Warren Wolf

I first became acquainted with §12.42(f) of the Texas Penal Code¹ when I reviewed an indictment with a repeat offender paragraph. As I read the repeater paragraph, I could not believe the State could enhance an adult charge by using a juvenile case. I went to the code and saw this provision became effective January 1, 1996. Why should this law be permitted to exist?

Juvenile law is rooted in civil law. The Texas Juvenile Justice Code is found in Title 3 of the Texas Family Code. Despite its civil roots, due process protections have been extended to juveniles by the United States Supreme Court over the years. In Kent, the Supreme Court deter‑ mined that children in juvenile proceedings “should not be denied procedural rights given to adult criminal defendants merely because juvenile proceedings are characterized as civil.” Hidalgo v. State, 983 S.W.2d 746, 750 (Tex. Crim. App. 1999) (quoting Kent v. United States, 383 U.S. 541 (1966)).

Furthermore, in In re Gault, 387 U.S. 1 (1967), the Supreme Court held that the Fourteenth Amendment’s Due Process clause applied to juvenile proceedings “entitling children to notice of charges, defense counsel, the privilege against self‑incrimination, confrontation of and cross examination of witnesses.” Hidalgo at 750–51 (quoting In re Gault at 49); see also In re Gault at 13 (“[N] either the Fourteenth Amendment nor the Bill of Rights is for adults alone.”).

The Supreme Court has also determined that, as opposed to adults, children under eighteen (18) years of age lack maturity, have “an underdeveloped sense of responsibility,” and are “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Roper v. Simmons, 543 U.S. 551, 569 (2005).. In the Roper majority opinion, Justice Kennedy further noted that “|t]hese qualities often result in impetuous and ill‑considered actions and decisions” by a child. Id. (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). Moreover, the Court explained that children “have less control, or less experience with control, over their own environment” and their character is not as well formed as that of an adult. Id. Their personality traits are “more transitory, less fixed.” Id. at 570. Based on these differences, the Court found suspect any conclusion that a child falls among the worst offenders because a child’s “irresponsible conduct is [simply] not as morally reprehensible as that of an adult.” ld. at 570; see also Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (“[T]he Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult . . . [i]nexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of . . . her conduct while at the same time . . . she is much more apt to be motivated by mere motion or peer pressure than as an adult.”).

Furthermore, because proceedings in juvenile court are quasi-criminal in nature, they are subject to numerous due process restrictions mirroring those at play in an adult criminal trial. In re A.J.S., 442 S.W.3d 562, 565 (Tex. App.- EI Paso 2014, no pet.); see also In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998); Smith v. Rankin, 661 S.W.2d 152, 153 (Tex. App.- Houston [1st Dist.] 1983). A child “is guaranteed the same constitutional rights as an adult in a criminal proceeding because a juvenile‑delinquency proceeding seeks to deprive [him] of his liberty.” State v. C.J.F., 183 S.W.3d 841, 847 (Tex. App.- Houston [1st Dist.] 2005, pet. denied); see also Matter Of, M.S., 940 S.W.2d 789, 790 (Tex. App.- Austin 1997) (“A juvenile proceeding, which may deprive a child of his liberty for a number of years, is comparable in seriousness to a criminal prosecution [F]or that reason, many of the due process protections applicable to criminal proceedings apply also to juvenile proceedings, such as the right to appeal and the right to assistance of counsel.”); see, e.g., Tex. Fam. Code §§ 51.10, 56.01.

