TCDLA

October 2021 SDR – Voice for the Defense Vol. 50, No. 8

Voice for the Defense Volume 50, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Pop quiz Sig Heads: can two flashlights strapped to the hood of a car serve as headlights? Follow up question: if you are committing a crime and you drive a flashlight-for-headlights car, should you either: (a) think twice about committing a crime, or (b) think twice about committing a crime at night. Extra points: does this fact pattern get better by adding a drug dog named Harley Quinn whose “I found drugs” signal is to wag her tail? This month isn’t just fun fact patterns. I celebrated my first case summary from a case found in the Federal Reporter Fourth Series (F.4th). I celebrated alone of course because who celebrates stuff like that? Me, I do. I also found a really good unpublished opinion, and in a way, I like to think it’s now kind of published—thanks Voice for the Defense! Compare Tex. R. App. Proc. 47.7.

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. Cases are hyperlinked and can be accessed by clicking on the case name.

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 published opinions since the last Significant Decisions Report. 

Fifth Circuit

U.S. v. Flowers, 6 F.4th 651 (5th Cir. 2021)

Issue. When you park your car at a convenience store in a bad part of town and don’t get out of your vehicle for 10-15 seconds have you given police sufficient reason to seize you?

Facts. An officer with Jackson P.D.’s Direct Action Response Team (DART), a proactive unit tasked to “look for suspicious behavior, suspicious activities, traffic stops, and things of that nature” was observing activity in an area of the city where “recent violent crime and burglaries” had occurred. This officer observed defendant inside his vehicle with a passenger for 10 to 15 seconds. The occupants did not exit the vehicle and did not appear to be patronizing the establishment. Due to defendant’s behavior, six patrol cars converged upon the defendant’s vehicle with their emergency lights activated. They positioned themselves in a manner so that the defendant could not leave. While interrogating the occupants of the vehicle, officers discovered a firearm in the defendant’s possession. Because he was a felon, the government charged and convicted him with the instant Felon in Possession of a Firearm case. At trial, defendant moved to suppress evidence obtained as a result of an unlawful seizure. The trial court denied defendant’s motion.

Holding. Yes. “The parties debate the existence of a ‘seizure’ under the circumstances here, and there appears to be no Fifth Circuit case where a law enforcement seizure occurred by the mere surrounding presence of police cars and Officer Stanton’s non-threatening approach to May’s auto. We need not resolve that debate and will assume arguendo [that there was a seizure]. . . . The following facts are determinative. [In addition to the area being known for crime], Officer Stanton was no novice. He possessed an undergraduate degree in justice administration and a masters degree in criminology and had ten years of law enforcement experience. . . . Two males were in the car, and Officer Stanton observed that neither of them stepped out of the Cadillac heading toward the store for 10-15 seconds.” This is reasonable suspicion. The court distinguished cases suggesting otherwise by pointing to the geographic specificity of high crime in the instant case, the very “unsavory” nature of the neighborhood, the suspicious place where the vehicle was parked—to the side of the business. Though the court assumes arguendo that there was a detention, the court also has much to say about how six police cars swooping in on the defendant with flashing lights was a simple and uncoercive “field interview.”

Concurrence / Dissent (Elrod, J.). The defendant was not parked suspiciously – he was parked in one of five or six available spots in the lot. Nor had officers received a report of suspicious activity. Based on their “dawdling” for 10-15 seconds, officers surrounded and “trapped” them with squad cars with emergency flashing lights. The majority is wrong to conclude that this Circuit has not held such police conduct a seizure – it has. See United States v. Beck, 602 F.2d 726 (5th Cir. 1979). The majority points to nothing particular about the circumstances present in this case that would lead one to conclude the defendant was exhibiting suspicious behavior. On numerous occasions this Court and the Supreme has found presence in a high crime area insufficient to justify reasonable suspicion—even in cases where an officer can imaginatively spin innocent conduct into seemingly suspicious conduct. “For citizens to become suspects, they must do more than merely exist in an ‘unsavory’ neighborhood. As my able colleague once put it, ‘it defies reason to base a justification for a search upon actions that any similarly-situated person would have taken.’ Rideau, 969 F.2d 1572, 1581 (Smith, J. dissenting). Otherwise, our law ‘comes dangerously close to declaring that persons in ‘bad parts of town’ enjoy second-class status in regard to the Fourth Amendment.” Id.

Comment. Forgive me for abundance of direct quotes, I felt the founding fathers judging me when I attempted to put this opinion in my own words. Also, I couldn’t stop picturing Sylvester Stallone driving around on his hover bike boasting his “undergraduate degree in justice administration.” The good news here is that this is my first F.4th opinion—a fact that excites me the same as it would potentially two other people I can think of on this planet.

U.S. v. Aguirre-Rivera, 8 F.4th 405 (5th Cir. 2021)

Issue. (1) In a drug conspiracy prosecution, is a defendant entitled to a judgment of acquittal when a jury returns a general jury verdict of guilty, but returns a special interrogatory finding the defendant was unaware that the conspiracy involved the requisite quantity of drugs constituting an element of the offense? (2) Under the same circumstances, may the trial court continue to subject a defendant to a drug-quantity-based enhanced minimum sentence in light of the jury’s inconsistent verdict?

Facts. A jury found the defendant guilty of conspiracy to possess with intent to distribute one kilogram or more of heroin. However, in a special interrogatory, that same jury could not find beyond a reasonable doubt “that the defendant knew or reasonably should have known that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin.” The defendant moved for a judgment of acquittal and argued the jury’s answer to the special interrogatory undermined an element of the offense. In sentencing the trial court relied on an erroneous presentence investigation report (PSR) which stated that the defendant’s offense was “Conspiracy to Possess with Intent to Distribute 100 Grams or More of Heroin”—an offense carrying a mandatory minimum of 5 years. Defendant maintained that he had been acquitted by the jury’s inconsistent verdict but also objected to the PSR on the basis that the jury had made no finding with regard to a drug quantity.

Holding. No. “We have explained that the essential elements of a drug conspiracy are (1) an agreement by two or more persons to violate the narcotics laws; (2) a defendant’s knowledge of the agreement; and (3) his voluntary participation in the agreement.” In Apprendi v. New Jersey, 530 U.S. 466 (2000) and in Alleyne v. United States, 570 U.S. 99 (2013) the Supreme Court required that any factual matter which increased a defendant’s maximum or minimum sentence be treated as an element of the offense. Notwithstanding the explicit language Apprendi and Alleyne, the Fifth Circuit chooses to treat such matters as mere sentencing enhancements—not “formal elements of a conspiracy or possession offense.” (2) No. The trial court cannot sentence a defendant by relying on facts not found by the jury. “This was constitutional error.”

Comment. It baffles me how most Courts look to the holdings of Apprendi and Alleyne and persist in making distinctions between elements of an offense and sentencing enhancements. “The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed. New Jersey threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race. As a matter of simple justice, it seems obvious that the procedural safeguards designed to protect Apprendi from unwarranted pains should apply equally to the two acts that New Jersey has singled out for punishment. Merely using the label “sentence enhancement” to describe the latter surely does not provide a principled basis for treating them differently.Apprendi, 530 U.S. at 476 (citing Oliver Wendell Holmes).

Texas Court of Criminal Appeals

The Court of Criminal Appeals Court did not hand down any published opinions since the last Significant Decisions Report.

1st District Houston

State v. Gallien, No. 01-19-00882-CR (Tex. App.—Houston [1st Dist.] Aug. 12, 2021)

Issue. Does Rule 606(b)(1) prohibit juror testimony pertaining to statements or incidents occurring during jury deliberation to impeach the jury’s verdict?

Facts. A jury convicted the defendant of aggravated robbery with a deadly weapon. During the punishment phase, the jury considered whether the defendant had two prior felony offenses for punishment enhancement purposes. The trial court received two notes. The first note, written by the foreman, indicated the jury was split 11-1 regarding whether the enhancement allegations were true. The second note, written by Juror No. 32, stated:

What if a juror feels that they were pressured by their peers into a guilty verdict?

I expressed to all of my fellow jurors that I was not comfortable with a guilty verdict due to the fact that the detective did not both confirm that the defendant understood and waived his rights. I feel that his Miranda rights were violated.

That violation coupled with the witness testimony gave me cause for reasonable doubt and I believe the defendant to be innocent. Fearing that I would be bullied, I changed my verdict to guilty.

Now that we are in the punishment phase, the exact thing that I feared has come to pass as I have been belittled, berated, and threatened with perjury of court due to my beliefs regarding the additional charges being considered in sentencing.

Honestly, I am not comfortable with this entire process and am not sure how to proceed.

Defendant immediately moved for a mistrial on punishment and the trial court granted. Later defendant filed a motion for mistrial and motion for new trial on guilt-innocence. Defendant argued the verdict did not represent an expression of opinion but was rather the product of bullying, harassment, and the threat of criminal prosecution. Before the hearing on the motion for a new guilt-innocence trial, counsel obtained an affidavit from Juror No. 32. The trial court vaguely admonished counsel on the inappropriateness of contacting a juror and informed the parties she would not consider the contents of the affidavit. The court instead focused on the mid-deliberation note over the State’s objection under Texas Rule of Evidence 606(b). This rule makes inadmissible any “statement made or incident that occurred during the jury’s deliberations” influencing the juror’s vote. The trial court overruled the State’s objection and explained her view of 606(b) as a rule prohibiting post-trial harassment of jurors. Instead of granting a new trial on juror misconduct, the trial court granted a mistrial “in the interest of justice.” The State appealed the granting of a mistrial.

Holding. Rule 606(b)(1) prohibits juror testimony pertaining to statements or incidents occurring during jury deliberation to impeach the jury’s verdict. There are only two exceptions to this rule, both found under 606(b)(2): testimony about an outside influence, and testimony to rebut a juror’s qualifications to serve. Pressure placed upon one juror by others does not fit within either exception. Defendant’s argument, and the trial court’s position, that Rule 606 was designed to prevent post-trial harassment and not post-verdict-pre-jury-discharge inquiries is unpersuasive. Texas courts have consistently referred to the rule as one pertaining to post-verdict inquiry and at least one federal circuit court has found the identical federal counterpart to Rule 606 to prohibit mid-trial post-verdict inquiry. Even if were proper for the trial court to consider the juror’s mid-trial note, being bullied, harassed, belittled, berated, and threatened with criminal prosecution is just a normal part of jury deliberation.

Comment. How about this. Rule 606 is stupid. Make a new one. “In sum, Rule 606(b) protects a good system that cannot be made perfect.” So, this defendant be damned and have fun in prison. And here is something else. Texas Rules of Appellate Procedure require a new trial granted when the verdict is not a fair expression of the juror’s opinion, or when the jury engages in misconduct. If someone can explain to me how these things are shown without violating Rule 606, I’d listen patiently until you were done being wrong under the current status of the law.  

2nd District Fort Worth

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

3rd District Austin

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

4th District San Antonio

State v. Robles, No. 04-20-00244-CR (Tex. App.—San Antonio, Aug. 4, 2021)

Issue. Can a judge dismiss a prosecution sua sponte without notice and a hearing because the prosecutor failed to timely prosecute the matter?

Facts. The County Attorney of Kinney County and the judge of the Kinney County Court are not seeing eye-to-eye. This is one of fourteen variations of a similar spat currently pending before this Court. This one vaguely references the County Attorney’s disagreement that the “trial judge’s pay to plea practice was not authorized by law.” It appears the County Attorney would not submit plea papers in several cases and allegedly “engaged in protracted efforts to frustrate the proper functioning of the County Court of Kinney County, Texas.”  The trial judge sua sponte, without notice, and without hearing, dismissed some prosecutions with an “Order dismissing for Want of Prosecution.”

Holding. No. “Without the denial or violation of a defendant’s constitutional right permitting a dismissal of a misdemeanor complaint a court does not have the authority to dismiss a case unless the prosecutor requests a dismissal.” “The State’s right to maintain a criminal prosecution enjoys special protection because it is fundamental to the proper functioning of the adjudicatory process.”

