Grant Scheiner

Grant Scheiner is the 50th President of TCDLA. He is Managing Attorney of Scheiner Law Group, P.C. in Houston. Grant has practiced law since 1992, representing clients in state and federal courts. He is board-certified in criminal law by the Texas Board of Legal Specialization (TBLS) and currently serves on the TBLS Board. He is a Life Fellow of the Texas Bar Foundation, a Life Member of the National Association of Criminal Defense Lawyers, a former Large Section Representative to the State Bar Board of Directors, and a former Chair of the Computer & Technology Section of the State Bar of Texas. Grant is a single dad, a relentless trial lawyer and a passionate advocate for the rights of criminal defense attorneys and their clients.

President’s Message: Texas Defense Lawyers Are Entitled to Broader Criminal Discovery

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There’s a case name Texas criminal lawyers should memorize because we’ll probably be citing it for decades: Watkins.

“Your honor, I object. This is a Watkins violation.” “Objection, your honor. Watkins.”

Watkins involved the admission of 33 of 34 state exhibits during the sentencing phase of a drug trial. The exhibits were a collection of booking records, pen packets, and judgments of prior convictions. The state offered them for purposes of enhancement (making Watkins subject to a 25‑year minimum) and proving extraneous offenses.

Before trial and in accordance with Tex. Code Crim. Pro. Art. 39.14 (a.k.a. the Michael Morton Act), defense attorney and TCDLA member Michael J. Crawford sent a timely written request to the prosecutor for “any other tangible things not otherwise privileged that constitute or contain evidence material to any other matter involved in the case.” The prosecutor provided notice of the State’s intent to introduce evidence of these prior convictions and extraneous offenses at sentencing. However, the prosecutor did not disclose copies of the exhibits themselves until it was time to introduce them. The defense attorney objected to the admission of the exhibits, citing Article 39.14.

In Ralph DeWayne Watkins v. The State of Texas, No. PD‑1015‑18 (Tex. Crim. App. March 3, 2021), the Court of Criminal Appeals held, in a 7‑2 opinion, it was error for the trial court to admit the state’s exhibits.

The gist of the CCA’s 55‑page slip opinion is that “material to any matter involved in the action” — a phrase contained in both the original text and the current version of Article 39.14 — includes the sentencing phase of a trial. “Material” simply means having “some logical connection to a consequential fact.” Watkins, slip op. at 3. In this case, the exhibits at issue were material because they had “a logical connection to subsidiary punishment facts.” Id.1

Worth noting (and it should prove instructive to all Texas prosecutors), the state, in this case, provided the defense with neither copies of the exhibits nor access to them in advance of trial. The prosecutor apparently “did not believe Article

39.14 applied to punishment …” Watkins, slip op. at 5. In disabusing the prosecutor of his mistaken belief, the CCA left open the door to full discovery of independent accusations (i.e., subsidiary punishment facts) which form the basis of prior convictions or alleged extraneous conduct.

Does your client have a prior DWI conviction or arrest the state intends to offer in its case‑in‑chief or during sentencing? Don’t just request copies of convictions, judgments, and sentences. Ask for offense reports, DIC forms, videos, chemical test results (and all of the underlying data) that were evidence in the prior case. Robbery conviction, arrest, or allegation? Get all the standard evidence, plus that unfairly suggestive photo spread that led to your client’s unjust conviction or arrest. Underlying evidence in virtually every type of prior conviction, arrest, or alleged extraneous conduct should now be fully discoverable. A prosecutor who elects not to search for and produce requested material in advance of trial does so at his or her peril. Keep in mind that even if a prosecutor claims he or she doesn’t plan to use certain evidence at trial, you might. Criminal defendants now have a recognized “general statutory right to discovery in Texas beyond the guarantees of due process.” Watkins, slip op. at 52 (emphasis added).

TCDLA member, Jason Edward Niehaus, handled Watkins’s appeal to the CCA. He briefed and successfully argued the case. TCDLA Amicus Committee member Lane Hagood wrote TCDLA’s amicus brief – specifically mentioned in the CCA’s opinion ‑‑ and participated in oral argument as well. (A slew of other TCDLA members pitched in at the intermediate level.) Finally, Texas Court of Criminal Appeals Justice David Newell and staff should be congratulated for authoring an extremely thorough and impeccably reasoned opinion.

The criminal discovery playing field is now a little more level in Texas, and that is something for citizens and practitioners alike to celebrate. Remember the case name–Watkins!

President’s Message: Pandemic Jury Trials

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It has been nearly a year since Texas and the nation’s courts began scaling back in-person operations due to the pandemic. It has been well more than a year since the pandemic became a major problem. This is but an example of a shortcoming with large governmental systems: They often react late to a crisis.

As of February 2021, I would be less than candid if I were to tell you that state and federal jury trials are unsafe and pose an unacceptably high risk of viral transmission. But it would be equally misleading to state that trials and other in-person court proceedings are safe. The truth is, no one really knows.

Here is another stubborn truth I’ve discovered during the past year through consultation with administrators, judges, defense lawyers, prosecutors, and even some scientists: Many of the important stakeholders in the criminal justice system have strong opinions about the “best” path forward and there is little we criminal practitioners — the ones on the front lines of the legal system due to frequent contact with inmates, clients, courthouse personnel, and many others — can do to change their minds.

The time has come to paddle our own boat.

If as a TCDLA member you believe it is unsafe to participate in a court proceeding or that your client’s constitutional rights are not adequately protected, this organization has your back. We have a COVID-19 Committee and a Strike Force to help you with legal and strategic assistance when a judge is dragging you and your client into trial against your will. If you believe there is no reason to postpone a court proceeding and your client has demanded a speedy trial, the same TCDLA people will assist you with the full force and intelligence we’ve assembled. You can reach me personally by text or email 24/7 and I will work for you as well.

Many among us believe that in-person court proceedings are unwise and possibly unsafe until vaccinations are widely distributed and the population has achieved herd immunity. That’s a reasonable position to take. As a single parent of a small child, I will not permit a judge to bully me into something I don’t think is safe and I wouldn’t ask any of our members to allow it, either.

