Michael C. Gross

Michael C. Gross is currently the President of the Texas Criminal Defense Lawyers Association and is a partner with Gross & Esparza, P.L.L.C., San Antonio, Texas. He received his B.A., Trinity University, San Antonio, Texas, 1984; J.D., St. Mary’s University, San Antonio, Texas, 1987. Mr. Gross’ professional activities include Judge Advocate in the United States Marine Corps from 1988-1992. His court admissions include the Supreme Court of the United States; Supreme Court of the State of Texas; United States Court of Appeals for the Armed Forces; United States Court of Appeals for the Fifth Circuit; United States Court of Appeals for the Tenth Circuit; and United States District Courts for the Northern, Southern, Eastern, and Western Districts of Texas. He is board certified in criminal trial advocacy by the National Board of Trial Advocacy and board certified in criminal law and criminal appellate law by the Texas Board of Legal Specialization. He has been named in the Best Lawyers in America (2005-2019); Best Lawyers’ San Antonio Criminal Defense: Non-White-Collar “Lawyer of the Year” (2015, 2017); Texas Super Lawyers in Texas Monthly Magazine (2004-2019); a Top 50 Texas Super Lawyer in Central and West Texas Region (2010-2012, 2014); named one of the Top 10 criminal defense attorneys in San Antonio by S.A. Scene Magazine (2013); Best Lawyers in San Antonio by Scene in San Antonio Magazine (2004-2019); Defender of the Year, San Antonio Criminal Defense Lawyers Association (2008); Defender of the Year, San Antonio Criminal Defense Lawyers Association (2009); and is AV rated by Martindale Hubble.

President’s Message: Happy Holidays!


“We are so grateful for all the sacrifices that you have made this year to support and serve others. May this Holiday season be a time for you to rest and recover, and to reflect on all that you have achieved.”


I do not know about all of you, but everything seems to be so much more difficult in our law practice these days. What was once easy to obtain in discovery or in witness interviews or trial preparation now seems so much harder. It sometimes feels like we are in quicksand. Add to these difficulties the strange emergence of jury trials during the pandemic. Masks and plexiglass and Zoom permeate the courtroom. In 2019 and earlier, a court coordinator could accurately tell us whether or not our case was going to trial the following week. No more. Everything seems to be in flux. These stressors may lead some to feel that our service to our clients and others is not appreciated. Ours is not an easy profession. It is not easy, for example, to enter a courtroom filled with 80 venirepersons and conduct voir dire on a murder case or other difficult case. These many stressors can sometimes be overwhelming. We have attempted to survive the pandemic and countless Zoom settings. We have maintained our law practices in spite of the difficulties resulting from the pandemic. We should remember, however, that we have adapted and overcome these stressors and should not allow them to dampen our holiday season. We are a TCDLA family and know that we may rely upon each other to get through these difficult times.

As we enter this holiday season and prepare for New Years, I hope each of us takes a moment to reflect on how our sacrifices this past year have helped and supported not only our families and friends but also our clients, their families, and their friends. My hope is that each of us may take a moment this holiday season and enjoy our families and rest up for this coming year. We need this time to recover and reflect on all that we have achieved. I wish the best for you and yours this holiday season and in 2022.

Happy Holidays!

President’s Message: Happy Veterans Day


Happy Veterans Day to all my fellow veterans and those who support them. We remember those who went before us, those with whom we served, and those who came after us defending our great country. In 1918, on the eleventh hour of the eleventh day of the eleventh month, World War I realized a temporary cessation of hostilities – an armistice – between Allied forces and Germany. In the following year, November 11, 1918, came to be known as Armistice Day as proclaimed by President Wilson: “To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations…” After World War II and Korea, the 83rd Congress decided to change “Armistice” to “Veterans” resulting in November 11th becoming a day to honor American veterans of all wars.