Olalde v. State, No. 04-20-00197-CR (Tex. App.—San Antonio, Aug. 18, 2021)

Issue. In an intoxication manslaughter case where a defendant presents rebuttal evidence showing, among other things, she was first struck by another vehicle before colliding with the decedent’s vehicle, is evidence sufficient to show the defendant’s intoxication was the cause of the accident and death?

Facts. Defendant was driving a Ford Expedition and collided with a Chevy Malibu. The driver of the Chevy Malibu died. The State presented evidence showing the defendant veered from the left lane into the right lane, then veered onto the sidewalk before ultimately returning her vehicle to the roadway. The driver of the Chevy Malibu entered the highway from a private drive. Defendant struck the Chevy Malibu at the moment she returned her vehicle to the highway from the sidewalk. The State’s accident reconstructionist estimated defendant’s speed at 74-75 miles per hour. Defendant presented evidence that she was struck by a silver Dodge Charger before the collision. She told officers this during their crash investigation. A witness at the scene took a video showing a silver vehicle at the crash site. A 911 caller mentioned a silver Charger at the scene. The State rebutted this defensive theory with a nearby store surveillance video showing no other vehicles on the access road at the relevant time and with police officer testimony regarding the lack of paint transfer on the Expedition.

Holding. Yes. There were two theories presented regarding the collision. A person is absolved of criminal responsibility only when a concurrent cause is clearly sufficient to produce the result and the conduct of the defendant was clearly insufficient. Tex. Penal Code § 6.04. When defendant’s conduct is sufficient by itself to cause the result, or when the defendant’s conduct combines with a concurrent cause to cause the result, a defendant remains criminally liable. Here the jury was not unreasonable to reject the defendant’s evidence, or to accept the defendant’s evidence but find that the defendant’s intoxication combined with the concurrent accident caused the death of the Chevy Malibu driver.

5th District Dallas

Guyger v. State, No. 05-19-01236-CR (Tex. App.—Dallas, Aug. 5, 2021)

Issue. (1) Is a defendant entitled to a mistake of fact acquittal when she intentionally killed an individual after entering his apartment, but when the record reveals dozens of circumstances showing the defendant believed she had entered her own apartment and the victim was an intruder? (2) Is a defendant entitled to a self-defense acquittal under the same circumstances? (3) Is criminal culpability capped at criminally negligent homicide under the same circumstances?

Facts. Defendant was a Dallas police officer. She was convicted of murder after she entered a neighbor’s apartment at the end of her shift and shot him. Both the defendant and the victim lived in the Southside Flats Apartments. Defendant was a resident of 1378 on the third floor; victim was a resident of 1478 on the fourth floor. Evidence showed the layout of the building was confusing; one could easily mistake what floor they were on when entering from apartment hallways from the parking garage. When defendant approached 1478 she believed she was at her apartment. The door was ajar, and defendant testified that she heard someone shuffling around inside. She perceived a threat but did not call for backup or take cover. Instead, she entered and encountered the resident of 1478—Botham Jean. Defendant testified that she ordered Botham Jean to put his hands up and then she shot him in the chest intending to kill him. Defendant attempted to resuscitate Jean while calling 911. During that time, Defendant told the dispatcher 20 times that she thought she was in her own apartment, that she “fucked up” and panicked about losing her job. The investigating Texas Ranger testified that 23% of residents living on the third floor had accidentally tried to enter the wrong apartment at some point. Bullet trajectory testimony showed a fatal shot inconsistent with the defendant’s story of Jean standing up and moving toward her. Other residents testified to hearing the gunshot but without any warnings or commands from the defendant.

Holding. (1) No. A mistake of fact defense may only negate an element of an offense which requires a culpable mental state. “It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” Tex. Penal Code § 8.02(a). Here a “mistake of fact would apply if Guyger mistakenly formed a reasonable belief that negated her intent to kill Jean.” Defendant did not mistakenly shoot Jean, she testified that she intended to kill him. “[T]he mistaken facts upon which Guyger relies are relevant only to whether Guyger was justified in shooting Jean.” (2) No. An individual may defend him or herself with deadly force when the individual reasonably believes such force is necessary to protect oneself from another’s use or attempted use of unlawful deadly force. Tex. Penal Code § 9.32(a) A defendant’s reasonableness is presumed when she knew or had reason to believe the victim entered the defendant’s habitation with force. Tex. Penal Code § 9.32(b). The defendant points to “her mistaken belief that she was in her own apartment to support the reasonableness of her belief that Jean posed an imminent threat. Mistake of fact, however, plays no role in self-defense—the former addresses Guyger’s culpable mental state; the latter addresses the circumstances of Guyger’s conduct. Guyger’s argument thus [improperly] bootstraps mistake of fact to reach the section 9.32(b) presumption of reasonableness.” Sufficient evidence supports the jury’s rejection of self-defense. A trained police officer testified that, in the defendant’s scenario, it is preferrable to take cover, call for backup, and offer the perceived intruder an opportunity to surrender. There was also some conflicting evidence regarding the moments before the shooting: whether Jean was seated or standing up and advancing, and whether the defendant demanded Jean show his hands prior to shooting him. Self-defense was not irrefutably shown. (3) No. Murder is a “result of conduct” offense. “Guyger’s mental state with respect to the result of her conduct—Jean’s death—determines the applicable offense. . . . The conscious objective or desire to cause death, or awareness that certain conduct is reasonably certain to cause death, gives rise to murder.” Defendant points to dozens of circumstances which led her to believe she was entering her own apartment, but the circumstances surrounding her conduct are irrelevant to this analysis. Defendant intended to cause the result of death according to her own confession.

Comment. The one thing I latched onto in this opinion was the following quote: “[w]e differentiate mistake of fact—a defense—from justification. Justification depends on the circumstances giving rise to the challenged conduct, and the reasonableness of the defendant’s belief that the conduct is immediately necessary to avoid imminent harm. [block quote of Tex. Penal Code § 9.22 “Necessity”].” The court then parlays this into a discussion about deadly self-defense in which it rejects the notion that a defendant can avail herself to the in-her-own-home presumptions with an erroneous but potentially reasonable perception she was in her own home. I’m not sure if the court means to imply that the defendant might have prevailed had she only raised a Section 9.22 necessity defense. Looking through the briefing in this case to see whether the parties addressed Section 9.22, it appears the State has latched onto the same quote. Unsatisfied with 100% victory, they have filed a motion for rehearing insisting the court shouldn’t have said that.

Sledge v. State, No. 05-19-01398-CR (Tex. App.—Dallas, Aug. 26, 2021)

Issue. A jury convicted a defendant of an offense but found the State’s enhancement allegations not true. Defendant moved for and the trial court granted a new trial, and the new jury found defendant guilty and found the State’s enhancement allegations true. Under these circumstances is counsel ineffective for failing to argue collateral estoppel or issue preclusion as a bar to the enhancements in the second trial?

Facts. Defendant was involved in an altercation where he ended up shooting a gun down the hallway of an apartment complex and then held a gun to someone’s head. Defendant fled the apartment in a vehicle driven by another person. When police stopped the vehicle at a convenience store, defendant exited and attempted to walk into the store while the driver remained. Police detained defendant and conducted a protective sweep of the vehicle. They discovered “a pistol on the driver’ side floorboard, and a bag containing several smaller bags of what appeared to be illicit drugs on the passenger’s side.” Upon arresting defendant, they found $3,000 in cash on his person. Defendant was charged with possession with intent to deliver: (1) heroin, and (2) cocaine, as well as felon in possession of a firearm. The State attempted to enhance defendant’s sentences in the drug cases with: (1) a prior felony conviction, and (2) the use of a firearm. The State attempted to enhance defendant’s sentence in the firearm possession case with only the prior felony conviction. The jury convicted the defendant of the offenses but found all enhancements not true. Defendant then requested a new trial “which was granted without any specific grounds identified.” Defendant’s second jury found him guilty and found the enhancements true.

Holding. Yes. “In Ashe v. Swenson, the Supreme Court recognized that the Fifth Amendment guarantee against double jeopardy embodies the principle of collateral estoppel.” Collateral-estoppel in the context of double jeopardy means that “the government may not litigate a specific elemental fact to a competent factfinder (judge or jury), receive an adverse finding, learn from its mistakes, hone its prosecutorial performance, and relitigate the same question of fact.” There is no provision in the law requiring a defendant to “forgo favorable portions of a verdict as a condition of challenging the balance of the verdict that was answered against him . . .” Like elemental facts, findings regarding enhancement elements are entitled to the preclusive effect of collateral estoppel under double jeopardy principles. Because the court can imagine no reasonable strategy for counsel’s failure to object to the State’s deadly weapon and habitual offender allegations, counsel’s performance was harmfully deficient. 

Dissent (from denial of en banc consideration) (Burns, C.J.) Double jeopardy applies if there has been one of three possible jeopardy terminating events: (1) an acquittal, (2) a trial court determination of insufficiency of the evidence leading to directed verdict of acquittal, and (3) an unreversed determination on direct appeal that there was insufficient evidence to support the conviction. The original jeopardy was never terminated because the trial court granted a motion for new trial. “There could be a number of reasons why defense counsel did not raise the issue of collateral estoppel in retrial. For one, she would have had no way to peer into the future and know or guess that a panel of our Court was willing to expand the law surrounding motions for new trial.”

Comment. Snatching victory from the jaws of defeat from the jaws of victory? There’s a lot of jaws here is what I’m saying, I guess. I’m trying to wrap my brain around (without Westlawing) why the argument had to be ineffective assistance rather than a simple due process argument that the conviction cannot be enhanced without regard to the effectiveness of counsel.

6th District Texarkana

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

7th District Amarillo

In re City of Lubbock, No. 07-21-00070-CV (Tex. App.—Amarillo, Sep. 2, 2021)(not designated for publication)

Issue. (1) When a defendant seeks an ex parte discovery order pursuant to his due process rights and without utilizing the Code of Criminal Procedure’s mechanisms for discovery, must he first mount a challenge to the constitutionality of the Code of Criminal Procedure? (2) Is a defendant limited to the mechanisms provided for in the Code of Criminal Procedure when seeking discovery from a third-party witness?

Facts. The defendant in a pending child sexual assault case had a theory that another witness in the case had influenced complainant to make false allegations. The defendant sought records of the third-party witness’s own false allegations. Instead of making a discovery request or seeking a subpoena, defendant sought an ex parte order from the trial court to command the City of Lubbock / Lubbock Police Department to produce records regarding the witness “including but not limited to: records where she was reported to be a child victim of sexual abuse.” The trial court issued the requested order with instructions prohibiting the city from disclosing the existence or contents of the order to the State or any other person. The city objected to the ex parte nature of the order and the trial court held a hearing to consider their arguments against production. At that hearing, the trial court conducted an in-camera inspection of records at the request of the defendant. After inspection, the trial court persisted in its order. The instant proceeding is the city’s petition for writ of mandamus seeking protection from the trial court’s order. 

Holding. (1) No. The defendant asserted a due process right to investigate and obtain discovery in a manner consistent with his right to not disclose defensive theories. He sought an ex parte court order to obtain the documents in the possession of a government entity because other mechanisms provided for under the Code of Criminal Procedure would not allow him to conduct such an investigation. “Despite these assertions, [the defendant] steadfastly maintains that his ex parte motion is not a constitutional challenge to any statute . . . . Rather, it is the City that argues [the defendant] must contend that the provisions of the Texas Code of Criminal Procedure are unconstitutional and that the trial court erred by implicitly finding that the discovery provisions of the Code violate his state and federal constitutional rights. The City is simply wrong in this contention for the reason that articles 24.02 and 39.14 of the Texas Code of Criminal Procedure are not the exclusive means by which a party may seek the discovery of relevant information under the control of a third party.” (2) No. A defendant has a constitutional right to investigate without exposing his defensive theories or the nature of his investigation to the State. The tools for discovery under the Code of Criminal Procedure do not always permit for such an investigation. In Ake v. Oklahoma, 470 U.S. 68 (1985) (and in its progeny) the Supreme Court held that criminal defendants have the right to the basic tools essential to their defense and may request assistance from the court ex parte to maintain the confidential nature of representation and to avoid disclosing defensive theories. For the same reasons articulated in Ake, the law permits the trial court to issue an ex parte order compelling a third-party to produce discovery.