It is not as though the criminal defense bar isn’t trying to improve the situation. In December I sent a letter on behalf of TCDLA to Governor Greg Abbott and vaccine administrators. We asked them to prioritize criminal practitioners in the vaccination pipeline. Not jump ahead of frontline healthcare workers, nursing home residents, medically vulnerable people, and the elderly. Just put us into a group of essential workers with vaccination priority. While that may indeed happen, the Governor’s Office has yet to respond.

During a State Bar Task Force Zoom meeting on February 8, 2021, I suggested that trial judges give priority to defendants who affirmatively demand a speedy trial, so we could possibly avoid situations in which attorneys, clients, and even some prosecutors are dragged into trial against their will. Several of the judges in the meeting (including two regional presiding judges) made it clear it was a hard no. For judges who are bent on going to trial during the pandemic, it’s not about incrementally shrinking trial dockets or safeguarding the accused’s constitutional right to a speedy trial. It’s about running their courtrooms however they see fit.

Worth noting, the vast majority of judges I’ve encountered in my small pocket of the universe (mostly Greater Houston) are doing the right thing and waiting until conditions are safer and not pushing cases to trial unless all parties are willing. When you see a judge doing the right thing, be sure to thank him or her. They’re under a lot of pressure, too.

Trials are about to ramp up, whether it’s the right path forward or not. My advice to colleagues is to follow your conscience. No matter which path you choose, TCDLA will make sure you do not have to walk it alone.

President’s Message: Time for Bail Reform, But Only If It’s Done Right

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As the 87th Texas Legislative Session begins (and is scheduled to run through May 31, 2021), Supreme Court of Texas Chief Justice Nathan L. Hecht has weighed in on an important and surprising topic: bail reform.

Chief Justice Hecht, along with David Slayton, Administrative Director of the Office of Court Administration, submitted an opinion piece to the Dallas Morning News (DMN). Entitled, “If Texas doesn’t reform its bail system, federal courts likely will,” it is really worth a read.

Now you may be asking yourself, why is a civil appellate justice – whose legal background includes partnership at a white-shoe firm in Dallas — wading into the mostly criminal law issue of bail reform? That’s a fair question. Perhaps the answer lies in the landmark settlement in November 2019 of a federal lawsuit successfully challenging the automatic wealth-based detention of tens of thousands of impoverished people every year in misdemeanor cases in Houston. Chief United States District Judge Lee Rosenthal approved an agreement aimed at releasing 90-95% of misdemeanor arrestees in Harris County, without substantial cash money or a surety. Unfortunately for taxpayers, it was not before Harris County spent $9.1 million on outside legal help defending an obviously unconstitutional bail system. The settlement also required Harris County to pay an additional $4.7 million in legal fees for the plaintiffs.

Whatever the motivation for what appears to be a bipartisan effort to address bail reform at this moment in our state’s history, Chief Justice Hecht’s opinion is a welcome addition to a debate that has raged for many years. He is the top state jurist in Texas and our governor and state legislators listen to him. We criminal practitioners should, as well.

Chief Justice Hecht’s and Administrative Director Slayton’s well-written, five-point proposal for bail reform raises some difficult questions. Here is how criminal defense lawyers and our many allies should respond to each point in the DMN piece:

  1. “[G]ive judges validated pretrial risk assessment information for all defendants to make better-informed decisions about bail.” – Putting aside the difficulty of confirming underlying information in a pretrial risk assessment and statistically tracking it for validation, I think we can all agree that more information is better. The problems here are, (a) it might be enormously expensive to implement systems in all 254 Texas counties and, (b) getting risk-assessment information into the hands of judges, magistrates, prosecutors, and defense lawyers (when the accused has counsel), might slow down the process of bail and release. Even an extra day in jail might mean the difference between a person going back to work versus losing their job. Risk assessments hardly seem worth it for most misdemeanors and non-violent felonies. Perhaps risk assessments — which are already done in many Texas jurisdictions — should only apply to certain categories of felony offenses, where the nature of the alleged crime dictates a heightened scrutiny of the bail process.
  2. “[A]sk voters to amend the Texas Constitution to allow judges to hold high-risk, potentially violent defendants without bail.” – This is a non-starter. Article 1, Sec. 11a of the Texas Constitution provides a laundry list of situations in which potentially dangerous arrestees may be held without bail. These include arrestees with multiple prior felony convictions, defendants who commit a felony while out on bail for an indicted felony offense, arrestees accused of using a deadly weapon after being convicted of a prior felony, and arrestees who allegedly commit certain types of violent or sexual offenses. Additionally, Article 1, Sec. 11b allows for detention without bail of arrestees accused of felonies or offenses involving family violence, when bail is subsequently revoked or forfeited for a violation of a condition of release. Texas already has enough legal tools to hold people without bail. We don’t need any new ones. Bail reform must not be predicated upon activist measures to hold presumptively innocent people indefinitely, while their cases await trial. Doing so would defeat a major purpose of bail reform — namely, to make it easier for the accused to gain their freedom while awaiting resolution of legal matters.
  3. “[P]rovide pretrial supervision for those released.” – This is another expensive and unnecessary proposal. Texas judges already have authority to set conditions of bail and place defendants on pretrial supervision. What’s the point of mandating it? We should trust trial court judges to order pretrial supervision only in cases where it is most appropriate.
  4. “[C]ollect data to verify that the system is working as it should.” – This is an excellent proposal, provided we can all agree on criteria for determining when the system isn’t working and what to do about it. Any data collection and verification provision in bail reform legislation should not include some automatic solution that kicks in when, say, a certain percentage of arrestees miss their court dates. You don’t fine-tune an expensive vehicle with a sledge hammer.

Bail reform is an achievable and worthy goal, but it must be done right. We should be prepared to wait if it’s not. There is no question that Chief Justice Hecht and Administrative Director Slayton are correct when they say, if Texas doesn’t reform its bail system, federal courts likely will. In that vein and based on what we’ve seen thus far in federal lawsuits, Texas criminal lawyers and our allies should be willing to let this play out in federal courts if we can’t get reasonable proposals. TCDLA’s Legislative Committee, leaders, and lobbyists are interested in hearing more.

