TCDLA

September 2022 SDR – Voice for the Defense Vol. 51, No. 7

Voice for the Defense Volume 51, No. 7 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

“We aren’t going to reverse this case, but we do want to send a message to the State . . . don’t do this anymore.” If you read enough cases, you’ll see dicta to this effect. I can guarantee the relevant prosecutor’s office is not holding a meeting to discuss how to avoid strong admonishments in future successful appeals. We have a justice system predicated on an assumption that changed behavior can’t be achieved without the infliction of consequences, yet too often we hope to change the State’s behavior without any.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

This publication is intended as a resource for the membership, and I welcome feedback, comments, or suggestions: (972) 369-0577.

Sincerely,
Kyle Therrian

United States Supreme Court

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

Fifth Circuit

United States. v. Valas, 40 F.4th 253 (5th Cir. 2022)

Issue & Answer. The government failed to produce an FBI report generated after an interview of the Government’s key witness (“302” report). When the 302 report revealed details of the sexual encounter with the defendant (the basis of the prosecution) which varied from the testimony, was the 302 report sufficiently material to warrant habeas relief under Brady? No.

Facts. The Government accused the defendant of engaging in a commercial sex act with a minor. During its investigation of the offense, an FBI agent conducted an interview with the fifteen-year-old runaway turned prostitute. As agents do in most cases, this agent prepared an FD-302 (“302”) memorializing his conversation with the interviewee. The defendant, in a post-conviction habeas claim, was able to correctly hypothesize that this report existed and that the Government did not turn it over. The Government confirmed the defendant’s hypothesis and claimed that it inadvertently failed to produce the document before the defendant’s trial.

Analysis. “To prove a claim under Brady, a petitioner must show: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the prosecution; and (3) the evidence was material.” Evidence is material when there exists a reasonable probability that the outcome would have been different had the evidence been disclosed. The 302 provided details of the sexual encounter that were different than the testimony at trial “but the differences are in magnitude of detail rather than substance.” The variances between the report and the testimony were hardly “gotchas.”

Comment. The court notes that the Government’s claim of inadvertence is “troubling.” “It is difficult to grasp how a document as routine as a 302 would be overlooked, particularly in this instance.” I’ve seen State prosecutor offices with problematic entitled-to-win cultures. I can only imagine how a federal system of justice calibrated to produce a 99% conviction rate exacerbates this. The court ends with the following: “We note that, unfortunately, this is not the first time something like this has happened, e.g., United States v. Perea, 625 F. Supp. 2d 327 (W.D. Tex. 2009). We admonish the Government to endeavor to make it the last.” I guess we’ll see if this tongue-lashing works. I won’t hold my breath.

United States v. Alvarez, 40 F.4th 339 (5th Cir. 2022).

Issue & Answer. “Hispanic male who had run from officers on a bicycle with large handlebars in the area of Leopard and Up River at some unspecified time in the past.” Are these descriptors sufficient to detain any Hispanic man riding a bicycle with large handlebars in the relevant area? No.

Facts. The officers were conducting a warrant roundup. They had no other physical description of the bicycle or the suspect. Apparently, the guy they were looking for was Jose Morales—very much not the same person as Andres Alvarez.

Analysis. “Reasonable suspicion to stop someone suspected of criminal activity is a low threshold, but not this low.” A report made in close proximity to police detention can bolster otherwise generalized descriptions, but here there is no indication of when the report was made. Here the description consisted of “a Hispanic male who had once ridden a bicycle with large handlebars in a general area at some unknown time in the past.”

Dissenting (Jones, J.). The dissent gives insufficient weight to the fact that the officers were in the correct location, that the defendant was evasive when officers attempted contact, and that this was a gang warrant round-up which makes the Fourth Amendment analysis more pro-Government.

Comment. I really do hate being a killjoy, but there is a case that says that a court can ignore the unlawful detention if the officer gets lucky and discovers a warrant he did not know existed before conducting the stop. See Utah v. Strieff, 579 U.S. 232 (2016). Why do prosecutors never cite this case? Maybe because they aren’t Sig Heads (t-shirts coming).

Texas Court of Criminal Appeals

Parker v. State, No. PD-0388-21 (Tex. Crim. App. 2022)

Issue & Answer. An anticipatory search warrant is a warrant based on an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place. Are anticipatory search warrants for fruits, instrumentalities, or contraband prohibited under Article 18 of the Code of Criminal Procedure? No.

Facts. The UPS store in Oregon intercepted a package with psilocybin (mushrooms). They alerted Oregon law enforcement. Oregon law enforcement corresponded with Texas law enforcement to have the package shipped to the recipient. Texas law enforcement prepared a search warrant affidavit stating that evidence of a crime would be discovered at the shipping destination on a future date—the expected delivery date. A magistrate issued a warrant for that future delivery date. Texas officers discovered incriminating evidence as a result of the anticipatory search warrant. The defendant filed a motion to suppress, the trial court denied the defendant’s motion, and the court of appeals affirmed.

Analysis. The defendant concedes that anticipatory search warrants are valid under the Fourth Amendment but contends that Article 18 of the Code of Criminal Procedure requires that evidence sought be present at the designated location at the time the search warrant is issued. Specifically, Article 18.01(b) provides that a magistrate must confirm before issuing a warrant that “probable cause does in fact exist for its issuance.” The defendant incorrectly interprets this to mean that the probable cause must exist at the designated place to be searched at the time the warrant is issued. Probable cause deals with probabilities. The standard requires a probability that evidence will be present at a particular location. All search warrants are technically anticipatory—they anticipate that the evidence will not be removed from the identified location in the time it takes to seize it. Article 18.01(b) does not have any “present possession” requirement (a requirement that the evidence is presently at the identified location). An Article 18.01(c)(3) warrant does (a warrant for “mere evidence” as opposed to fruits, instrumentalities, or contraband). Article 18.01(c)(3) imposes the requirement that “property or items constituting evidence to be searched or seized are located at or on the particular person, place, or thing to be searched.” This case does not involve an Article 18.01(c)(3) warrant. The warrant was specifically issued for the seizure of narcotics. It thereby invoked Article 18.02(a)(7) (not mere evidence).

Concurring (Yeary, J.). The court’s analysis of mere evidence search warrants is questionable and unnecessary.

Comment. The year is 2054. The government plans to implement a prototype “Precrime” program consisting of three clairvoyant humans known as precogs who visualize impending crime permitting officers to arrest offenders before the commission of their heinous offenses.

Jefferson v. State, No. PD-0677-21 (Tex. Crim. App. 2022)

Issue & Answer. When the State amends an indictment to add new counts, is the grand jury procedure triggered because the State has added new criminal offenses to the indictment (thus rendering counsel ineffective for failing to object)? Yes.

Facts. The State originally charged the defendant in a two-count indictment. The State amended the indictment and added two more counts. The State obtained four convictions at trial. At a hearing on the defendant’s motion for new trial, trial counsel testified that he objected to the State’s addition of new counts to the indictment. The reporter’s record did not reflect any such objection.

Analysis. Adding new counts to an indictment constitutes the addition of new crimes to the indictment. A felony criminal offense must be charged by a grand jury indictment. However, the grand jury process may be waived by inaction (failure to object). Here counsel failed to object and thus waived the grand jury process as it relates to the two new counts (new crimes). The court of appeals incorrectly assumes the possibility trial counsel waived the defendant’s objection strategically. Trial counsel testified that he did object, despite the record’s failure to reflect it. A non-objection trial strategy could not have existed here where counsel took the position that he believed he did object. If counsel did object, he failed to memorialize his objection. The failure to memorialize an objection is not a sound trial strategy.

Concurring (Yeary, J.). It is unfortunate that the defendant did not raise his void indictment/void conviction argument before this Court. It would have been a better way to dispose of this case, potentially.

Comment. There was an unpublished opinion in another jurisdiction holding that the State can add counts to the indictment without a grand jury sanctioning it. The Court of Criminal Appeals explained that it is ineffective for an attorney to rely on an unpublished opinion where the law is otherwise settled. I don’t love this because many of our courts of appeal give us nothing but unpublished opinions in criminal cases. Judges and practitioners routinely rely on unpublished opinions in such jurisdictions because they are indicative of what their relevant court of appeals will do. “A lawyer ought to be able to tell a court what it has done.” Tony Mauru, Judicial Conference Supports Citing Unpublished Opinions (Legal Times Sep. 21, 2005).

1st District Houston

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

2nd District Fort Worth

Blankenship v. State, No. 02-20-00157-CR (Tex. App.—Ft. Worth, Jul. 14, 2022)

Issue & Answer. You get in zero trouble for burning plain wood. You get in a little trouble if you burn treated lumber, and you get in a lot of trouble if you burn chemical waste. Plywood has glue. Does this make it both treated lumber and chemical waste? No, just treated lumber.

Facts. The defendant burned plywood. Officers arrested him for illegal burning. The State enhanced the offense to a Class A misdemeanor due to their belief the plywood constituted “chemical waste.” As they understood the concept, chemical waste was “anything not natural to the earth.” Prosecutors advanced the argument that the glue binding to the plywood together constituted a chemical waste and that if the plywood were “treated” it would necessarily contain even more substances constituting chemical waste. Notwithstanding their arguments, the State did not offer any evidence that the plywood had been treated.

Analysis. It would be hard to summarize the “not-straightforward” statutes regulating burning better than the Second Court:

The legislature grouped prohibited items into three punishment tiers: (1) “heavy oils, asphaltic materials, potentially explosive materials, [and] chemical wastes,” the burning of which is punished with the most severity; (2) “insulation on electrical wire or cable, treated lumber, plastics, non-wood construction [and] demolition materials, furniture, carpet, [and] items containing natural or synthetic rubber,” the burning of which is punished with moderate severity; and (3) all other items, the burning of which is punished with the lowest degree of severity. Unlawful burning is

(1) a Class C misdemeanor if the violation is a first violation and does not involve the burning of [high-severity items];

(2) a Class B misdemeanor if the violation is a second or subsequent violation and:

(A) the violation does not involve the burning of: (i) [high-severity items]; or (ii) [moderate-severity items]; or

(B) the violation involves the burning of [moderate severity items] and none of the prior violations involved the burning of [high-severity items] or [moderate-severity items]; or

(3) a Class A misdemeanor if the violation:

(A) involves the burning of [high-severity items]; or

(B) is a second or subsequent violation and involves the burning of [moderate-severity items] and one or more of the prior violations involved the burning of [high-severity items] or [moderate-severity items].

The basic dispute between the parties here is “whether the adhesives used to manufacture the plywood qualify as ‘treatments’ and whether such alleged ‘treatments convert the plywood into not only ‘treated lumber’ but also ‘chemical waste.” The plain meaning of “treated” is to enhance or improve the condition of [wood]. Thus, the glue binding the plywood together rendered it “treated.” However, the same quality that makes plywood “treated” cannot also render it a “chemical waste.” The legislature meant to distinguish between treated lumber and chemical waste. If the State were correct and the very treatment that rendered the wood “treated lumber” also rendered it a “chemical waste” then no distinction would exist. Defendant’s conviction must be reformed to a Class C violation reflecting that he only burned treated lumber and not chemical waste.

Concurring and Dissenting (Walker, J.). Treated lumber has a technical meaning, not a dictionary one. It does not mean all plywood because all plywood is glued.

Comment. I agree with the court’s legislature-made-a-distinction analysis. But I can’t say I agree with its plain meaning interpretation of “treated lumber.” I think the best way to determine the plain meaning of “treated plywood” is by walking into Lowes and asking where the “treated plywood” is. If the associate opens a dictionary, you’re in trouble.

McCreary v. State, No. 02-21-00114-CR (Tex. App.—Ft. Worth, Jul. 21, 2022)

Issue & Answer. An officer obtained statements from a complainant that he knew were plainly false. Before this interview the officer had reviewed a video and knew exactly what happened. In this scenario, are the false statements sufficiently “material” to an investigation to sustain a conviction for false report to an officer? Yes.

Facts. The defendant falsely accused her ex-husband of domestic violence. The defendant’s ex-husband recorded the events giving rise to the purported domestic violence on a GoPro. The complainant’s report and subsequent statements were contradicted by the video evidence.

Analysis. To convict a person for false report to an officer, the State must show the person’s statements were material to a criminal investigation. The defendant contends that her statements concocting a fake family violence offense were not “material” to an investigation because they did not result in a “reasonable probability that the outcome of the family-violence-assault investigation would have been different had the statements not been made.” This is the Brady standard for materiality. In assessing sufficiency of the evidence, the reviewing court does not apply technical or specialized definitions to words unless statutorily required. Instead, the court considers the plain meaning. The plain meaning of “material” is “important” or “of consequence.” In some contexts, it also means “relevant.” Though the defendant’s statements did not affect the ultimate outcome of the investigation, they were an essential component of the investigation and the officers’ pursuit of obtaining the “full story of what happened.”

3rd District Austin

Ex parte Reyes-Martinez, No. 03-21-00268-CR (Tex. App.—Austin, Jul. 15, 2022)

Issue & Answer 1. A couple guys selling drugs were shot when they tried to rob or assault their buyer. The buyer shot and wounded the defendant and shot and killed the defendant’s partner. In this scenario is it excessive to set the wounded drug dealer’s bond at $300,000? No.

Issue & Answer 2. Is the felony murder statute unconstitutional because it can be applied to punish a person without a culpable mental state and for acts committed by a third person who is not a co-conspirator? No.  

Facts. Defendant and his partner were selling drugs from the defendant’s vehicle. A potential buyer got into the back seat of the vehicle to conduct a transaction, and something went awry. A fight ensued. The defendant and his partner pistol whipped the buyer. The buyer shot at defendant and his partner as they drove away. The buyer wounded the defendant and killed his partner. The State charged the defendant with aggravated assault with deadly weapon and felony murder. The court set his bonds at $30,000 and $300,000 respectively. The defendant filed the instant pretrial writ of habeas corpus challenging the constitutionality of the felony murder statute and seeking a reduced bond amount.

Analysis 1. The most significant factors in determining bond are the severity of the offense and the potential punishment. The defendant is charged with serious offenses. Although he maintains that he is a victim, the evidence in favor of the trial court’s ruling shows he is a pistol-whipping drug dealer. The ability to make bail is less important and it is a consideration which requires a fully developed record of a defendant’s financial resources. The record was not sufficiently developed in this regard.

Analysis 2. Pretrial habeas is generally unavailable for an as-applied constitutional challenge. The novel arguments the defendant raises here are not persuasive, nor can an intermediate court of appeals take an approach inconsistent with precedent from the Court of Criminal Appeals. In defendant’s facial challenge to the validity of the felony murder statute he claims the statute’s strict liability scheme violates due process. The defendant is correct to note that strict liability offenses are generally disfavored. However, the United States Supreme Court has never held that a legislature cannot impose strict liability in crafting a criminal offense. Courts may uphold a strict liability statute if it is the clear intent of the legislature to impose strict liability. Here, strict liability was the clear intent of the legislature when it crafted the felony murder statute. Instead of requiring proof that the defendant intended the death, the legislature sought to punish the result of a death occurring in the course of a person’s other voluntary criminal acts.