Comment. We should all strive to have a court quote our briefs as much as the majority opinion quoted defense counsel’s in this case. This is an important opinion—one the court should publish.

8th District El Paso

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

9th District Beaumont

Edwards v. State, No. 09-19-00180-CR (Tex. App.—Beaumont, Aug. 25, 2021)

Issue. Officers posed as a fictitious 14-year-old girl on the internet. Defendant asked for a picture of her masturbating, and she declined. The fictitious child asked for sex, and the defendant declined. Under these circumstances, does a prosecution for attempted sexual performance by a child violate the First Amendment?

Facts. The State charged defendant with attempted sexual performance by a child. Detectives posing as children posted on social media that they were bored and looking to hookup with adults. Defendant chatted with the fictitious child and, when asked, detectives sent defendant pictures of a fifteen-year-old girl. Eventually, defendant sent pictures of his penis and asked the fictitious child to send pictures masturbating. The fictitious child declined to send pictures of herself naked but invited defendant to come over and hang out. Defendant accepted the invitation but declined the fictitious child’s invitation to have sex. Detectives arrested the defendant on arrival and interrogated him. Defendant stated he believed the person he was meeting was 18 despite the explicit representation that she was 14. Defendant argued that the picture she sent led him to believe she was 18. Defendant denied he was there to do anything other than hang out or go to lunch. Detectives did not find condoms, lube, or things customarily found when intercepting defendants in other solicitation of minor stings.

Holding. No. An as applied First Amendment challenge requires the court to look at the specific conduct of the defendant and determine whether the statutes at issue as applied to him were unconstitutional under the circumstances. Sexual performance by a child includes the inducement of a minor to take a photograph masturbating. Defendant attempted to commit this offense by doing more than a mere act amounting to preparation in this regard. “Words that are specifically designed to prompt an associate to action are not simply speech [in the context of the First Amendment], but are conduct that may be treated accordingly.” Barnes v. State, 206 S.W.3d 601, 606 (Tex. Crim. App. 2006). Defendant’s suggestion that the combination of the criminal attempt statute and the sexual performance by a child statute could criminalize “non-obscene communications between two consenting adults when one of the participants claims to be under seventeen” is a facial challenge to the constitutionality of the statute which was not raised in the trial court. Nor is this argument particularly persuasive—the statute proscribes certain conduct directed at a minor who the defendant believes is a minor. It does not sweep too broadly.

Comment. I’m not sure Attempted Sexual Performance by a Child can be a crime. It’s like saying attempted attempt to do something. The actus reus of the underlying offense includes “promotes a performance” without regard to whether that promotion was successful.

White v. State, No. 09-19-00328-CR (Tex. App.—Beaumont, Aug. 25, 2021)

Issue. Does the trial court have a sua sponte duty to provide the jury with an Article 38.23 instruction permitting it to disregard evidence it believes was illegally obtained?

Facts. A K-9 deputy with the Montgomery County Constable’s Office saw a vehicle using two flashlights strapped to the hood of the vehicle as headlights. He stopped the vehicle and after he was denied consent to search, he deployed his narcotics dog. The dog’s name was Harley Quinn, and Harley Quinn was a dog whose narcotics alert involved either wagging her tail or sometimes not wagging her tail. She also might alert on drugs by putting her ears back. Ultimately Harley Quinn sits down when she decides to give a final alert. The K-9 deputy testified Harley Quinn alerted on defendant’s vehicle by doing a “passive sit” on the driver’s side door. The deputy then searched the defendant’s vehicle on the basis of probable cause. Defendant moved to suppress the search of the vehicle based on video evidence not depicting Harley Quinn sitting at the driver door. The K-9 officer testified that Harley Quinn’s “passive sit” must have occurred when she was at the front of the vehicle and off-camera and just before she jumped in front of the driver’s door to get a tennis ball. The trial court went along with this and denied the motion to suppress. Defense did not request an Article 38.23 instruction and expressed satisfaction with the jury charge as written. When defendant’s counsel twice attempted to argue in closing the legality of the search, the trial court sustained the State’s objection. Then, having excluded from consideration the legality of the search, the prosecutor argued the legality of the search. During deliberations the jury sent the trial court a note asking whether it should consider that there was probable cause to search the vehicle.

Holding. No. Because the defendant did not object to the trial court’s jury charge, the appellate court will only review for egregious error—error that denies a defendant a fair and impartial trial when looking at the charge as a whole, conduct of counsel, and the entirety of the case and evidence. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Because the rest of the jury charge [the part explaining how to find the defendant guilty] was correct, the omission of the statutory right of the jury to disregard evidence of guilt was not harmful when weighed against the rest of the jury charge. The weight of evidence showing the dog alerted on the driver-side door was considerable and weighs against egregious harm. The fact that both sides focused arguments on the legality of the search was inconsequential.

Comment. I mean this whole thing is wheels off. A dog named Harley Quinn that alerts by doing normal dog stuff. Then the “final alert” was on the driver-side door, but you can’t see it because the dog is not at the driver-side door when it does a “passive sit” on the driver-side door. Also, you can’t prolong a detention to make someone wait on a dog sniff. And, I’m pretty sure flashlights strapped to the hood might be good enough to pass Transportation Code muster. To top this all off the Court strains the Almanza test to uphold a conviction with a most superficial analysis. Why publish this?

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

Monroy v. State, 11-19-00257-CR (Tex. App.—Eastland, Aug. 5, 2021)

Issue. (1) Texas code of Criminal Procedure Article 38.072 permits the first witness to a child’s outcry of sexual abuse to testify notwithstanding the rule against hearsay; under this rule, can multiple witnesses qualify as outcry witnesses in a continuous sexual abuse trial? (2) Can a prosecutor argue inferences from the defendant’s failure to call a witness?

Facts. A child sexual assault victim outcried to her mother and the defendant’s sister simultaneously. On a separate occasion, the child outcried to her stepmother. This occurred after the child’s mother dropped her off with maxi pads and explained that the eight-year-old child had started her menstrual cycle. Stepmother questioned the child until the child admitted that defendant was sexually abusing her.  The trial court allowed both the mother and the stepmother to testify as outcry witnesses. The testimony of each witness describing what the child had told them was nearly identical. However, the stepmother concluded that digital penetration had occurred, and the child’s mother had concluded that the child made it all up. Defense counsel argued in closing that the child’s timeline rendered her accusations impossible. On the dates and times of the alleged assault the child would have either been with her mother, grandmother (defendant’s mother), or in school. The State suggested the defendant had something to hide by not calling his mother.

Holding. (1) Yes. Texas Code of Criminal Procedure Article 38.072 “provides that outcry testimony from the first person, eighteen years of age or older, other than the defendant, to whom the child makes a statement describing the alleged offense will not be inadmissible because of hearsay, subject to certain procedural requirements.” The statement must describe the offense and be more than a general allusion. Hearsay from more than one outcry witness is admissible if the witnesses testify about different events—“designation of the proper outcry witness is event-specific.” Here one witness described an outcry involving touching and the other witness described an outcry involving penetration. The evidence sufficiently established that the child outcried about different events. (2) Yes. a prosecutor may comment on the defendant’s failure to call a witness if it does not fault the defendant for his failure to testify. And the failure to produce an available witness justifies an inference that the witness would testify unfavorably. Moreover, in the context of this case, the State’s argument was invited by the defendant. The defendant argued that the victim’s story was impossible because the events occurred during a time when his mother (child’s grandmother) would have been home and had not opportunity to be home alone with the victim as depicted in her stories.

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

Garcia v. State, No. 14-190-00086-CR (Tex. App.—Houston [14th Dist.], Aug. 10, 2021)

Issue. Do two bullet wounds which missed vital organs but required three hours of medical treatment where a doctor had to check to make sure everything was okay and staple the wound shut constitute serious bodily injury?

Facts. Defendant shot at complainant twice. One bullet went through her thigh without striking any organs. Another bullet went through her breast without striking any organs. Complainant went to the hospital and received minor medical attention. The treating physician testified that he used staples to close the wounds, that staples cause scars, and that “a gunshot wound can cause serious bodily injury and even death, and based on the location of complainant’s wounds, he believes she sustained serious bodily injury.” However, the physician “did not discuss whether complainant’s injuries, if left untreated, could have created a substantial risk of death or caused death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Holding. No. First degree aggravated assault on a family member requires the defendant to use a deadly weapon and cause serious bodily injury. Serious bodily injury is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Penal Code § 1.07(a)(46). The injury inflicted is assessed “as inflicted, not after the effects have been ameliorated or exacerbated by medical treatment.” “A gunshot wound is not per se serious bodily injury.” Here there was no evidence that bullets hit any vital organs or caused lasting impairment or disfigurement. Complainant remained standing after being shot, gathered her things, and drove away. Complainant did not receive any serious medical treatment at the hospital. Complainant testified she felt she was going to die and that she now has scars, but she did not explain why she felt that way or describe her scars. “The simple fact that some scarring occurred is not sufficient to support a finding of serious bodily injury.” Complainant’s treating physician testified that he believed complainant suffered serious bodily injury, but that opinion was not shown to be linked to the statutory definition. The physician testified no vital organs were struck and did not testify what would have happened if the complainant went untreated.

Dissent (Poissant, J.) “Complainant suffered two gunshot wounds near vital organs, bled profusely, lost consciousness, required emergency room treatment, has bullet fragments in her right thigh, has scars from the bullet wounds. The testimony of the emergency room physician who treated Complainant established both that the Complainant suffered serious bodily injury and that her injuries could have caused Complainant’s death.”

Comment. My initial instinct here was to focus on “creates substantial risk of death.” I would think any gunshot wound creates a substantial risk of death, especially when you have a doctor give the ole “little to the left or little to the right” testimony. Near the end of the opinion, however, the court does a good job string citing scary-conduct-not-so-scary-injury cases supporting this outcome.

Ex parte Estrada, No. 14-20-00758-CR (Tex. App.—Houston [14th Dist.], Aug. 19, 2021)

Issue. Does the Confrontation Clause of the Sixth Amendment prevent the State from introducing hearsay testimony adverse to the defendant at a pretrial writ of habeas corpus requesting bail reduction?

Facts. Defendant, a previous felon, was arrested when he entered a Houston P.D. “bait house” (fake drug home to lure drug burglars) with body armor and guns. His bond was initially set at $1.25 million. This is the appeal from the writ of habeas corpus whereby the trial court reduced his bail to $900,000. At the hearing on defendant’s writ, defendant presented testimony that family could post a bond amount of $25,000, that defendant maintained steady employment with ties to the community, and that he has “co-morbid conditions” increasing his risks to serious health problems should he contract COVID-19 in the jail. The State presented no testimony. The State offered and the trial court admitted a copy of the indictments and a written summary from the investigating detective over defendant’s hearsay and Sixth Amendment objections.