Texas courts have also recognized that children are different from adult criminal defendants and warrant additional protections. See In re Hall, 286 S.W.3d 925, 927 (Tex. 2009) (“The Legislature enacted the Juvenile Justice Code as a separate system for the prosecution, adjudication, sentencing, and detention of juvenile offenders to protect the public and provide for the wholesome moral, mental, and physical development of delinquent children. This separate system often provides enhanced procedural protections to juvenile offenders, who, be‑ cause of youth, ordinarily lack the mental and emotional maturity needed to maintain an adequate defense.”); Henderson v. State, 962 S.W.2d 544, 562 (Tex. Crim. App. 1997) (“[The] state has a legitimate, and in fact compelling, interest in protecting the well‑being of its children… Children are deemed to warrant protection because of their inexperience, lack of social and intellectual development, innocence, and vulnerability.”); Lanes v. State, 767 S.W.2d 789, 791–800 (Tex. Crim. App. 1989) (providing historical discussion of juvenile justice policy and noting “rehabilitation and child protection remain as the pervasive and uniform themes of the Texas juvenile system”); In re S.G.R., 496 S.W.3d 235, 238 (Tex. App.- Houston [1st Dist.] 2016, no pet.) (“Children ordinarily are not subject to criminal proceedings like adults.”); Matter of J.G., 905 S.W.2d 676, 680 (Tex. App.- Texarkana 1995), writ denied, 916 S.W.2d 949 (Tex. 1995) (“[A] juvenile is not similarly situated to an adult    [T]he juvenile justice system is arranged with a special emphasis on the welfare of the child   ”); Matter of E.Q., 839 S.W.2d 144, 145-146 (Tex. App.- Austin 1992, no writ) (“The [S]tate has an interest in providing for the care, protection, and development of its children . . . The civil juvenile justice system was established in part to insulate minors from the harshness of criminal prosecutions, to promote rehabilitation over punishment, and to eliminate the taint of criminal conviction after incarceration by characterizing such actions as delinquent rather than criminal.”); see also Tex. Fam. Code § 51.01 (establishing purposes of Texas’ Juvenile Justice Code, including “provid[ing] treatment, training, and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child’s conduct” and “provid[ing] for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions”). Thus, “[t]he transfer of a [child] from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule; the operative principle is that, whenever feasible, children and adolescents below a certain age should be protected and rehabilitated rather than subjected to the harshness of the criminal system[.]” Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) (overruled by Ex parte Thomas, 623 S.W.3d 370 (Tex. Crim. App. 2021), reh’g denied (June 23, 2021)); see also Lanes at 796 (“The Texas juvenile system . . . seeks to avoid the taint of criminality in order to prevent recidivism and promote rehabilitation. The best method of avoiding attachment of a criminal taint is keeping the child completely out of the [criminal] system.”).

If we want to keep children out of the criminal justice system, why do we use a juvenile restorative process at Texas Juvenile Justice Department [TJJD] as an adult punishment factor? As a matter of course, I never agree to send a child to TJJD because of this unspoken collateral consequence. If the legislature truly believes that its juvenile system should not be attached to the criminal system, then § 12.42(f) of the Texas Penal Code should be repealed.

It has been more than a year since I stood at the lectern in the historic marble chamber that is the United States Supreme Court, and as I turn the page of the calendar to my next case, it is an appropriate time to reflect on what was a very special year.

Post Argument—February 25, 2013

After the bang of the gavel, the Chief Justice announced the case will be submitted. Courteous exchanges between my “friend” Andrew Oldham, Assistant Texas Solicitor General, and his associates were, I believe, sincere. Seth (Waxman), Bud (Ritenour), and Catherine (Carol), who sat at counsel table, felt relieved and confident in the “spot on” delivery we all were pointing towards. I had delivered the performance of a lifetime.

Strangers who watched the argument approached me and offered their congratulations. The highest compliment came from Deputy Clerk Jameson, who commented that he did not believe it was my first appearance before the Court. I have always held court personnel in the highest regard. They have a peculiar insight into court proceedings, and they know what is and is not good.

Of course, Teresa (my wife) and Robin (my daughter) were there. Robin was as ever proud of her Daddy. Teresa, who had sacrificed so much in her own way, got to witness the fruits of our collective labors.

 After the case was set for submission, Teresa and Robin and I remained in the Supreme Court building. We went back to the clerk’s office to say goodbye to Mrs. Tycz—the deputy clerk who had been so encouraging. She congratulated me on my maiden appearance. Others had offered similar compliments as I left that hallowed chamber. But it was the decision of the nine Justices that mattered, and that decision was not expected until the end of the term before summer recess.