President’s Message: Texas Inmates Are Dying of Coronavirus

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If it were revealed that Texas prisons and jails had failed to prevent more than 200 people (and counting) from suffocating during 2020, it would be an international outrage. Yet that’s what appears to be happening, according to a new study from the University of Texas Lyndon B. Johnson School of Public Affairs (UT-LBJ-PA).1 Will this disgrace continue or will the State of Texas put a stop to it?

Some of the lowlights of UT-LBJ-PA’s study, released in November 2020, are:

  • As of early October 2020, at least 231 people have died in Texas correctional facilities. This includes staff, jail and prison deaths. UT-LBJ-PA Study at 6.
  • Prison deaths account for 93% of deaths among people in custody. Id.
  • In the Duncan Unit in Diboll (south of Lufkin), almost 6% of the incarcerated population has died. Id.
  • The average age of death is 64 for people in prison. It is 56 for people in jail. Id.
  • 21 people had served 90% or more of their sentence at the time of their death. Id.
  • 11 of the 14 inmates (approximately 80%) who died from COVID in Texas jails were not convicted of a crime. Id.
  • 58% of people who died in prisons from COVID were eligible for parole. Id.
  • 9 people who died in prisons from COVID were approved for parole but not yet released. Id.

Even accounting for the massive size of Texas’ incarceration population, the Lone Star State appears to be in much worse shape than other American states. Texas prison systems have more COVID infections than any other state, including significantly more than California and the entire federal system. UT-LBJ-PA Study at 9. Texas also has more COVID infections among staff than any other prison system. Id. Not surprisingly, as of early October 2020, Texas has significantly more COVID deaths of incarcerated people (190) than any other prison system. Id. at 10. Florida is second with 134. The federal system is third with 133. Id.

Texas has significantly more staff deaths from COVID than any other prison system. UT-LBJ-PA Study at 10. This not only paints a damning picture of conditions inside the state’s prisons, but shows an apparent tendency to spread infections beyond prison walls and into surrounding communities.

People in Texas prisons are testing positive for COVID at disproportionately high rates. UT-LBJ-PA Study at 11. A whopping 490% higher than the state of Texas as a whole. Id. It is 40% higher than the national prison population average. Id. And, it is 620% higher than the national average of people in the United States. Id.

People in Texas prisons are dying from COVID at disproportionately high rates. UT-LBJ-PA Study at 11. The death rate is 140% higher than the state of Texas as a whole. Id. It is 35% higher than the national prison population average. And it is 115% higher than the national average. Id.

Texas is not the worst in every single category. Of the ten largest prison systems in the U.S., Texas has the second highest rate of COVID infections. UT-LBJ-PA Study at 12. Florida is 1,663 per 10,000 people and Texas is 1,623 – a difference of less than a percent. Id. Even accounting for our size, Texas has one of the highest death rates.2

One final statistic gathered between April – August 2020: Other states (including Ohio and Michigan) that started with a high number of COVID prison deaths have done substantially better than Texas in bringing down their death numbers. UT-LBJ-PA Study at 13. It appears that Texas is not on par with most of its peers in combatting the virus and saving lives.

The statistics are shocking, disturbing, and admittedly a little numbing. Reading through pages and pages of numbers almost causes one to forget that the figures – especially those relating to deaths – represent actual human beings who weren’t sent to jail or prison for execution. They were fathers and mothers, sons and daughters, brothers and sisters. Their lives meant something to people on the outside. The fact that more of our elected officials are not outraged by what’s happening in our Texas prisons and jails during the pandemic is, itself, an outrage.

I do not claim to have all of the answers for what may be done. But we should at least consider a few possibilities. I call on Governor Greg Abbott (who has the power and certainly the willingness to issue Emergency Orders), the Texas Legislature (which is scheduled to meet January 12, 2021 – or earlier, if the Governor so directs), TDCJ Executive Director Bryan Collier (who is the top manager responsible for the care and custody of all TDCJ inmates) and county sheriffs (whose job includes the protection of inmates at county jails across the state) to consider doing the following: (1) segregate older and medically vulnerable inmates from the rest of prison and jail populations and administer daily, rapid testing to the protected groups; (2) increase training for prison guards and inmates, in order to avoid contracting and spreading COVID, and institute a “zero tolerance” policy for prison and jail employees who violate safety protocols; (3) speed up the parole process and instruct the Texas Board of Pardons and Paroles to show more flexibility in allowing release (with appropriate conditions) — especially for non-violent offenders; (4) encourage release of county jail inmates who are eligible for bond. This should include withdrawing Executive Order No. GA-13 relating to detention in county and municipal jails during COVID-19 disaster

Texas can do this. We can do whatever works in other states and we can supplement with our own approaches. The current situation in Texas prisons and jails is unacceptable and must be addressed immediately. People are dying.

As it stands, Texas detention facilities are losing the war against COVID-19 and losing it badly.

President’s Message: Balancing the Supreme Court

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Justice Ruth Bader Ginsburg was an American treasure. In her life and legal career she was a barrier-breaker, a fierce advocate for her clients and the causes in which she believed, a role model, and ultimately a cultural icon. Justice Ginsburg’s loss will be impossible to measure — except perhaps in one stark, numerical way: The Supreme Court of the United States (SCOTUS) will likely move from 5-4 to 6-3 “conservative.”

This will have an enormous impact on the practice of criminal defense.

Over the past several decades and especially most recently, SCOTUS decisions (often with one or two conservative justices siding with liberals or vice versa) have narrowly upheld constitutional protections in 4th, 5th, 6th and 14th Amendment cases. These will be fewer and further between if SCOTUS stays with nine justices.

The point of this thought-exercise is not to suggest that our President and United States Senate should hold off nominating and confirming Amy Coney Barrett until after the 2020 presidential election. They’re not going to do that. Instead, as concerned citizens and criminal law practitioners we should be thinking of ways to safeguard the rights of the criminally accused in this highly charged political environment.

There is no shortage of suggestions for how to re-balance SCOTUS or remove it from the political arena. Please add mine to the list. It may strike you as slightly different.