Holding. “The closest the Texas Court of Criminal Appeals has come to ruling on this issue was in a 1971 case, Ex parte Miles, in which the Court held a defendant possessed rights under a differently formulated provision of the Texas Constitution ‘to be confronted with the witnesses against him at [a pretrial bail hearing] before bail can be denied,’ as statements by out-of-court witnesses were not evidence substantially showing the guilt of the accused.” 474 S.W.2d 225 (Tex. Crim. App. 1971).” But this case centers on different constitutional rights and on the probative value of non-testifying witnesses, not a defendant’s confrontation rights. The Supreme Court has limited confrontation rights to instances of trial testimony and in parole hearings. Lower federal courts have denied the right to confrontation in bail proceedings. Here, the defendant erroneously relies on “his own characterization of the Texas Court of Criminal Appeals’s Miles decision,” that “an accused is entitled to be confronted with the witnesses against him at [his bail] hearing.” The Court of Criminal Appeals in Miles interpreted the Texas Constitution as it pertains to outright denial of bail, not the federal constitution’s right to confrontation.

Comment. The court distinguishes the right to confrontation in the context of parole by arguing [t]hose hearings implicate a set of rights and interests entirely distinguishable from those in play during pretrial detention hearings.” I don’t quite agree.

Thomas v. State, No. 14-19-00685 (Tex. App.—Houston [14th Dist.], Aug. 26, 2021)

Issue. Does Texas Code of Criminal Procedure Article 38.371, which permits the introduction of evidence in a domestic violence case which helps explain the “nature of the relationship between the actor and the alleged victim,” facially violate a defendant’s right to due process? 

Facts. Defendant was smoking crack with his wife (complainant). After believing she was hiding some of the crack he began to assault and choke her. The child in the room started screaming and hollering, and the neighbor called 911. Complainant testified at trial accordingly, even though she had previously given numerous sworn and unsworn statements exonerating the defendant. Defendant’s trial strategy was to challenge the complainant’s credibility. To rebut this defense, the State introduced evidence of a prior assault from 2017 involving the same couple and the defendant’s use of crack prior to commit assault. The trial court admitted this evidence pursuant to Texas Code of Criminal Procedure Article 38.371 which permits the introduction of all evidence which would permit the jury to understand the “nature of the relationship between the actor and the alleged victim” but maintains the normal rules against character conformity evidence contained in the Texas Rules of Evidence. The trial court gave a jury limiting instruction that required the jury to first determine whether the prior bad act was shown true beyond a reasonable doubt and prohibited its use as character-conformity evidence. In the punishment phase of trial, the trial court permitted the State to admit over the defendant’s objection disciplinary records from his previous period of incarceration for aggravated robbery.

Holding. No. “Generally, an accused must be tried only for the offense with which he is charged and may not be tried for a collateral crime or being a criminal generally.” Texas Code of Criminal Procedure Article 38.371 permits the introduction of all evidence which would permit the jury to understand the “nature of the relationship between the actor and the alleged victim” but maintains the normal rules which apply to character conformity evidence contained in the Texas Rules of Evidence. There is no fundamental right to a trial free from the introduction of extraneous offense evidence. Accordingly, Article 38.371 must only pass a rational basis test—it must be reasonable, not arbitrary, and rationally related to a legitimate state interest. Due to the nature of family violence cases and victims who frequently recant or don’t testify, the “nature of the relationship between the actor and the alleged victim” help “confirm the complainant’s initial—and later recanted—statements to the police, or to explain the complainant’s unwillingness to cooperate with law enforcement or prosecution.” Appellant’s contention that Article 38.371 violates due process by dispensing with any balancing consideration by the judge is without merit. Article 38.371 expressly provides that the Rules of Evidence pertaining to character conformity evidence shall not be violated – this includes a 403 balancing test.

Comment. I don’t get the use of “generally” before the sentence “an accused must be tried only for the offense with which he is charged and may not be tried for a collateral crime or being a criminal generally.”

Court Appointed Attorneys are “Cop Out” Attorneys

In my fifty plus years of practicing criminal defense, I have heard the above title more times than I can count. And, to a certain extent, I agree, for several reasons. Let me begin by explaining that in State appointments, the attorney is faced with very marginal, and in many instances, well below adequate compensation for the time required in representing a court appointed client, due to the fees that are allowed by the judges and county commissioners. This is especially true in the smaller and more rural counties.  What is striking in this resolve is that the judges make their normal salaries for their work, the prosecutors make their normal salaries for their efforts, the bailiffs make their normal salaries for their employment, the court reporters make their normal salaries plus payment for their work on appeals, and the law enforcement officers make their normal salaries for their investigation and testimony. However, the defense attorney is required to perform his or her duties with substandard compensation, limited sources of funding, and often having said compensation/funding reduced by the judge when the case is disposed by trial or plea regardless of the amount of time an attorney has had to put into his representation.  Often times the court appointed attorney does not put the time and effort that should be devoted to a particular case, as a result of overhead costs, family expense, and in today’s society, repayment of student loans. However, I have seen some court appointed attorneys who “padded their vouchers,” others who do not even set up files, others who try to convince their client to plead guilty to keep from going to trial, and some who have no business proceeding to a jury trial due to lack of experience or fear of jury trials. This is not to say all court appointed attorneys fall into these categories. I have known many very fine and competent court appointed attorneys who are without any of these faults. I am writing this article to provide attorneys, who accept court appointments (State or Federal) with practical tips that will aid in practice and dispel the title of this article. I would encourage you as a defender of the “citizen accused,” to at least try them out.

State Appointments

  1. Go and see your new client in custody or have the client come to your office if they are on bond. In this regard, I suggest that you do so at times when it does not take away from your “paying clients” (i.e., on your way home at the end of the day; on your way to the office in early morning; on weekends, when it is less crowded, or at vacancies during your office hours).
  2. If you are unable to meet with your client in person, quickly send a letter to the client telling them when you will be there to visit or setting an appointment in your office at a “lax time”. Try not use “Zoom” or “phone” – you need to see your client in person and let them see you. You need to make your visit personal.
  3. At the initial visit, advise your client of the following:
    1. You are appointed but not to worry, you will do your best for them;
    2. You will go over the discovery with the client after you receive same and review it with the client. Also, explain that under Art. 39.14, you are unable to provide the client with copies of the discovery, but you can make sure they see all discovery, whether in custody or in your office;
    3. Explain the “attorney client privilege,” advising the client that you cannot discuss the case with anyone other than the client without written permission granted by the client;
    4. Have a good interview form to get the basics, and a brief description of the facts and advise the client that you will get more facts from them after you review the discovery;
    5. Make sure to get information about and contact information for your client’s family, employers, and possible witnesses. Let your client know that you are interested in taking care of them as your client, so this information may be helpful later;
    6. Advise your client of the particular charge(s) brought and the range of punishment facing the client. Back this up with a letter to your client, advising them of the charge(s) faced and the range of punishment for each charge;
    7. Inform the client that you do not accept collect phone calls from the jail due to the likelihood of the conversation being recorded. As a matter of fact, I routinely inform the client that I never use jail phones during visitation. I have, on several occasions, had something come up during representation that was discussed “privately” on a jail phone;
    8. Make sure to take the time to build trust between you and your client using your personality to instill assurance;
    9. Explain to the client that your staff will not discuss the case with a client or members of the client’s family. Explain that the client should only discuss the case with you or when you are present;
    10. Advise your client, if in custody, that you do not have time to come out to the jail “to hold their hand” and to see how they are doing. Explain that doing so would take away from the time that you need to spend on the case. If the client needs to talk to you about something, tell them to have a family member or friend call and let you know the client needs to talk to you and you will be out as soon as you can. I also usually take a postage paid envelope or two addressed to me and leave with the client, so the client can send me a message if necessary;
    11. If the client is not in custody advise the client to keep in touch with you about changes in reference to address, phone number, employment, or new charges filed that you may not be aware of, to ask you questions, and let you know about any new evidence that the client may discover;
    12. Let the client know that you care about them and the outcome of their case, using your own method of doing so;
    13. Advise your client that they will be sent copies of every document filed in the case and follow through by sending it to them (mail from an attorney is a “status symbol” with inmates. And, other inmates will often tell your client, “I don’t get these from my court appointed attorney, and I only see my attorney when I get to court”). If the client is not in custody, send them to their mailing address or email address;
    14. I also recommend that in the first visit you express the seriousness of the offense and that you do not have a “magic wand” to make everything go away. Explain that criminal cases are based on facts. An attorney cannot change facts, but in some instances the attorney can manipulate these facts to benefit the client but you are not in a position yet to make an evaluation of what the ultimate result may be at this time. Also, explain that you may or may not be able to manipulate them (i.e., you may be limited to damage control);
    15. Explain that after you review the discovery, and investigate the facts provided by both your client and the prosecution, you should be able to advise them on what options are available. Advise the client that they will have to make a decision on what option they decide to take. As long as a client is willing to accept the risks involved in any option, you are ready, willing, and able to give your very best to try to make it happen. But facts are facts, and the client’s criminal history always plays a part in the ultimate result in the client’s case so be sure to explain any risks that there may be.
  1. When you get a copy of the indictment or complaint and information make sure to send a copy of the same to your client and tell them to make sure that these papers, along with any other papers you send the client, are important and the client should keep them;
  2. Another situation that will help you offset your time is to file a motion for appointment of an investigator. The investigator can perform many tasks for you. If you prepare your motion properly most judges will allow you some funds to do so. If you need more funding, file a motion for it. In this regard, make sure your client knows you have hired an investigator and introduce them to your client;
  3. While your client is sitting in jail waiting for things to happen, or out on bond, I suggest that you use a form letter, and advise them either the present status of the case OR inform the client that you are still working on the case but have nothing of any importance to tell them at this time. I recommend that you do this at least once per month;
  4. Review the discovery as quickly as you can. It’s often very difficult for me to do it during the day at the office, so I do it early in the morning or after 5 p.m. when not faced with the interruptions by phone, secretaries, or “drop-in clients”. Take notes, highlight important issues while reviewing, and keep them in your file;
  5. As quickly as possible, meet with the prosecutor and get a recommendation for a plea. I have learned there is a lot of psychology involved in dealing with prosecutors, so you have to know how to deal with a particular district attorney or their assistant. Often times, the first offer is just a starting place with your client’s case. Tell the prosecutor that you will present it to your client but don’t know how your client will respond as you just started on this case. Don’t put all your cards on the table at this point;
  6. After reviewing the discovery, getting the facts, witnesses for the client’s defense, and going over the discovery with the client, including the criminal history, then give the offer to your client, and back it up with a letter confirming that this is the “present offer” and advise the client that you will continue to negotiate if they so desire. Then the psychology aspect comes in. You have to know your prosecutor and how to negotiate at this point. Only lay your “cards” out as a last resort, and even then, be very careful using intimation rather than hard facts, which can give the prosecutor time to prepare and fix any problems;
  7. Do not overlook preparing for “punishment”. So many times, in my past 50 plus years of practice, there was no way to win the battle over guilt and innocence. However, I have been able to win the war with community supervision or a much lower sentence than the plea-offer. Too often, lawyers focus just on guilt or innocence and put punishment on the back burner. Prosecutors generally do not focus on punishment, and you can use that to your advantage. Even to the point, don’t advise the prosecution or the court until after the indictment or complaint and information are read before the jury or judge, that you are entering a “guilty” plea and going to the jury or the court only for punishment. There are two advantages to doing this: (1) The prosecution still has to put on evidence to meet their burden of proof. But, it often times shortens or softens the facts, and (2) you are ready with your case in chief, “punishment”. If your client wants a trial, as long as they are willing to accept the risks, which you must set out for the client, you will have to go to trial and explain you will do your very best, but don’t expect a miracle. In this situation, always back your client’s decision up with a correspondence confirming their decision and setting out the risks involved. When a final offer is made, and your client accepts or rejects same you should confirm this in correspondence to your client stating the offer, their acceptance and/or rejection and if rejected, make sure you point out the risks to the client in this correspondence;
  8. You should also check the jail records to see if there are any “detainers” from other counties, states, parole, probation, and even Federal detainers as they have to be taken into consideration in your negotiations even to the point of contacting the prosecuting authority to find out what they are going to do and possibly even convince them make them go away and dismiss if your client is going to receive time or probation elsewhere;
  9. JAIL CHAINS: I am very opposed to this court dictated “docket clearing practice”. Too often, especially in misdemeanors, your clients will have detainers, parole violations, or pending felonies that could be affected by a conviction in misdemeanor court on any one or more of the aforementioned pending matters. The Courts want to reduce their docket and are not concerned with those other matters not in their court which generally affect your client adversely. It is not “justice.” I call it “house cleaning” by the Court. Your responsibility is to the client, not to the Court. I refuse to be a part of this process. You must look at all aspects. It is unfair to your client and the system to plead a client for time or probation if it will have a detrimental effect on another case facing them. You should not worry about the Judge not liking it at this point. Your client is more important than the court’s crowded docket;
  10. I also suggest in entering a plea, that you get your plea papers before the date the plea is going to be taken by the Court. Don’t go over this paperwork in the hall on the date of the plea hearing if possible. You should take the papers to your client, and go over each detail with them. I always have my client initial each item we discuss in “red ink” and have them sign each document in “red ink”. The judges love it, because no one else does this and you have proof that it was covered at the time it was signed.