Comment. Can’t blame him for trying. It does seem kind of disproportionate to prosecute the defendant for the felony murder of a person he was selling drugs with who was shot by a third party because that drug deal went awry.

4th District San Antonio

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

5th District Dallas

Taherzadeh v. State, No. 05-20-00587 (Tex. App.—Dallas, Jul. 18, 2022)

Issue & Answer. A recused judge signed an order of deferred adjudication she probably shouldn’t have. The order reflected the oral pronouncement of an assigned judge who granted deferred adjudication. The assigned judge later signed and adopted a substantially similar deferred adjudication order. Can the assigned judge fix the potential signature error in this manner—by replacing the potentially defective orders with new orders but without conducting a new hearing? Yes.

Facts. The defendant stalked a criminal district judge in Dallas. After the defendant pled guilty, the assigned judge ordered the defendant placed on deferred adjudication probation. The assigned judge issued probation orders and made a docket entry reflecting the same. Shortly afterward, the regular presiding judge signed a written order of deferred adjudication. Months later, the assigned judge returned to fix the order erroneously signed by the regular presiding judge. The assigned judge signed a second order of deferred adjudication with the same conditions plus an additional requirement that the defendant participate in a psychological/psychiatric evaluation.

Analysis. The defendant’s basic contention is that, until the court held a new sentencing hearing, he was never sentenced. However, numerous documents reflect that the assigned judge placed the defendant on deferred adjudication probation. The defendant mistakenly treats deferred adjudication as a sentence. Deferred adjudication is neither a judgment of guilt nor a sentence. The judge “pauses the proceedings and takes the case under a sort of advisement, with the defendant having the opportunity to complete a probationary period and have the case dismissed.” There was nothing defective for the assigned judge to cure, but if there were, there was nothing defective about the way he attempted to cure it.

6th District Texarkana

Auld v. State, No. 06-21-00079-CR (Tex. App.—Texarkana, Jul. 21, 2022)

Issue & Answer. The State charged the defendant with eight instances of sexual assault occurring on specific dates, but the victim could not identify instances of sexual abuse occurring on specific dates. She couldn’t even identify a specific number of instances. Can a verdict on multiple counts of sexual assault rest upon the question-and-answer phrasing as “times” (plural—at least two) it occurred and multiplied by a sufficient number of distinctly identified periods of time? Yes.

Facts. The state accused the defendant of sexually assaulting a child on eight occasions. Save for one incident, the child testified that the instances of abuse occurred when the defendant drove her home from where he lived to the home where she lived, when it was dark, and when they were alone in the car. Though the victim could not identify how many times he drove her home she was able to testify that the defendant abused her on about half of the occasions he drove her home.

Analysis. The State alleged eight instances of sexual abuse occurring on specific dates. Because the State is not bound by the dates alleged in the indictment, for purposes of reviewing sufficiency of the evidence, the court simply looks to whether the State established at least eight instances of sexual abuse (here: six instances where the defendant touched the victim and two instances where the defendant caused the victim to touch him). “One difficulty the State has on this record is that, though it asked Kate frequently how many times Auld drove her home in the dark, alone with her, Kate invariably answered that she did not remember.” The State asked the victim about instances of sexual abuse and framed the question as “times” it occurred while the defendant “lived at” specific locations. The victim confirmed that there were “times” (plural) the defendant touched her and “times” (plural) the defendant caused her to touch him during each period he lived at each of three different locations. This evidence supports at least 6 instances of the defendant touching the victim and at least 2 instances of the defendant causing the victim to touch him. The victim also confirmed instances of the defendant touching her “at times” (plural) when he babysat her.

Comment. In a footnote the court references a previous reversal by the Court of Criminal Appeals in the Witcher 5-4 opinion. In that case, the Court of Criminal Appeals found imprecise language such as “give or take” and “around that time” as legally sufficient to establish two or more acts of sexual abuse occurring over a period of 30 days or more.

7th District Amarillo

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

8th District El Paso

State v. Villaloboz, No. 08-21-00037-CR (Tex. App.—El Paso, Jul. 22, 2022)

Issue & Answer. Article 32.01 of the Code of Criminal Procedure requires the State to formally file a criminal charge within a specified time period or face the penalty of a dismissal without prejudice. Can the State file a criminal information as a placeholder in a felony case to avoid this penalty? No.

Facts. After 17 months without indictment, the defendant filed a motion to dismiss invoking his speedy indictment right under Texas Code of Criminal Procedure Article 32.01. At the beginning of this period the state filed an information charging the defendant with felony offenses. In response to the defendant’s arguments, the State cited the ongoing pandemic as justification for not returning an indictment. The trial court dismissed without prejudice. The timeline is set out below.

    • August 8, 2019: the State charged the defendant by information with felony criminal mischief and felony repeated violations of protective order. The defendant secured release on bond initially.
    • December 10, 2019: the trial court revoked the defendant’s bond after he failed to submit to court-ordered competency evaluations. Counsel for the defendant requested a competency trial.
    • January 11, 2021: the trial court scheduled the defendant’s competency trial to begin after numerous resets.
    • January 21, 2021: the defendant filed a motion to dismiss for denial of speedy indictment.
    • February 2, 2021: the trial court held a hearing on the defendant’s motion to dismiss for denial of speedy indictment.

Analysis. Article 32.01 of the Code of Criminal Procedure “prevents citizens from being left in jail or on bail for periods of time without being indicted.” It provides that, absent good cause, the case shall be dismissed if indictment or information is not presented on or before the last day of the next term of the court held after the defendant’s commitment or admission to bail or the 180th day, whichever is later. The Texas Constitution requires the State to charge a felony by grand jury indictment unless waived by the defendant. The waiver procedure is specific—it requires a written and filed waiver, or an explicit statement in open court. Without a waiver, a district court cannot obtain jurisdiction by the filing of an information. The waiver-less information is void. Whether the State showed sufficient “good cause” to avoid dismissal is an issue analyzed under the Barker v. Wingo factors. The length of delay was substantial and the State’s articulated reason—that the pandemic complicated the grand jury process—was not supported by evidence. The grand jury met at least eight times during this period and the State did not articulate why this was an insufficient number of meetings to indict the defendant. Finally, the defendant’s detention during this period established prima facie showing of harm unrebutted by the State. It was appropriate for the trial court to dismiss the indictment.

Comment. According to the briefing in the case, the offense date was June 24, 2019. The statute of limitations during which the State was required to bring an indictment expired on June 23, 2022. The case was dismissed without prejudice. Rather than simply filing the darn thing with a grand jury indictment, the State appears to have blown its limitations period just to argue about why the trial court was wrong.

Hernandez v. State, No. 08-19-00152-CR (Tex. App.—El Paso, May 31, 2022)(not designated for publication)

Issue & Answer. Can the State impeach an expert witness about a judicial finding in a previous case in which a court found the expert witness committed perjury if the State’s purpose for the impeachment is only to show that the witness is a liar? No.

Facts. A man was shot and killed in his apartment. The defendant and his girlfriend were the only other people in the home. The girlfriend implicated the defendant. The defendant contested her allegation and presented substantial physical evidence showing it was impossible for him to have fired the gun. Defendant presented a blood spatter expert to match spattering of blood in the apartment to the blood on the defendant’s pants. The blood patterns proved that the defendant was standing behind the victim when the victim was shot in the front of his head. Substantial evidence also showed the defendant’s girlfriend making odd statements and having conversations with other people that showed a potentially guilty conscience. The State impeached the defendant’s expert using a judicial opinion from Mississippi containing a finding that the defendant’s expert committed perjury. The defendant objected to the State’s use of a specific instance of conduct to impeach the expert.

Analysis. Under Rule 608 a witness’s credibility can be challenged through testimony about the witness’s reputation for truthfulness or truthfulness. However, Rule 609 prohibits the use of extrinsic non-criminal-conviction evidence to attack or support truthfulness. In simple terms, “the Rule rejects the notion that ‘once a liar, always a liar.” The trial court analogizing this impeachment to impeachment by prior conviction is unpersuasive. The rule permitting such impeachment assumes the witness had their day in court and was adjudicated using criminal standards and burdens. This is not the case in a judicial finding that a witness perjured himself. Equally unpersuasive is the State’s theory that the Missouri court opinion was admissible to show bias. The purpose of the State’s questioning was to show that the expert was a liar. Given how close the evidence was in this case, the trial court’s error in admitting evidence of the Missouri court opinion was harmful.

Comment. Excellent lawyering by a good buddy! It’s an unpublished case, but I get to decide what goes into the S.D.R. Atta boy, Jeep!

9th District Beaumont

Ex parte Lott, No. 09-21-00256-CR (Tex. App.—Beaumont, Jul. 13, 2022)

Issue & Answer. Article 17.151 of the Code of Criminal Procedure requires a trial court to release an arrested person on personal bond or a reduced bond that person can afford when the State is not ready for trial and a statutorily specified number of days have expired (90 in a felony). Should the clock begin running only after the arrestee files a motion (or writ) invoking the arrestee’s Article 17.151 rights? No. The clock begins running from the moment of arrest.

Facts. The State arrested the defendant for murder. After 100 days of incarceration the State was not ready for trial. The defendant demanded release pursuant to Article 17.151 and the trial court denied her request on the State’s contention that the 90-day period did not begin to run until after the defendant invoked her Article 17.151 rights.

Analysis. The Statute simply does not comport with the “State’s unique interpretation of the language the Legislature used in Article 17.151.” “While the State lobbies the Court for an uncodified exception to article 17.151, we decline its invitation . . .”

Comment. The Ninth Court portrays the State’s argument as so frivolous that it made me read their briefing. Having now done so, I think the Court misinterpreted the State’s argument. The defendant did not file her Article 17.151 writ until after the State filed an indictment and announced ready. The State did not argue as the court suggested. The State argued that the State may announce ready and prevent automatic release under 17.151 until the later of: (1) 90 days, or (2) the defendant demanding release. This is an interesting issue not addressed by the court. The language of Article 17.151 does appear to impose an obligation on the trial court to release at the 90-day mark, regardless of whether the defendant makes a request. Admittedly, I’ve always understood the statute to operate the way the State suggests in its briefing.

Latimer v. State, No. 09-21-00275-CR (Tex. App.—Beaumont, Jul. 13, 2022)

Issue & Answer. Texas statute prohibits possession or use of substances or devices that are designed to falsify a drug test while simultaneously intending to use such the substance or device for falsification. Is the statute unconstitutional because it criminalizes thoughts and thus unduly burdens free speech? No. Is the statute unconstitutionally overbroad or vague? No.

Facts. The defendant was on probation. The State filed a motion to revoke that probation raising 17 allegations. One of them was that he possessed or used a substance to falsify a drug test. Defendant pled true to 16 of the State’s allegations and contested the State’s drug-test-falsification allegation.

Analysis. Certain types of conduct can implicate free speech when the conduct is sufficiently expressive in nature. “Appellant’s attempt to categorize the statute as a content-based regulation by characterizing it as ‘thought-policing’ and characterizing his conduct as ‘speech’ is unpersuasive. The statute focuses on conduct that is not inherently expressive or designed to convey a particular message. The defendant’s vagueness and overbreadth arguments are similarly unpersuasive. The defendant contends that nearly any possession of urine could be criminalized by this statute and that the prohibition is not limited to probation-based drug tests. Rather the statute targets all drug tests conducted for any reason. Contrary to the defendant’s argument, the possession of the prohibited device or substance must coincide with intent—specifically an intent to falsify. Moreover, the relevant type of drug test which the defendant must intend to circumvent are “lawfully administered test[s] designed to detect the presence of a controlled substance or marijuana.” Thus, the statute is not as open-ended as the defendant suggests and his hypotheticals do not present a realistic danger of unconstitutional application.

10th District Waco

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

11th District Eastland

Alaniz v. State, No. 11-19-00399-CR (Tex. App.—Eastland, Jul. 14, 2022)

Issue & Answer. Article 37.07 of the Code of Criminal Procedure provides the mandatory language regarding parole and good time credits. Applicable to a first-degree murder offense, the legislature has repealed the language permitting the trial court to instruct the jury regarding eligibility for good time credit. When the trial court nonetheless informs the jury that a person convicted of first-degree murder is eligible for good time credit, has the trial court committed an error rising to the level of egregious harm (standard for unobjected-to jury charge error)? No.

Facts. The defendant killed her mother who had Alzheimer’s disease. She suffocated her with a pillow after inflicting several bruises and lacerations. The defendant was supposed to be her mother’s caretaker but instead she used her for social security benefits. When family members suggested an assisted care facility, the defendant resisted and isolated her mother from family members. The trial court instructed the jury that the defendant “may earn time off the period of incarceration imposed through the award of good conduct time” but also instructed the jury that it may not take into account the potential award of good conduct time.

Analysis. It is an error to include instructions on the operation of good-time credit if not specifically provided for under Article 37.07. Here, the applicable provision of Article 37.07 (pertaining to first degree murder) does not permit the trial court to instruct the jury on good-time credit. Because the defendant did not object to the erroneous charge, a reviewing court can only reverse when the record reveals egregious harm. Egregious harm was not established because the charge, as a whole, instructed the jury not to consider good-time credit in determining its sentence and the parties did not focus on the erroneous instruction in argument. Moreover, the facts of the case were sufficiently egregious to have justified the punishment notwithstanding the erroneous instruction.

Comment. Why do we tell juries anything about parole?

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

Dewitt v. State, No. 14-21-00440-CR (Tex. App.—Houston [14th Dist.] Jul. 21, 2022)

Issue & Answer. When a trial attorney attempts to exclude evidence by hearsay objection but fails to raise a potentially meritorious confrontation objection, has he performed deficiently under the two-prong Strickland test for ineffective assistance of counsel (deficient performance + harm)? No, not here.

Issue & Answer 2. When a trial attorney says, “objection relevance” and “objection improper predicate,” has he sufficiently preserved a trial court’s erroneous rulings on relevance and predicate? No, not here.