I believe most Americans want a balanced SCOTUS, as opposed to a political tribunal that tilts in favor of one side or the other. To me, this begs a fundamental question: Why does SCOTUS have to have an odd number of justices?

There is nothing in the Constitution that specifies the number of SCOTUS justices. Most advocates of court expansion (derisively called “court packing”) favor adding more justices to achieve an odd number that favors their side. Some liberal advocates are talking about forging a 13-justice Court, with a 7-6 advantage for the liberal camp.

But again, why does it have to be an odd number? Is it because SCOTUS is supposed to be the final arbiter of legal questions and no one wants a tie?

The vast, overwhelming number of constitutional law cases in America do not reach the Supreme Court. If a criminal case includes a crucial, debatable constitutional issue and not merely a fact dispute, and the case even reaches the appellate level, it is usually decided in a state court of appeals. In federal criminal cases, district and circuit courts typically resolve constitutional issues. A successful petition for certiorari is rare even in some of the most hotly disputed criminal law topics.

On occasion, such as in the aftermaths of death or resignation of a SCOTUS justice or when a justice is recused or steps aside from a case, America has an even number of Supreme Court justices. Not surprisingly there have been dozens of tie votes in the Supreme Court dating back to the 1950s.

As most lawyers know, when an appellate court vote ends in a tie, the lower court decision stands. Finito!

Expanding the number of justices to 12 would balance the High Court and ensure that no big decisions would happen unless one side or the other persuades at least one fellow justice to cross over and join their voting block. Absent that, a lower circuit court decision would stand and it would be up to us lawyers to argue to trial and appellate courts what it all means. Gone would be the days when major constitutional issues are resolved by a single vote on what appears to be party lines. True, there would be circuit splits in some narrow areas of the law, but there are already a bunch of those and lawyers and courts deal with them routinely.

Although a 12-justice SCOTUS would probably require a Democratic President and a Democratic Senate (which are far from certain in the upcoming election of 2020), the concept of 12 justices actually has historical precedent. In the 1860s Congress set the number of justices at nine in order to match the number of federal circuits. There are currently 12 federal circuit courts in the United States! Moreover, a 12-justice SCOTUS should be enticing to Republicans, because all tie votes would revert to the decision of the lower circuit court and Republicans currently have a voting advantage in seven of the 12 federal circuit courts. The Senate and Electoral College are already structured in ways to almost always give Republicans the Senate, the presidency, or both – thereby ensuring a long-term advantage in the federal circuits. For their part, Democrats should embrace a 12-person SCOTUS, because, for them, it would be a vast improvement over what will probably soon be a 6-3 conservative majority.

Legal practitioners and Americans should all demand a 12-person, balanced SCOTUS because it would give us some things we haven’t had in decades — stability, objective fairness and a far less politicized tribunal at the very top of our legal system.

Some might grumble that no one wins with a tie.

That’s absolutely true and exactly the point.

President’s Message: Let Us In

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Tex. Code Crim. Pro. Art. 20.011 permits the following people inside a Texas grand jury room during proceedings: grand jurors, bailiffs, prosecutors, witnesses (while being examined or when their presence is necessary to assist the prosecutor), interpreters, stenographers and videographers.

Defense lawyers are not allowed in the room, even when a grand jury wants to hear from us. It’s time to change that.

The simplest way to do this is to amend the statute regarding persons “Who May Be Present in Grand Jury Room.” Tex. Code Crim. Pro. Art. 20.0111 The amended statute should add to the list of eligible people, an “Attorney for Defendant or Target, when requested by Grand Jury.” Target could be defined as any person or entity the Grand Jury believes may be a subject of a criminal prosecution, relating to the matter(s) of the Grand Jury’s investigation. The amendment would not permit the appearance of attorneys for fact witnesses who are neither under investigation nor threat of indictment.

There is an urgent need for grand jury reform in Texas. TCDLA and supporting groups are at the forefront of this movement. Two years ago during the Texas legislative session of 2019, the House and Senate considered versions of bills that would have required all grand jury testimony to be transcribed or video recorded, prevented repeat grand jury considerations after a case has been no-billed and a prosecutor has no new evidence (a.k.a. “grand jury shopping”), allowed witnesses and the accused to have their attorneys present during grand jury questioning, and required prosecutors to share with the grand jury evidence that is favorable to the accused. These were worthy measures, which, unfortunately, did not clear all the necessary hurdles to become law. I anticipate similar bills will be filed again in 2021.

But a bill allowing defense lawyers into the room upon request of a grand jury should be considered as a separate piece of legislation.

When I spoke on behalf of TCDLA to the Texas Judicial Commission (TJC) in February 2020, we discussed several potential reforms to the grand jury system. TJC considered ideas ranging from those contained in the aforementioned House and Senate bills, to my own suggestion of permitting examining trials at any time prior to trial. Our current system only allows examining trials before indictment,2 which means a prosecutor can sidestep a judicial inquiry into probable cause by (literally, in some instances) running to the grand jury room and securing an indictment. See State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 427 (Tex. Crim. App. 1990) (Magistrate has no authority to block or delay a prosecutor from presenting a case to a grand jury.). Because of their unchecked power to skirt examining trials, prosecutors in many Texas counties have rendered nearly all of Chapter 16 of the Code of Criminal Procedure completely useless.

But unlike our discussion of previous, unsuccessful grand jury reform measures, as well as my own call to expand the use of examining trials, I did not detect any concern in allowing defense lawyers into a grand jury room — when a Texas grand jury specifically asks for us to be there. It makes perfect sense to allow a grand jury an opportunity to hear both sides of a story. Practitioners and citizens should also consider that an indictment often has a profound effect on a person’s life. A “true bill” can destroy someone financially and emotionally. Criminal lawyers often see clients lose their jobs and get separated from their families following an indictment. Many clients are saddled with harsh and restrictive conditions of bail. Some spend months or longer in jail, awaiting trial or disposition after a grand jury returns a true bill. The public and even many in the legal profession would be shocked to learn that not only do prosecutors get to pick and choose which evidence they share with grand juries, but prosecutors are under no legal obligation to present exculpatory evidence! U.S. v. Williams, 504 U.S. 36, 45-55 (1992) (A district court may not dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury “substantial exculpatory evidence” in its possession.).