These are just a few suggestions that will assist you in your client relationship and the Court and rebut the public’s concept of “court appointed attorneys are cop out attorneys.”  You are documenting your services and communicating with your client. In many instances, the family and your client will aid in establishing trust in you, too.  I have even had clients at the plea hearing thank the Court for appointing me to represent them. I have found that when you do these things, it will result in future referrals from the client and their family and friends. The compensation paid for your services will be offset by your efforts for the client and satisfaction that you have done your very best.

A final “caveat,” if you are afraid of a jury trial, or if you are worried about making a particular judge angry, don’t take court appointments. You are an advocate for your client, and you have a duty to them. You should not worry that if you make a judge angry you will not get more appointments. Your responsibility is to your client, not to the judge.

Federal Appointments

The foregoing also applies in most Federal court appointments. Many attorneys express a fear or hesitation in taking Federal appointments. Those fears and reservations are not well founded. There is a learning curve, but it is not difficult and through the “CJA” there is unlimited assistance from the Public Defenders Offices as well as webinars, forms, and manuals available to you. In addition, the fees paid by Federal appointments far surpass those paid for State appointments. You will be paid at an hourly rate for your time and reimbursed for expenses at a reasonable rate. Talk with other attorneys who take Federal appointments including the Public Defenders. They are especially helpful. You have to get “acclimated” to Federal practice. It is not difficult but it can actually be profitable. Your voucher is kept online, and when you complete your representation, you literally punch a few buttons and submit your voucher to the Court. It is rare that a Federal Judge cuts your fees, and the Federal judge will almost never will cut your reasonable expenses, even postage. In non-capital cases in the Northern and Western Districts where I practice, the budget amounts have a limit which exceeds for services $10,000.00 on a case not including expenses. In revocations of “supervised release” the budget limit is approximately $2,500.00. If you are not taking Federal appointments, they are definitely worth considering.

For those of you who do accept Federal appointments, here are some additional tips which I believe will assist you:

  1. Unlike in state court, “jail chains” do not apply. Often, in Federal appointments your client is not in the same city or town as your office. You will have to travel to visit your client. The initial visit should be “in person”. You have to instill trust with you by the client. I have heard numerous complaints by clients that the only time they are able to visit in person with their attorney is at the courthouse. The rest of the time is by phone or “Zoom”. You need to be “face to face” for both you and your client, and be able to make eye contact with them;
  2. Obviously, you can’t go to the jury for punishment in a Federal case. However, you should start working on punishment from the very beginning by getting information from your client on family, friends, employers, religion, and the community in which your client lives;
  3. In that regard, it has been my experience that you have to deal with U.S. Probation Officers who compose the Presentence Report (PSR). I got a form from one Pretrial Release Officer, which is very helpful in representing the client. One would think that the officers would be fair and even in the report. This is generally not true. Most of the time the “bad” is emphasized and the “good” is merely mentioned, or the report says information requested “No reply”. Remember, they get their information from the Government, and all relevant conduct is used in computing the “Base Offense Level” to increase the “guidelines”. The officers will go to great lengths to emphasize the bad conduct and the “ghost dope” when they can. I have also found on more than one occasion when the PSR reveals “No reply”, that the person, employer, or character reference were never contacted. I always recommend filing objections to the PSR when any of this occurs;
  4. Another matter along these same lines has to do with what I call “character letters” and also psychological or psychiatric evaluations. The officers will tell you that these will not be attached to the PSR. When I respond to the PSR I object and attach them as exhibits that the Court should take into consideration. Additionally, I always file a Sentencing Memorandum and again attach them as Exhibits knowing that at least I have provided them for the Court and his “briefing clerk” to consider;
  5. Always prepare your client for the PSR interview. I do this by requesting the PSR Interview Form from the Probation Officer well before the interview. I then take it to my client and we fill it out as best we can. I then forward the form to the Probation Officer before the interview. There are three reasons to do this: (1) it shortens the interview because the Probation Officer just has to fill in the blanks (2) you learn many things when filling it out which may be useful, and (3) you are giving a preview to your client of the interview and instructing the client on when and how to respond to the questions posed by the Probation Officer;
  6. THE PSR INTERVIEW: Always advise the Probation Officer that you want and will be physically present at the time of the interview. Don’t just be in on a “3-way call”. You need to be present and follow along with the form you have helped your client fill out. This too, will make your client trust you even more, and you are controlling the interview, not the Probation Officer;
  7. I have found that the Judges in Federal Court (U.S. Magistrates and U.S. District Court Judges) for the most part appreciate the time and effort that you put into a case. In my personal experience, I have even been complimented by some judges for my efforts in the case by the Court.
  8. In the Northern and Western Districts where I practice, we are allowed $900.00 for an expert or an investigator without first gaining permission of the Court. If additional funds are needed, you can apply “ex parte” for additional funds for an investigator or expert by filling out the proper CJA form, articulating the need, the cost, and the name of the expert or investigator. I have never been turned down by the Court. This should be utilized by you. It can reduce the amount of time or travel that you have to spend “behind the windshield” or waiting at the jail. And the judges appreciate the “cost saving”. Take your investigator with you to visit your client, introduce them, and explain that they now have two people working on the case and the client should treat them as if it were you in their dealings;
  9. Document all your meetings, discussions, and communications with the prosecutors, the courtroom deputies, the holding facilities, and the Court and place that document in your file. This is easily done through emails, correspondence, and documenting your voucher;
  10. Discovery in Federal cases is often lengthy and detailed. I have had several cases with more than 1TB of printed data, videos, photographs, recordings, etc. I presently have a case that involves 5 six-inch binders plus flash drives of videos, photos, and recordings. You have a duty to go through it all. I suggest that you do so outside of office hours, and take notes. It can be tedious and time consuming, but in order to properly represent your client you need to have all the knowledge available concerning your client. Be sure to charge for your time on the voucher;
  11. Keep a good working relationship and communication with the Courtroom Deputy. These individuals can save you time and expense. Always thank them for their assistance whether in person or by email. They are quite busy, but I have found that they understand matters such as conflicts in scheduling, appointments, and general assistance. I have even sent letters to their supervisors telling how much I appreciate their hard work and assistance. You would be amazed at the cooperation and consideration you can achieve by doing so;

I could go on and on with several other matters but I consider most of the foregoing are interchangeable between Federal and State appointments. The bottom line here is that you have an obligation to represent your client to the best of your ability. If you are not comfortable trying cases in federal court, then get some experience by sitting second chair. You need to see the prosecution you will be facing in the courtroom, the judge in the courtroom, and the particular way that voir dire is conducted by that particular Court. If you were a coach of a football or baseball team you would want to know how the opposing team members perform. The same concept should be followed if you are proceeding to trial whether before a jury or the bench and whether in state or federal court. Talk to other attorneys who practice before that Court, ask questions and insight of them to help you prepare for the trial. Scouting in such a manner has proven invaluable to assist me in preparing for trial.

Conclusion

I firmly believe that if you are going to take court appointments you should be ready, willing, and able to go to trial if that’s what your client wants. Advise your client of the risks involved, and if the client persists, it is their liberty that is at risk. In my experience, I have been involved in representing clients, I have tried cases that were absolute losers, and had so advised my client prior to trial. I have documented this for post-conviction attacks. Every once in a while, “you catch lightening in a jar” and win one or even get a lesser sentence than was involved in the plea offer. These kind of cases allow you to think outside the box and try new approaches or arguments which makes the trial exciting to you and your client. I actually got a two-word verdict in a Possession of Methamphetamine case involving a client who had more than 50 prior arrests. My motto is:  “I try to treat a client the way I would want to be treated were I the client and not the attorney.”

Juvenile Certifications: Post-Moon and Thomas, where are we?

One of the most important undertakings for a criminal defense lawyer is to fight to keep a juvenile client in the juvenile system. See Miller v. Alabama, 567 U.S. 460, 471 (2012). This article addresses the question of where juvenile certification stands post-Moon and post-Thomas.

I. Background

On June 16, 1944, the State of South Carolina executed fourteen-year-old George Stinney, Jr., in the electric chair. Tragically, he was too short for the electrodes to reach his head, so he had to sit on books. Stinney was tried as an adult because, prior to the 1950s and 1960s, there were no laws on how to handle a murder trial for a juvenile in South Carolina.

Although Texas had reform schools in the nineteenth century, a juvenile justice system started to develop around 1949 with the funding of the precursor to the Texas Department of Juvenile Justice. Juvenile law became widespread across the country in the 1960s. In 1973, the Legislature passed the Family Code with what we now call the Juvenile Justice Code. Further, for nearly all of the history of juvenile justice in Texas, the Court of Criminal Appeals has exercised final jurisdiction.

II. Basics

Generally, jurisdiction exists to prosecute a juvenile under the Juvenile Justice Code if the child is alleged to have “engaged in delinquent conduct.” Normally, the child is between the ages of nine and seventeen at the time of the offense.

III. Certifications: The Beginning, Kent v. United States

The aim of this article is not to provide the history of Juvenile Law in Texas but is, instead, a look at the current position of juvenile certifications beginning with the 1966 Supreme Court decision Kent v. United States, 383 U.S. 541 (1966). As set out by the Supreme Court, Kent, who was already on probation for burglary, was arrested and charged with breaking into a home in Washington, D.C., stealing a wallet, and raping the homeowner. Id. at 543. The police had used fingerprints to identify the then sixteen-year-old Kent. Id. The provision for the juvenile court to waive jurisdiction read:

If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases.

Id. at 547-548 .

Kent’s lawyer filed a motion for a hearing on the question of waiver of Juvenile Court jurisdiction with an affidavit of a psychiatrist certifying that Kent ‘is a victim of severe psychopathology’ and recommending hospitalization for psychiatric observation. Kent’s lawyer also requested access to the Social Service file relating to Kent during his probation period, and which would be available to the Juvenile Court judge in considering the question whether it should retain or waive jurisdiction. The Juvenile Court did not rule on these motions, did not conduct a hearing, and did not confer with Kent, his parents, or his counsel. Id. at 545.

Instead, the Juvenile Court entered an order reciting that a full investigation had been completed, waived jurisdiction, and allowed Kent to be tried as an adult. Id. at 550. There were no findings or reasons for the wavier listed in the order. After his trial, the court sentenced Kent to serve five to 15 years on each count as to which he was found guilty, or a total of 30 to 90 years in prison (the jury convicted Kent on six counts of burglary and acquitted him of rape). Id.

The Supreme Court determined there was not a sufficient investigation prior to the juvenile court waiver of jurisdiction. Kent did not receive a hearing, access to counsel, or access to his record prior to the waiver. The Court remanded the case to the district court to determine whether the waiver was proper. Because Kent was 21 years old at the time of this decision, the juvenile court no longer had jurisdiction if the waiver was proper.