I am in awe of my fellow veterans – past, present, and future. My fellow United States Marines have distinguished themselves for the last 246 years in Tripoli, Chapultepec, Belleau Wood, Guadalcanal, Iwo Jima, Inchon, Chosin Reservoir, Khe Sanh, Hue City, and Fallujah. My brothers and sisters in the United States Army have distinguished themselves in the Battle of the Bulge, Normandy, Saint-Mihiel, D-Day, Naktong Bulge, Baghdad, Basra, and Haditha. My brothers and sisters in the United States Navy have distinguished themselves in the Coral Sea, Java Sea, Midway, Bismark Sea, and the China Sea. My brothers and sisters in the United States Air Force have distinguished themselves in the Berlin Airlift, MiG Alley in Korea, Operation Bolo, and Desert Storm. My brothers and sisters in the United States Coast Guard have distinguished themselves as America’s maritime first responder and protects our economic, national, and border security. Approximately 1.4 million people serve in the U.S. armed forces. That means that approximately 0.4% of the American population is active military personnel, and only about 7.3% of living Americans have ever served in the military. Id. Such an awesome responsibility on so few.

I am also proud to have served with many past and present judge advocates in all our services. Over the years, Military judge advocates have provided sage advice for commanders in all aspects of the military from courts-martial to civil affairs to rules of engagement. After military service, many of these judge advocates continue to distinguish themselves in their legal careers in the civilian sector.

What amazes me is how our veterans continue to serve their country after they leave the military – whether it be in government service or the civilian sector. I believe that the military training our veterans received enables them to overcome any obstacles placed in their way. We were all required to read and be familiar with reading lists while in the military. One book on the reading list was The Art of War by Sun Tzu who listed nine varieties of ground: (1) dispersive ground; (2) facile ground; (3) contentious ground; (4) open ground; (5) ground of intersecting highways; (6) serious ground; (7) difficult ground; (8) hemmed-in ground; and (9) desperate ground. Sun Tzu defined desperate ground as, “Ground on which we can only be saved from destruction by fighting without delay, is desperate ground.”

I think all of us, veterans or not, have been on desperate ground be it in our lives, in court, dealing with the government or our clients and their families, or elsewhere. I think of the criminal defense attorney battling an extremely difficult trial – be it a DWI or a capital murder death case – while dealing with the prosecution, judge, jury, or others. We can all have a sense, in this way, of what our veterans have been through during their military service. To better understand the sacrifice our veterans have given to this country and to better understand Veterans Day, I would suggest reading an outstanding non-fiction book, On Desperate Ground by Hampton Sides. This book provides you with a glimpse of our armed forces at the Chosin Reservoir during the Korean War. This book also informs you about how our military forces have overcome extreme difficulties in the defense of our country and why we should, indeed, observe Veterans Day.

President’s Message: October 2021


As I write this article today, the second special session of the Texas legislature has ended, and the Texas Denial of Bail for Certain Crimes Amendment (2021) did not pass. As a result, this proposed constitutional amendment currently will not be on the November 2, 2021, ballot in Texas as a legislatively referred constitutional amendment. This amendment was designed to authorize a judge or magistrate to deny bail for certain crimes including violent or sexual offenses or continuous trafficking of persons. The Texas legislature, however, is scheduled to begin its third special session with five agenda items on September 20, 2021. Fortunately, this constitutional amendment is not on the current agenda. I want to thank our outstanding lobbyists – Allen Place, Shea Place, and David Gonzalez – and our excellent legislative committee for their wonderful efforts regarding this proposed amendment and many other legislative issues they successfully faced during this legislative year.