Facts. The State charged the defendant with aggravated robbery by threat with a deadly weapon. The indictment contained one punishment-enhancement allegation. After the jury found the defendant guilty of robbing a person at gunpoint, the trial court conducted a punishment hearing. The trial court admitted the defendant’s jail disciplinary records and the defendant’s parole records. In articulating reasons for the court to deliver a harsh punishment the State referenced the defendant’s jail disciplinary records and parole records. The State specifically argued that these records showed that the defendant had no interest in taking advantage of yet another chance at leniency: he violated the law on bail, he violated the law on parole, and he misbehaved while in custody. Defendant’s attorney objected to the admission of jail disciplinary records based on relevance and improper predicate. The defendant’s attorney raised the same objections to the defendant’s parole records but added a hearsay objection, as well. The trial court overruled the defendant’s objections and admitted the State’s exhibits. The defendant’s attorney did not explain his objections, nor did he raise the defendant’s confrontation rights under the Sixth Amendment.

Analysis 1. Ineffective assistance of counsel is established by a two-prong showing: (1) deficient performance—performance falling below the standard of prevailing professional norms, and (2) harm—a reasonable probability that, but for counsel’s deficiency, the result would have been different. The analysis begins with a “strong presumption” that counsel’s conduct was reasonably professional and pursuant to sound strategy. Ordinarily, ineffective claims should not be raised on direct appeal because counsel should be afforded an opportunity to give explanations for his or her decisions. Absent such an explanation, the record must reveal that no reasonable strategy could justify counsel’s conduct. As it pertains the defendant’s complaints about counsel’s failure to raise a confrontation objection, ample case law supports the proposition that jail disciplinary records may have mixed confrontation evidence (testimonial in nature) and non-confrontation evidence (non-testimonial in nature). Counsel may have been satisfied that all of the evidence in the disciplinary records was non-testimonial, therefore rendering any confrontation objection under the Sixth Amendment meritless.

Analysis 2. Trial counsel said “objection . . . improper lack of predicate, to hearsay, and to relevance.” But he didn’t say what he meant by that. “A general or imprecise objection will not preserve error for appeal unless it is clear from the record that the legal basis for the objection was obvious to the trial court and opposing counsel.”

Comment. I’m sorry, counsel made a relevance objection to punishment evidence showing his client misbehaved during the pendency of his case. I don’t think potential frivolity was a guiding post in raising or not raising trial objections. Whether the disciplinary records were or were not testimonial in nature could be resolved in this appeal (after all, they are exhibits and there is law on the issue). Before the court brushes this appeal aside by relying on what trial counsel maybe thought about the Confrontation Clause, they should tell us what they think about the Confrontation Clause as arbiters of the law. If it is clear that a Confrontation Clause objection was needed, then speculation about what counsel might have thought about the Confrontation Clause is irrelevant. I know I’m droning on, but I’m also not a big fan of “you got to say more than objection-plus-the-grounds” to preserve error. I mean hell, if the trial judge doesn’t understand an  objection, why is it incumbent on counsel to explain it without at least some indication from the trial judge that he or she didn’t understand it. When a witness says “I heard him say . . .” and I shout “objection hearsay” do I really have to say “and your honor, of course, you know hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and I believe what the witness is about to utter is that of an out-of-court-statement and the State intends to use it to prove the truth of what the declarant said. That is what I meant by “objection hearsay.”

A Tribute to Frank Maloney

On July 5, 2022, Frank Maloney passed at the age of 94. I was so very fortunate to have been able to speak with him on July 4, after he returned from the hospital to his house on Cape Cod. Frank’s two children, Catherine and Ed, had kept me in the loop about his very recent illness and hospital stay, and I will be eternally grateful to them both for doing so and affording me one last chance to tell Frank how I felt about him. Frank’s funeral mass was held on July 15, and I was one of his pallbearers, followed by his burial in the State Law Cemetery in Austin (along with a 21 gun salute by the 1st US Army Airborne). Catherine and Ed invited me to speak to the crowd, which included Presiding Judge Sharon Keller and Judges Keasler, Yeary, and Richardson of the Court of Criminal Appeals. During the TCDLA zoom to honor Frank, Betty Blackwell allowed me to share the essence of my grave‑side comments with those on our TCDLA Zoom. This is what I said (more or less).

I speak today about the finest person I have ever known, bar none.

I met Frank in late 1978/early 1979, when I was but a “baby lawyer” practicing with Emmett Colvin in Dallas (having completed a one year clerkship with Judge Truman Roberts at the Court of Criminal Appeals).

Frank and Emmett were representing one of Frank’s former students, a civil attorney, who, along with others, had been indicted for RICO. This multi‑defendant RICO case should have been indicted as an antitrust bid‑rigging case, which would have been a “lay‑down,” but a creative AUSA chose to indict it under RICO.

Frank spent days and days in our office in Dallas, examining and pontificating on the indictment and the RICO statute. The statute was relatively new and devoid of much case law guidance. Frank’s theories and courtroom performance (coupled with Emmett’s unique insights) resulted in a hung jury after a multi‑week trial, not merely for our client, but for all of the co‑defendants who went to trial.

I was able to see and learn that Frank was charismatic, charming, compassionate and a true gentleman: in part by the manner in which he treated everyone inside and outside of the courtroom. Respect, courtesy and proper decorum were ingrained in him. In fact, in almost 45 years of knowing Frank, I never heard him swear word or curse, even during the height of his drinking days.

I was able to see and learn that Frank was brilliant: a student of the law, quick, insightful and creative in his thinking.

I was able to see and learn that Frank was dedicated and tenacious: working from the early morning until midnight and beyond.

I was able to see and learn that Frank was ethical and honest, never stretching the limited precedent past the point of logical extension and always citing contrary authority out of his duty of candor to Judge Sarah Hughes. I also learned that Frank was not musically talented and could not carry a tune. Unlike Emmett, who once sang to the jury during a final argument and had a beautiful voice, Frank was not one to even croon. But after the hung jury, while I drove Frank and Emmett from bar to bar to celebrate (as was the custom at the time), the twosome sat in the back seat of Emmett’s Cadillac singing the old Kingston Trio version of a song I remember as “They’re Rioting in Africa.”1

Needless to say, Frank’s effort to follow the tune only distracted from Emmett’s beautiful voice and abundant musical talent.

In the early 1980s, when Emmett initially retired to become Dean of National Criminal Defense College (then situated in Houston) and we dissolved our partnership, Frank offered me a job with his firm in Austin. I jumped at the chance to return to Austin. For the better part of the 1980s, I got to work for him and with him (and the other wonderful attorneys at his firm).

During that time frame, I got to see and learn a great deal more. One case which we tried together was in Edinburg, down in the Valley. During the trial, one of Frank’s former clients, former state senator Diamond Jim Bates joined Frank for dinner at the beautiful Echo Motel (a motel which, at that the time, made Motel 6 look like the Ritz Carlton). Frank insisted I join them for dinner, which lasted long into the evening. Frank, at this time, was still an avid consumer of liquor and a smoker. After 3 or 4 double vodkas’, dinner, smokes and a host of old war stories traded between Diamond Jim and Frank (what a lesson in Texas history, although it might have been slightly less than 100% factually accurate), I escorted Frank back to his room. The next morning, when I thought Frank would be comatose, he conducted what I remember and consider to be one of the best cross‑examinations of any key witness for the government I have ever witnessed. How and why: he had prepared for weeks, knew exactly how he was going to conduct his cross, and knocked it out of the park. Simply mind‑boggling to me, even if he had not consumed those double vodkas the previous evening. The jury acquitted, in no small measure due to his sterling cross‑examination of this key witness. But those where different times.

And when Judge Truman Roberts retired from the Court of Criminal Appeals, Frank brought Truman over to his firm to be “of counsel.” Again, I was privy to war stories traded back and forth between Truman and Frank: a tremendous learning experience to be sure.

“...Frank taught me and hundreds, if not thousands of others countless lessons and inspired us to always do our very, very best for our clients.”

I was so very fortunate that Frank took me under his wing (as had Emmett and Truman, who I had clerked for) and taught me so very much about what it means to be a man and a lawyer. For over 40 years, even after I had left his firm, Frank taught me and hundreds, if not thousands of others countless lessons and inspired us to always do our very, very best for our clients.

We all admire Frank. We all respect Frank. And most importantly, we all love Frank as a friend, a colleague, a mentor, an attorney, a judge, a truly great Texan and a truly great American. The good Lord threw the mold away after he created Frank.

Frank was a man whose very essence compelled our respect, a lawyer’s lawyer to be sure. A man of principle, unmatched by anyone; a man of character, unmatched by anyone; and a man of integrity, unmatched by anyone. He dedicated his life to helping people and setting the example, whether as a prosecutor, an assistant attorney general, a defense attorney, a professor at UT School of Law, a judge on the Court of Criminal Appeals, or as a visiting judge.

I can think of no one in the history of TCDLA who has done so much for the profession as did Frank, and I say that with nothing but love, respect, and admiration for all of our Past Presidents, Hall of Fame members, and countless others who have also given so very, very much to TCDLA, the criminal justice system, and the people they have represented.

For over 50 plus years, Frank was actively helping people through his craft: the practice of law and his respect and love for the rule of law, coupled with the art of being a genuine human being in the truest sense of the word. A lifetime doing the right thing, respecting other peoples’ thoughts, other peoples’ religious beliefs, and the principles that this country and Texas were founded upon. Over 50 years of picking juries, trying cases, writing opinions, teaching others, and seeking justice.

On the stage of life, Frank did it all (except singing) with grace, dignity, conviction, and great prowess, both inside and outside of the courtroom. He was one of the best, if not the best, all round lawyers I have ever had the pleasure and honor of working with. A true legend, our first president, a member of the Hall of Fame (introduced that day by his good friend Racehorse Haynes), a former president of NACDL, and the author of some of the most meaningful opinions the CCA ever handled down.

And last, but certainly not least, he was the recipient of the Purple Heart, the Silver Star, and 2 Bronze Stars for his service to our country during the Korean conflict. I am honored that he befriended me, mentored me, and taught me so very, very much about the practice of law, but most importantly, for teaching me how to be a better person on a daily basis. He was an inspiration to us all, I am sure! He will be missed, but never, ever forgotten.

Tribute to Past President Frank Maloney

Frank Maloney was our organization. He was the consummate lawyer, an indefatigable student of the law, and a righteous and enlightened judge of our State’s highest criminal court. More importantly he was a mentor to many of us for over half a century. As a young lawyer in the early 1970s he introduced me to TCDLA and NACDL. He was instrumental in my service on the faculty at UT Law.

I had the great privilege of sharing courtrooms and the pleasure of more than a few bar rooms with Frank. Ever the elder statesman of our profession, Frank attracted eager young advocates to classrooms and courtrooms, sharing his unique blend of vigorous, forceful advocacy, always delivered with collegiality and respect. With his gentlemanly “old school” manner, coupled with an unequaled and encyclopedic knowledge and command of the courtroom, he shaped the law and our profession for us to follow ever after. RIP Frank Maloney.

How do you pay tribute to a legend?

As a young lawyer, I did not know Frank. I never watched him in trial. I never spent a great deal of time with him before he became a judge. He was a name that I knew. A name that commanded respect. A name that I admired.

As a young lawyer in the 1970s, I heard stories about the great lawyers; Percy Foreman, Racehorse Haynes, Warren Burnett, Charley Tessmer and Frank Maloney. All great orators. They provided the foundation for the practice of criminal law in Texas. Tenacity, thoroughness and preparation were words typically association with them. I wanted to be like them.

In the late 1980s I remember hearing that Frank was running for the Court of Criminal Appeals. When he won, the Court immediately became a better place for the criminal lawyer to practice. For Frank brought his vast experience as a lawyer, who at times was both a prosecutor and defense lawyer. His experience was unique. The people of Texas were truly served by his unique experiences as a trial lawyer. Justice was not blind to Frank Maloney.

While he served on the Court, I appeared before him several times. I had to prepare differently for Frank because I knew that he would be an active judge. That being, a judge who would question the weaknesses of my position and challenge me on the law and facts.

Unfortunately, he was not re‑elected. And that became a blessing for me because I was afforded the opportunity to try a case before him as he served as a visiting judge, after he left the Court in 1997.

In late 1996, the Fifth Circuit upheld the reversal of the conviction and death sentence of Ricardo Aldape Guerra, who had been convicted of killing a Houston Police officer in 1982, and remanded the case for a new trial. After the November 1996 election, the trial judge announced that he had made arrangements for the assignment of Ricardo’s case to a visiting judge, but would not tell us who was being assigned until after the first of the year. Even though United States District Court Judge Ken Hoyt found that the prosecutors had engaged in misconduct that undermined the in‑court identification of all the State’s witnesses, the State demanded a new trial.

Shortly after the first of the year, Scott Atlas and I received a copy of the order assigning Frank as the judge presiding over Ricardo’s retrial. I remember cheering and telling Scott how lucky we were. A judge that I knew could read, write, and understand the English language. I explained to Scott that Frank was someone who would be fair and who would listen.

We filed our motion to suppress the in‑court identifications with Judge Hoyt’s and the Fifth Circuit decisions attached. A hearing was promptly set. The abuse of the witnesses by the prosecutors and police became evident. We did not learn the impact of the testimony presented until we received Frank’s findings, in which all of the in‑court identifications of Ricardo as the shooter of a police officer were suppressed. In April 1997, Harris County prosecutor dismissed the capital murder charges.

Justice was served.

After that experience with Frank, our relationship changed. He became my friend and mentor. He was still someone I admired but now I got to cherish his friendship and wisdom.

In 2007 Frank, Roy Berrera, and Racehorse turned 80 years old. As an organization we wanted to celebrate their accomplishments and contributions. We decided to record their stories. So began the oral history of criminal law that can be found on our website. Being our first President, Frank also was one of the first stories that was memorialized. In that recording Frank’s recounted his experiences for us to cherish and pay tribute by watching.

Memories of TCDLA’s First President

This article was originally published in the July 2021 issue of the Voice.

March 10th, 2020 -This is a Veteran’s Day story. When I was a young guy just out of law school, I went to work as an assistant district attorney for Les Proctor here in Travis County, Texas.

One of the first cases I tried before a jury along with John Allen, first assistant, who became ill during the trial and had to be put to bed, resulted in a loss. Proctor was furious and called me into his office. He asked for an explanation, and I had none. He stated to me that the reason the case was lost was because, “You look funny.”

I had been shot up in Korea, and my facial countenance was not the best in the West.

“I want you to wear one of your medals as an explanation,” he said.

“No, sir” said I, ready to resign.

Bob Smith, chief trial attorney, joined in: “Next case we’ll try it together and I’ll wear one of mine.”

Proctor ordered it, and after a lot of discussion, I agreed. So, Bob and I wearing a medal button in our suit lapels, tried an enhanced theft case before a jury, and we promptly lost. Proctor, being a veteran Marine, Smith being veteran Air Force, and I were then in agreement that medals were not the answer and I went on looking funny… probably should have become a personal injury lawyer.