The Supreme Court reasoned: The statute gives the Juvenile Court a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached. It does not confer upon the Juvenile Court a license for arbitrary procedure. The statute does not permit the Juvenile Court to determine in isolation and without the participation or any representation of the child the ‘critically important’ question whether a child will be deprived of the special protections and provisions of the Juvenile Court Act. It does not authorize the Juvenile Court, in total disregard of a motion for hearing filed by counsel, and without any hearing or statement or reasons, to decide—as in this case—that the child will be taken from the Receiving Home for Children and transferred to jail along with adults, and that he will be exposed to the possibility of a death sentence instead of treatment for a maximum, in Kent’s case, of five years, until he is 21.

Id. at 553-554.

The Supreme Court further explained: Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not ‘assume’ that there are adequate reasons, nor may it merely assume that ‘full investigation’ has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.

Id. at 561.

To this day, Kent remains the cornerstone of juvenile certifications. However, its meaning and requirements are the subjects of meaningful dispute in Texas courts.

IV. Juvenile Certification in Texas Until 2021

A. Juvenile Justice Code and Moon The post-Kent process of developing procedures and standards to certify a juvenile was troublesome and uneven, but came to relative equilibrium in December 2014 with Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014) (overruled by Ex parte Thomas, 623 S.W.3d 370 (Tex. Crim. App. 2021), reh’g denied (June 23, 2021)). Moon addressed to Sections 54.02(f) and 54.02(h) of the Family Code, which provide the general guidelines a certifying court should consider in evaluating whether to certify a juvenile.

        Section  54.02(f) requires the court to consider the following factors when making a determination about certification:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(2) sophistication and maturity of the child;

(3) the record and previous history of the child; and

(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedure, services, and facilities currently available to the juvenile court. See Tex. Fam. Code § 54.02(f).

If the juvenile court waives jurisdiction, section 54.02(h) requires a juvenile court to “state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court . . .” See Tex. Fam. Code § 54.02(h).

In Moon, the Court of Criminal Appeals held that in evaluating a transfer order, an appellate court reviews specific findings of fact regarding statutory transfer factors under traditional sufficiency of the evidence review but then reviews the ultimate waiver decision under an abuse of discretion standard. Importantly, they further ruled that when conducting a review of the sufficiency of the evidence to establish the facts relevant to the statutory transfer factors and any other relevant historical facts, the appellate court must limit its review to the facts that the juvenile court expressly relied upon. Moon, 451 S.W.3d at 49-50. The Moon Court reasoned that the Legislature meant for juvenile courts should “show their work” when certifying a juvenile as an adult.

Then, in 2015, the Legislature divested the Court of Criminal Appeals of jurisdiction over juvenile cases and entrusted final jurisdiction with the Texas Supreme Court. See Act of May 12, 2015, 84th Leg., R.S., ch. 74 § 3, 2015 Tex. Gen. Laws 1065, 1065–66. Most recently in 2021, the Court of Criminal Appeals expressly overruled Moon calling it “unworkable” and stating “[n]either the statute’s text nor the Supreme Court’s holding in Kent” required a court to “show its work.” Ex parte Thomas, 623 S.W.3d at 382.

V. Where are we now?

Ex parte Thomas was a writ case brought for a certification entered before Moon. The Applicant argued “the order waiving juvenile jurisdiction did not contain factually-supported, case-specific findings, it was invalid, and thus the district court never acquired jurisdiction.” Ex parte Thomas, 623 S.W.3d at 372–73. But because Thomas was a writ case and Thomas was simply denied relief, Thomas did not need to “fill the space” left when the court vacated Moon.

In the absence of Moon, defendants are left with Kent and the Juvenile Justice Code. As mentioned above, Section 54.02(f) sets out the broad parameters of what the certifying court must consider and Section 54.02(h) provides the certifying court must “state specifically in the [certifying] order its reasons for waiver and certify its action, including the written order and findings of the court . . .” See Tex. Fam. Code § 54.02.

The question that remains, however, is what must a trial court do to comply with Section 54.02(h)? Generally, the State reads Section 54.02(h) to mean the certifying court must only list the factors weighing in favor of certification. This argument comes from the language the court must state “specifically in the order its reasons for waiver and certify its action.” (emphasis added). For the State, the word “for” generally means factors weighing in favor of certification. But for the defense, Section 54.02(h) and the word “for” mean the certifying court must explain its reasons for certifying the juvenile, including evaluating factors that weigh against certification. This specific question is before the Texas Supreme Court right now in In re J.R. (docket no, 21-0446) and In re A.K. (docket no. 21-0511). As of the date of this writing, the Supreme Court ordered the State to file a response in In re J.R., which was filed by the State and replied to by the Petitioner. Concerning In re A.K., the Petition for review was denied and a Motion for Rehearing has been filed.

VI. In re J.R.

In re J.R. is the author’s case out of the Fifth Court of Appeals in Dallas. In re J.R., 05-20-00920-CV, 2021 WL 777090, at *1 (Tex. App.—Dallas Mar. 1, 2021). The appellant lost. But in losing, the appellant secured a three-judge dissent from the denial of the motion for en banc reconsideration. In re J.R., 05-20-00920-CV, 2021 WL 1976460, at *1 (Tex. App.—Dallas May 18, 2021, no pet. h.).

The court issued J.R. before the Court of Criminal Appeals overturned Moon and the appellant filed for en banc reconsideration after Thomas. In light of Thomas, the dissenting justices on the Dallas Court of Appeals asked to hear In re J.R. en banc.

Justice Schenck, on behalf of the three-dissenting justices, dissented to ask the Texas Supreme Court how, with the end of Moon, intermediate-appellate courts should “acquit themselves of the serious task laid out before them in an appeal [that challenges the sufficiency of the evidence for a certification].” Id. at *2.

Initially, it is essential to recognize in a sufficiency review of a decision to certify a juvenile, an appellant court is limited to a review of the facts/evidence/conclusions the juvenile court expressly relied on in its transfer order. In re S.G.R., 496 S.W.3d at 239.

For Justice Schenck, the problem is how an intermediate-appellate court should conduct a sufficiency review under City of Keller (the defining civil case on sufficiency review). Id. at *5. Under City of Keller, the reviewing court must look to all of the evidence to decide whether it supports the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005). Justice Schenck contrasted the reasoning from Thomas with the review of a low-damages-car-accident case. In re J.R., 2021 WL 1976460, at *7. He asked why a party in a low-damages-car-accident case would be entitled to a review of all of the evidence, but a defendant in a juvenile certification would only be entitled to a review of the factors weighing in favor of certification? Id. He concluded “the better practice would seem to be to provide a broad review on direct appeal allowing the reviewing court to insist on a record that affords a meaningful appellate review and requiring the juvenile court to explain how it got to the conclusion it did, not just cite the facts in support of its ultimate determination.” Id. at *9.

Justice Schenck’s question asking what belongs in a statement of reasons under Section 54.02(h), is a question we expect the Texas Supreme Court to answer soon.

VII. So What Now?

An attorney facing a certification hearing should proceed as he or she always would, by presenting evidence that weighs against certification. If, however, the certifying court rules in favor of the state, certifies the juvenile, and does not list the factors that weigh against certification, then the attorney should object in writing and secure an order. The objection would be to specifically list the factors supporting certification on the basis this precludes an adequate review on appeal.

VIII. Conclusion

The law on juvenile certifications is uncertain. This uncertainty, however, can create opportunities for you and for your clients. The Texas Supreme Court is not likely to resolve this issue for at least a calendar year. During that time you should have leverage to use an appeal of a certification without reasons for and against certification as a tool to secure a good plea agreement for an appropriate client.

The ‘New’ DWI: Deferred or Trial?

Criminal convictions can be damaging. The type of offense [DWI, possession of a controlled substance, theft, aggravated sexual assault of a child, etc.] and a person’s status [teacher, truck driver, self-employed, etc.] will dictate just how hard a conviction will ‘hurt’. It could mean the difference between no substantial change in personal status vs. divorce, job loss, skid row, and contemplation of suicide. 

Accordingly, the Texas Legislature enacted in the Texas Penal Code ranges of punishment for each conviction classification. Further, depending on the facts and issues of the particular case, skilled defense lawyers may be able to negotiate offense/sentence reductions, modifications, and lesser included offenses for a case rather than a possible harsh original offense and attendant sentence.

One such possibility is deferred community supervision or probation. With deferred, no actual judgement or conviction is recorded thereby making either expungement or non-disclosure available. Such benefit is now available for DWI, but how much of a benefit is it, really? Finally, after a long hiatus, since 1984, deferred adjudication probation is once again available to those accused of DWI. HB 3582 provides the ‘opportunity’ to plead to deferred adjudication, thereby avoiding a ‘conviction’ upon successful completion of the probation. Since the DWI law in Texas was partially amended on September 1, 2019, I have noticed quite a few DWI cases pleading to deferred adjudication. However, there are conditions attached. An accused may not receive deferred if he or she has:

  • Any prior DWI or other delineated conviction (school zone enhancement, sexual offenses, etc.);
  • State Jail Felony DWI (child passenger younger than fifteen years of age);
  • Flying While Intoxicated;
  • Assembling or Operating an Amusement Ride

While Intoxicated;

  • Intoxication Assault;
  • Intoxication Manslaughter;
  • Holds a commercial driver’s license or permit;
  • An alcohol concentration of 0.15 or more; or
  • Other statutorily delineated restrictions to obtaining deferred.
[I would refer you to Frank Sellers and Mark Thiessen’s article on the subject in the November 2019 Voice, entitled “2019’s Need-to-Know Changes to DWI Law” for a further explanation on the changes.]

While the availability of deferred for certain DWI’s may seem to ‘wipe’ the accused’s record of a conviction, HB 3582 also amended Texas Penal Code Section 49.09(g) and added language: “[f]or purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 or 49.06 if the person was placed on deferred adjudication community supervision for the offense under Article 42A.102, Code of Criminal Procedure.” So, even a deferred adjudicated first DWI can be used to enhance a subsequent arrest for DWI to a greater category! The deferred status only ‘hides’ the ‘conviction’ from most civil eyes, such as employers, etc., but not all agencies, such as certain professionals and law enforcement. So, if there is any benefit in deferred, it is minimal, at best.

After explaining these issues in detail to clients, I have found not all clients are very keen on deferred. They still must complete a term of probation with all the attendant ‘fallout’ of monthly visits to a probation officer, fines, court costs, classes, victim impact panels, etc. Additionally, a plea to deferred also sets them up for a possible future DWI being enhanced to a greater degree. So, what could be an alternative? 

As with any case, if the facts (videos, police reports, TCOLE records) are favorable, a trial may be the choice remedy. ‘Not Guilty’ is always a favorable outcome since the accused’s record will be clean (after the arrest is expunged) resulting in no stigma from a conviction and no consequences of a sentence.

However, with a ‘Guilty’ verdict, the accused would likely receive a sentence very close to that which would have been received on a plea, depending on the jurisdiction, prosecutor, and/or judge. If none of the above restrictions to a deferred is a factor, in certain situations, the guilty verdict can be non-disclosed. (TEX. GOV’T CODE §§411.0726, 411.0731, 411.0736)

A guilty verdict followed by a non-disclosure would have exactly the same result as a deferred plea, but the attempt at trial has given the accused a chance of a Not Guilty disposition.

To be eligible for non-disclosure, the accused must have been convicted for an offense under Penal Code §49.04 (Driving While Intoxicated) or §49.06 (Boating While Intoxicated), except for the BAC >0.15 enhancement of §49.04(d) or received deferred adjudication for any offense under Penal Code §§49.04 or 49.06. The accused must successfully complete his sentence, including payment of all fines, costs, and any restitution imposed. He or she must not have received any prior convictions or deferred adjudication for any other offense other than a fine-only traffic offense. The accused must also show that the issuance of the order is in the best interest of justice. Additionally, there must not have been an affirmative finding in the underlying case that it is not in the best interest of justice that the accused receive an order of non-disclosure (CCP 42A.105(f)).