The Texas legislature, unfortunately, passed S.B. No. 6 “relating to rules for setting the amount of bail, to the release of certain defendants on a monetary bond or personal bond, to related duties of certain officers taking bail bonds and of a magistrate in a criminal case, to charitable bail organizations, and to the reporting of information pertaining to bail bonds.” This bill is forty pages in length and covers many bail issues. The bill requires a public safety report (risk assessment) on all offenses Class B and higher. The final version of this bill dropped the broad limitation on charitable bail organizations but retained some reporting requirements for charitable bail organizations. One concerning issue regarding this bill is as follows: “Except as provided by Article 15.21 (Release on personal bond if not timely demanded), Article 17.033 (Release on bond of certain persons arrested without a warrant), and Article 17.151 (Release because of delay), this bail bill amends Article 17.03 (Personal bond) of the Texas Code of Criminal Procedure, effective September 1, 2021, by eliminating personal bonds for the following: (1) persons charged with an offense involving violence (murder, capital murder, kidnapping, aggravated kidnapping, trafficking of persons, continuous trafficking of persons, continuous sexual abuse of young child or disabled individual, indecency with a child, assault where the offense is a felony family violence or a second degree felony committed against a judge or peace officer lawfully discharging their duties or in retaliation, sexual assault, aggravated assault, aggravated sexual assault, injury to a child/elderly/disabled individual, repeated violation of certain court orders, continuous violence against the family, aggravated robbery, taking or attempting to take a weapon from an officer, aggravated promotion of prostitution, compelling prostitution, or sexual performance by a child); or (2) while released on bail or on community supervision for an offense involving violence, persons charged with committing any felony or with assault, deadly conduct, terroristic threat, or disorderly conduct involving a firearm. A citizen accused of these offenses, however, may still bail out with a surety or with cash bail for those listed offenses.”

It is very concerning how indigent citizens and minorities will be adversely affected by S.B. No. 6. Many citizens charged with these offenses are currently able to be released from jail only by using a personal bond because of the very low amount required to be paid for release. How many citizens will be denied bail merely because they will be unable to afford a surety or cash bond? This bill will have a dramatic impact on county jails and magistrates. Jail populations will be increased resulting in a financial burden on counties throughout Texas. With respect to these and other adverse effects resulting from this bill, it was recently reported that, “Last month, the ACLU of Texas sent a letter to all 254 counties in Texas informing them that following the law “might land them in court.” SB6 “conflict[s] with our constitutional right to pretrial liberty and the presumption of innocence,” it said in a statement.1 Time will tell how our brothers and sisters in the criminal defense bar will handle these changes to the bail system in Texas. I want to let all of you know, however, that the Texas Criminal Defense Lawyers Association is here to help you with these and other challenges all of us face every day by providing the best continuing legal education possible.

President’s Message: September 2021


On July 28, 2021, Texas Governor Abbott issued Executive Order No. GA-37 relating to the transportation of migrants during the COVID-19 disaster. GA-37 authorizes the Texas Department of Public Safety (DPS) “to stop any vehicle upon reasonable suspicion of” transporting illegal migrants and to impound any such vehicle. On July 27, 2021, Governor Abbott issued a letter ordering the Texas National Guard (TNG) to “assist DPS in enforcing Texas law by arresting lawbreakers at the border.” On August 3, 3021, Judge Kathleen Cardone of the United States District Court for the Western District of Texas, El Paso Division, issued a temporary restraining order finding that the United States Department of Justice would likely prevail on its claim that GA-37 violates the Supremacy Clause of the United States Constitution because it conflicts with federal immigration law and that GA-37 “causes irreparable injury to the United States and to individuals the United States is charged with protecting, jeopardizing the health and safety of non-citizens . . .” United States v. Texas, Cause No. EP-21-CV-173-KC (W.D. Tex., August 3, 2021).

Caught in the middle of all this are hundreds of indigent migrants. In Val Verde County, Del Rio, Texas, DPS has installed chain link fences on private property at the border and, when migrants breach the fences or enter private property, the migrants are arrested by DPS for the misdemeanor offenses of trespassing or criminal mischief. (https://www.texastribune.org/2021/07/30/texas-greg-abbott-border-security/) Governor Abbott has converted the Briscoe state prison in Dilley, Texas into a state jail to house these arrested migrants. Id. This is approximately 100 miles from Del Rio, Texas. Id. These indigent migrants are charged, magistrated with a bond set at a processing tent, and then transported to Dilley, Texas to await the outcome of the charges. Id.

