Mitch Adams

Mitch Adams is a criminal defense attorney in Tyler, Texas. He graduated from the University of Texas in 1994 with a B.A. in English, and from the Texas Tech School of Law in 1998. While in Lubbock, he clerked for Chappell, Lanehart & Stangl, P.C., where he caught the bug to practice criminal defense law. He is the lucky husband of Kerry, and the proud father of two.

Ethics and the Law: The Ethics of Voir Dire and the Topic of Venue in Texas

Published on
/

If you end up on this jury, and after hearing all of the evidence, you’re convinced that the State has proved every element of the crime beyond a reasonable doubt, except for whether or not it happened in this county, who will still vote guilty?”

That’s a question I first used in voir dire several years ago when picking a jury in a sexual assault of a child case in a rural East Texas county. My client had confessed during police questioning, and the State’s evidence was pretty solid. He rejected the State’s plea offer against my advice, and said he wanted a jury trial. I didn’t have much of a trial strategy, other than to make sure that everything was by the book and that he received full due process.

Our jury pool was full of folks in overalls, work boots, and Carhartt jackets, and I was wracking my brain for something that might delay the inevitable for my client. What popped into my head was the question at the beginning of this article. Not surprisingly to me, a lot, and I mean A LOT of people in the jury pool said they’d still convict, even if the State couldn’t prove beyond a reasonable doubt that it happened in the county where the State said it did. I was two people short of a busted panel when it was all over. I figured I’d found a pretty effective tool for weeding out potential jurors who are predisposed toward a guilty verdict; a weed‑killer, if you will.

Time passed, as it does, and I continued using that question in my voir dire, with varying degrees of effectiveness. The more serious the alleged crime, the more effective the question. Then one day during voir dire in district court, there was a hiccup. I was trying a case against an assistant prosecutor who I knew well; we’d tried several cases against one another in the past. I knew all of his voir dire tricks, and he knew mine. When I asked my weed‑killer question, Mr. Assistant District Attorney objected, asserting that I was misstating the law. It was that day that I learned for the first time that, according to Texas Code of Criminal Procedure Article 13.17, the State’s burden of proof where venue is concerned is by a preponderance of the evidence.

Now, most of you probably knew this already, but at that time I didn’t. Having read jury charges going back to 1999 that instructed the jury that the State must prove beyond a reasonable doubt each element of the alleged offense, including that it occurred in Fill‑In‑The‑Blank County, I assumed that that is what the law was. But now that I did know better, could I ethically continue to ask the question in voir dire?

What’s more, the Court of Criminal Appeals has ruled that venue is not an element of an offense, but, rather, something that must be proved to “establish [defendant’s] legal status.”1 However, the Fifth Circuit Court of Appeals has held that venue is an element of any criminal offense.2

So, it would seem that my weed‑ killer question is impermissible because 1) it is a misstatement of the law, and 2) because venue is not an element of a criminal offense.

And yet, take your garden‑ variety jury charge for a state jail felony possession of a controlled substance case. Where the charge regarding the elements is concerned, it will read something like this:

You must decide whether the State has proved, beyond a  reasonable  doubt,  two elements. The elements are that: 1) the defendant, Jane Doe, possessed garden variety Penalty Group I substance in Fill-In-The-Blank County on or about fill‑in‑the‑blank date; and 2) the defendant knew she was possessing a controlled substance. (Emphasis added.)

So, on its face it looks like you can’t ask the weed-killer question during voir dire because it misstates the law and venue is not an element of a criminal offense.  But your judge can misstate the law and include venue as an element of the offense in the jury instructions.  That seems like a non sequitur to me, but I don’t wear a black robe. 

Does a conflict between a judge’s jury instruction and the law have any consequence?  The Corpus Christi Court of Appeals says yes.  If the court’s charge requires the State to prove beyond a reasonable doubt that the offense occurred in Fill-In-The-Blank County, Texas (as almost every jury charge does), then the State does indeed have to prove venue beyond a reasonable doubt.3  In other words, the court’s jury instruction will change the State’s burden of proof if the instruction is clear that the State must prove venue beyond a reasonable doubt. 

The Texas Rules of Professional Conduct state that “an advocate has a duty to disclose directly adverse authority [to the court] in the controlling jurisdiction which has not been disclosed by the opposing party.”4  I would ask, then, under what, if any, circumstances the weed-killer question may be used.  One possible way is to file a proposed jury charge prior to voir dire using the language that sets the burden of proof for venue at beyond a reasonable doubt, and including it as an element of the offense, as we see in the jury charge example above.  If neither the State nor the court raises any objection to that specific language at the pre-trial hearing, you can reasonably argue that you expected that the court would require the State to prove venue beyond a reasonable doubt because of the absence of any push-back from the bench or opposing counsel.  Just for kicks, you might also suggest to your judge that she review a few of her most recent jury charges.

