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Editor's Comment

Editor’s Comment: Goose, Meet Gander

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From October 7 through October 8, 2021, I had the pleasure of attending my first TCDLA Forensics Seminar.  The seminar may be the most educational CLE event I have ever attended.  What Philip Wischkaemper, E.X. Martin, and Larry Renner, along with Melissa and the folks at the home office, put together is an incredible event that every criminal defense attorney should try to make time to attend in the future.  While I got my normal dose of camaraderie that I often feel when I attend TCDLA events and get to hang out with our brothers and sisters from across the State, the Forensics Seminar struck me as such an interesting difference from the norm because all of us attendees were primarily taught by non-lawyers for the entire seminar. Learning from the professionals who know the sciences, rather than from lawyers who have learned it from a professional, was a fascinating difference.  Each of the scientific professionals who presented were wonderful and helped me, and I would hope others, understand at a deeper level each of their respective forensic sciences, including and maybe most importantly, the limitations. 

In fact, that was a regular topic of conversation among many of the attendees.  While we are generally trying to keep out many of these various fields of forensic science in our trials, we cannot forget that sometimes the fields of science can work to our benefit. While we should never allow the government to bring garbage dressed up as science in front of a judge or jury without a fight, we should not be unwilling to utilize forensic sciences to our benefit, even those forensic fields that may be considered on the fringe.  We’ve all known forever that polygraphs are inadmissible in criminal courts in Texas, but that doesn’t mean we cannot utilize them to conduct our investigations into our clients. It also doesn’t mean that the best post-conviction lawyers we have among our members don’t utilize them all the time to help with the exoneration of their clients. 

Similarly, blood spatter evidence should not be discarded by our members as junk without any potential merit. Let me be clear, I will never suggest that blood spatter evidence should always be admissible. What I am suggesting is that within the proper limitations of blood spatter evidence exists the potential exculpatory use of that forensic field. I have used evidence to my client’s benefit that I would probably fight tooth and nail to keep out or discredit if the tables were turned. Don’t let us box ourselves out from properly utilizing forensic sciences to our clients’ benefit simply because of our own disagreements with improper use of a certain field.

One of the other great presentations at the Forensics Seminar was by Mark Daniel. We all owe a debt of gratitude to Mark for the work that he has done on behalf of the criminal defense bar at the Forensic Science Commission. With Mark’s help, the Commission has made strides in limiting the use of junk science in criminal courts in Texas. Among those achievements is the licensing requirement for certain Forensic analysts in order for their forensic analysis of physical evidence . . . and expert testimony to be admissible in a Texas criminal court. See Tex. Code Crim. Proc. art. 38.35(d)(1).   Although not every Forensic science has such a licensing requirement, there are many professed forensic sciences that have been excluded from the licensing requirement because they are unreliable. On the other hand, there are other forensic sciences that the Commission has simply not required licensing despite the general evidentiary admissibility of the field. Do not forget to review to article 38.35 of the Texas Code of Criminal Procedure. And you probably want to get a copy of Mark’s PowerPoint presentation that specifically lays out the sciences that require licensing and those that don’t. 

There is no way I can summarize in one short column the information I learned at the Forensics Seminar.  However, I can tell you that until we learn to work with experts in the various forensic fields and gain our own understanding of the proper application of the fields and the limitations, we are simply missing out on a benefit to each of our clients. Lucky for us, Philip Wischkaemper is planning to put on the Forensic Seminar again next year.

Be safe.

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

Editor’s Comment: Fight the Good Fight

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Despite the necessity to do so, it was one of my very greatest pleasures to work with TCDLA lawyers on the COVID-19 Response Task Force Committee during the height of the pandemic in 2020. The work that Chair Clay Steadman, then Co-Chairs Allison Clayton and Nicole DeBorde Hochglaube, along with vice-Chairs Betty Blackwell, John Hunter Smith, and Kyle Therrian, along with the rest of our Committee, did to help the members of this Organization and their clients remain safe against tyranny was as much fun as one could have when courts were shut down. Man, I thought those days were moving past us. It appears what was old may be new again. 