 

March 19th, 2020 -Another story about the sleepy town-city Austin, Texas, in the late 1950s. Mostly university, government, and stores along Congress Ave. and East 6th St. But with three whore houses nestled in the South Congress area – one of them run by herself, the great Mrs. Hattie Valdez. The population of Austin as time moved forward increased as did its moral and religious awareness and pressure was brought through various grand juries to do justice and padlock them. Proctor, the DA, assigned this to me, and I promptly did justice through injunctive action, closing them down. During this operation, I learned that Hattie operated several houses throughout the state and treated her girls who rode the circuit as her daughters. When I later became an assistant attorney general, public pressure, then at its zenith, demanded the attorney general take action and close down the whore houses throughout the state. This really fell within the jurisdiction of the various district and county Attorneys, but for some reason most of them were reluctant to do so. So, armed with the Texas Rangers in the various venues, I charged. Reenter Hattie Valdez. On the day I was to appear in district court in one of the east central counties, to padlock one of her houses, I received a phone call from Hattie asking if she could bum a ride with me to the county since she was to appear in court. She said that we would only have to make one stop to pick up the linens in the house to be padlocked, and that is another story…

 

March 20th, 2020 -The Criminal Bar of Austin Travis County in the middle ‘50s was relatively small – Paul Holt, Perry Jones, Roy Martin, Bill Yelderman, Vic Rogers, John Brady, Wright Stubbs, Arthur Mitchel, Jack Darrouzette, and a few others. The civil lawyers, with rare exception, seldom ventured into the criminal courts. There were only three district courts: 53rd, 98th, and 126th. Judge Jack Roberts, a prior DA, presided over the 126th. Charles Betts the 98th and J. Harris Gardner the 53rd. The  defense lawyer seldom won a jury case. The great Warren Court decisions Miranda, Escobedo, Mapp, Malloy v. Hogan, Murphy v. Waterfront, and Massiah had yet to be decided. The poor defense lawyer went into battle blind, no discovery, not entitled to see his client’s confession or rap sheet. Such was the case when Roy Martin, one of the better lawyers in the system, appeared before Judge Roberts and a jury defending some poor devil charged with the inglorious offense of theft of edible meat (a chicken) carrying a possible punishment of two years to life if convicted.

Now, Roy was not known for his quiet demeanor nor his acceptance of what he considered to be an out-and-out deception by others. When he talked to you in what he considered a normal voice, he could be heard for at least 200 feet around him. Thus was the case when a police officer was testifying for the state. Roy’s client had insisted and again told Roy that he had no prior police arrest record except for minor traffic cases. A defendant’s prior arrest record, unless he took the stand and testified or put his character in issue, was not admissible before the jury. Roy, when it was time for cross examination, said “Now, Officer, you know my client has no criminal record. You have the police report on that. Read it if you will.”

The officer looked astounded, and putting on his glasses began reading, “Theft, theft, burglary, theft, burglary.”

Roy turned to his client and said in what he assumed was a whisper, but could be heard in the next courtroom, “You son of a bitch.”

 

March 24th, 2020 -Just before the 1900s, there were more Sheltons in Travis and Williamson Counties than most large families. Born to that clan were Polk, Emmett, and Earl Shelton who, according to Emmet, became lawyers for their own protection. Practicing law in the 1950’s, Polk was known for his success in the criminal and domestic Courts, Emmet was a leader in Texas politics, and Earl was the scholar. In 1956, the district attorney’s office along with the grand jury room, the jury dormitory, and the court library were on the fifth floor of the Travis County Courthouse. The courthouse, built in the 1930’s, was crowded, and my office (cubicle) was open and abutted the library where Earl kind of lived, researching the law and regaling me with the most interesting stories of the practice of law by the Shelton family in early Texas. Being a Yankee, and new to Texas – having been here for only the last seven years – I could not get enough of his colorful and educational stories. I remember him saying, “Back in the old days , when the Shelton’s were so numerous you couldn’t count them and some you weren’t even sure you were related to, one was falsely accused and convicted in Williamson County of some type of offense despite the efforts of a distant Shelton lawyer. On the day of the hanging, about 50 well-armed Shelton men arrived on horseback and presented themselves before the gallows outside the Williamson County Courthouse. The hanging was called off, the defendant was freed, and justice was done. I told Earl he should write a book, but he never did. Emmet, however, presented me with about 10 tapes recording much of his experiences in Texas politics, particularly those involving the state and county conventions during the Shivers and Daniel years, but that is another Texas lawyer story…

 

March 25th, 2020 -There were not any woman lawyers in the district attorney’s office until very late in the 20th century. In fact, there were very few woman lawyers in Travis County. I recall that in one of our courts in 1960, a female lawyer appeared at docket call wearing long pants and was summarily ordered by the judge to leave the court until she properly dressed. However, this did not mean that women did not have influence or make substantial contributions to the running of the Travis County District Attorney’s Office. In 1956, there were four male Assistant DAs and one female secretary. All of the lawyers worked weekends and late hours. Proctor, the DA, was a bachelor, the rest of us had families and it was hard to be absent husbands and parents. This was particularly true on change-of-venue cases since we had jurisdiction to prosecute state officers and were called upon to try cases in counties far away from Austin. Finally, in 1958, we went from four assistants to six and four female secretaries.

I say secretaries but the first to be hired was an Austin debutant member of the Junior League, beautiful and single and very proper. She had much influence on the selection of the other three ladies Proctor hired. All debutants, all Junior League, all UT graduates with varying degrees from art to history, all beautiful and proper and, as it became evident, all dedicated to the success of the Office of District Attorney. They were in effect better at running the office than we were. But this was not to last. One of them became a successful lawyer, married an astrophysicist, and traveled all over the world where he lectured in various colleges on mathematics. One married a renowned Hollywood actor who excelled in his profession and is still doing so. One married a lawyer who played a great part in changing world affairs in Washington, and one married a young man who with her became an outstanding entrepreneur. All four of them at different times effected the decisional process of the DA’s office, but that’ another lawyer story…

 

March 27th, 2020 – As a Massachusetts Yankee, Korean War transplant, then a University of Texas undergraduate and law school alumnus exposed to quiet sophisticated beautiful Austin in the 1950’s, I soon learned that there was a strong belief in Austin that Sam Houston was right that Texas should not have seceded from the union in the 1860s. Most of the people who lived in Austin in the ‘50s were born there or at least in Texas and had a strong pride in the fact that they were Americans, and most certainly Texans. The strength of that pride was evident in how they lived, governed, and interacted with each other…which brings me to the law of the west or maybe of East Texas as it existed in some counties in the 1960s. Texas was governed by the 1925 Penal Code. This was not to change until the Supreme Court decisions, the amendments to the procedural code in the ‘60s, and the enactment of a completely new penal code in 1974. In 1962, the Billy Sol Estes Case was tried on-change-of venue from Pecos County several hundred miles away to Smith County (Tyler).

The prosecutors were R.B. McGowan, district attorney of Pecos, and Weldon Holcomb, district attorney of Smith County. I was there as chief of law enforcement division assistant attorney general assisting them. John and Hume Cofer of Austin were defending. The case ultimately became the seminal case before the U.S. Supreme Court on television in the courtroom. Estes was charged in a three-count indictment under the 1925 Penal Code with various types of theft involving anhydrous ammonium tanks and financial institutions, a simple and boring prosecution complicated by the intrusion of multiple television cameras, coaxial cables, and shotgun mikes in the Smith County courtroom, which of course brought forth numerous objections by the defense. John Cofer: “Your Honor, we object. These cameras along with their created pre-trial publicity violate the defendant’s rights to a fair trial guaranteed to him by the Sixth and Fourteenth amendments to the Constitution of the United States.”

The judge: “Overruled….We are trying this case under the Texas Constitution, not the United States Constitution.”

Whoops, the Supreme Court of the United State agreed of course with the Cofers. And the law of the west (or east) did not prevail. I should have agreed  with the Cofers, but when asked by the judge what the state’s position was, I said cowardly, “Whatever the court desires” – words of infamy to be regretted throughout my lawyer career but that’ s another Texas lawyer story…

 

March 28th, 2020 – I wish that I could say, like many of my friends, that I had since childhood always wanted to be a lawyer. Fact is, my wish was to be a soldier but my service in the Korean War made this impossible, and when the Army kicked me out, I began searching for another profession. The doctors at Brooke Army Hospital advised me against becoming a doctor, saying that if I lost the remaining eye, I would not be able to even diagnose measles. They suggested the law.

“There’re plenty of blind lawyers.”

At that time, although I was a captain and close to five years in the Army, I was still only a high school graduate. The lawyers I knew about in Worcester were highly respected and well-educated people. While on leave in Worcester, waiting for severance, I told my dad I didn’t think I was smart enough to be a lawyer. He suggested I visit with Judge Meagher, a newly appointed superior court judge and a family friend. The judge was very kind and invited me to sit in and watch one of the great Boston lawyers, Paul Smith, defend three armed-robbery defendants to be tried in his court the following day.

This was in 1951 supposedly in advanced Massachusetts. I arrived, and after sitting at the back of this very large majestic courtroom, saw the three defendants – young 17-year-olds – handcuffed sitting in a cage in the middle of the courtroom. The jury had previously been picked, the opening statements were made, and the district attorney began questioning his first witness, a big police sergeant. sitting in the witness chair. At some point during the cross examination of the officer, things got hot, and before anyone knew what was happening, Mr. Smith picked up a chair and threw it at the witness. The courtroom was cleared, and I found out later that all three defendants were acquitted. This obviously had some effect on my decision to become a lawyer and to be licensed not only in Texas but also in Massachusetts.

Years later, Paul and I became good friends through our association in NACDL and in trying a case in the Commonwealth of Massachusetts but that’s another lawyer story…

March 28th, 2020 – One of the great things about Texas is its politics, particularly as it relates to prosecutorial or judicial office. You don’t need the permission of any political machine or appointive authority, you just announce, pay the filing fee, and run in the primary of one of the two political parties. You of course have to have the legal qualifications to do so. In 1961, Les Proctor decided not to seek re-election as District Attorney of Travis County but instead to run for attorney general. Tom Blackwell, then county attorney, immediately announced for the office of district attorney, leaving the office of county attorney up for grabs.

I had been prosecuting and doing the so-called Lord’s work, away from home, all over the state and now I felt it was time to reap the harvest. But should I leave this cushiony $13,000-a-year job with the attorney general? Two hours before the deadline, I filed in the Democratic Party primary for the office of county attorney. Three others had already filed: CJ Taylor, a highly respected Austin assistant city attorney, Frank Hoagland, a wealthy well-known private lawyer, and Wally Shropshire, ex-FBI now a lawyer in private practice. Two of us ended in a runoff, Wally and myself. It was obvious from the start that I was the underdog, an outsider. All of the liberal coalitions endorsed Wally. I had the newspaper endorsement and some of West Austin. Wally’s slogan was, “We don’t need anybody from Boston telling us who to prosecute in Austin.” He had two other powers going for him: his lovely wife Doris Shropshire, a true hard-working campaigner, who several years later was elected to the office of county clerk; and his beautiful 10-year-old son who appeared on TV with his dad, saying, “I want to help,” and playing his guitar singing, “Oh where have all the flowers gone.” The election was over before it began. “Where have all the votes gone?” For every two votes that I got, Wally got three. So began Frank Maloney, Attorney at Law – $50 a month office on the sixth floor of the Capital National Bank Building in Austin. I did not know it then but losing that election was the best thing that could have happened to me . Here I was, in 1962, the Warren Supreme Court, and a broke lawyer, but that’s another lawyer story…

PS: Proctor, having made his reputation by prosecuting many state officials, was beaten by past speaker of the house Waggoner Carr and Austin lawyer Tom Reaveley. Carr won in the runoff and Reaveley later became a 5th Circuit federal judge. Proctor became a member of the new Austin law firm of Proctor, Maloney, and Fullerton.

March 29th, 2020 – It is embarrassing and hurtful remembering those times when super ego controlled your life.

Such was the time when I appeared as an assistant DA against a classmate who did not practice criminal law and who was appointed to defend a man charged with theft of an auto enhanced in the charge with two prior felony theft convictions, making a life sentence mandatory if convicted. I will not name my classmate as he wants to forget that he ever appeared as a defense lawyer in a criminal case. He was one of the cleverest men I ever knew and became a great Texas philanthropist, leaving millions to a Texas town and to the college in that area many years later. This was his first trial in any court and about my 10th as a prosecutor. During the voir dire of the jury panel, he told them about the defendant’s two prior convictions. This was a surprise, because the jury was not allowed to know about those priors unless the defendant was convicted by them of the primary offense and only then at the punishment phase of the trial. Both the judge and I thought my classmate had made a terrible mistake and the judge cautioned him and asked if he wanted a mistrial. No, he wanted to continue. After selection of the jury during recess, I immediately offered a plea deal of 10 years waiving the enhancement count. I was afraid any conviction would be overturned on Sixth Amendment grounds, inadequate counsel. No deal, he said.

The evidence produced by me clearly and without question showed that the defendant stole the 1960 Ford in a wealthy neighborhood in north Austin and wrapped it around a tree near the courthouse where he was then arrested. Adding insult to injury, he testified that the reason he stole the car was that he was late reporting to his parole officer on the day of his arrest. There was no evidence to support this assertion by the defense, other than the fact that he was late for his appointment by a month. After the case was received by the jury, my classmate and I left the court and went downstairs to Nellies for a cup of coffee. Before she could take our order, the court bailiff appeared and advised that the jury had reached a verdict and the judge was waiting for us. I felt sorry for my classmate and tried to comfort him, telling him he should not take this to heart.

A verdict after 10 minutes. Unheard of. They couldn’t have even selected a foreman in that time. We arrived back in court, the sheriff brought the defendant in, and the jury was seated and asked by the court if they had reached a verdict. “We have, Your Honor,” and handed the verdict form to the bailiff to be delivered to the judge. After the judge had studied the verdict form, he handed it to the bailiff to be redelivered to the foreman. “The defendant will please rise. The foreman will read the verdict.”

The foreman stood and with a commanding voice read: “We the jury find the defendant…NOT GUILTY.”

 

March 30th, 2020 – The general public of Texas and elsewhere, those who consider themselves in the know, feel that the Attorney General of Texas is in control of all of the district attorneys, the prosecutors, and has criminal jurisdiction throughout the state, i.e., a super, super DA. Nothing could be further from the truth. In fact, the AG has no criminal jurisdiction, and absolutely no control of the district attorneys. Why this is a belief is explained by perhaps a comparison with the federal AG office and its control over the United States attorneys. The fact is that the people of Texas have a strong belief in local government, without any interference or control by Austin. Enter Will Wilson, a powerful, courageous, successful prior district attorney of Dallas County in the late ‘40s, a Supreme Court of Texas Justice in the ‘50s, and soon to be Attorney General of Texas in the late ‘50s and early ‘60s. Seeking the office of attorney general, he ran on the platform that he could curb crime and punish criminals severely. He was elected overwhelmingly. The situation involving crime in Texas had changed, effected by the Vietnam War, the use of drugs by young people, the sexual revolution, and other forces, all of which brought about a change of living and views of many Texans and the rest of the country. Wilson headed an AG office of over 100 lawyers but few were trained in the field of criminal law.