In summary, the Code of Criminal Procedure establishes the State’s burden for proving venue as preponderance of the evidence.  The Court of Criminal Appeals has ruled that venue is not an element of a crime, but is merely necessary to establish a defendant’s legal status.  However, the Fifth Circuit in Strain has ruled that venue is an element in every criminal offense, and the Cunningham decision from the 13th Court of Appeals tells us that the court’s charge to the jury on the State’s burden of proof for venue is what controls. As are many other legal issues, this one is as clear as mud to me.

If you are in need of assistance, please contact the Ethics Committee: 512.646.2734 •

Blue Matters Matter

Published on

By now, we all should know that the Texas Code of Criminal Procedure Article 39.14 requires the prosecutor to disclose to the defense the criminal histories of its witnesses. This disclosure often matters to defense counsel if the alleged victim is a “no-good SOB” who might have had coming what our client allegedly gave. However, what about those police officers that the prosecutor will parade into the courtroom wearing “just-so” pressed uniforms, pistols, and shiny badges? These officers would not have criminal histories, would they? Are there no skeletons in their closets? If they did, then they would not have those “Batman” utility belts, precise creased polyester pants, fresh “high-and-tight” haircuts, nor take on “Napoleonic” temperaments, now would they?

Well, that police officer might not have a criminal history (because he would never think of driving drunk), but if he has been a cop for any appreciable amount of time, you could bet that house your ex-wife lives in that he has been “in the barrel” with internal affairs or has received the Garrity Warning 1 2at least once in his career. Many criminal defense attorneys who represent police officers find that cops get into trouble about as often as other clients. They just get into a different kind of trouble. At trial, their trouble is potentially as useful to the defendant as impeachment evidence as are the prior convictions of the prosecutor’s testifying “snitch.”

A Brief History of Police Union Lobbying

In the mid-70s, a group of police officers bolted from the Texas Municipal Police Association (“TMPA”) to form the Combined Law Enforcement Associations of Texas (whose acronym is “CLEAT”).  CLEAT members believed that the TMPA was not aggressive enough in protecting cops from “management,” i.e., government and civilian oversight. CLEAT membership was concerned with matters regarding the discipline of law enforcement officers.

CLEAT soon got busy lobbying, and in 1987, Chapter 143 of the Texas Local Government Code as it exists became the law in Texas. Chapter 143 is essentially “legislated unionization” for municipal police and fire departments in municipalities where the electorate has voted to enact it. Those municipalities that enact it are called 143 Civil Service Municipalities (“143 Municipalities”) in the context of police and fire departments. Dallas, Fort Worth, Houston, San Antonio, Austin, Beaumont, Port Arthur, Orange, El Paso, Lubbock, Amarillo, and Tyler are 143 Municipalities. Chapter 143 can apply to any municipality with a population of 10,000 or more, which votes to enact it for their departments.

CLEAT still lobbies and negotiates generous collective bargaining agreements for its membership. CLEAT takes pride in being much more radical and aggressive than TMPA.3

Discipline That Is Not Discipline4

What, you may ask, does Chapter 143 do, exactly? It imposes rules and regulations upon the operation, maintenance, and management of a municipality’s police and fire departments, including classification and appointment (Subchapter B), compensation (Subchapter C), disciplinary actions (Subchapter D), leaves (Subchapter E), and several other administrative “odds and ends.”

Included in “odds and ends,” found in Subchapter F, is §143.089, which governs the maintenance of personnel files. Section 143.089(a) states that officer personnel files are subject to public disclosure. It describes what a personnel file must contain, including any record of the past discipline of an officer. Section 143.089(g) provides for a separate personnel file that a department chief may maintain, which, according to the statute, is not subject to disclosure to the public. This file is euphemistically called the “G-file.” The contents of a G-file must include, inter alia, any records of verbal and written reprimands, i.e., discipline for policy violations.

So, let us consider Subchapter D and see how it defines discipline. Section 143.051 begins by defining discipline within the context of “[r]emoval or [s]uspension.” Section 143.052 describes the manner and method by which a department head (chief of police) may suspend without pay (including an indefinite suspension, which is the same as a termination) an officer for disciplinary reasons. Section 143.054 describes the manner and method by which a department head may demote, for disciplinary purposes, an officer. Note a similarity here? Hint: each involves a financial penalty to the officer in question.