Teresa, Robin, and I ate at the Supreme Court cafeteria. After a stop at the gift shop, we made our way to Reagan Airport and then to San Antonio.

“The Law Is a Jealous Mistress”

My property professor at St. Mary’s Law School told us this in our first year, and he was right. My calendar was bursting at the seams, thanks to the local judges back home who gave me generous court recesses for four months of my calendar. The time had come to get back to the work at hand. But yet I still had that one special case. I started watching the Supreme Court calendar for announcements. Like an expectant father, I had an interest in the outcome but had no control over the process or its timing.

May 28, 2013

Almost three months to the day, while I was sitting in the Bexar County Jail in the midst of a parole revocation hearing, I received a message from my co-counsel, Bud Ritenour, on my iphone that we had won.

It was the crowning achievement of a 37-year career, a dream come true. It was like winning the Super Bowl, the World Series, and the NBA Championship, all rolled into one.

Later that day, I learned it was Justice Kennedy and not Justice Breyer who made the oral pronouncement in open court. It is customary that the justice who is the author of the opinion make the announcement. Ironically, Justice Breyer, who is a fellow Eagle Scout, was in the hospital recovering from a broken collarbone he incurred while riding his bicycle. Coincidentally, I had a major bicycle accident during my representation of Carlos. In 2009, I broke my hip, which resulted in a total hip replacement. It was as if Justice Breyer and I were “joined at the hip”—or scapula, as the case may be.

The Express-News Article

Craig Capitan, the courthouse beat reporter for our local newspaper, keeps his ear to the ground and is quick to get a story. We had discussed Carlos’ case when certiorari was granted, but the time was not ripe for such a story.

The Defense of Marriage Act (DOMA) was coming up for oral argument, shortly after my case. Local attention was drawn more heavily to the Supreme Court.

When the decision came back favorably in Carlos’ case, I became newsworthy. Craig immediately contacted me and interviewed me. The next day the story ran, “S.A. Lawyer a Success in the Supreme Court.”

Recognition in the Community

After the story ran, I started receiving congratulatory messages from friends, old and new.

Steve Skinner

The one that stands out the most is my old Boy Scout friend, Steve Skinner. I had known Steve from our work in the local Boy Scout Council back in the 1970s. We had renewed our friendship in 2010, as we both were on staff at the centennial Boy Scout National Jamboree. We got together for lunch shortly thereafter. He told me that his future-son-in-law and he had talked about the fact that Steve knew someone who had appeared before the U. S. Supreme Court. Steve told me that his son, who graduated from the University of Chicago Law School, had a question on one of his final exams regarding my case.

Al Reiter

Al Reiter, another good Scouting friend, suggested that I speak to the San Antonio Breakfast Club (of which he is a member). I was not quite sure how a bunch of retired businessmen would react to a criminal defense attorney who the court appointed to represent a condemned man sitting on death row.

I was pleased by their genuine interest in the process and my experience. They even extended to an invitation to join their club.

Recognition by My Peers

The accolades began to cascade down. The Texas Criminal Defense Lawyers Association named Bud and me as the Percy Foreman Lawyers of the Year. The San Antonio Criminal Defense Lawyers Association (SACDLA) followed suit, naming us Defenders of the Year. We were also named by San Antonio Scene magazine as one of San Antonio’s Best Criminal Defense Lawyers as selected by their peers. In addition, I was selected for membership into the National Trial Lawyers Top 100 Trial Lawyers for 2013.

I wrote an initial story about my Supreme Court experience entitled, “I Could Have Danced All Night,” published in TCDLA’s Voice and SACDLA’s Defender magazines.

Part of Supreme Court History

At last year’s Rusty Duncan Seminar when we received our lawyer of the year awards, I had the honor to meet the keynote speaker, Stetson Law School Dean Bruce Jacob. Dean Jacob is the last surviving participant of the landmark case, Gideon v. Wainwright. Clarence Earl Gideon is deceased. His lawyer, Justice Abe Fortas, is deceased. All of the nine justices who heard the case are no longer living. The judge and the lawyers in Florida who were involved in the original case and its retrial are deceased as well.