There exists marked confusion by DPS in Del Rio regarding how these Texas laws are affected by migrants who are seeking asylum. Id. For instance, on July 30, 2021, it was reported that a migrant husband-wife couple from Venezuela were seeking asylum when DPS arrested the husband for trespassing. Id. It was the understanding of the local sheriff that families and children were supposed to be handled by Border Patrol and not DPS. Id. A local Border Patrol agent was confused about why DPS arrested this family member. Id. The sheriff intervened resulting in the husband being reunited with his wife and turned over to Border Patrol for asylum processing. Id.

Hundreds of people have been arrested by DPS, and the Val Verde County Attorney’s office is now overwhelmed with these cases. Id. It has been reported that the County Attorney expects to offer time served to most of these defendants. Id. The Texas Indigent Defense Commission has begun to direct funding to help with court-appointed attorneys for these defendants. Id. Val Verde County, however, does not have enough attorneys to cover this number of new cases. Criminal defense attorneys from around Texas will be needed to help these indigent, migrant defendants.

The Texas Criminal Defense Lawyers Association has many wonderful attorneys who would be willing to assist with these cases. The concerns of TCDLA, however, are that a quick guilty plea of time served may not be appropriate for these cases. Our concerns are many. How fairly was the bail amount determined? How quickly will a pre-trial habeas motion to decrease bail be heard? What are the effects of a plea on the asylum or immigration situation for the migrant? How will Padilla letters be obtained for the migrant to answer immigration concerns and who pays for this? Who will pay for travel and lodging at Del Rio to examine the alleged crime scene and to then travel to Dilley to meet with the client? Who will pay for the investigators needed to help prepare the case? Who will pay for mental health experts and other potentially necessary experts to help prepare the case? Who will set the court-appointed rates?

These are questions we in TCDLA have for our clients every day. These are questions that should also be answered for these indigent, migrant defendants in Del Rio. TCDLA attorneys are always up to the task for providing an excellent defense for clients in these situations. I look forward to seeing how TCDLA attorneys are again up to the challenge and how they will provide excellent defenses for these defendants in Del Rio.

President’s Message: July/August 2021


I would like to highlight a few of the many benefits our members receive from TCDLA. One example is, during the pandemic, a fantastic group of TCDLA members agreed to help our membership with the COVID-19 Response Task Force. This committee was led over time by Clay Steadman, Allison Clayton, and Nicole DeBorde Hochglaube. It provided wonderful motions, cheat sheets, and other items to assist our membership with handling the specter of virtual trials during the pandemic. This committee proved to be a life line to our membership especially during the trying and lonely times of the pandemic.