His office was organized to advise and represent the various divisions of state government and take on the massive job of condemnation for highway growth. The condemnation lawyers comprised most of his office. Without criminal jurisdiction, all he could do was offer assistance to the various district attorneys around the state but with what? He had a division which he inherited from his predecessor euphemistically called the criminal division. It had one chief, Riley Fletcher, a competent prior district attorney who had in his division seven lawyers, none of whom had ever been in criminal court and all of who had worked as house counsel in various state offices like game and fish, liquor control, comptroller’s office, etc.

Wilson’s first assistant strongly disagreed with his boss on the duties of the attorney general, Leonard Passmore, a remarkable lawyer in all phases of law, politically knowledgeable, savvy about the ways of Texans, a rural Texan along with Byron Fullerton, the number-two man in the AG’s office and another rural Texan, both with uncommon good sense, placated their boss and convinced him to relieve poor overworked Riley Fletcher and assign him elsewhere, thus allowing the office to do its job as the legal representative of state agencies. For a short time at least. But too much was happening and Wilson felt he was needed rightly or wrongly to get involved. Billy Saul Estes, deviational drilling in the East Texas field, gambling and the slot machine, Maceo Brothers in Galveston, removal of the sheriff and prosecution in Jefferson County, investigation of the District Attorney of Bexar County. Enter Frank Maloney from the Travis County District Attorney’s Office, newly appointed assistant attorney general and now super new chief of the law enforcement division. But…that’s another story, or many other stories, about lawyers in Texas…

 

March 30th, 2020 – There existed some highly respected lawyers in Austin in the ‘50s. The law firms were small and excelled in the various fields of civil law. Perhaps the most powerful politically was the Clark Thomas firm. Mr. Ed, as he was referred to, was Lyndon B. Johnson’s mentor and lawyer from the time L.B.J. was elected representative of the 10th Congressional District in the ‘40s all the way through L.B.J.’s presidency. There were other law firms in Austin, excellent ones representing clients from all over the world, but none of the big law firms from Houston. Rumor had it that Mr. Ed just wouldn’t allow it, but that was the civil law bar.

The criminal bar was another animal altogether, barely getting by in some instances, but independent – one or two small firms, but usually in competition with each other for the few clients who needed representation in the courts. Paul Holt and Perry Jones had the majority of cases, half of them non-paying clients. You might say they were, along with the other criminal bar members, the unofficial public defenders long before Gideon v. Wainwright. In the ‘50s, only the poor were prosecuted for the property crimes and the drug offenses, i.e., “only the poor, the minorities, committed crimes.”

The Vietnam War, university student disruptions, youthful drug use, LSD, speed, marihuana, the sexual revolution – all of this changed the practice of criminal law. The criminal lawyer became a desirable commodity, the better ones sought after by disappointed parents of their offspring.

And the court system changed, too. Additional courts were created throughout the state; Travis County received a new criminal district court, relieving the three district courts of their criminal jurisdiction . The judge, his Honor Mace B. Thurman.

As crime increased, the criminal bar exponentially increased. The new firm of Proctor, Maloney, and Fullerton always ready to “inherit the wind,” reaped the harvest primarily because of its “vast experience.” Ah, that is another lawyer story…

 

March 31st, 2020 There were some great district attorneys of Travis County over the years, all different from each other, influenced by the law of the time, the assets they had, the people they served, and the political desires of the community. Some were more effective or less effective than others in different requirements of the office. The ones most familiar to me are people I had dealings with during my practice. Governor Dan Moody, who as district attorney of both Travis and Williamson Counties, convicted and cleared the state of the Ku Klux Klan, is probably the most famous. My dealings with him came long after when I was third chair as assistant DA and he was defending the son of a person who had been of great help to him as a young lawyer. This was a rare thing for him at an advanced time in his career as a prominent civil lawyer. He was impressive even then in the courtroom.

Jack Roberts, later a district judge and then a federal district judge, gave me hell every time he could while I was working for Proctor and then again when I was in private practice before him in federal court. Proctor respected him and valued his advice. There is a story about him that when he was the district attorney prosecuting in the old two-story-high ceiling 126th District Courtroom on the west side of the courthouse, he timed his closing arguments before the jury to be at around three p.m. just as the sun came through the upper window, spotlighting him. He would intone, “Give this jury a sign, oh Lord.” Both he and Paul Holt served together as Army investigators arresting deserters and draft dodgers during the war.

I really know very little about Bob Long. Les Proctor defeated him in a hotly contested race. I do know that Sam Kimberlain, an ex-Marine and fine lawyer, was one of his assistants and thought very highly of him.

I suspect that I probably am prejudiced about Proctor. He hired me right out of law school and taught me how to practice law ethically and correctly. His belief was that each case depended on fact and law and its disposition should be governed by that and not personality. He believed that if a prosecutor followed the law, he could not be correctly criticized. He tolerated no infraction of the law by his people; if that occurred, it brought about immediate dismissal, no excuse. He was highly respected and often honored by the district attorneys around the state. In my 60 years of practice, I know of very few who could approach his excellence as a lawyer.

Robert O Smith. What can I say. I cut my teeth as a defense lawyer against him, defending numerous kids, drug cases, killings, defendants charged with multiple student killings, politicians, Muslims, and numerous others. He was a Proctor clone, honest, efficient, and fair…one of the best.

Tom Blackwell was the last of the full time in-court prosecutors. He was tough and had some pretty good assistant DAs – people like Phill Nelson and others. Ronnie Earl, Emile Limberg, the first woman district attorney, and Margaret Moore each presented Travis County with new and different directions. The office became metropolitan in size. Victims’ rights became a serious factor, and more emphasis on office administration rather than court room ability, but that is another lawyer story…

 

March 31st, 2020 – I graduated from law school in 1956. I was not a great student but passed the bar exam along with two of my friends taking it as a preparation for the future exam, thinking we would not come close to passing since we still had a semester left in law school. Because of this fortunate event, I was able to volunteer time to the Travis County District Attorney’s Office during my senior year, which ultimately led to my being hired at graduation. Which brings me to the question, “What happened to a law school graduate in the ‘50s? How did he start off and try to become successful?”

First, not all graduates of law schools want to become lawyers; my classmate Chauncey Depew Leake was one person who had come to law school from Wall Street and wanted to return there, which he did, making his millions in venture capital. Secondly, those who did become lawyers, if their grades were in the top 10 percent, went to the large law firms and if they put in enough billable hours, made partner and ultimately retired rich like several of my classmates. Some of my classmates went to work for the state and never left. Some, like another classmate Harry McPherson, went to Washington, became a senior adviser to the president, wrote a book, and ultimately became successful in a Washington practice. But the majority of us in 1956 went home and hoped for the best as sole practitioners or with another lawyer in some type of law.

I think it was as it is today. Unfortunately, law school graduates, even after passing the bar, are not really capable to act as lawyers. We learn from casebooks and texts how to think like lawyers and some have some experience, but are we ready? Some states like New Jersey require a one-year internship before you can do lawyering on your own.

It was not until 1977, in Bates v. St Bar of Arizona that the Supreme Court of the United States held the prohibition against advertising by lawyers was unconstitutional. So, in 1950, how did the sole practitioner in criminal law get proficient and attract clients?

There was never any type of law that I wanted to practice except criminal law. I was told that in order to learn, I should become a prosecutor; make my mistakes on the state’s time, not while defending some poor devil. I learned that a legitimate way to advertise was to run in an election for a lawyer’s job. Charlie Tessmer, a successful criminal lawyer in Dallas, told me to lecture on law wherever and whenever I could and to write papers and a book, which I did. The best thing though was teaching at the University of Texas as an adjunct professor from 1962 to l980, the required 4-hour course initially until my practice would not allow me the time and then a seminar every other semester on state or federal criminal law. This was really fortuitous, because in the early ‘60s, the Earl Warren Supreme Court began a new era in the field of constitutional criminal law with its decisions on the Fourth, Fifth, Sixth and Fourteenth Amendments a subject that had to be taught in the law schools and was very important in the defense of criminal cases, particularly in search and seizure and confession cases. Soon, I was overwhelmed with new cases since I was teaching the subject.

An additional method of getting known was difficult and time-consuming – becoming active in state, local, or specialized bar work, interacting with your fellow lawyers. This I did by reluctantly becoming president of the Texas Criminal Defense Lawyers Association in 1971 and happily becoming president of the National Association of Criminal Lawyers in the late ‘80s. Referrals from other lawyers is an important source of clients.

Of course, this was all good, but to put food on the table, you had to try cases and have some type of success in the courtroom. Some of my classmates became great trial lawyers, also some of the great trial lawyers in Texas – Percy Foreman, Warren Burnett, Richard Racehorse Haynes, Emmet Colvin were all sole practitioners. But that is another lawyer story…hopefully about someone else…

PS: No one gets to be successful in this field without a hell of a lot of help from others and sometimes we hog the credit…

 

APRIL 1st, 2020 – It seems like I should be driving my 1993 Jeep out of my garage at Cape Cod today as I did last year. My sailboat Defiance is already back in the water at its mooring ready to sail the seas of Nantucket Sound. At age 92 I can have these happy-day thoughts, hoping that there will be more soon, yet realizing that we are now experiencing a different world presenting severe challenges and heartbreaking events.

There was a minister, Carl Marney, in Austin who had a TV show in the ‘60s called These Things Too Will Soon Pass. He often lectured to the police during their training; some believed him, some were not too happy and more cynical about the future.

Those were happy times in Austin in the ‘50s; before the turmoil of the ‘60s; before the horrors of the Vietnam War, the riots and marches of students, the strong counter measures against them by the police and authorities, the War on Drugs, and young people being caught up in all of this.

The City of Austin, with more pedestrians than automobiles parading along the “drag,” presented kind of an undisturbed laconic atmosphere with a kind and considerate people a happy place to practice law. On the downside, there were underlying race problems, but they had yet to be exposed. The Civil Rights movements, Jack and Bobby Kennedy, Martin Luther King, were to bring us to new horizons in the ‘60s. But in the ‘50s, the Korean War, the Cold War seemed to be problems not of too much concern and like Miss Scarlet , “We’ll think about that tomorrow.”

In the district attorney’s office, outside of a few murders on the east side, some small pot possessions, and a few misdirected politicians, our biggest problems seemed to be out-of-wedlock pregnancies and child support complaints. The out-of-wedlock pregnancy seduction complaints usually were solved by grand jury marriages where the grieving mother of her pregnant daughter complained to the district attorney, who then presented the matter to the grand jury who subpoenaed the miscreant offender, gave him a choice of prosecution for seduction or marriage, and then marched him and the new bride-to-be to the justice of the peace, who waived the license and performed the short version marriage ceremony (free of charge). Being very Catholic about this, because I was the designee to present these cases to the grand jury, the secretaries in the office soon dubbed me “Marrying Sam.” Child Support was a different matter and because the law at that time put jurisdiction enforcement of failure to pay crimes in the various district attorneys’ offices along with maintaining the collection trust fund, it consumed much of the time and efforts of the office. It was a political nightmare, but that’s another lawyer story…

 

APRIL 1st, 2020 – “Yesterday is dead and gone and tomorrow’s out of sight, and it’s sad to be alone. Help me make it through the night.” Kris Kristopher’s wonderful song, “Help Me Make It Through the Night.”

I am not necessarily a gregarious person, and I enjoy being alone…sometimes. This period of hibernation is presenting me with a lot of time to be alone and in order to get through it, I have decided to drag up some of my memories of old lawyer friends or stories about them, with the hope that neither they nor their estates will bring suit against me.

Percy Foreman: One of the best with national stature, impressive. In a crowded room, all 6’4” of him, with his huge head, would command the attention of all. Proctor and I were retained by the wife and the brothers of a cardiovascular surgeon from Boston who was in Austin to become a partner in the practice of surgery with an Austin surgeon. Apparently, the Boston doctor became violent and suffered a nervous breakdown upon arriving in Austin.

I arranged to have him arrested on a sheriff ’s warrant and conveyed to the Austin State Hospital for examination. Under the law at that time, if two psychiatrists certified he was mentally ill and a danger to himself or others, he could be detained for treatment. However, absent consent he was entitled to a jury trial in county court within seven days. On the day of trial, in walked Percy Foreman with two beautiful women, one on each arm. The case went on for three weeks before a jury and County Judge Watson, who was not a lawyer. That produced a strange situation: The lawyers would make evidentiary objections and then decide between themselves how to rule. The jury found that the doctor was mentally ill but not dangerous to himself or others. The case produced national press and a picture of Percy and myself in the New York Times, where Percy is calling me the dumbest lawyer in the country. A week after the trial, Percy called me on the phone asking me to please get the good doctor out of his office where he had been camped since his release. Percy and I tried several cases after that on referrals to and from each other. I was always impressed by his abilities.

Other great lawyers: Richard Racehorse Haynes, Warren Burnett, and many more who I tried cases with, but that’s another lawyer story…

 

APRIL 2ND, 2020 – The poor prosecutors in Texas and elsewhere during the ‘60s and early ‘70s had it tough. Not only did the Supreme Court unload on them with the decisions of Mapp, Miranda, Escobedo, et al, but the Fred Erisman State Bar committee successfully got the legislature to enact a new code of criminal procedure, which encompassed all of the case law of the Supreme Court and more. In the late ‘60s, they had had enough. The Keaton Committee was eagerly preparing a penal code based on the very liberal MPC of the American Law Institute as Florida, Indiana, New York, and California had already enacted, and that coupled with drug use and the rise in crime throughout the state, brought forth a cry of pain and injury by the various district attorneys and their need for help.