An important caveat to abandoning deferred and proceeding to trial is a serious consideration to a breath or blood level which could be negotiated with the prosecutor, and the DPS ‘superfine’ which is an entirely different subject of study.  Apart from negotiation during a plea process, a guilty conviction after trial could lock in the superfine. A possible remedy could be afforded by court-ordered sentencing rather than jury-ordered. Such tactics must be considered on a case-by-case basis.

In summary, deferred adjudication for a qualified DWI or BWI is a better choice than that before September 1, 2019. But, if the accused’s BAC is not greater than 0.15 on a first DWI or BWI, with no prior criminal history (and none of the other restrictions recited above), a trial may be the much better choice since the eventual outcome is either the same conditions as a plea to deferred or even better, a Not Guilty.

Current Issue: October 2021

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DOWNLOAD PDF VERSION

Features

22 | Court Appointed Attorneys are “Cop Out” Attorneys – By Randy Wilson
29 | Juvenile Certifications – By Niles Illich
34 | The ‘New’ DWI: Deferred or Trial? – By John Eastland

Columns

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

Departments

4 | CLE Seminars and Meetings
38 | Significant Decisions Report

President’s Message: October 2021

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

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

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

Executive Officer’s Perspective: The Future Starts Today

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“The secret to so many artists living so long is that every painting is a new adventure. So, you see, they’re always looking ahead to something new and exciting. The secret is not to look back.”

– Norman Rockwell

As the pandemic continues, we move forward and continue doing the best we can. This week, TCDLA brothers and sisters came to together in Arlington for one of many reasons—some for CLE and networking at the Sex and Violence seminar put on by course directors Sarah Roland, Sam Bassett, and Heather Barbieri. The speakers who appeared were phenomenal. (Not to worry if you missed this great seminar; you can still watch it at your own pace. Go to tcdla.com > CLE/EVENTS > Webinars on Demand. You can watch the videos as many times as you want for up to a year.)

Also on tap, we hosted TCDLA Board, Executive, and Criminal Defense Lawyers Project committee members for Saturday meetings. Many others came in just to watch the seminar, gather for a Friday members dinner, and reconnect with one another. No other organization I know can match the camaraderie of the defense bar. In many associations I network with, their meetings are all eight-to five business with little or no personal interchange or communication afterwards. The relationships our members build blossom over the years, extending far beyond the 5:00 pm meeting end.

This also spills over to the TCDLA staff. We are very fortunate to have a hard-working and dedicated team that believes in the work and service we provide. A small staff, we too are part of the TCDLA family.

During our meetings, we conducted five hours of business, though we could have conducted many more. But members were able to eat breakfast, have a cup of coffee, and share where life had taken them since they last connected. Myself, I got to know better new board members while learning more about old friends—also celebrating our September birthdays! Some of the highlighted board motions from the Board meeting follow:

  • •TCDLA Statement re Dallas Data Loss: “In the interest of transparency and to restore public trust, The Texas Criminal Defense Lawyers Association urges the Dallas Police Department to enlist an independent, qualified auditing firm to review the data loss and produce a public report of its findings.”
  • Respond to the Affordable Legal Services Subcommittee of the State Bar of Texas Board of Directors and approve the recommended proposed changes to the Performance Guidelines for Non-Capital Criminal Defense Representation. (If you would like a copy to review, email me.)

The 87th Legislature is now entering a third special session…I cannot commend enough our Legislative Committee Lobbying Team for all their hard work. It never ends! Allen Place and Shea Place will continue monitoring the session and all meetings throughout the year. You can see some of their work on the website, a member benefit (MEMBERS ONLY/Legislative Update), including these:

  • •FREE 2021 Legislative Update Paper by David Gonzalez, TCDLA Lobbyist
  • FREE 2021 Legislative Presentation (including SB6) by David Gonzalez, TCDLA Lobbyist, and Allen Place, TCDLA Senior Lobbyist
  • FREE 2021 Legislative Cheat sheet by Shea Place, TCDLA Lobbyist

Upcoming, we will host training on Constitutional Carry and Bail Reform. If your local bar is looking for a Legislative Update or an Innocence 1-hour program, contact me.

As with all good things, the gatherings came to an end and it was time to return home. I had to reflect that I have a job I truly enjoy. If you are not feeling this same way when you attend a TCDLA event, I encourage you to seek me or other members out to introduce you around. Don’t be shy! Once you interact with your brothers and sisters, you won’t be able to wait till the next time.

When is that you ask? How about November 4–5, 2021, at the Menger for the 17th Annual Stuart Kinard Advanced DWI seminar in San Antonio? Or . . . December 2-3, 2021, at the Kalahari Resorts & Convention Center in Round Rock for the Cross Examination & Effective Use of the Rules of Evidence seminar. For this quarterly gathering, we will host a TCDLA Holiday Dinner on Friday, December 3. Let’s keep moving forward, reenergizing, empowering, and motivating each other!

Editor’s Comment: October 2021

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A cursory review of the widely-known source www.nationaldaycalendar.com shows that October is the National month of a laundry list of causes and celebrations, some serious others not so serious.  While Bat Appreciation Month, National Toilet Tank Repair Month, Squirrel Awareness Month (which according to the website is different than Squirrel Appreciation Day, which occurs in January), and International Walk to School Month are certainly causes that I am sure others may get very excited about, there are a few other causes that are a little nearer and dearer to my heart that I’d like to discuss in my column this month.

For those of you who don’t know me, I am married with two little boys: James (6) and Kennedy (3). I practice out in the west Texas town of El Paso, with my dad, Jim, and my brother from another mother, Cris Estrada. I had a dog that I adopted as a puppy in law school, named Hank the Cowdog, who just recently passed away. Our other dog, Sissy, who is a Great Dane, was very sad and lonely after Hank’s passing.  So, a few weeks ago, my wife Meghan and I loaded up the boys and we went to one of the local rescue shelters. We checked out the cast of poor, unfortunate souls cast aside and forgotten, and ultimately found the newest member of our household: Major Joe, a German Shepherd, Standard Poodle, Beagle, Boxer mix (we sent off his DNA to figure out what the Wookiee looking thing we just brought home was).  Our vet believes that Major Joe is likely about 2 years old, so we have been working hard to house train this wall-jumping, ball-fetching, barking, and howling mess of a new buddy. 

Another new joy-invoking task that we have recently undertaken is little league baseball. James just turned 6 in August, so he is only now old enough to play coach-pitch baseball.  The league in which we are playing has players ranging in age from six years old to eight years old.  Our team is made up entirely of six-year-olds, none of whom have ever played baseball. After four practices and one game, I am sad to report that we have not yet reached the fundamental level of Tinkers to Evers to Chance.

I tell y’all of these new-found joyous activities only to say that October is also National Adopt a Shelter Dog Month, Emotional Intelligence Awareness Month, Emotional Wellness Month, National Learning Development Month, and National Positive Attitude Month, which are clearly issues I am either fully invested in or need to become intimately aware of soon.

So, what does any of this have to do with TCDLA or being a criminal defense lawyer? While trials are occurring throughout the State, no one is back to practicing law the way we were before the pandemic hit.  We are in month 19 of this seemingly never-ending nightmare and I am, as I assume most of y’all are, am yearning for a return to normal. However, the delay in returning to normal is giving all of us an opportunity we will likely never get again: to spend a little bit more time with our families. I miss the intensity of trial, but I have to remind myself that I need to take advantage of this time I have been given to be a dad like I never was before the pandemic hit. I need to enjoy a few more adventures with my boys, because the reality is that I will never get this much time with them again for the rest of our lives. Unless, of course, they end up following in my footsteps someday, and come to work in our office as lawyers down the road. That thought is sobering. So, I now have to remind myself that October is also National Sarcastic Awareness Month and I need to maintain my sense of humor too.

Be safe
-Jeep Darnell

Ethics and the Law: A Peek Behind the Curtain: The TX Attorney Grievance Process in a Nutshell

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The attorney grievance process is not something most lawyers want to think about. But chances are, even if you have never personally been involved in the grievance process, you know someone who has. Or maybe you’re a little curious about what goes on “behind the scenes” of the attorney discipline system. Either way, given the potential ramifications of a grievance to a lawyer’s livelihood, and the unique procedures and deadlines entailed, it is important to know what to expect should you ever receive that dreaded certified letter from the Office of Chief Disciplinary Counsel. 

Who can file a grievance?

Anyone with knowledge of attorney misconduct has the right to file a grievance against a Texas attorney. This includes clients, other lawyers, judges, and any member of the public. There is no standing or privity requirement to file a grievance.

The First Stage: Classification

Once a grievance is filed, the Chief Disciplinary Counsel (“CDC”) has 30 days to “classify” the grievance, meaning it must determine whether the grievance, on its face, alleges professional misconduct or a disability.  If the grievance does allege professional misconduct or a disability, it will be upgraded to Complaint status. If it does not, it will be dismissed as an Inquiry. Grievances alleging minor misconduct may also be referred, at CDC’s discretion, to the Client Attorney Assistance Program, which will attempt to resolve the issue between client and attorney outside of the grievance process.

If the grievance is dismissed as an Inquiry, the Complainant has the right to appeal the decision to the Board of Disciplinary Appeals (“BODA”). If BODA affirms the dismissal, the Complainant may amend the grievance one time by providing new or additional information. If the amended grievance is dismissed, the Complainant may again appeal that determination to BODA.

Approximately 70% of grievances are dismissed at the classification stage. Common reasons why a grievance might be dismissed at classification are:

  • The grievance alleges something other than professional misconduct or a disability. E.g., it complains about the outcome of a case or that the attorney was “rude.”
  • The grievance is barred by the 4-year statute of limitations.
  • The Respondent attorney has died, been disbarred, or resigned.
  • The grievance concerns a person who is not a licensed Texas attorney.
  • The grievance is a duplicate of, or identical to, a pending grievance.

The Second Stage: Investigation

If a grievance is upgraded to Complaint status, the Respondent attorney will be notified, provided a copy of the grievance, and given 30 days to file a written response to the allegations. CDC has 60 days from the date the attorney’s response is due to make a determination of “Just Cause,” although that time is extended if CDC sets the case for an Investigatory Hearing or issues Investigatory Subpoenas. 

Whereas the classification stage is limited to ascertaining whether a rule violation has been properly alleged, the investigation process seeks to determine whether there is sufficient evidentiary support for the allegations to warrant a finding of “Just Cause.” As part of its investigation, CDC may interview witnesses, subpoena bank records and other relevant documentation, and review court records, correspondence, files, settlement checks, etc.

This is a critical stage of the process and should not be taken lightly. Every effort should be made to properly and fully rebut the allegations and avoid a Just Cause finding, as once a case enters formal litigation, it will be much more difficult to obtain a dismissal and may entail costly and burdensome litigation. 

Investigatory Hearings & Subpoena Power

Effective June 1, 2018, amendments to the Texas Rules of Disciplinary Procedure instituted some important changes to the grievance process. Now, during the Investigation stage, CDC may issue subpoenas for documents, electronic information or tangible things and/or to compel the attendance of witnesses (including the Respondent attorney) at an Investigatory Hearing.

Investigatory Hearings are somewhat informal hearings aimed at facilitating the investigation and allowing for possible early settlement of the case.  These hearings are presided over by a panel of local grievance committee members.  The Respondent, the Complainant, and potentially other witnesses may appear and provide testimony or answer questions of the panel.  An investigatory hearing may result in a negotiated sanction, a finding of Just Cause, a referral to the Grievance Referral Program, or a dismissal of the complaint.

The Final Stage: Litigation

If the investigation results in a finding of Just Cause without a negotiated sanction, the case will proceed into litigation, at which point the Respondent can choose to have the case heard before a grievance committee or in district court. Formal discovery ensues and settlement negotiations may take place.  If no settlement is reached, the case will be set for trial. 