Another example is the TCDLA Judicial Conduct Committee. Our brothers and sisters in the criminal defense bar sometimes encounter questionable actions by the judiciary. I have personally witnessed defendants on bond being placed into the court’s holding cell when the defendant refused to accept a plea offer so that the defendant would reassess whether or not to take the plea offer. In situations where you question actions by the judiciary, it is helpful to have a resource to whom counsel may report legitimate concerns without being subject to repercussions from the judiciary. The Judicial Conduct Committee acts as a buffer in such situations and provides counsel with the welcome assistance of very capable attorneys from other jurisdictions. The following is an example of when counsel may possibly encounter questionable actions by the judiciary and stems from the published opinion of Ex parte Gomez, Nos. PD-0724-20 & PD-0725-20 (Tex. Crim. App., June 9, 2021). A citizen was charged by complaint in Harris County with two felonies – burglary and assault by impeding airway. A magistrate set bail on the cases at $25,000.00 and $15,000.00, respectively, for a total of $40,000.00. The citizen accused made bond on the cases and, the same morning, he appeared in the district court to which the cases were assigned. The district judge, without a reporter’s record of the proceedings, revoked the bonds, ordered he be rearrested, and set bail at $75,000.00 on each charge, for a total of $150,000.00 – more than three times the amount set by the magistrate. Days later, the accused moved that the bonds be reinstated, but the district judge claimed she had heard probable cause, weighed several factors in determining the bail amounts, and denied the request. A writ was then filed to reinstate the bonds, but the judge denied relief by claiming that she evaluated the circumstances and adequacy of the original bonds and had discretion to increase the bail amounts. The Court of Criminal Appeals held that courts do not have unlimited discretion to hold that bonds are insufficient because a trial judge must consider relevant circumstances pursuant to Article 17.15 of the Code of Criminal Procedure, and a court’s “discretion does not allow it to use bail as an instrument of oppression or to ignore the accused’s ability to pay.” If a trial court arbitrarily found “insufficient bond,” the trial court’s action would be reversible for abuse of discretion. This case was remanded to the court of appeals to determine if the district judge acted arbitrarily. The excellent appellate team on this case consists of Thomas Branton “Brent” Mayr, Sierra Tabone, and Stanley G. Schneider. Time will tell what happens on this remand to the court of appeals.

If a TCDLA member encounters issues during a case for which assistance may be needed, such as a trial judge arbitrarily finding insufficient bond, revoking the bond, rearresting the client, and improperly raising the bail, know that TCDLA is here to help you. Remember that you are not alone in this stressful profession of ours. TCDLA has many committees that are here to assist you in times of need. Put them to use and get the full benefits of your membership. We value your membership in TCDLA and look forward to helping you.

Holcomb Strong
Cindy Holcomb & Randy Gilbert

Honor, integrity, and service defined Weldon Holcomb’s life. He was not only a superb lawyer, but also a friend and mentor. As a charter founding member of TCDLA, Past President, Hall of Fame recipient, and TCDLEI fellow, he had an unwavering commitment to the profession and its future. He willingly gave his time, expertise, and money to leave his profession in a better place than he found it.

His early years as the son of a barber and a child of the Depression taught him the value of hard work. He served as a B-17 bomber pilot in WWII, then used his GI Bill to get him through the University of Texas and UT Law School. Through his experiences he found a profound sense of gratitude which motivated him to constantly “give back” in all areas. As a Christian gentleman, his love of God, family, hometown and the law defined him. He practiced his faith demonstrably to everyone both high and low, with ethics and integrity going hand in glove with his Baptist faith.

Weldon loved practicing law first as an Assistant Attorney General, then as District Attorney of Smith County, and eventually as one of the top-rated Criminal Defense Attorneys in Texas.  He had several firsts including seating the first African American and first female on a Smith County jury.  He tried many notable cases, including the first use of TV cameras in the courtroom (Billy Sol Estes), and took a court-appointed case to the US Supreme Court and won (Wade vs. US). With his Stetson hat, suit, TCDLA lapel pin, cowboy boots, and pockets full of Peppermint sticks (Baptist cigars), he was the quintessential Texan.

He was fond of folksy sayings like “if syrup goes to five dollars a sop” and many young prosecutors fell into the trap of judging the book by its cover. They often discovered too late that behind the facade was a steel trap mind that could quote a governing case without a moment’s pause and left no stone unturned in the pursuit of justice for his client.

When asked in an interview how he wanted to be remembered, Weldon said that he wanted to be known as a lawyer that followed the law and the Constitution fairly for everybody regardless of who they were, what their race was, or what position they occupied in the community. He wanted it to be known that he was good for his word, and if he told you something you could put it in the bank. 

Weldon made a difference in his community and the practice of law. His involvement with TDCLA vastly upgraded the quality of Criminal Defense in the State of Texas. To use one of his favorite sayings… he never took more water out of the bucket than he put back in.