We talked about the plight of the indigent and the “right to counsel” and how our cases are linked. We parted—agreeing to keep in touch. I sent him a link to my oral argument. I had listened to the oral argument in Gideon in my preparation for my oral argument. He sent a reply email the following day telling me that he enjoyed my time at the lecturn.

“After the Ball”

As Bud reminds me, going to the U. S. Supreme Court is not a destination but a journey. I am now introduced by judges, lawyers, and laypersons as the lawyer who went to the Supreme Court. Although I have returned to my regular caseload, my life has been inexorably changed. I hope to stand as an inspiration to my peers, old and young, and in a peculiar way to myself. I will forever be able to say that I argued a case before the United States Supreme Court; and won.

And now, on to my next client.

In reflecting on my experience before the United States Supreme Court, I find two books coming to mind: The Once and Future King by T. H. White and Pygmalion by George Bernard Shaw. Both books came to life on the Broadway stage in musicals: “Camelot” and “My Fair Lady.”

The story of young King Arthur as he pulled the sword out of the stone can be compared to getting a Writ of Certiorari granted. I later found out that approximately 80 out of 8,000 are granted annually. MAGICAL!

As far as getting ready for oral argument, I was like Eliza Doo­little learning every aspect of Supreme Court advocacy just as Eliza prepared to go to the ball.

I found out that Cert was granted on October 29, 2011, the day Hurricane Sandy crippled the East Coast. Washington had shut down, but the nine justices of the Supreme Court weathered the storm and came in to work that morning. They granted only four writs and turned away several hundred others.

I was standing at the bench in the 436th District Court, a juvenile court. My cell phone vibrated. I looked at it and the caller was Dick Burr. Dick is a death penalty and habeas resource attorney who has been helping me with Carlos’ case ever since I had been appointed in 2002.

As soon as the hearing was over I called. Dick told me that Cert had been granted. I felt as if I had pulled the sword out of the stone.

You Don’t Do This Alone

Many people helped along the way. Bud Ritenour has been my co-counsel for the past six years, replacing Alan Futrell. Bud was chiefly responsible for writing the Cert petition. Alan recruited others to write the original successor. I had become a mitigation investigator after we were denied assistance from the Court.

I cast a wide net seeking guidance and help from everyone I knew in the habeas community. I really wanted to do the oral argument, but to get ready meant a lot of preparation.

Where for others getting ready for oral argument might entail enduring two or three moots (practice oral arguments), I wound up doing ELEVEN! I was determined to make this work.

Professor David Dow at the University of Houston Law School hosted the first and the eighth. I did two at Texas Tech Law School in Lubbock, thanks to Prof. Pat Metze. One was held in Austin before the death penalty clinical professors at the University of Texas. They combined with Professor Dow to write an amicus brief (friend of the court). Two were done in San Antonio—one at St Mary’s Law School, my alma mater, and the other before members of the Federal Public Defenders office in San Antonio’s Western District (which boasts of two successful first-time oral advocates before the Supreme Court, Carolyn Fuentes and Jack Carter). An added bonus was a guest appearance by Professor Robert Bartels of Arizona State University in Tempe, Arizona, who was the attorney who argued the Martinez case before the Supreme Court. Wanting a non-Texas point of view, I managed to get Prof. Andrea Lyon at DePaul University in Chicago to host a moot as well. Bud accompanied me to every moot except the one in Chicago.

Not only did I endure the eleven moots; we videotaped them as well. And in addition to listening time and again to each moot, I did as Jack Carter suggested and turned off the sound and watched them to see if I had any annoying idiosyncratic gestures I needed to control.

Many offers started to pour in from Supreme Court “specialists.” Some former briefing attorneys. All from big firms with partners who argue before the Supreme Court on a regular basis. I resisted their entry into the case.