When it comes to grand jury reform, I am confident of several things: First, TJC and our Texas legislators do not want innocent people to get indicted. Nor do they wish to unnecessarily tie the hands of grand jurors. Further, I am certain that our state’s best prosecutors would feel comfortable permitting defense attorneys to share information — and possibly even their entire defensive strategy — with a grand jury, in those rare cases in which a defense attorney and a grand jury want to do exactly that.3 Finally, I am convinced that a minor alteration of the rule regarding who may be present in a grand jury room will neither slow things down nor lead to injustice. If a grand jury refuses to indict a person after hearing from a defense lawyer that’s exactly the kind of information that a good prosecutor will want to know in advance of trial.

I wish to emphasize that this proposed change would not convey a new right to defendants or their attorneys. It would merely be an additional option for grand juries in rare but appropriate cases.

It is time to let defense attorneys into the grand jury room. Today I am requesting that TCDLA’s Legislative Committee and our excellent lobbyists draft a very short bill to amend the applicable statute in the manner I have suggested. I ask that the proposed bill remain separate from any other bill to avoid getting it dragged into the larger morass of grand jury reform. Finally, I am sending a copy of this column to our friends at the Texas District and County Attorney’s Association (TDCAA), including TDCAA’s President and its Executive Director. They are intelligent and reasonable people. My hope is that TDCAA will join TCDLA and other stakeholders in this narrowly targeted effort to advance the cause of justice.

President’s Message: A Slippery Slope Usually Begins with a Delicate First Step

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On August 6, 2020, a Travis County Justice of the Peace named Nicholas Chu took a perilous stride down an icy constitutional declivity when he announced — in a press release! — his plan to preside over the nation’s first “binding” criminal jury trial via videoconference. (Or, at least as binding as any other Class “C” misdemeanor in a court with no reporter and in which the defendant has the right of appeal de novo.)

But still.

The accused would be tried for the offense of Speeding in a Construction Zone. Importantly, for reasons only the defense attorney can explain (which he did, of course, to the press), the defendant consented to this ill-advised experiment. So did the prosecutor. Most notably so did the Office of Court Administration — the government agency charged with approving all Texas trials during the pandemic until October 1, 2020.

The “Zoom trial” took place on August 11, 2020. It was beset with technical glitches ranging from muted audio and choppy video, to venire members being excused because they couldn’t login, to an empaneled juror being excused because his screen froze. (Good thing they had an alternate.) But while some of the technical challenges in Zoom trials can be addressed with public education and faster, more reliable internet connections, what can’t be fixed are the constitutional violations that arise from the denial of an accused’s rights to effective assistance of counsel and confronting the witnesses and evidence against him.

In but one example, the jurors who served in the speeding ticket trial were unable to observe the body language (or what the United States Supreme Court has called “demeanor”) of the police officer who testified. Maryland v. Craig, 497 U.S. 836, 837 (1990). In a trial of greater consequence — for example, when an accused is facing jail or prison time — a person’s liberty cannot be left to the best guesswork of jurors who can’t see anything more than a two-dimensional view of a witness’ face. Every experienced cross-examiner can tell you about trials won and lost because jurors observed a key witness physically “squirming on the stand.” Additionally, the accused and her lawyers in the speeding ticket case couldn’t see the body language of the jurors. Oftentimes that’s crucial in knowing whether a message is getting through to them. (For whatever it’s worth, prosecutors usually sit closest to the jury. Losing their ability to study jurors up close would be a major blow.) Two-dimensional Zoom faces and an inability of jurors, lawyers and the accused to fully observe demeanor are a poor substitute for some of the cherished constitutional rights that Americans have fought and died for on battlefields all over the world.

In the speeding ticket trial, as YouTube viewers stared into jurors’ homes, took note of their eclectic furnishings and hoped no children would come strolling by, Judge Chu prepared to read the verdict. He paused for what seemed like a long time. It turned out that the defense attorney was somehow locked out of the virtual trial and in a different Zoom “room” (which is probably the technological equivalent of getting trapped in a courthouse restroom). Eventually, Judge Chu pronounced that the defendant had been found not guilty of the charge or Speeding in a Construction Zone, but guilty of the lesser charge of speeding. At least we can be confident the jurors didn’t reach a split verdict because they wanted to beat the traffic home.

The true danger in Class “C” Zoom trials is not that speeding defendants will get clobbered in greater numbers (although, that’s part of it). It’s that there really are some appealing characteristics in virtual trials. They are cheaper, require less security, save jurors and witnesses from having to show up at the courthouse and probably move trial dockets faster because there are fewer continuances. It is these attractive features that may one day convince judges to lobby for virtual Class “C” misdemeanor trials without consent of the parties. Then, of course, some public officials will wonder why we can’t just have Zoom trials in all misdemeanor cases. Perhaps Classes “A” and “B” misdemeanor Zoom trials will start as consent only. But then judges may complain — as they did in convincing the Texas Supreme Court to abandon the consent-of-the-parties clause from its Emergency Orders governing trials during the pandemic — that litigants shouldn’t get to decide whether, when and how to go to trial. Only judges should.

Judge Chu’s Zoom trial is exactly how slippery slopes begin. A delicate first step, followed by another, and then an irreversible momentum toward a really bad policy for accused citizens and everyone connected to the Texas criminal justice system.

When something is cheap and easy it eventually becomes irresistible to those in power. We are absolutely kidding ourselves if we believe that Zoom trials will never happen without consent of the parties or that they won’t be seriously considered in criminal cases punishable by jail or prison.

Mark my words on this.

President’s Message: Judges Push Jury Trials During the Pandemic

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Only one group of people seem anxious to re-open courthouses and start criminal trials again. It isn’t us, and it isn’t prosecutors. In conversations with elected District Attorneys all over the state, I have learned that prosecutors don’t want to risk their health, the safety of their communities, or having convictions overturned due to constitutional violations. 