Underlying the legal bases for a suspension without pay or a demotion assumes that the officer in question has been found culpable for transgressing one of the 12 enumerated “no-noes’” in §143.051. Section 143.051 includes such things as convictions for felonies and misdemeanors, incompetency, neglect of duty, discourtesy to the public (seriously!), acts showing a lack of good moral character (we’re not making that one up), off-duty intoxication, neglecting to pay one’s debts, being AWOL, shirking duty and cowardice. The “term of art” in most departments is a finding of “Sustained” for an alleged violation found to be “True.” It is possible, legally, theoretically, and practically speaking, for the charge against an officer of §143.051 to be Sustained without that finding leading to a suspension without pay or a demotion. Because of the progressive (not liberal but incremental) disciplinary policies that most police departments use, it is likely that an officer’s first time “in the barrel” for a Sustained violation will result in some disciplinary action that falls short of a suspension without pay or a demotion. By operation of §143.089, the paper trail that leads from an allegation of an officer’s violation of some part of §143.051, and to a finding of “Sustained” that does not involve a suspension without pay or a demotion will be nowhere in the officer’s personnel file maintained under §143.089(a), which is subject to public disclosure. Instead, these little gems end up in the officer’s G-file, and out of sight from the meddlesome public eye.

Put succinctly, how discipline is treated by Subchapter D is that it excludes disciplinary actions that do not involve an adverse financial impact on a police officer. An officer can be found to have violated a policy, rule, or statute that does not qualify as a discipline under Subchapter D of Chapter 143 because the action does not result in the officer losing pay, an unpaid suspension, or a demotion. Furthermore, records for these incidents are kept from the public by operation of the language of a statute that the legislature enacted because of the lobbying efforts of CLEAT. The upshot is that the form of discipline, whether written or oral reprimand, for a Sustained rule/policy/statutory violation does not count unless a portion of the officer’s pay leaves the public fisc by way of forfeiture of pay or demotion.

Case Law on Our Side

There should be no question but that these records ought to be available to the defense in a Motion for Discovery or by the invocation of the Michael Morton Act. However, prosecutors and attorneys representing Civil Service municipalities routinely get up in arms when a defense attorney files a Motion for Discovery or a Morton Demand seeking these records. Cops and their chiefs are very jealous of the contents of their G-files, and to some degree are so are municipal civil service directors. Thus, even a request for an in-camera inspection of the G-file is met with the rending of clothes and gnashing of teeth along with the filing of a fierce Motion to Quash.

But guess what? Besides Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667 (1985), there actually exists state case law that supports at least an in-camera review of G-files in criminal cases. Back in the ’70s and ’80s, when Scooby Doo was still a common staple of Saturday morning TV programming, Tex. Code Crim. Proc. Art. 42.12 contained §27, which protected from disclosure any and all records maintained by the Texas Department of Corrections on inmates subject to “parole, release to mandatory supervision, or executive clemency.” In Texas Department of Corrections v. Dalehite, 623 S.W.2d 420 (Tex.Crim.App. 1981), the Texas Court of Criminal Appeals addressed the issue of whether those records covered by §27 were discoverable by the defense in a criminal proceeding. It turns out that they were. Citing Texas Board of Pardons and Paroles v. Miller, 590 S.W.2d 142 (Tex.Crim.App. 1979), the Court reasoned that, while some confidentiality was necessary in order for the Board of Pardons and Paroles to function effectively, the statutory privilege of Tex. Code Crim. Proc. Art. 42.12 §27 had to give way where it stood in the way of the exercise of a constitutional right. 623 S.W.2d at 432. The Court went on to cite United States v. Nixon, 418 U.S. 683 (1974), wherein the United States Supreme Court held that: “The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” Thus, did the Supreme Court, as put by the Texas Court of Criminal Appeals, conclude: “that the President’s broad interest in confidentiality would not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases, especially since the production of the materials was for in camera [sic] inspection with all the protection that a district court would be obliged to provide. The assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 623 S.W.2d at 423. Who knew that “Tricky Dick” would be useful to the Texas criminal defense bar in the Year of our Lord 2020?

Defense Lawyers Need to Seek the G-File

The writers suggest that where police officers have been listed as witnesses in a criminal trial, which is practically in every trial, that a Morton Demand, a Motion for Discovery of State Witnesses Personnel Files and/or a Subpoena Duces Tecum seeking the G-File should be considered by counsel. The G-File will probably contain information beneficial to defense counsel in trial preparation and cross-examination. The attitude of virtually all Judges is probably that the G-File is exempt from disclosure. However, if the criminal defense bar moves forward in this area to educate the Judges of the relevance of this material, that they should assume their duties to provide a fair trial under the law and the Constitution, then we may see the dam break and at least have the files more often reviewed in camera. If so, then we could expect that the salutary effect would be that officers would be more careful in their actions, the public might become more trusting of the system when bad officers are exposed. The benefit gained by exposing bad officers who shuttle around to various police departments might be realized.

Legislature Needs to Act

The national social conversation and political movements are likely to result in some remedial legislation. Considering the recent events in our country that highlight the need for police reform and more oversight of how law enforcement conducts and polices itself, it is time that the veil of secrecy that shrouds the contents of G-files to be reviewed in Austin by the legislature. Amending §143.089 mandating that any record in a G-file that could impeach a testifying police officer in a criminal trial be turned over to defense counsel is a step in the right direction.

So, it seems, that blue matters really do matter!

Motion and Brief for Discovery of State’s Witnesses’ Personnel Files