A huge addition to the team came through Dick Burr’s acquaintance with Seth Waxman. Seth, a partner with the Washington, D.C.-based firm Wilmer Hale, had been the U.S. Solicitor General during the Clinton administration. He agreed to help Bud and me write the brief and reply, and put together the joint appendix. Just an aside: Everything in the Supreme Court is dictated by special rules—the forms of the brief (booklet form), the number of words, the size of the font, and on and on. The number of people and man/woman hours Seth contributed to this effort is staggering.

Others were called in to help, including Prof. Tony Amster­dam at NYU Law School, whose insight into the justices’ idiosyncrasies was invaluable in shaping the brief and the oral argument.

Another extremely important person in this effort was president of the State Bar of Texas, Buck Files. It’s beyond current memory since a criminal defense attorney had last been state bar president. We agreed that it would be helpful for the State Bar to reassert its desire to improve the quality of capital defense as it’s set out in the Texas Guide for Capital Defense. Buck made it happen within the short time frame for the amicus brief to be filed. Justices Kennedy and Breyer favorably referred to the State Bar’s brief at least four times during oral argument.

The Pressure From Without and the Strength From Within

I really wanted to do this oral argument. I had many people from around the country who said I should defer to Seth, for all of the obvious reasons. In the final analysis, I have a lot to thank Seth for. I told him how I felt about doing the argument, and he replied, “Everybody has to have his first . . .” And we never looked back.

I was the Eagle Scout who had to learn how to swim to become a first class. In the ’60s there were no options as there are now, and every Eagle Scout had to have Swimming and Lifesaving merit badges. I gave up a trip cross-country with my Uncle Norm (the first attorney in the family, my mother’s younger brother, who I looked up to as role model in many ways). I earned my Eagle Scout badge overcoming many obstacles, and I attribute that to perseverance, which is a lesson I have drawn upon many times thereafter.

Norm had attended the prestigious Bronx High School of Science, a public high school that requires an entrance examination. Most of the entering class came from better neighborhoods than mine. It was like my competition came from Alamo Heights, and I came from a less affluent part of town. In order to prepare for the exam, I studied the “Increase Your Word Power” feature at the back of the Reader’s Digests my mother had accumulated. It paid off, and I was one of three from my junior high school to join the entering class of approximately 300.

Perseverance has played a big role in my avocations as well. I started bike riding in 1989. Soon I had built up my endurance to do century (100-mile) bike rides for charities such as MS, the Lung Association, the Heart Association, and the Lance Armstrong Foundation. The difference between a metric century (100 kilometers/62.5 miles) and a full century ride (100 miles) is the mental toughness, which I would have to draw upon in this upcoming ordeal.

Total Commitment

When I decided to make this effort, I realized that it would take a lot of sacrifice. I sent a “vacation letter” to all of the courts, sus­pending my availability to take any new court appointments.

Financially, it was not going to be easy. Bud and I have still not been paid for our work in the 5th Circuit to get the case to this point. As Benjamin’s (Dustin Hoffman) dad’s friend advised in the movie “The Graduate,” “Plastics!” I am lucky to have good credit. But I knew that the experience would be priceless.

As the time grew closer, the pressures to give up the oral argument became stronger. But my determination to make this happen became more enhanced.

The people who knew me best, local lawyers including Gerry Goldstein, Stan Schneider, Mark Stevens, and Mike Gross among countless others to a man, and a woman, all advised me to keep the case. I was not going to give it up.

The circle of people helping on the case, at one time literally numbered in the hundreds, now became a very tight-knit group. Bud Ritenour, co-counsel, advisor, deputy, and trusted friend, never wavered in his support. My wife, Teresa (who had sacrificed enormously in many respects during this ordeal), and my daughter Robin, who grew up watching her dad defend numerous clients, stood fast and were an unfaltering source of support.

Most importantly, I maintained that determination that got me into Bronx Science, finished many 100-mile bike rides, and helped me pass my Lifesaving merit badge to become an Eagle Scout.