The public isn’t banging down courthouse doors, either. Many prospective jurors are struggling with health concerns, unemployment, and the possibility that schools might partially or fully close this fall. Not to mention a growing unease as COVID-19 numbers bounce back and forth between disturbing and alarming.

It is not even the Texas Supreme Court, whose emergency orders regarding criminal matters reveal a granular misunderstanding of the differences between civil and criminal practice. 

It is Texas trial judges.

True, there are many judges who recognize that the health and constitutional perils of jury trials during the pandemic far outweigh the benefit of appearing to get back to normal. If you see judges and their staffs postponing cases, waiving court appearances and otherwise acting responsibly, be sure to thank them. Good judges and staffs don’t get nearly enough positive feedback when they do the right thing.  

But there is a rather large, vocal group of trial judges who are misreading their constituents and apparently have an inflated sense of self. Here is a harsh truth for them: Most voters don’t know who you are

If you were to walk the voting line on Election Day and ask people to name three judges in their area, most couldn’t do it. Further, if you were to ask voters about the size of a particular judge’s trial docket, most people would have no idea what you were talking about. Too many judges are disconnected from what the public wants or even knows about them. 

Perhaps most troubling is the false narrative that some judges are spreading to justify restarting trials. They claim it’s because their dockets are full of people — especially those languishing in jail — who are demanding trials because they want to have “their day in court.” With exceptions, that is mostly baloney. Prosecutors and defense attorneys agree that criminal cases tend to get weaker, not stronger, with the passage of time. 

But if judges are pushing pandemic trials out of genuine concern for the speedy trial rights of the accused, there is a simple solution. Grant every defense request for a jury trial continuance during the pandemic. Lawyers with clients who really want a fast trial won’t ask for postponements. Also, if a defendant is bondable but trapped in jail due to a high bond or the unconstitutional GA-13 Order from Gov. Greg Abbott, reduce the bond and let the person out.  

If there is a County or District Court judge anywhere in Texas who disagrees with what I’ve written and wants to talk about it, feel free to call my Houston office or the TCDLA home office at 512-478-2514 and ask for my cell number. Text me. 

But to any judge who pushes forward with a pandemic jury trial over a defense lawyer’s objection: If something goes wrong, you will own this. You have the power to avoid disaster, and your constituents look to you for leadership.

President’s Message: New Leadership

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On June 22, 2020, I will be sworn in as the 50th President of the Texas Criminal Defense Lawyers Association (TCDLA). Joining me in service to TCDLA will be 59 board members and officers from across the state. This will include 10 newly elected leaders. I am certainly biased, but I believe this is the most talented, eclectic, and motivated group of lawyers we have ever assembled to lead TCDLA. We will need every ounce of their contributions, as this is perhaps the most challenging period in our history.

In order to better serve our members, TCDLA must be unwavering when it comes to the following: When a person in power openly attacks or undermines the Texas or Federal Constitutions, as they relate to the rights of the accused, we must respond quickly and effectively. When one of our members is placed in an untenable situation simply for doing his or her job, we must shield that member with the protection of our Strike Force and 3,300 members in every corner of Texas. We must advocate for laws that will ameliorate the inherent unfairness in our state’s criminal justice system. And we must look for new and creative ways to improve the lives and law practices of our members.

Those who know me, know that I have a strong interest in using technology to enhance the practice of law. I hope that you will see some changes in the coming months that will re-affirm why you became a member of TCDLA. If you like what you see, please let me, your 59 other leaders, and TCDLA staff know. If you have an idea for a new service that you think our fellow members might enjoy, please let us know that, too. I have asked our staff in Austin to provide my cell number and email address to any member, upon request. Text me.

I value your membership and commitment to TCDLA. I ask that you stay a loyal member for at least the next 12 months and see what we can do for you. TCDLA needs you now more than ever. I hope to persuade you that you need us, too. Thank you, dear colleagues.

-Grant Scheiner

Protecting Your Client’s Conduct While Admitting the Accuser’s: Texas Rules of Evidence 403, 404, 412, and 609

In sexual offense cases—particularly those involving an alleged crime against a child—the defense is almost always playing on an uneven field. Special rules of admissibility of evidence favor the prosecution. At trial, the defense often faces a critical challenge of trying to keep out evidence of a client’s extraneous conduct. In some cases, the defense may battle to admit evidence of an accuser’s own sexual acts. The slanted rules of admissibility and procedure make these contests difficult to win, but not always impossible. This article addresses how to resist a prosecutor’s effort to admit into evidence your client’s alleged extraneous conduct, while fighting for admissibility of an accuser’s own relevant sexual acts.

Law of Admissibility in Child Sex Offenses

The primary tool that prosecutors use to offer into evidence a defendant’s extraneous, sexual conduct is Tex. Code Crim. Pro. Art. 38.37 (the “Article”). As discussed below, the Article, entitled “Evidence of Extraneous Offenses or Acts,” is essentially a two-pronged statute. The first prong applies to any prosecution for commission, attempt, or conspiracy to commit the following types of Texas Penal Code cases, if perpetrated against a childunder 17 years of age at the time of the alleged offense or act: Chapter 21 (Sexual Offenses),1 Chapter 22 (Assaultive Offenses), and Section 25.02 (Prohibited Sexual Conduct). Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (a) (1). The first prong also applies to prosecutions for commission, attempt, or conspiracy to commit any of the following types of types of Penal Code offenses, if committed against a person younger than 18 years of age at the time of the alleged offense or act: Section 43.25 (Sexual Performance by a Child), Section 20A.02 (a) (7) or (8) (relating to Child Trafficking), or Section 43.05 (a) (2) (Compelling Prostitution). Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (a) (2).