President’s Message: Michael C. Gross


I am humbled and honored to have been selected to work with all TCDLA members as your incoming TCDLA President for this upcoming year. With all of us working together, we can make this a great year for our outstanding organization. Thanks to Kerri Anderson Donica and Grant Scheiner for your hard work and dedication the last two years in guiding us through the pandemic challenges. What wonderful leadership and fortitude. We have an excellent and resilient organization with members from El Paso to Texarkana and from Booker to Brownsville who continue to amaze me with their dedication to TCDLA even during the pandemic. TCDLA is the largest state criminal defense organization in the nation and continues to lead the way. Our 3,200 members are among the best criminal defense attorneys in the nation. Melissa Schank has been superb as the TCDLA Executive Director, and Melissa and her staff continue to amaze me at how well they keep our more than 40 CLE seminars running smoothly throughout the year. I want to thank all the hard-working TCDLA members who have agreed to act as committee chairs this coming year. We could not continue to provide our members with helpful and useful assistance without our committee chairs and their committee members. Each of our committees works extremely hard and are superstars and deserve our admiration and respect. For instance, as the courts begin to further open up for criminal jury trials, TCDLA will be there for our members as new issues arise and must be addressed to protect the citizen accused. I am always in awe, for instance, at the tireless work from the COVID-19 Response Task Force Committee chairs – Allison Clayton and Nicole DeBorde Hochglaube (and Clay Steadman who paved the way forward as the first chair of this committee). It is amazing to see an email from Allison or Nicole that was sent at 4:00 a.m. for an important issue that arose and needed a quick resolution for our TCDLA members.

Our TCDLA committees will continue to be a vital life line for our members in the coming year. Just last week, I was in a federal criminal jury trial here in San Antonio which used three court rooms and had remote access in the courthouse basement for the public present in the courthouse to watch the proceedings. The public was not allowed in the courtroom where the trial was proceeding because the jury was scattered throughout the gallery during trial rather than in the jury box. Key issues will continue to arise in these jury trials such as the Sixth Amendment right to a public trial and right to a fair cross section representation of the community. While jury trials become more prevalent thereby raising important issues for our members, the Texas legislature continues to address issues that are also important for our members and the citizen accused. I personally witnessed last month the wonderful dedication of our TCDLA lobbyists – Allen Place, Shea Place, and David Gonzalez. These three outstanding individuals were at the State capitol until after 3:00 a.m. on a Tuesday night ensuring that TCDLA interests and the interests of the citizen accused were properly represented in testimony before the Texas House Criminal Jurisprudence Committee regarding stringent bail legislation that had been proposed. What an outstanding job.

With the assistance of our members and committees and staff, I am confident that TCDLA will continue to lead the way for our members to address any concerns that will develop in the coming year. All of this is possible because of how we work together for TCDLA. I thank all of you for this opportunity to work with you and to serve you this coming year as your TCDLA President.

Rethinking Article 38.23(a) Jury Instructions

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a)

Defense counsel have struggled with the question of how a jury views an Article 38.23(a) jury instruction. Will the jury  be able to provide the necessary system of checks and balances on a denial by a trial judge of a motion to suppress? Will the jury use their life experiences, including their history of encounters with law enforcement, while considering a 38.23(a) jury instruction? The frustrating reality is, we rarely hear of a jury agreeing with a 38.23(a) instruction. With juries rarely acting favorably on 38.23(a) instructions, the frequency of requests for such instructions tends to diminish over time.

