business and transactional law, not criminal law, but joined the defense lawyers group “because they are so much fun.”

46. Chuck Lanehart, “Commissioners to Consider Courthouse Security Bypass Program,” Lubbock Law Notes, May 2014, at 1.

Ethics and the Law: Cool Hand Luke


“Cool Hand Luke” is a 1967 American prison drama film starring Paul Newman in the title role as Lucas “Luke” Jackson, a prisoner in a Florida prison camp who refuses to submit to the system and observe the established pecking order among prisoners. In a 1940s setting, Luke is arrested and sentenced to prison for two years after vandalizing parking meters. Luke’s resistance to observe the pecking order runs afoul with the prisoners’ leader, Dragline. Luke takes a beating from Dragline and eventually earns his respect and that of the other prisoners. Luke’s sense of humor and independence inspires the other prisoners. After winning a game of poker against Dragline with a hand worth nothing, Luke comments that “sometimes nothing can be a real cool hand,” to which Dragline bestows on him the nickname “Cool Hand Luke.”

After getting the news that his mother passed away, Luke escapes from prison but is eventually recaptured. Luke manages to escape the prison a few more times after that but each time is recaptured and punished. Upon his return, the warden, also referred to as the Captain, would deliver his warning speech to the inmates that began with the line, “What we have here is a failure to communicate.” Each time, Luke’s punishment entailed digging a grave-sized hole in the camp yard, filling it back in, and then being beaten by the guards. Luke eventually caves in and begs for mercy, causing the prisoners to lose respect for him. On his final attempt to escape, Luke steals a prison dump truck with Dragline. They travel to a church but police eventually catch up to them. Dragline surrenders peacefully but Luke makes a bold move and mimics the Captain’s famous line of “What we’ve got here is a failure to communicate.” He is immediately shot in the neck and dies. His actions restore his reputation among the prisoners.

When you get hired or appointed on a case, remember you are the one the client and family are looking to for saving the day. Failure to communicate is one of the top reasons clients become unhappy and file grievances. Good communication, even if the case has bad results, will save you a lot of misery. Spending nights and weekends worrying about a grievance, writ, or worse can be minimized if you simply talk to your client. Try to find an ally who is related to or who knows your client well who can be trusted. Get a waiver from your client so you can talk to that person. Engage them as your ally so they can spend hours talking about the case with the client. You can then spend your time lawyering and not babysitting. Clients have put their life in your hands and look to you to help them. Make it clear from the beginning that you cannot perform miracles, and do not be overly optimistic. Many lawyers get the check and then never talk to their clients. A short phone call or jail visit can go a long way to ease a client’s fear. Be honest with them. Send letters to the client even if it is to say hello, hope you’re okay, and we are working on your case. Many times clients come in and you ask who their prior lawyer was—and they don’t remember. You want them to remember you because they can send you more business and tell all their friends and neighbors how great you are. Return your phone calls.

COMMUNICATE WITH COURT PERSONNEL. A friendly “hello, how are you doing” goes a long way. Be polite but firm, and don’t let your client see you hugging or laughing with the prosecutor. Remember who brought you to the dance. Being friends with a DA may be great but not in front of a client. If you were accused of crime and hired a lawyer, would you want to see them together in a bar or restaurant or playing baseball together? I don’t think most people would. You are fighting a battle for your client, and the odds are always against you. Percy Foreman worked until the end. The last time I saw him, he was lying on a couch in his office barking orders to his staff. Look and act like a lawyer, carry a file even if you have a magazine in it or a briefcase when you go to court. Reach out for help if you need it on a case. Get involved with TCDLA and HCCLA. Get on the listserve. Many smart people like Michael Mowla will help. ”

COMMUNICATE WITH YOUR TEAM AND KEEP YOUR HOUSE IN ORDER. With all the technology available now, save important emails or keep a pad by your bed so when you wake up at midnight with a good idea you can write it down, and document the content of client calls. If it isn’t written down and documented in your file and with your staff, re-creating your recollection for a grievance or lawsuit is less enjoyable than an IRS audit.

COMMUNICATE WITH YOUR COLLEAGUES. Right now there are several members of this organization who are very ill, in hospitals, rehabs, nursing homes, AA meetings, going through a divorce, or dealing with the loss of a loved one. Reach out to those people and make an offer to help. Many lawyers in Houston have died, and it is comforting to know that members of TCDLA and HCCLA are helping to resolve their cases. No one can get out of here alive, so keep your affairs in order to protect your clients as well as your loved ones left behind. Effective documentation will save you in front of the grievance committee—as well as your estate against a lawsuit after you’re long gone.

COMMUNICATE TO THE BAR WHEN REQUIRED. If a lawyer, be it defense lawyer, prosecutor, or judge, violates the canon of ethics, you are duty bound to report it. Robb Fickman leads the charge in Houston and elsewhere to aid in filing judicial complaints. Like Warren Burnett, he spent a lot of time in West Texas. A friend of mine who rode the rodeo circuit said when you deal with people who have spent time there, you better have your tennis shoes on tight because they are tough people. Burnett and Fickman are in that category. Like Luke Jackson found out, a failure to communicate can be disastrous. Many lawyers find themselves with a writ or sitting in front of a grievance committee, hearing them say, as the Captain did, “What we’ve got here is a failure to communicate.”