Becoming Familiar With the Court

How do you prepare for your first oral argument before the Supreme Court? Not living in the D.C. area, not going to law school in the D.C. area, and not clerking for a Supreme Court justice as my opponent had, I needed to be creative in my preparation.

Eleven moots before former briefing attorneys, some who had appeared before the Court and others who were students of the Supreme Court, aided my preparation.

In addition, I listened to over 100 hours of oral arguments, especially the Martinez v. Ryan case to which ours was so inextricably linked. (Oyez.com, now Scotus.com, is a wonderful website.) I listened to Justice Abe Fortas, who argued Gideon v. Wainwright, and watched the Henry Fonda movie version just to see the courtroom scene over and again. I watched a CNN documentary DVD I had bought on a visit to the Court the previous August when I attended a Habeas seminar in D.C. Not only did the DVD show the courtroom; it also explained the history of the Court. And it contained interviews with many of the justices, including Justice Clarence Thomas, whose voice no one would hear (as always) during the oral argument. It discussed not only the oral argument but also the process how Cert is granted and how cases are decided. It actually showed the room where only the nine justices sit to decide the cases—NO ONE else is permitted entry. One interesting note was that when the justices are discussing the cases, the order follows seniority, and no one is allowed to speak a second time until all nine have an opportunity to voice their opinions.

I read biographies about all of the justices—where they went to school, where they grew up, what part of the country they were raised, even who were also Eagle Scouts.

I researched the profile of my opponents; that changed at the last minute.

I read about Supreme Court procedure, the history of oral argument, and techniques to better present oral argument.

I read books by the justices, including Justice Scalia, as well as books by Professors Dow and Lyon.

A great mental and moral boost came the previous August when one of the Supreme Court clerks, Mrs. Tyce, gave me a special tour after my wife and I took the public tour. She took us into the courtroom. Not just the area where the general public sits but inside the bar. She said, “This is where you will be sitting.”

She grabbed me by the arm and placed me at the lectern and said: “This is where you will be standing. Look how close you are to the Chief Justice.”

How prophetic. Mind you, all of this occurred before Cert was granted.

When we returned in February for argument, she met us again and this time gave Bud and me (for a second time) an opportunity to stand at the lectern (it’s not a podium).

The Day Before (February 24, 2013)

After a moot at the Supreme Court Institute at Georgetown Uni­versity on Friday and two more at the office of Wilmer Hale on Saturday, Bud and I agreed I needed to just relax. I thought about basketball players such as Kobe Bryant and Tim Duncan before a big basketball game. They always had ear buds inserted, listening to music. Teresa and Robin vacated the hotel room and went to visit Arlington. I opted to remain in the room. I went to my Pandora app and listened to show tunes, which included songs from “My Fair Lady” and “Camelot.”

Teresa and Robin brought me something light to eat, and I went to bed around 9 p.m.

February 25, 2013

We got up early and went downstairs for breakfast. We were scheduled to be the second argument of the day, beginning at 11 a.m. (I did not want to run out of steam before I began.)

At 9 a.m. all of the lawyers met with Chief Clerk General Suter. He put us at ease. He reminded us of some basic Supreme Court protocol. We then proceeded into the courtroom.

At 10 a.m. I got a chance to witness in person my first Supreme Court argument. At 11 a.m., sitting at the right hand of Seth Waxman, with Bud and Catherine Carroll—one of Seth’s attorneys who was so instrumental in getting the case and me ready—Chief Justice Roberts called the case and my name.

I opened in the obligatory fashion, “Mr. Chief Justice ,and may it please the Court . . .”

In an hour it was over—30 minutes a side.

Conclusion

Practicing now for 37 years, I have been a trial lawyer, argued cases before the 4th Judicial District Court of Appeals in San Antonio, the Texas Court of Criminal Appeals in Austin, the 5th Circuit Court of Appeals in New Orleans, and now before the United States Supreme Court. It was a dream come true.

I have returned to my practice back in San Antonio. But for one brief shining moment I was in Camelot. I could have danced all night.