The case law regarding obtaining these types of jury instructions is not exactly friendly toward defense counsel. In Serrano v. State, 464 S.W.3d 1 (Tex. App. – Houston [1st Dist.] 2015, pet. ref’d), the officer claimed the defendant was speeding, conducted a traffic stop, claimed he smelled the odor of alcohol from the car, and suspected the defendant was intoxicated given the defendant’s bloodshot eyes and slurred speech. At the police station, the officer met with the breath test operator (BTO). The officer agreed with defense counsel that the BTO first came in contact with the defendant when they entered the intoxilyzer room where breath testing is conducted. In the intoxilyzer room, the BTO turned on a video recording device, read the defendant the statutory warning, and requested a breath sample. The video recorded for approximately six minutes before the BTO turned it off to conduct the breath test. The officer testified that there was no time lapse from when the video ended until the time the defendant provided his breath sample. The BTO testified that the BTO “has to make sure that the suspect is watched over for 15 minutes” before taking a breath test. The defense claimed the 15-minute period was not met so the breath test was inadmissible. The trial judge admitted the breath test into evidence, and the defense requested a 38.23(a) instruction which the trial judge denied. The defense claimed it raised the factual issue of whether the BTO waited 15 minutes before taking the breath sample. The court of appeals held that the defendant “failed to raise a fact issue about whether [the BTO] complied with Texas Administrative Code section 19.4(c)(1) and that Serrano therefore was not entitled to the submission of an article 38.23 instruction.”

In Villalobos v. State, 550 S.W.3d 364 (Tex. App. – Houston [14th Dist.] 2018, pet. ref’d), the court of appeals found that the trial judge reasonably concluded that the defendant was temporarily detained for a DWI investigation, was not in custody, Miranda did not apply, and the area where the defendant was found was a suspicious place. The defendant requested a 38.23(a) instruction on the issue of “suspicious place” which was denied by the trial judge. The court of appeals found no authority for the claim that a defendant is entitled to a jury question regarding the legality of an arrest based on whether the defendant was found in a suspicious place. The court of appeals held that Article 38.23 applies only to illegally obtained evidence and does not address the legality of warrantless arrests.

In the recent published case of Sanchez v. State, No. 04-18-00302-CR (Tex. App. – San Antonio, April 17, 2019), an officer saw a defendant allegedly commit two distinct traffic violations: (1) failure to drive on the right side of the road in violation of Tex. Transp. Code Ann. § 545.051(a)(2); and (2) failure to signal a lane change in violation of Tex. Transp. Code Ann. § 545.104(a). Defense counsel requested a 38.23(a) instruction on these two issues which was denied by the trial judge. In affirming, the court of appeals began by stating Article 38.23(a) provides that illegally obtained evidence is inadmissible. The court of appeals stated that a 38.23(a) jury instruction is limited to disputed issues of fact material to a defendant’s claim that a constitutional or statutory violation renders certain evidence inadmissible. Three requirements must be met before a defendant is entitled to a 38.23(a) instruction: (1) evidence before the jury must raise an issue of fact; (2) evidence on that issue of fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Merely raising the contested factual issue during cross-examination is insufficient to create a factual dispute warranting a 38.23(a) instruction. Defense counsel must dispute the contested factual issue, otherwise the legality of the conduct is determined by the trial judge alone, as a question of law. Defense counsel must further dispute all other facts which are sufficient to support the lawfulness of the challenged conduct. Absent such contesting of all factual issues by defense counsel, “the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.” The court of appeals held that defense counsel failed to produce any evidence supporting an issue of fact that was affirmatively contested regarding whether the defendant turned left without signaling. Without such evidence, the defendant was not entitled to a 38.23(a) instruction.

In the recent published case of Olsen v. State, No. 01-18-00281-CR (Tex. App. – Houston [1st Dist.], April 14, 2020, no pet. h.), the defendant was convicted of felony DWI with a child passenger. The defendant requested a 38.23(a) instruction which was denied by the trial judge. The court of appeals affirmed and concluded that the defense did not contest the fact that the defendant allegedly exhibited clues on the SFST’s that were consistent with intoxication. The court of appeals stated that the defendant’s results on the HGN, WAT, and OLS were consistent with intoxication. The court of appeals noted that the officer’s subjective perception of the defendant’s physical and mental faculties was not a fact supporting probable cause, but the defendant’s performance on the SFST’s was a material fact supporting probable cause for the defendant’s arrest. The defense, however, did not contest this at trial. Because the defendant “did not challenge the administration of any of the field sobriety tests or her performance on those tests, particularly the HGN, she failed to contest all facts material to the probable-cause determination.” The court of appeals then concluded that because the defendant “failed to contest all facts material to the lawfulness of her arrest in this case, we conclude that [the defendant] has not raised a fact issue essential to the determination of probable cause. Therefore, the trial court did not err by denying [the defendant’s] request to submit an Article 38.23 instruction to the jury.”