The district and county attorney’s association, the sheriff’s association, and other state and local law enforcement groups massed together to form a powerful lobby and as a thunderous herd descended upon an already citizen-plagued legislature swamping them with draconian-type law enforcement legislation. Enter the about-to-be-newly-formed Texas Criminal Defense Lawyers Association, organized in Dallas during the State Bar Association Convention in 1971 through the efforts of Tony Friloux of Houston and Phil Burleson of Dallas, both of whom had a large group of followers at this hastily called organizational meeting at the Dallas Petroleum Club and both of whom felt rightly that he should be president. Since most of the outstanding criminal law lawyers of the state were there, you could say the place was overloaded with egos all with their own ideas and strongly backing either Friloux of Houston or Burleson of Dallas. Soon both came to the realization that neither could be president at that time and they wanted the association to exist, so they agreed that they should elect an interim president now, Friloux becoming president the next year in Houston, and Burleson assuming the presidency the following year at the bar convention in Dallas. But who should we vote in as president now? We all looked about the room in search of the most innocuous person….Ah, Frank Maloney. No, said I. I was already saddled with too much. The trial of a state senator scheduled next month, the trial of the speaker of the house the following month, and other trials piling up. Yes, you will, said Emmet Colvin, Tony Friloux, and Phil Burleson, and my overwhelming ego said yes. Wow, to be a president of something. I went back to Austin, expecting the association dues to start, hired a young Harvard Law graduate Bill Reed to be executive director, rented an office in the Brown Building for him, and I resumed practicing law. The association became a great success with over 300 dues-paying highly selected lawyers in the first year. More about this later and the hard-working lawyer presidents who followed…

PS: The association was not meant to be a good-old-boys’ group as NACDL was at that time, nor was its purpose just to protect against draconian enactments. This was part of it, but its purpose was also education through seminars, helping each other in practice, amicus assistance, and interaction with each other throughout the state. Its first board drafted bylaws and the corporate charter to be filed with the secretary of state. The board membership was composed of a who’s who of predominant lawyers throughout the state: Foreman, Haynes, Colvin, Tessmer, Semaan, Burleson, and Friloux just to name a few.

 

APRIL 2ND, 2020 – There are times when it is complete agony in the trial of a case because of the counsel representing a co-defendant, but there are also times when it is a joy, not only because of their astute handling of the matter at hand, but because of their affability. Several lawyers whose personality provided that joy and who I tried cases with come to mind, but the one who stands out above all the rest is Richard “Racehorse” Haynes. I say this because I was forced to share the same motel suite with him in Abilene for a month defending the speaker of the house and two others on an accusation of conspiracy to accept a bribe, which had been transferred on change-of-venue motion by the state from Austin (the so called “Sharps Town Case”).

The case resulted in convictions, but probation and subsequently dismissals. The case was highly publicized both before during and after the trial. The state’s theory was that Frank Sharp had arranged for loans to the speaker, the lieutenant governor, and the governor from the Sharps Town Bank (loans that were not to be repaid), so that they could buy stock in National Bankers Life Insurance Co. at a low rate, a corporation he owned, and he did this in order to get legislation increasing the amount of the insured capacity of his bank. Neither the governor nor the lieutenant governor were indicted, there was never any legislation introduced in the senate, and the governor never agreed to the purchase of the stock. Had the case been tried in Travis County, and if a fair jury was acquired, it might have resulted in an acquittal, but not in Abilene.

The real issue was whether there was an agreement that the loans were not to be repaid. There was no credible proof offered of this or whether Sharp convinced them that the value of stock would increase as it was doing and that the legislation was sound. (In later years, the legislation sought was enacted and became law.) The case required the lawyers being in close contact. One morning at breakfast, I was disturbed by a suggestion of tactics by counsel of one of the co-defendants and proceeded to criticize him. This prompted Richard to say, “Kindly old professor, you take yourself too seriously.” Words and advice I try but seldom am successful in remembering. Haynes was memorable. He kept me laughing each morning and night and probably sane. After the trial, we spent a couple of days crying over the conviction, sailing on my boat and getting drunk. Richard and I shared the lead in the case. This was a mistake. It should have been Haynes all the way. But I had just won the Senator Bates case before a jury in Corpus Christi and had convinced myself that I was “hot stuff.”

PS: We lawyers could tell numerous laughable stories about “Race.” He was one of the most successful trial lawyers of his day and until his recent death…

 

APRIL 3RD, 2020 – Warren Burnett was the epitome of a defiant tiger, a smart one at that. Emmett Colvin, who knew him well, said the guy was born with a book and always had one in his hand thereafter. He was born and raised in Virginia, moved to Texas where he became rich in Midland-Odessa practicing primarily personal injury law, but – and here is what made him the lawyer to go to – he never turned away from a just cause regardless of the money, the strength of the opposition, or the belief that it just couldn’t be won. The problems of the ‘60s and ‘70s, the underdog student activists, the Vietnam War, the fight against what he believed to be a top-heavy state bar unfair and uninterested in activist endeavors of the bar for improvements in the law for the poor, the under privileged, this is what made him famous. Where there was a rebellious meeting to correct a wrong, Warren would be there. He never took a note during trial but was totally ready for his cross examination of witnesses, which was always brilliant.

My first but not last contact with Warren was at the San Antonio Bar Convention or rather outside of the building where it was being held where Warren, at about age 40, was leading a riotously large group of law students who were demonstrating against the state bar on the commons before the Alamo. It was quite a show reminiscent of the great Texas struggle for independence. In the ‘70s I had tried to get him to be more active in the TCDLA production of the new penal code but he said he was too busy in his practice and would probably dislike it anyway. He was right in some ways because, among other things, the 1974 code did away with the requirement of strict construction of its meaning. The legislature in 1970 had rejected the Keaton Committee Code, thus allowing more participation by the prosecutors in the new version enacted as the 1974 Code. Warren never forgave me for this, blaming that “academic Maloney” for this grievous error.

Tony Friloux referred a case to me that he felt needed multiple counsel, finally convincing Burnett to join the defense, allowing Friloux to withdraw. Trying a case with Warren was an experience, a surprise every minute. Warren and I, together with Gerry Goldstein, a well-known San Antonio attorney who represented one of the conspirators, were together for several weeks in federal court before newly appointed federal Judge William Sessions. The case involved several murders in Mexico, fraud, and a so-called “soldier of fortune,” a government witness. The jury had a strange but attractive woman as one of its members and she kept pulling her skirt above her knees during the time Warren was cross examining the “soldier of fortune.” This and other conduct by her caused the foreman to seek audience with Judge William Sessions who, with our consent, offered to excuse her. Warren objected and so she was retained, fortunately or unfortunately depending on how you looked at it. During their deliberations, EMS appeared: Apparently, she had broken the foreman’s finger. The jury convicted Goldstein’s client but hung on our client 11 to 1 for conviction. We were told it was the attractive woman who was the holdout for acquittal all because she could never convict a client of that “handsome Warren Burnett.” Sessions was furious with us and ordered the case to the Waco division to be retried the following Monday…

PS: I was then fired by the wife of the defendant for reasons left unsaid, but Sessions would not release me until Warren, who was intentionally late, finally appeared, having flown in his own piper cub through a snowstorm, and resumed the defense. The case after a one-day trial resulted in a conviction and a sentence of what amounted to life.

 

APRIL 4TH, 2020 – Several months ago, I attended the funeral of one of the better judges who had served on the Texas Court of Criminal Appeals, our Supreme Court for criminal matters. Although we had never been close colleagues on the court, I respected him not only for his keen mind but for his ability to be correct in his decisions. Many of the people who spoke at his funeral remembered him as a strong law enforcement attorney in the prosecutorial division of the attorney general’s office helping various district attorneys around the state. He had been a district attorney before going to the attorney general’s office and before being elected to the court some 12 years before. I was struck by these comments and, in my feelings for him, wanted to correct the impression that was being, what I thought, erroneously given but I didn’t speak and I am thankful I did not disturb those thoughts of the people who spoke as they did. I think they would have misunderstood how hard it is for a judge, as it was for Judge Charles Campbell, to do what all judges have to do, and some never do, and that is put their disciplines of the past on a shelf in order to become impartial and this is particularly true of discretionary review judges, the judges on all supreme courts of each state, and the Supreme Court of the United States.

Judges wrestle with this problem on most of the review cases that come before them because in those cases they are forced to choose between conflicting case law or no case law at all. Judge Campbell and I were from different recent disciplines, and I valued his views and quite often he convinced me to change my view as I caused him to change his. This made us both better in what we did. An example of my respect for him is evidenced by his authorship of Kelly v. State, a case that changed the whole law on the admissibility or lack thereof of so-called expert testimony. True, it was fostered by two Supreme Court decisions, but there was need to also reinterpret a Texas statute and enlarge on the Supreme Court mandates. Judge Campbell showed by that opinion and other opinions by him what a true judge is. He was impartial and correct. I have other stories about judges, but that’s for the future…

PS: President Nixon coined the phrase, “We want judges who will follow the law, not make it.” If every certiorari Judge, every discretionary review judge followed that mandate, few if any reviews would be granted, and there would be no interpretation of conflict or of non-existent law, every issue needed to be decided would remain undecided or sent back to the executive branch, or legislative (congress) branch, contrary to Marbury v. Maddison or McCullough v. Md., leading to the destruction of the separation of powers doctrine. It would be an interesting question of which would grasp the power first; a tug of war between the legislative and executive branches of government…

 

APRIL 4TH, 2020 – Every Friday night at a local bistro in Dallas County, two famous lawyers would hold court and entertain an enraptured audience of lawyers eager to soak up the wisdom of these two while imbibing in a touch of the bitters. Charlie Tessmer and Emmet Colvin were the two and deserving of this admiration would be an understatement of their abilities and successes both in state and federal Court. (As an aside, in my opinion, if either had defended Jack Ruby, Ruby probably would have been acquitted.) Emmet, from Arkansas, first came in contact with Charlie when Emmet was an assistant district attorney for Henry Wade of Dallas County. Wade set the paradigm for zealous prosecution throughout the State of Texas. His office had promulgated several rules for successful prosecution that were removed because they violated every rule of due process you could think of, particularly in jury selection. Although Emmet and Wade remained friends, he soon realized that heavy prosecution was not his bag and that he should resume defending in federal court. Charlie and Emmet formed a partnership with Charlie handling state defense, and Emmet federal, and were soon accomplishing outstanding professional and ethical work that was recognized by others. After several years though, the partnership dissolved in a friendly way with each continuing their successful practice – in state for Charlie and federal court for Emmett. He felt he was overly successful, until, he said, “The Feds discovered the law of conspiracy.”

In the ‘60s and early ‘70s, Emmet and I and our families developed a strong relationship that would go on until his death in Fairfax, Virginia, where he had retired. He should have received more recognition for helping TCDLA get going because he was instrumental in helping Phil Burleson in its organization in Dallas. It was there that we began our association in helping each other in the trial of several federal cases including the first RICO conspiracy case tried in Texas. That case involved a kickback scheme with purchases of IBM equipment by Southwestern Bell. Along with employees of Bell, several lawyers and two ex-FBI agents were indicted and all tried in one gigantic trial before Sarah Hughes, the famous judge who had sworn in L.B.J. as president directly after Jack Kennedy’s assassination in Dallas. Judge Hughes was not a happy camper and treated the defense lawyers, her clerk, and the jury harshly, at one point holding a juror in contempt for being late. At the time of trial, a young lawyer, David Botsford, was in the employ of Emmet and played an important part in the trial. We represented a lawyer who previously had been a law student of mine who had unwittingly been caught up in the scheme. Suffice it to say our client, primarily due to the efforts of Emmet and David, was acquitted. Several side events: Besides the heavy drinking at the Playboy Club, which kept us sane, there was an event which involved the good Judge Sarah who, along with Emmett (between marriages), was a bachelor. One morning, halfway during the trial, Judge Hughes scheduled an in-chambers conference for the following day at eight a.m. At the conference, she announced with a twinkle in her eye, “Emmet, today is bachelor’s day.” The conference then ended without any other business as does this story but with many to follow about the great Emmet Colvin…

 

APRIL 5TH, 2020 – In 1982, a jury in Washington, D.C., under D.C. law as opposed to federal law, found John Hinckley not guilty by reason of insanity of the attempted assassination of President Ronald Reagan. The District of Columbia law contained a volitional incapacity test as opposed to a pure right and wrong test on the issue. The verdict of the jury created a national outrage resulting in hearings before the United States Senate Judiciary Committee where the jurors in that case were subpoenaed to testify and various so-called experts on the insanity law and me also testified on some 10 bills offered to modify or do away with the insanity defense, I guess because I had tried several insanity defense cases or because I had published as an adjunct professor on the issue, or because NACDL asked me to, but probably because my ego insisted that I do so. I appeared representing NACDL. At any rate, having written out my opening statement, I traveled to Washington at my own expense, I testified before Senators Spector, Heflin, and Thurmond. During my testimony, I was interrupted by a quorum call, asked if I should wait, was told by Senator Heflin, “Sure if you want to flap your lips some more?” The only positive thing that I liked about my testimony was that I gave them hell for subpoenaing the jurors and questioning them on their verdict. What a waste of time.

Jerry Gold of Cleveland, Ohio, a past president of NACDL, and an attorney of national repute, a guy who I traveled with all over Europe in the ‘80s, along with some great lawyers on a people-to-people tour, was the legal hero in a book written about the “Mad Murderess of Shaker Heights” by one William L. Tabac because Jerry successfully defended her on an insanity defense. The case was in 1965 and Ohio law was much like the D.C. law was in 1982, but different from Texas law. All three laws encompassed a test dealing with right or wrong but D.C. and Ohio had the volitional incapacity test also. The book was not published until 2018, but Jerry’s accomplishments were widely known. He rather than I should have been the guy testifying. I considered myself an expert on the insanity defense, being the designated authority in the DA’s office in the ‘50s, and having never lost a case involving that defense. The reason was that all defendants who were considered insane by the state psychiatrist were by agreement found insane. No Texas lawyer including myself knew how to try an insanity defense case at that time.

However, when I became a defense lawyer and having observed others in the ‘60s, I utilized the insanity defense in every case I could, in all capital cases, and even in a federal conspiracy-to-kidnap case and several others. I can say that unfortunately none of my defendants were found insane , but none of them were executed all because the evidence offered on the insanity issue explained what made them tick and as my good friend Racehorse Haynes would teach, “You gotta humanize the defendant.”

 

APRIL 6TH, 2020 – Every middle-size town has at least one or more lawyers who are so universally liked, politically active, and extremely able , that they can occasionally push the envelope in their desire to help their clients, with conduct not particularly important or necessary, or which does not matter anyway…or is just plain laughable. To be this kind of lawyer , and have a successful practice, you’ve got to be loved and respected, but more importantly, you have to be just damn good. Such was Roy Q. Minton of Austin. A fighter pilot during the Korean War, he attended and graduated from the University of Texas Law School in 1961, spent a year with his friend Charlie Burton as an assistant DA in the Travis County District Attorney’s Office, working for Tom Blackwell, and ultimately was recognized as having outstanding abilities by Perry Jones , leading to the formation of the Austin firm of Jones Minton and Burton in 1963.