On August 4, 2021, Bexar County Judge Ron Rangel, Judge of the 379th Judicial District Court and Local Administrative Judge for the Bexar County Courts, shut down all in-person jury trials again because of the renewed threat COVID-19 has on members of the community. While I suspect that other counties and courts may follow suit depending on the on-going or worsening COVID-19 threat, there will be courts, judges, and locations where the threat to lawyers, defendants, and necessary witnesses will be ignored. I know that the band will be ready to get back together to fight for the protections of all our members should they be put in danger. Please do not hesitate to contact your local Committee representative if there are situations that arise that make you feel unsafe in the practice of criminal defense. We did not sign up to give up our lives to defend the Constitution. We may give up just about everything else, but don’t forget we all have someone who we have to protect, whether it be ourselves or our loved ones. I hope the new surge is short and that we can sooner get back to normal. Until then, be safe.

Editor’s Comment: July/August 2021

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I’m old enough to know that I’m still too young to get to toot my own horn regarding my wins and important cases.  There are far too many lawyers who have earned the right to do that in the pages that follow this article. Those men and women have spent far longer than I have changing the face of criminal defense in this State and bettering the lives of countless defendants. I am, however, old enough to tell everyone how important TCDLA is to me. My best friends belong to this Organization, and I can’t tell you how lucky I am to be able to say that. I’ll always remember Clay Steadman pushing me to get more involved; John Hunter Smith hearing me present the first time at a CLE and telling me I needed to keep speaking while immediately recruiting me to do so; David Moore asking me to serve and even chair a few committees during his Presidency; Heather Barbieri, Lance Evans, and Reagan Wynn all taking the time to help me learn as much as I could at the TCDLA Texas Criminal Trial College; Betty Blackwell and Clay asking me to speak in Austin at the seminar they were moderating (Clay told me I was in the big leagues and I better not f*ck this up and I better not say f*ck either); Sarah Roland asking me to serve as one of her co Vice-Editors; my good friends Sarah and Rusty Gunter recruiting me to come speak in Lubbock just so I could be introduced with my testicle case (don’t ask); Kerri Donica asking me to serve on her COVID-19 Task Force and fighting the good fight all over Texas for an entire year with one of the best groups of lawyers I’ve ever been around; and many other unforgettable times. My time in TCDLA has made me certain that I am exactly where I am supposed to be. 

For those that don’t know this about me, I went to college wanting to be anything but a lawyer. Specifically, a lawyer in Texas. More specifically, a criminal defense lawyer in Texas. Even more specifically, in El Paso, Texas.  My dad, Jim, is the best lawyer I know and I just didn’t want to have to work as hard as he has for as long I’ve been alive. But during college, it only took one science class for me to figure out I wasn’t going to be a doctor, so I started working towards law school.  I went on to attend the University of Oklahoma College of Law, never intending to practice criminal defense, and certainly not criminal defense in Texas, and absolutely not criminal defense in El Paso. My first day of Constitutional Law class set me straight, though; I was going to take a side in criminal law and that side was on the side of the good guys. Still, I sure as hell wasn’t coming back to Texas or to El Paso.  It turns out God had other plans and, for the last 10 years, I’ve been working alongside my dad, as a criminal defense lawyer, in Texas, working too hard but fighting the good fight. So, in addition to all of the friends I’ve mentioned, and all of those I haven’t, I have my dad, the person I’ve looked up to forever, to thank for getting me into what consists of the greatest group of people I’ve ever known. If it weren’t for him, I wouldn’t have known after one day of law school what I wanted to do for the rest of my life and I wouldn’t be who I am today.  He’s also the person who told me I had to join TCDLA because it was (and is) a giant organization of people who work too hard fighting the good fight every single day. That’s why all of the people I’ve mentioned are among my best friends. They understand what I do because it is what we all do on a daily basis, fighting the un-winnable fights because it’s the right thing to do (or maybe we’re all nuts). 

Be safe.