If you plan on seeking a 38.23(a) instruction in your case, be sure to adhere to the rationale of the foregoing case law, such that you are able to convince the trial judge to give you a 38.23(a) instruction. Additionally, during voir dire be sure to address 38.23(a) instructions with the venire panel. If argue and follow the rationale of the above case law and properly dispute the contested factual issue and obtain a 38.23(a) instruction, will the jury be sympathetic to your argument? You should voir dire the panel about their thoughts and feelings on your contested factual issue in general, before you decide which panel members would be acceptable jurors for your case. We all know you cannot talk about the facts of your case during voir dire and that you cannot commit a potential juror. Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). You may, however, inquire into the venire member’s philosophical thoughts about the criminal justice system. Davis v. State, 349 S.W.3d 517 (Tex. Crim. App. 2011). Also, you may voir dire on the different standards of proof. Contreras v. State, 440 S.W.3d 85 (Tex. App. – Waco 2012, pet. dism’d). These are two powerful tools of inquiry, which can help you better determine which potential jurors may be receptive to your contested factual issue.

During the current period of acute awareness of social inequality, potential jurors should be open to express their views regarding such key issues as reasonable suspicion to detain a person and probable cause to arrest a person. We know that these standards of proof are covered during voir dire to help distinguish between the highest standard of beyond a reasonable doubt with the lesser known standards of proof. A potential juror with certain views on these issues may be, depending on the issues in your case, an excellent juror on the particular contested factual issue, in your case.

A reading of the 2020 article “The Supreme Court Built America’s Broken Policing System And It’s Working Just As Intended” by Paul Blumenthal in Huffpost provides particularly good thoughts on these issues for use by defense counsel during voir dire. As of July 26, 2020, this article may be found at https://www.huffpost.com/entry/police-george-floyd-supreme-court_n_5f175371c5b6cac5b7330b29?ncid=APPLENEWS00001. Mr. Blumenthal reminds us that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involved two Black men repeatedly looking into a store window during the daytime and an officer finding that suspicious but the officer was unable to articulate why he found that suspicious. The two Black men refused to provide their names to the officer which further aroused the officer’s suspicion, so the officer grabbed the men, pushed them against a wall, and searched their bodies and pockets. This case involved the highly contentious stop-and-frisk of suspicious persons (mostly minorities) by police based upon reasonable suspicion and how stop-and-frisk is condoned by the courts. Mr. Blumenthal reminds us to hear again the prophetic warnings by the lone Terry dissenter, Justice William Douglas:

We hold today that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action . . . To give the police greater power than a magistrate is to take a long step down the totalitarian path . . . Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

Terry v. Ohio, supra (Douglas, J., dissenting).

It has always been extremely difficult to find venire members who care about any of these issues,  let alone someone on the trial or appellate bench who would voice the warnings voiced by Justice Douglas in Terry. Today, with the heightened concerns regarding  social inequality, and specifically that of racial inequality, raise the question of what would your venire panel think, when asked about how much evidence an officer needs, before that officer could grab two Black men while they were repeatedly looking into a store window during the daytime, shove them against a wall, and search them? What should we brothers and sisters of the criminal defense bar think about this situation? I suggest that these issues should cause us to rethink Article 38.23(a) jury instructions and how we attempt to ensure that the people who are sworn in as jurors in our cases are best suited to be open to consider the contested factual issues which are present and argued. These issues should also cause us to rethink how our profession and the criminal justice system is viewed by venire and by the public at large. Good luck on your cases.