Anyone who is charged with a crime wants a lawyer who believes in them , a lawyer who will fight for them and win. Perry Jones was that type of lawyer, as were Minton and Burton . Together they had a large and successful practice representing people from all environs charged with every type of crime, creating a very large following. As the years went by, the young lawyers involved in criminal law, anxious to emulate them in the practice, would gather in “the little red brick school house,” as their office at 1000 Guadalupe was called, for a beer or two on Friday evenings after court to gather pearls of wisdom from Roy and Charlie. Since the firm of Proctor Maloney and Fullerton was also engaged in the practice of law at that time , Roy and I became vocal competitors. As Roy would much later say, we had a love-hate relationship. I think, and I am sure Roy would agree , it probably was more hate than love. I knew Roy was a fighter and we sometimes ended up with each other’s clients fostering the belief that the two firms were at each other’s throats. It is also true that each time Roy had a speaking engagement, he would spend an inordinate amount of time saying something about Frank Maloney, but what was not known was that there was some cooperation and one or two referrals between us. There are a lot of stories that are told about Roy; he was the type of lawyer by his actions or imagined actions stories followed and were memorialized. But here is one true story.

He could pick a jury and convince them about as well as any lawyer I ever knew.

PS: Roy is at home today with his lovely wife Barbara, having taken early retirement. His firm with Sam Bassett, Perry, David Minton, along with others are there in the “little red brick schoolhouse” at 1000 Guadalupe still as active and productive as though Roy was still at the helm…

 

APRIL 8TH, 2020 – This is a difficult time for families, a season usually culminating in the happiness of Easter Sunday, and without the fear of this Easter week. I am reminded of how the military celebrates all of the various religious holidays for those who are on post or in combat areas and of how conscientious the military is in protecting and fostering those religious beliefs. This is a soldier story about a 23-year-old lieutenant who graduated West Point in 1948 and also of a Catholic Chaplin, and their friend, another lieutenant…all of whom had been in Japan in the 1st cavalry for a year just preceding the invasion of South Korea, and who were then sent to Korea in June of 1950 to defend at the Nactong River defense line.

Just before that, in April or May at Camp Drake, Japan, the Easter and Passover season was celebrated by each company of the Regiment, 7th cavalry, with Protestant, Catholic, and Jewish services, followed by wonderful feasts in greatly decorated mess halls. The young lieutenant and the Chaplin had, for several months, been carrying on a dialogue about religion, the lieutenant not necessarily being convinced and seriously doubting his own faith. This doubt was to change two months after being in Korea. But the young lieutenant, wanting to believe, was killed while leading his unit during an assault. His body had to be abandoned, leaving him the only casualty there. The Chaplin insisted that the lieutenant’s body be recovered. Three volunteers and the lieutenant’s friend went up into the hills and recovered his body. The Chaplin and friend then took the lieutenant to grave registration a few miles away in Teague. At that time in Teague, at the top of a hill was a beautiful and serene-looking Catholic church whose pastor was Korean and could only converse with the Chaplin in Latin. They agreed and the church bells rang, the people came, and Charles Frederick McGee, class of 1948, on that afternoon, had his Catholic mass.

 

APRIL 9TH, 2020 – When as now I have an inordinate amount of time to sit at my favorite place and think back on the events that channeled the direction of my life in the legal world, my thoughts are of the people who I owe so much to. Lawyers, nonlawyers, assistants, and others. The people I worked with in my profession. In the district attorney’s office, Les Proctor, Bob Smith, Bob Towery, David McAngus, Phil Sanders, Jo Betsy Llewallen, Carol Corley, Ann Swenson. Neilyn Griggs Maloney. In the attorney general’s office, Will Wilson, Lenorad Passmore, Harry Nass, and Byron Fullerton. In private practice, Mary Ann Barton, Gwen Montgomery, Rose Snyder, Ken Houp, David Botsford, Phil Nelson, David Reynolds, John Yaeger, Belinda Wright, Mary Golder Robinson, Sarah Wolk, Tom Black, Doug Hearne, Jack Stayton, Charlie Babb, Neilyn Griggs Maloney, Phil Joseph. At the Court of Criminal Appeals, Judges Sam Clinton, Charles Campbell, Marvin Teague, John Onion, Leon Douglas, Charlie Baird, Morris Overstreet, Truman Roberts, Mike McCormick. Assistants there Carolyn Denero, Belinda Wright, and of course Valarie Strauss. (The research attorneys of all the judges) At the law school, Dean Page Keaton, Professors George Stumberg, Fred Cohen, Corwin Johnson, Millard Rudd, Joe Witherspoon, T.J. Gibson, Bob Dawson, Dean Charlotte. I n professional organizations, TCDLA: Bill Reed, Phil Burleson, Tony Friloux, Jo Keagan, Richard Haynes, Warren Burnett, Emmet Colvin; NACDL: Paul Smith, Morris Schenka, Al Kriger, Mike Bender, Terry McCarthy, Bruce Lyons, Emmett Colvin (help in everything I did). There most certainly were others but these fill my thoughts when I venture in to my legal world activities. There are stories that could fill several books about them and help I received from each one of them…

 

APRIL 12TH, 2020 – I want to say something about judges. First of all, not all judges have the same job. Some are “trial judges” and some are “appellate” or “ Supreme Court Justices (discretionary review)”. Secondly, not all are elected in either partisan or nonpartisan elections; most in this country are appointed by various methods by the governors or in the federal system by the president confirmed by the Senate.

Thirdly, being a judge does not mean that we are fungible. Fourthly, a basic tenant of any judiciary is its independence from political pressures. Is there a problem in Texas? Are we getting the best judges? Are elections the best method of selection? With the exception of municipal judges, Texas elects all of its judges statewide and locally but with obvious problems. This long history has produced the factual ammunition mandating change. Over the years, several state bar committees headed by the various chief justices of this state , composed not only of lawyers but including journalists , business people, academicians, and members of other professions, have recommended a different method of selection.

Bills have been introduced in the legislature but all have been defeated primarily because of special interest groups. A common belief is that it would not be democratic if we didn’t elect our judiciary. But most, including lawyers who should know, do not have the slightest idea who they are voting for either in the primary or the general election. How many of us can name one judge of the nine-member Supreme Court or the nine-member Court of Criminal Appeals or of the 14 Courts of Appeals , or of any of the trial courts, county or district ? Campaigns cost money, TV, communication media, traveling in this huge state; where does it come from?

Mostly from lawyers. The public is shaken as they should be by this. It almost sounds like bribery. In the general election, people vote for judges by their party. History shows us that by this method, we have elected some terrible judges and it takes four or six years to get rid of them if we ever do. What is the solution? At the very least, take us out of partisan elections. If we have to be elected, let us run as independents. We cannot endorse a party platform, we have no business saying we can. The justices of the Supreme Court, the Court of Criminal Appeals, and the intermediate appellate courts should be appointed by the governor from a council recommended number of the best, confirmed by the Senate, who will then run against themselves after six years, i.e., “Should X be retained”

The trial judges, since they would be running in county local elections and therefore screened and known, could run as independents and, if elected, after four years run against themselves, i.e., “Should X be retained?” If no, then a new election is held. The above is the recommended solution of the various research committees and is utilized by many states. It is not a perfect solution, but it is better than what we have.

I ran for an open seat on the nine-member Court of Criminal Appeals in the Democratic primary, runoff, and against a Republican judge from Dallas in the general election in 1989. I was elected to a six-year term. At that time, Texas was a Democrat-oriented state as it had been since the Civil War. This changed so that in 1996 when I ran, against my better judgment and the advice of others including my friend Ann Richards, for re-election and as the only in-office statewide Democrat, I along with most Democrats suffered ignominious defeat by the Republican takeover of the state. (I was endorsed by every newspaper in the state except the Lubbock Avalanche Journal, had a 10-to-1 vote in the bar poll, and even some Republican help. I campaigned all over the state. My Republican opponent never left his office, did not campaign, did nothing except announce as a Republican.)

PS: I have to admit that after my defeat, I was not too unhappy. I sat as a visiting Judge in most of the 14 Courts of Appeals for a couple of years by assignment of the Supreme Court, and then by assignment to the various trial courts in Dallas, Houston, San Antonio, El Paso, Austin, etc., all very enjoyable. During this time, I continued to teach at the law school and was of-counsel to a great Houston-Dallas-Austin law firm that allowed me to do this, retiring in 2012. The Republican Party during those years captured the judiciary. If you wanted to be a judge, you ran against a Democrat. The Republicans elected several people who became embarrassments to them and fought hard to get rid of them with partial success in the next election cycle. Conversely in some Democrat areas where appointments were made of excellent Republican judges , they were defeated in the next election cycle because they were Republicans. I wish that I could add a little humor to this, but there is nothing funny about an inadequate method of selecting the third branch of government.

 

APRIL 12TH, 2020 – Another story about Percy Foreman. When oil controlled rough and tough Houston, and the authorities were trying, in some instances illegally, to put a lid on the crime rate, the best lawyer in the state was Percy Foreman and he ruled the roost.

Recognized throughout the country for his flamboyant behavior and success before juries, he was literally hated by every law enforcement agency within the state including the Texas Rangers. Particularly the Texas Rangers. And he had a mutual feeling for them and did everything he could to defeat their efforts. Houston was a boom town in the ‘50s and ‘60s and geographically was spreading out all over the place. The newly built Glen McCarthy Shamrock Hotel seemed to attract celebrities and Percy quite often was seen having breakfast in its beautiful dining room because at that time he held possession of a suite of rooms there.

The rangers during one of their important statewide investigations suspected Percy of having secreted evidence of one of his clients, who was the subject of their investigation, in his suite of rooms. Three of the rangers went to his suite, pounded on his door, and tried to gain entrance.

“No search warrant, entrance denied!” roared Percy.

This was before Mapp v. Ohio and the rangers were not accustomed to being denied. In fact, the sound of their boots brought fear to the hearts of their suspects. The rangers stood in the doorway perplexed. Percy turned his back to them, dropped his pants, and mooned them, whereupon one of the rangers hit Percy, breaking his nose. The press took pictures of Percy with an exaggerated splint and bandaged nose with captions: “Foreman fights rangers on illegal search.”

A million dollars’ worth of publicity on the fight against tyranny, claimed Percy to his acquaintances…

 

APRIL 14TH, 2020 – Another story about Racehorse Haynes. Although I have no empirical proof, most of the lawyers in the field of criminal law do not like to appear in federal court as opposed to appearing in state court. The reasons vary: The federal system is too hard, too formal, too complex in law and procedure, too nonnegotiable. The overriding reasons: too powerful and not controllable.

The American Bar Association has as one of its stated purposes the job of educating its members in the field of federal practice, no easy job. The ABA, at one of its annual meetings, created a program where four different lawyers out of the presence of each other conducted a live cross-examination of a federal tax agent in a mock federal tax-evasion case , Agent Tadowitz from Baltimore. The judge presiding over the seminar was Judge James Nowlin, Western District of Texas. The U.S. attorney from Chicago representing the government. The four attorneys cross- examining individually: one from Washington, one from San Francisco, Bob Richie from Tennessee, and Albert Krieger from New York and Miami. I was the moderator. Richie and Krieger were outstanding , the other two were adequate but not stars. It was then that I realized I should have invited the greatest cross-examiner of all time to participate: Richard Racehorse Haynes…

Sometime in the ‘70s, Race was defending some poor citizen charged with a federal crime in Judge John Singleton’s federal district court in Houston. He had agreed to defend this person at the request of Jim Kronzer, one of the leading trial lawyers in Houston and a close personal friend of both Judge Singleton and Race. The case ended in a rare conviction for Race and he requested that I handle the appeal, so I got to read the record and from Kronzer got the rest of the story. Each successful cross-examiner has his or her own method of emphasis in cross-examination depending on a myriad of factors.

Race’s method was detail, detail, and detail regardless of the case. He was usually successful in getting what he wanted from the witness, particularly in state court, but this case was before a jury in Judge Singleton’s federal court. During his cross of the principle government witness, an FBI agent, concerning the agent’s entry into the defendant’s home , the agent having testified on direct that there was a key in the door, the following occurred:

Race: You say you had a key.
Agent: Yes.
Race: What did you do with the key?
Agent: I put it into the keyhole in the lock.
Race: Where was keyhole?
Agent: In the door.
Race: Was there a knob on the door?
Agent: Yes.
Race: Was the keyhole above the knob?
Agent: How do I know? I don’t know.
Race: Was the keyhole below the knob?

At which point, without objection from the government–

Judge Singleton: Stop, enough is enough. Move on.
Race: Where was the keyhole?

Judge Singleton excused the jury, held Race in contempt, and stated he would assess the proper punishment at the end of the day. The jury was then brought back and Race resumed his cross examination.

Race: Where was the keyhole?

The judge excused the jury, ordered the Marshall to take Race into custody, and instructed Race that trial would resume the following day and that a night in jail would do him good. The following morning, resuming his cross-examination–

Race: Where was the keyhole?

The trial somehow went to verdict with Race spending three nights in jail and with Kronzer appealing to Judge Singleton to release Race at the end of the trial, which the judge agreed to do, providing Race apologize to the court. Race never did apologize until a chance meeting in front of the Rice Hotel months later. There were other ramifications, but Race’s view was he didn’t like federal court anyway. The fact of the matter is that Race was very, very successful in federal court and always victorious. He and Judge Singleton much later became fast friends and were honored together.

Current Issue: September 2022

/

DOWNLOAD PDF VERSION

Features

16 | A Tribute to Frank Maloney – By David Botsford
18 | Tribute to Past President Frank Maloney – By Gerald Goldstein
19 | How do you pay tribute to a legend? – By Stan Schneider
21 | Memories of TCDLA’s First President – By Judge Frank Maloney

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
8 | Editor’s Comment
9 | Ethics and the Law
12 | Federal Corner
15 | From the Front Porch
20 | Shout-Outs

Departments

4 | CLE Seminars and Meetings
36 | Significant Decisions Report

President’s Message: September 2022

/

Oftentimes we wait until it is too late to thank the heroes in our lives. We think we have all the time in the world to get around to it. We want to wait for the perfect time and the perfect words. And the way life frequently plays out – we struggle to find either of them. Before we know it, life happens, and our heroes pass from this earth and the opportunity to thank them – in this life at least – is gone.

Well, on July 5th, we lost one of our own heroes, Honorable Frank Maloney. Judge Maloney was truly one of the greatest criminal defense attorneys this state has ever seen. He’s also one of the greatest leaders and Presidents TCDLA has ever been blessed with, having served in the role in 1971‑1972. He also went on to serve the National Association of Criminal Defense Lawyers as President in 1988.