The first prong of the Article mandates: “Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs or acts committed by the defendant against the child who is the victim of the alleged offense [for which the defendant is on trial] . . . shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.” Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (b) (emphasis added). Because of the broad and nearly unrestricted language relating to admissibility of a defendant’s extraneous conduct committed against the same child who is the alleged victim of the charged offense(s), for which the defendant is on trial, coupled with the lack of a statutorily required gatekeeping hearing, it is extremely difficult to keep out evidence of your client’s extraneous sexual conduct. Although the defense can and should object on federal and Texas constitutional grounds,2 as well as Tex. R. Evid. 403, the best chance for excluding a defendant’s extraneous sexual conduct in this instance may be to argue improper notice. Article 38.37, Sec. 3 provides: “The state shall give the defendant notice of the state’s intent to introduce in the case in chief evidence described by Section 1 or 2 [i.e., the first two sections of the Article] not later than the 30th day before the date of the defendant’s trial [in the same manner as the state is required to give notice under Rule 404 (b), Texas Rules of Evidence].” Tex. Code Crim. Pro. Art. 38.37, Sec. 3.

In order to argue improper notice, the defense must first request notice under the statute. The easiest way to do this is to send the prosecutor or district attorney’s office handling the case something in writing (such as a letter) requesting “notice” (or “notice of evidence of extraneous offenses or acts”) under Article 38.37 of the Texas Code of Criminal Procedure. If you send your request by fax, make sure you keep a copy of the fax transmission receipt. If you send by email, ask for a reply acknowledging receipt of your email. For good measure, you may wish to file the request and the receipt or acknowledgment with the District Clerk, so that your judge will have convenient access to the proof that you need to show you made a proper request and the state received it.

Next, you may need to cite relevant case authority. In Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995), the Court of Criminal Appeals ruled that a state’s open file policy (i.e., that the defendant knew or should have known of the existence of the alleged extraneous conduct) did not satisfy the requirement that the state provide notice in advance of its intent to use in its case in chief evidence of other crimes, wrongs, or acts under Tex. R. Evid. 404 (b). Specifically, the Court held that “[t]he mere presence of an offense report indicating the State’s awareness of the existence of such evidence does not indicate an ‘intent to introduce’ such evidence in its case in chief.” Buchanan, 911 S.W.2d at 15; cf. Lara v. State, 513 S.W.3d 135, 140–43 (Tex. App.—Houston [14th Dist] 2016, no pet.) (Erroneous admission of Article 38.37 extraneous conduct evidence, due to state’s lack of proper notice to the defense, was non-constitutional error. Additionally, the error (if any) was harmless, because Defendant only complained of surprise that the state planned to introduce evidence of extraneous conduct in guilt-innocence (not surprise of the existence of extraneous conduct evidence); did not ask for a continuance; and did not establish harm—i.e., explain to the trial court how defendant’s trial strategy would have differed had he known of state’s intent to introduce extraneous conduct.).

To give yourself the best chance of succeeding on an improper or insufficient notice argument, and to ensure that your objection is preserved for appeal, you should object to admission of Article 38.37 extraneous conduct evidence and do the following, in sequence: (1) request that the evidence be suppressed; (2) if suppression request is overruled, consider requesting a mistrial; (3) if you don’t request a mistrial or your request is overruled, ask for a continuance in order to allow you to investigate the extraneous conduct allegations and incorporate your findings into your defense strategy (be prepared to state how long you will need and, if the judge overrules your request for a continuance, try to get the judge to state on the record that he or she will not grant a continuance of any length of time); and (4) clearly state on the record how your client will be harmed if the Article 38.37 evidence is admitted. Explain how your defense might have changed and how, for example, you would have conducted voir dire differently had you known the Article 38.37 extraneous conduct evidence would have been admitted. To be doubly safe, ask for continuing or “running” objections on all the grounds you have asserted.

The second prong of Article 38.37 may offer a slightly better chance of excluding your client’s alleged extraneous conduct in a child sex crime case, if only because the second prong requires the trial court judge to examine the strength of the evidence, in a hearing outside the presence of the jury, before the evidence may be admitted. See Tex. Code Crim. Pro. Art. 38.37, Sec. 2-a (1) & (2).

Article 38.37, Section 2, applies only to the trial of a defendant for: “(1) an offense under any of the following provisions of the Penal Code: (A) Section 20A.02, if punishable as a felony of the first degree under Section 10A.02(b)(1) (Sex Trafficking of a Child), (B) Section 21.02 (Continuous Sexual Abuse of Young Child or Children), (C) Section 21.11 (Indecency With a Child), (D) Section 22.011(a)(2) (Sexual Assault of a Child), (E) Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a Child), (F) Section 33.021 (Online Solicitation of a Minor), (G) Section 43.25 (Sexual Performance by a Child), or (H) Section 43.26 (Possession or Promotion of Child Pornography), Penal Code; or (2) an attempt or conspiracy to commit an offense described by Subdivision (1).” Tex. Code Crim. Pro. Art. 38.37, Sec. 2.

Strength of Evidence Test and Rule 403

One apparent difference between Sections 1 and 2 of Article 38.37 (the two prongs) is that they appear to cover different offenses. However, a close look at the statute reveals some overlap between the two sections. It would be more accurate to say that Section 1 is broader than Section 2, covering virtually all of the serious sexual conduct listed in Section 2, as well as some less serious and even some non-sexual conduct. Another difference, as previously mentioned, is that Section 2’s extraneous conduct may only be admitted into evidence after the trial judge “(1) determine[s] that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt, and (2) conduct[s] a hearing out of the presence of the jury for that purpose.” Tex. Code Crim. Pro. Art. 38.37, Sec. 2-a (1) & (2). Finally, an important distinction between Sections 1 and 2 is that Section 1 applies to extraneous conduct with the same child, the complainant in the charged case(s). Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (b) (“committed by the defendant against the child who is the victim of the alleged offense”) (emphasis added). Section 2 applies to extraneous conduct with a different child. Tex. Code Crim. Pro. Art. 38.37, Sec. 2 (b) (“evidence that the defendant has committed a separate offense”) (double emphasis added).