Trial proceedings before a grievance committee are confidential unless and until a public sanction is issued (at which point certain information becomes public). In addition, proceedings before a grievance committee can result in a private reprimand, an option that is not available in district court. Other possible sanctions available in either domain include a public reprimand, a probated suspension, an active suspension, a combination of probated and active suspension, or disbarment. 

Some cases that enter formal litigation are diverted to the Grievance Referral Program, a program designed to assist lawyers who have impairment or performance issues and who enter the disciplinary system as a result of minor misconduct. In exchange for a dismissal of the underlying complaint, the Respondent lawyer agrees to complete a remedial program individually tailored to the lawyer’s needs.

Other Statistics

  • The most frequently sanctioned misconduct is lack of communication with the client.
  • In the 2019-2020 Bar year, civil practitioners received the highest number of sanctions, followed by family law and criminal law practitioners.
  • In the 2019-2020 Bar year, 7505 grievances were filed, and a little over 300 sanctions were imposed. The number of sanctions imposed was lower than usual due to the impact of Covid-19 on disciplinary litigation.
  • The vast majority of grievance cases entering formal litigation proceed through the evidentiary process. Roughly 10% or less of Respondent attorneys opt to have their case heard in district court.

Conclusion

The attorney grievance process is cloaked in secrecy, and can be quite intimidating if you are unfamiliar with the process or what to expect. By educating yourself on the procedures, being responsive, and complying with deadlines, you greatly increase the odds of a successful outcome.

Federal Corner: Ensuring That Clients Receive Credit for Concurrent State Time

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Many of our clients are dismayed to learn that they face charges in federal and state court for the same exact conduct or for relevant conduct.  Fortunately, the federal sentencing guidelines provide that where the state offense “is relevant conduct to the instant offense of conviction under the [relevant conduct provisions], the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.”  (emphasis added).  U.S.S.G. § 5G1.3 Comment n. 3.  So problem solved, right?

Not exactly.  If the client was taken into federal custody on a writ of habeas corpus ad prosequendum, even if the judge sentences him to “concurrent time” with the state offense, the federal Bureau of Prisons (BOP) might not give him credit for all of the time spent in federal custody awaiting sentencing.  The Fifth Circuit’s decision in United States v. Taylor, 973 F.3d 414 (5th Cir. 2020) provides important guidance on how to ensure that clients awarded concurrent sentences for federal and state charges actually receive full credit for that time.

Importantly, Taylor recognized that district courts wishing to award credit for time served while awaiting sentencing should not attempt to award “credit,” and should not state a commencement date for the federal sentence earlier than the date of federal sentencing.  They should instead reduce the sentence by the amount of time the defendant has been in federal custody awaiting sentencing. Judge Wiener’s opinion reads, in part, as follows:

An Overview of the Case

Defendant-Appellant Tyvon Taylor appeals the 120-month sentence imposed by the district court following his plea of guilty to one count of being a felon in possession of a firearm. Taylor contends that: (1) The district court erred when it attempted to reduce the length of his sentence either by ordering that the sentence commence on a particular date or by ordering that he be given credit for time served, and (2) The sentence imposed by the district court is impermissibly ambiguous because the pronouncement that it “run concurrently with any sentence imposed by state authorities” does not specify with which state sentence or sentences, corresponding to four pending state court charges, the federal sentence will run concurrently.

We conclude that the district court’s attempted reduction of Taylor’s sentence was ineffectual and order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence regardless. We also conclude that the sentence imposed is ambiguous because it fails to identify the specific state sentence or sentences with which the federal sentence will run concurrently. We therefore order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence knowing of the ambiguity.

The Federal Charges

In June 2018, a federal grand jury returned a one-count indictment charging Taylor with being a felon in possession of two firearms, viz. a .40 caliber Springfield Armory pistol and a Smith and Wesson 9mm pistol, beginning on or about August 12, 2017, and continuing until on or about August 15, 2017. In October 2018, Taylor pleaded guilty, and the district court ordered the preparation of a presentence report (PSR).

The “offense conduct” section of the PSR includes information about Taylor’s involvement in shootings on August 12 and 13, 2017. That section of the PSR also includes information regarding an August 15, 2017 traffic stop of a vehicle in which Taylor was a passenger during which officers found Taylor in possession of firearms.

The PSR reflects that, during the August 12, 2017 incident, Shreveport (Louisiana) Police Department officers responded to a shooting and located a victim suffering from multiple gunshot wounds. That victim identified Taylor as his assailant. Investigators located .40 caliber and 9mm caliber shell casings at the scene.

The August 13, 2017 incident involved officers responding to a call of shots fired and observing an empty vehicle crashed into a light pole. The PSR noted that investigators located spent shell casings and live rounds in and around the vehicle. The owner stated that Taylor had borrowed the vehicle. Taylor was identified as the person driving and shooting from the vehicle prior to the crash and was observed fleeing from the vehicle prior to the arrival of the police.

As for the August 15, 2017 traffic stop, the PSR recounted that, after procuring an arrest warrant for Taylor, police had arrested him during a traffic stop of a vehicle in which he was a passenger. The driver of the vehicle stated that once police attempted to initiate the stop, Taylor had pointed two handguns at him and accused him of setting up Taylor. As noted, police located a Smith and Wesson 9mm handgun and a .40 caliber Springfield Armory handgun in the vehicle. The analysis conducted on the two firearms in Taylor’s possession at the time of his arrest determined that they matched shell casings found at the scenes of the August 12 and August 13 shootings.

The Pending State Charges

The PSR also listed four pending state charges:

(1) July 31, 2017 (case number 351,576) related to possession of a firearm or carrying a concealed weapon by a convicted felon and illegal use of weapons during violence;

(2) August 12, 2017 (case number 351,577) related to attempted second degree murder and possession of a firearm or carrying a concealed weapon by a convicted felon;

(3) August 13, 2017 (case number 351,999) related to illegal use of weapons or dangerous instrumentalities and possession of a firearm or carrying a concealed weapon by a convicted felon; and

(4) August 15, 2017 (case number 351,578) related to possession of a firearm or carrying a concealed weapon by a convicted felon.

Taylor’s Sentencing Memorandum

Taylor did not object to the PSR, but he did file a sentencing memorandum in which he requested that his sentence be at the low end of the guidelines range and run concurrently to any sentences imposed in the four pending state court charges, pursuant to U.S.S.G. § 5G1.3(c):

If … a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction under provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.

Taylor’s Request at Sentencing

At the sentencing hearing, defense counsel asked “the Court to specifically give Mr. Taylor the credit for time served from the date he was taken into federal custody, which is the July 9 of 2018 date.” Defense counsel noted that Taylor had already served nine or ten months on the state court charges prior to that date, and he speculated that the Bureau of Prisons would not credit Taylor for that time in state custody. Defense counsel suggested that the district court “go back and make the sentence retroactive to the July 9 of 2018 date.”

District Court’s Pronouncement of the Sentence

The district court observed that the guidelines sentence had been substantially increased because of the relevant conduct but determined that the application of the attempted murder guideline was appropriate. The court sentenced Taylor to the within-guidelines statutory maximum of 120-months imprisonment and a three-year period of supervised release.

In pronouncing the sentence, the district court stated, “[t]he judgment in this particular matter will show that this sentence is to run concurrently with any sentence imposed by state authorities on the conduct described, and this Court will begin the federal sentence as of the time he is taken into federal custody, which is July 9, 2018.” The written judgment provides, “[t]his sentence shall run concurrently with any sentence imposed by state authorities on the conduct described. Defendant shall receive credit for time served from July 9, 2018.”  At the sentencing hearing, defense counsel objected to the sentence to the extent that the statutory maximum sentence deprived Taylor of the benefit of a guilty plea.

Taylor’s Arguments on Appeal

Taylor here takes issue with the sentence imposed by the district court for two reasons. He first contends that the district court erred when it attempted to reduce the length of his sentence either by giving him credit for time served in federal custody prior to the sentencing (as did the oral pronouncement) or by commencing his sentence retroactively (as did the written judgment). Taylor also claims that the sentence is impermissibly ambiguous because it does not specify with which state sentence or sentences (corresponding to the four pending state court charges) the federal sentence will run concurrently. Taylor requests that we vacate his sentence and remand to the district court to permit that court to: (1) consider reducing his federal sentence by an amount equal to the period of time he served in federal custody prior to being sentenced and (2) clarify with which state sentence or sentences his federal sentence will run concurrently.

Taylor Invited the District Court’s Error

Taylor invited the district court’s error with respect to the backdated commencement of his sentence and the credit for time served in federal custody prior to being sentenced. At the sentencing hearing, defense counsel asked “the Court to specifically give Mr. Taylor the credit for time served from the date he was taken into federal custody … July 9 of 2018.” Defense counsel also suggested that the district court “go back and make the sentence retroactive to the July 9 of 2018 date.”

“The Fifth Circuit will not reverse on the basis of invited error, absent manifest injustice.” Manifest injustice occurs when the district court’s “error was so patent as to have seriously jeopardized the rights of the appellant.”

Taylor Argues that Manifest Injustice Occurred

Taylor insists that a manifest injustice occurred because (1) the district court intended to reduce his sentence by the number of days he served in federal custody prior to being sentenced and (2) the ineffectual sentence fails to do so. In the oral pronouncement of the sentence, the district court stated, “this Court will begin the federal sentence as of the time [Taylor] is taken into federal custody, which is July 9, 2018.” The written judgment provides, “Defendant shall receive credit for time served from July 9, 2018.”

What the District Court Should Have Done

The district court is not permitted to compute the credit for time served or to order the backdated commencement of a sentence. The BOP alone is authorized to take these actions.  If the district court intended to award Taylor credit for the time he served in federal custody prior to being sentenced, that court should have reduced his sentence accordingly and noted the reason for the reduction in the judgment. (emphasis added). 

The Fifth Circuit Orders Limited Remand on the Length of the Sentence

Although the limited remand is a seldom-used practice in this circuit, we deem that procedure warranted in a case such as this. It is not apparent here that the defendant was harmed by an error because it is not clear whether the district court would have acted differently had it known of the error.  We order a limited remand so that the district court may consider, and state on the record, whether it would have imposed the same sentence knowing that it could not order either that (1) the commencement of Taylor’s sentence be backdated or (2) Taylor receive credit for the time he served in federal custody prior to sentencing.  If on remand the district court clarifies that it would not have imposed the same sentence, then the error Taylor invited is manifest, and we would vacate Taylor’s sentence and remand for resentencing. If, on the other hand, the district court indicates that it would have imposed the same sentence even knowing the limitations regarding the commencement of the sentence and credit for time served, then we would conclude that no manifest injustice occurred and would affirm the sentence.

The Fifth Circuit Orders Also Orders Limited Remand on the Concurrent Nature of the Sentence

We conclude that the district court committed an obvious error when it imposed an ambiguous sentence that fails to specify with which of the state sentence or sentences the federal sentence will run concurrently. But it is not clear whether the ambiguous nature of Taylor’s sentence affected his substantial rights, so we order a limited remand for the district court to clarify, and state on the record, whether it would have imposed the same sentence had it known of the ambiguity.

Conclusion

We order a LIMITED REMAND to the district court to consider, and state on the record, whether it would have imposed the same sentence knowing that: (1) it could not effectively order the backdated commencement of Taylor’s sentence, (2) it could not effectively order that Taylor be given credit for the time he served in federal custody prior to being sentenced, and (3) the sentence is susceptible of more than one reasonable interpretation. We retain jurisdiction over this appeal pending the district court’s answer to our inquiry.

My Thoughts

  • Clarity is key to ensuring that our clients receive credit for concurrent time.
  • Asking the Court to reduce your client’s sentence by the amount of time awaiting federal sentencing is not a downward departure or a variance.  Rather, it is an adjustment contemplated by the guidelines, and now by the Fifth Circuit.  See United States Sentencing Guidelines § 5G1.3, Comment n. 2(C).
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