What made him so great? For starters, a sincere calling to serve others: his clients, his colleagues, his family, and his friends. Add to that: his ability to listen; his fundamental understanding that professional success and authentic kindness are not mutually exclusive; and his inclusivity and willingness to encourage and befriend new and up and coming attorneys and to mentor so many lawyers across the state of Texas. Yes, he was wicked smart and great in a courtroom for sure. He had a tremendous track record of success. He had great war stories – far more wins than losses you can be sure. But what made him such a great lawyer was understanding that there was more to life than just practicing law. He understood that being a great lawyer begins with first being a good person. It means being a well‑rounded and well‑grounded person. That’s what gives a lawyer perspective. Perspective to not get too high with the victories and more importantly, to be able to have the courage and fortitude to get back up from the depths of the lows that come from the defeats and battle scars. That’s the foundation that made Judge Maloney a hero of TCDLA. One of the reasons that I made Institutional Knowledge a goal for my year as TCDLA President is to be able to capture these incredibly important lessons – courtroom lessons and life lessons – from the greats like Judge Maloney. Learning from Judge Maloney helps us become better people, better attorneys and a far better TCDLA.

As I was talking the other day with Melissa Schank, our TCDLA Chief Executive Officer, about several of my role models, she reminded me what we admire about our heroes is actually a reflection of ourselves—as much as our own DNA. We just need to see it in our daily lives, to nourish it, and share it with the world. So, thank you, Judge Maloney, and all of the heroes who founded the largest most successful criminal defense organization in America, and in doing so, paved the unstoppable path for us to follow. Thank you for caring so much for the accused and their defenders. We will always honor you, and you will never be forgotten.

Today, take a moment to reach out to your heroes in life and thank them. Now is the perfect time.

Executive Officer’s Perspective: When I Met the Honorable Frank Maloney

/

“Unexpected Friendship: We don’t meet people by accident. They are meant to cross our path for a reason.”

—Unknown

Since the day I stared with TCDLA I have learned so much about the history of TCDLA. I remember the first year I started I had the opportunity to sit with Judge Frank Maloney, the first President of TCDLA, to work on a PowerPoint project. We spent hours together over a period of a week. During that week, he told me so many stories about criminal defense and its checkered history that have stuck with me to this day. Over the years I’ve had the opportunity to sit and listen to the stories of many of our gentle giants, who gracefully and humbly shared with me their struggles and successes in the fight for criminal defense.

As time went on, I kept in contact with Judge Maloney; he attended board meetings, shared his institutional knowledge and the history of the Organization. Often, we want to move forward and try something new, leave a legacy; we don’t take the time to appreciate the past or those that helped us get to where we are now. However, Judge Maloney made me realize that I needed to take the time appreciate the history of TCDLA. One time he came to the office with a box of the minutes from the first couple of years’ meetings and photos. I was overwhelmed with nostalgia as I looked through the memories of our gentle giants who started this Organization, one of the largest criminal state organizations in the country. Sadly, despite our continued interactions, once COVID came, Judge Maloney wasn’t able to come around as much. He kept in contact and he’d let me know, in his charming way, that he wanted to attend meetings but didn’t feel safe. Thankfully Facebook kept us connected, and I was glad to see him in posts with his family over the last few years. Like many of the giants that I have come to know in my work here, Judge Maloney will be missed, and I thank him for always staying engaged with me and TCDLA. I recently attended the NACDL Past President dinner, where Judge Maloney was honored as a recently fallen past president. It made me so proud that one of our own TCDLA Presidents, along with the other Texas Past Presidents, were held in such high regard.

Many of those giants are not with us today, but who can forget their contributions; Kelly Pace’s smile and energetic pep talks bright and early; Scrappy Holmes’ late‑night stories; and I’ll always cherish Weldon Holcomb coming into the office, signing a book, and explaining to me what it was like to be a defense attorney decades ago. To this day we have Weldon’s first gavel memorialized in a shadow box hanging in the office. Similarly, many other pictures of the charter members who first met in Dallas in 1971 to found TCDLA grace the TCDLA home office, if you ever have the opportunity to come and visit.

To honor our leaders, we also began taking an annual Presidents’ picture at Rusty, which we hang in the office to celebrate anew those who sacrificed not just one year but six to work on the officer chain. These now join the more than 50 presidents adorning our wall. Each day I walk by and look at these people, some I’ve gotten to know very well as they helped me grow professionally and mentoring me over the years. The institutional knowledge of our past Presidents and Board members helps us all in so many ways that one can only understand when you yourself serve as an active leader in the association.

Once a small organization of some 60 attorneys, today we number close to 3,800, training more than 5,000 attorneys each year. With our grants, we continue to expand our out‑ reach to develop experienced criminal defense lawyers. Our efforts in the legislature have also grown, assuming more importance every year. But the continued success of our association comes from relying not only on our leaders but also on our members—who contribute by serving on a committee, writing a Voice article, testifying about legislation, helping a listserv colleague, giving a referral, or assisting with all the tools at their disposal at seminars.

In my years witnessing the growth of our organization, I myself have been given so many opportunities, been exposed to truths I would never have otherwise experienced—such as understanding what actual innocence means and what it means to represent somebody who needs a fair defense. Most of all, I’ve been given a chance to be part of the friendship bond. I have made some truly amazing friends in this organization.

When I looked at the video put together of all of our pictures collected over the last 50 years, I was struck by the heartfelt camaraderie: it was simply overwhelming. I am so proud to be part of an organization with people who not only care about one another but who will also fight alongside each other. The Texas Criminal Defense Lawyers Association is a singular organization, one we all should be proud to belong to. I look forward to celebrating another decade—no! 50 years!—and making it to the centennial celebration. Cheers to all our members and criminal defense attorneys who are part of the Organization’s past, present, and future.

Editor’s Comment: September 2022

/

Fair warning, the columns you read in this month’s edition of The Voice can induce mixed emotions. On the one hand, the memories of one of our founding members should remind each of us of all that is good in our profession and how we should all carry ourselves in the practice of law. On the other hand, we are always saddened by the loss of one of the heroes of criminal defense. I am personally saddened that I never had the chance to meet and speak with Judge Maloney. Judging from the outpouring of memories, it is my loss. But, this is a reminder for me that I need to cherish the time I have with all of my heroes. Some of you know me well enough to know who my personal heroes are, but we all need to remember that each of our heroes won’t be here one day. I will echo Heather’s words that we often wait too long to tell them what they mean to us and how they have helped us become the lawyers we are today. I know we’re all busy and finding time in a hectic day to say “thank you” or “I love you” or “I owe a piece of my success to you” can fall to the bottom of the to‑do list. Don’t let it. I challenge each of you to find a few minutes in the next month to reach out to your hero, tell them how you feel, and ask them about their own story. I promise you’ll be happy that you did.

When I was a high school kid, I had the wherewithal to ask my maternal grandfather and paternal grandmother about their stories. They were two of my favorite people in the world, and I realized I had never asked either of them about their lives. Granted, neither were lawyers, but I assure you the lesson remains. I am forever grateful that I took that time when lord knows I didn’t have the brain matter to think past my next baseball or football practice. In both cases, two of my heroes spoke with me like they had never before and told me, in vivid detail, the good and bad of a life long gone. I could picture marching into Paris in World War II with my Grandpa and what that must have felt like. I could also feel the misery my Grandma and her family endured of living on a ranch in Oklahoma during the Dust Bowl and doing everything possible to keep that land. In both instances, I saw my personal heroes shed tears, something I had never seen before. I got to see people who were larger than life in a way that was both more human and yet even larger than before. I wouldn’t trade those two conversations for anything in the world, especially because they both passed within a few years of those conversations and that was probably the last time anyone took the time to hear their stories. None of this is to say that I’ve perfected the art of talking to my heroes and letting them know how I feel. I’m just telling you it’s worth the time. Hell, as I write this and think about those conversations, I am simultaneously smiling and tearing up, but I know that they both got as much out of those conversations as I did.

Be safe.

Ethics and the Law: Lawyers Who Seek Judicial Office: A Re-Examination of the Rules

/

“I hate to hear people say this Judge will vote so and so, because he is a Democrat—and this one so and so because he is a Republican. It is shameful. The Judges have the Constitution for their guidance; they have no right to any politics save the politics of rigid right and justice when they are sitting in judgment upon the great matters that come before them.”

—Mark Twain

In light of recent controversial blockbuster rulings by the United States Supreme Court and in anticipation of upcoming Texas judicial elections, now seems a good time to re‑examine certain rules which apply to lawyers who seek judicial office.

The relevant rules are:

Texas Disciplinary Rules of Professional Conduct Rule 8.02

    • A lawyer shall not make a statement that the lawyer knows to be false or with reckless dis‑ regard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.
    • A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Texas Code of Judicial Conduct.
    • A lawyer who is a candidate for an elective public office shall comply with the applicable provisions of the Texas Election Code.

Comment:

    1. Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney 113 general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.
    2. When a lawyer seeks judicial or other elective public office, the lawyer should be bound by applicable limitations on political activity.
    3. To maintain the fair and independent ad‑ ministration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

Texas Code of Judicial Conduct Canon 5:

Refraining from Inappropriate Political Activity

    • A judge or judicial candidate shall not:
      • make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge;
      • knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or
      • make a statement that would violate Canon 3B(10).
    • A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party. A judge or judicial candidate may attend political events and express his or her views on political matters in accord with this Canon and Canon 3B(10).
    • A judge shall resign from judicial office upon becoming a candidate in a contested election for a non‑judicial office either in a primary or in a general or in a special election. A judge may continue to hold judicial office while being a candidate for election to or serving as a dele‑ gate in a state constitutional convention or while being a candidate for election to any judicial office.
    • A judge or judicial candidate subject to the Judicial Campaign Fairness Act, Tex. Elec. Code §253.151, et seq. (the “Act”), shall not knowingly commit an act for which he or she knows the Act imposes a penalty. Contributions returned in accordance with Sections 155(e), 253.157(b) or 253.160(b) of the Act are not a violation of this paragraph.

COMMENT

A statement made during a campaign for judicial office, whether or not prohibited by this Canon, may cause a judge’s impartiality to be reasonably questioned in the context of a particular case and may result in recusal. Consistent with section 253.1612 of the Texas Election Code, the Code of Judicial Conduct does not prohibit a joint campaign activity conducted by two or more judicial candidates.

Other than the rules stated, there is relatively little interpretive guidance on the subject, as precedent construing the ethics rules is scant.

A judge who violates Canon 5 or other pro‑ visions of the Code of Judicial Conduct is subject to discipline by the State Commission on Judicial Conduct. A lawyer running for judicial office who violates Canon 5 or other relevant provisions of the judicial code is subject to discipline by the State Bar of Texas.

Other “relevant provisions” include portions of Canon 2, which state:

  1. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
  2. A judge shall not lend the prestige of ju‑ dicial office to advance the private interests of the judge or others.

A judge or judicial candidate must also comply with statutory provisions regulating fund raising and other matters contained in the Texas Judicial Campaign Fairness Act.

Candidates Shall Be Honest

Judges and lawyers running for judicial office “shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation”. Texas Disciplinary Rules of

Professional Conduct 8.04(a)(3).

And, as noted above, Canon 5(1)(ii) of the Code of Judicial Conduct prohibits a judge or judicial candidate from knowingly or recklessly misrepresenting “the identity, qualifications, present position, or other fact con‑ cerning the candidate or an opponent.”

Thus, for example, a former judge cannot imply in political ads that he is a current judge. And, a judge who seeks reelection and is defeated cannot produce campaign materials to “reelect” or “keep” the candidate in a subsequent race against an incumbent on another court.

Judicial Candidates are Prohibited from Campaigning for Others

A judge or judicial candidate is prohibited from lending support for other campaigns. Canon 5(2) prohibits a judge from authorizing “the public use of his or her name endorsing another candidate,” and Canon 2(B) prohibits a judge from lending the prestige of judicial office to the advancement of private interests.

Thus, verbally recommending another candidate or otherwise supporting another candidate is unethical. Political contributions are risky as well. A contribution is appropriate only “when the judge is satisfied that neither the contribution nor the public record thereof will receive public attention before the election.” 166. Comm. on Jud. Ethics, State Bar of Tex., Op. 145 (1992), reprinted in 65 TEX. JUD. COUNCIL & OFF. CT. ADMIN. TEX.

JUD. SYS. ANN. REP. 126 (1993). Yard signs and bumper stickers are prohibited by the Rules and Canons.

My trophy wife Paula Lanehart served on the bench for more than 20 years. She reminded me constantly that I, as the spouse of an elected judge, should never publicly support or oppose a political candidate for office. The ethical rules are not clear on this issue. (The lawyer spouse of a current United States Supreme Court Justice is in the spotlight for her political activism.) Nevertheless, I held my tongue and avoided political donations for more than two decades, but I have publicly and loudly made up for my silence since Paula’s retirement.

Conclusion

Most of us will never seek judicial office, and when we do, we usually lose. After all, voters and politicians with the power of appointment view criminal defense lawyers as only a bit higher on the political food chain than our clients.

However, we as criminal defense lawyers are often confronted with unethical judicial candidates who promise to tow a particular law‑and‑order‑themed party line or platform. We stand by our clients as they face bad judges who skirt ethical rules and make decisions based solely on their perception of political expediency. The resulting unethical political abyss poisons our justice system locally, regionally and nationally.

We must all remember Texas Disciplinary Rules of Professional Conduct Rule 8.03(a)‑(b). When we are made aware of a breach of ethics by a lawyer or a judge, we are required to report the breach to the appropriate agency, the State Bar of Texas and/or the State Commission on Judicial Conduct.

Unethical conduct on behalf of another attorney must be reported to the State Bar. If you suspect a judge or candidate for judicial office of violating ethical rules, you must mail a completed, signed, and sworn complaint form to the State Commission on Judicial Conduct. The complaint form is available on the Commission’s website and can also be requested by email or phone.

I am reminded of one such breach of ethics many years ago in Lubbock County. A prosecutor known by criminal defense lawyers as unethical ran for a County Court‑at‑Law bench. Her opponent was a Lubbock County Associate Judge. The prosecutor claimed her opponent was not a judge but “only a mediator.” Her opponent filed a grievance, and the prosecutor was given a public reprimand by the 72nd District Court of Lubbock and required to pay $5,000 in attorney’s fees. Comm’n for Law. Discipline v. Susan J. Scolaro, Cause No. 99‑505,705.

Nevertheless, before her opponent’s grievance was adjudicated, the prosecutor won the election, but she was soon removed from office. The court found she failed to satisfy the statutory qualifications to be a judge and lied about it. Scolaro v. State ex. rel Jones, 1 S.W.3d 749 (Tex. App.—Amarillo 1999, no pet.). Her removal came primarily through the efforts of members of the Lubbock Criminal Defense Lawyers Association. Those who spearheaded the effort to remove the unethical judge were publicly skewered by the clueless Lubbock media and ultra‑conservative local citizenry. The judicial post she held is now occupied by a former member of the Lubbock Criminal Defense Lawyers Association. Karma is a thing.

“Always do right; this will gratify some people and amaze the rest.”

—Mark Twain

1 2 3 144