So, putting aside any potential issues relating to a constitutional challenge (which will likely fail)3 and improper notice (which can be argued during trial, at the time the evidence is offered), the defense may have a chance to keep out Section 2 extraneous conduct (involving a different child) by requesting the trial court to conduct a “strength of evidence” analysis outside the presence of the jury.4 Additionally, assuming the trial court determines during this gatekeeping hearing that the evidence “will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt,”5 the defense should use the hearing as an opportunity to advance a Rule 403 argument. The relevant factors for a trial court in determining whether the prejudice of alleged extraneous conduct in a child sex abuse case substantially outweighs its probative value include: “(1) how compellingly the extraneous-offense evidence serves to make a fact of consequence more or less probable—a factor that is related to the strength of the evidence presented by the [state] to show the defendant in fact committed the extraneous offense; (2) the potential the other offense has to impress the jury ‘in some irrational but nevertheless indelible way’; (3) the time the [state] will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., whether the proponent has other probative evidence available to him to help establish this fact, and whether this fact is related to an issue in dispute.” Burke v. State, 371 S.W.3d 252, 258 (Tex. App.—Houston [1st. Dist.] 2011, pet. ref’d, untimely filed) (citing Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999)).

Adult Sex Crime Cases

Article 38.37 of the Texas Code of Criminal Procedure does not apply to adult sex crime cases. Therefore, the defense is free to argue anything and everything: Constitutional challenges to the evidence, improper notice, plus violations of Texas Rules of Evidence, including 402 (relevance); 403 (unfair prejudice); and 404 (other crimes, wrongs, acts). If the alleged extraneous conduct is in the form of a prior conviction, look to Texas Rule of Evidence 609 to determine whether the prosecution can establish admissibility, in the event your client elects to testify. See Theus v. State, 845 S.W.2d 874 (Evidence of prior felony arson conviction was not admissible to impeach defendant charged with possessing drugs.).

Texas Rape Shield Law

In Texas, as in other states, evidence of a complainant’s previous sexual conduct is generally inadmissible in a criminal prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual or aggravated sexual assault. Tex. R. Evid. 412. Specifically, the trial court may not admit “reputation or opinion evidence of a [complainant’s] past sexual behavior; or specific instances of a [complainant’s] past sexual behavior.” Id. at (a). There are, however, exceptions to this rule. “Evidence of specific instances of a [complainant’s] past sexual behavior is admissible if: (1) the court admits the evidence in accordance [with procedures relating to proffering the evidence outside the presence of the jury and sealing the record] and . . . (2) the evidence: (A) is necessary to rebut or explain scientific or medical evidence offered by the prosecutor,6 (B) concerns past sexual behavior with the defendant and is offered by the defendant to prove consent, (C) relates to the [complainant’s] motive or bias, (D) is admissible under [Texas Evidence] Rule 609, or (E) is constitutionally required to be admitted; and (3) the probative value of the evidence outweighs the danger of unfair prejudice.7 Id. at (b) (emphasis added).

In Hammer v. State, the Texas Court of Criminal Appeals (CCA) held that evidence related to a child complainant’s anger toward the defendant (her father), after he took her to a hospital for a sexual-assault examination after she ran away from home was admissible to show the complainant’s motive to falsely accuse the defendant of sexual molestation. See Hammer v. State, 296 S.W.3d 555, 567–69 (Tex. Crim. App. 2009). Evidence of the complainant’s previous sexual behavior was contained in medical records of a sexual-assault examination. Id. The CCA ruled that the probative value of the medical records, as well as the complainant’s statements to a witness that her sexual activities when she ran away from home were consensual and not assaultive (as she had falsely reported to a nurse), was not substantially outweighed by the danger of unfair prejudice. Id. at 568–569. Additionally, the CCA held that the trial court abused its discretion by preventing defendant’s attorney from cross-examining the complainant about her allegations that “all of her mother’s boyfriends had sexually molested her,” an incident about being held at knife point by five men, and the complainant’s statements concerning a purported sexual assault by a third party. Id. at 570. The CCA specifically noted that evidence of the child complainant’s statements to others that she had been sexually molested by her mother’s boyfriends, and that she lied to her grandmother about being held at knife point by five men who threatened to rape her, was admissible under the “Doctrine of Chances.” Id. at 565–570.8 Citing “Wigmore’s doctrine of chances,” the CCA observed that it was “highly unlikely that [the complainant] was molested by all of her mother’s boyfriends.” Id. at 569. “A rational factfinder might . . . reasonably conclude that at least some of these accusations, if not all, were false.” Id.

In addition to any applicable exceptions set forth in Tex. R. Evid. 412, which exceptions allow for admission into evidence of the complainant’s previous sexual behavior, the defense should argue “Doctrine of Chances” whenever a complainant’s specific instances of conduct (such as an unfounded or false allegation of sexual abuse against a third party) is similar to the complainant’s allegations in the case for which your client is on trial.

Offering Rule 412 Evidence

There are several things to keep in mind when offering Rape Shield Law (Tex. R. Evid. 412) evidence. First, the statute only applies to cases involving prosecutions for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault. Tex. R. Evid. 412 (a). This does not mean that evidence of a complainant’s sexual reputation, or opinion evidence regarding a complainant’s sexual reputation or past sexual behavior, or specific instances of the complainant’s past sexual conduct, is automatically admissible. It only means you do not have to follow the Rule 412 admissibility and procedure guidelines for offering evidence of a complainant’s past sexual conduct. Be prepared to argue why the proffered evidence is relevant and admissible under other Rules of Evidence.

Second, be aware that “before offering any evidence of [a complainant’s] past sexual behavior, [the defense attorney] must inform the court outside the jury’s presence.” Tex. R. Evid. 49 (c). “The court must then conduct an in camera hearing, recorded by a court reporter, and determine whether the proposed evidence is admissible.” Id. “The defendant may not refer to any evidence ruled inadmissible without first requesting and gaining the court’s approval outside the jury’s presence.” Id. Finally, know that the “court must preserve the record of the in camera hearing, under seal, as part of the record.”10Id. at (d).

Conclusion

One of the biggest mistakes a defense lawyer can make when arguing to keep out evidence of a client’s alleged extraneous conduct, or when fighting to admit into evidence a complainant’s past sexual conduct, is to assume that the slanted rules of evidence and procedure have rendered the situation hopeless. It is true that you will not always win your arguments and you may not always prevail at trial. However, a working knowledge of the rules, combined with a persistent and tenacious approach in applying them, will give you the best chance for success at trial or (if necessary) beyond.