50 Years of Editors

Sarah Roland…………………………2016-2021

Michael Gross……………………….2013-2016

Greg Westfall…………………………2009-2013

Emmett Harris………………………2005-2009

David Richards……………………..2004-2006

John Carroll…………………………..2001-2004

D’Ann Johnson……………………..1999-2000

Suzanne Donovan…………………………..1998

William P. Allison…………………1995-1997

Jim Skelton……………………………1993-1995

Kerry P. Fitzgerald…………………1984-1994

Stanley Weinberg…………………..1981-1983

Clifton Holmes………………………1977-1981

F.R. “Buck” Files, Jr……………………….1976

Harry Lee Hudspeth………………1974-1975

Emmett Colvin……………………..1973-1974

Wesley H. Hocker………………………….1972

Editor’s Comment: Filling Big Shoes

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I’ve always loved history, enough even to major in history in college. From that love has grown a tendency to look back to learn from those who have come before me and to gain a reverence for whatever new task, job, assignment, or position I undertake. As the new Editor of The Voice, I didn’t change my stripes but instead wanted to find out who had held this position before me in the last almost-50 years of TCDLA. Sometimes not knowing the answer is probably more comforting than knowing the answer because there are times where you don’t want to know the size of the shoes you are trying to fill. A veritable Who’s Who of criminal defense lawyers in Texas have undertaken to make sure that the materials provided in The Voice have been up to snuff during the last almost-50 years. To name a few:

Emmett Colvin
Harry Lee Hudspeth (later United States District Judge)
Buck Files
Scrappy Holmes
Stanley Weinberg (a good Sooner, like myself)
Emmett Harris
Greg Westfall
Michael Gross
Sarah Roland

There are many more, too many to put in one article, but I can’t help but think, “Wow, what the hell am I doing getting this gig?” These folks have each had such an instrumental position in making TCDLA the wonderful organization that it is today. I count on this list alone a number of friends and a lot of heroes. I don’t know that I’ll live up to being a federal judge or Scrappy Holmes, but maybe knowing the size of the shoes you’re supposed to wear makes you feel the responsibility to fill ‘em. I think I owe it to our wonderful Organization and the previous Editors to do my best to continue the tradition of not only making The Voice a high-quality publication for each TCDLA member and every Judge in the State, but also to strive to be as zealous an advocate as each of my predecessors. Now, I’m off to put on extra socks to fill the shoes.

Editor’s Comment: It’s Been an Honor

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It’s been one of my greatest pleasures to serve TCDLA as editor since Michael Gross entered the officer chain as secretary 5 years ago. The time has come, however, for me to step aside and allow new, fresh ideas and perspectives be involved. I have submitted my resignation as Editor of the Voice effective June 25, 2021. I will remain in an advisory capacity and will continue to serve TCDLA, but will be passing along the torch. This is certainly a bittersweet moment for me.

The Voice is bigger than any individual editor or author, and it always will be. It is a collective effort. Last March, I asked Jeep Darnell and Clay Steadman to join me as assistant editors. They graciously agreed, and I will be forever grateful. You never know what life is going to bring, and as the world was adapting and adjusting to a new normal during COVID-19, my family’s world turned upside down. In July, out of nowhere, my then four-year-old, Sam, suffered devastating medical issues. They have been ongoing but thankfully we are in a much better place now. It was Jeep and Clay who stepped in and picked up the slack with the Voice since my focus was completely on Sam. It was Melissa Schank who reassured me and kept things going. TCDLA has a real treasure in Melissa. And, recently, we added Amanda Hernandez to the fold. She has already exhibited editing prowess. It has been wonderful to have Jeep, Clay, and Amanda as part of this editorial team. We have certainly worked well together. My only regret is that I waited much too long before I recruited their assistance.

I have been blessed to work with giants like Buck Files, to talk to him each month, to read his columns, and to see him through to his 250th article. We all reaped the benefits of Michael Mowla’s SDR’s and are now benefitting equally from Kyle Therrian’s. Robert Pelton has consistently fielded calls and made sure we stay out of hot water ethically. The Chapter and Verse (Allison Mathis) and From the Front Porch (Dean Watts) columns are great additions. I have had the humbling duty of editing feature articles by lawyers much more experienced than me. I learn something new every month. I know we all do. These authors are the people who have tirelessly contributed month after month for the benefit of all of us. They are ones who should be thanked.

Michael Gross, thank you so much for having suggested me to fill this role when you joined the officer chain five years ago. It’s hard to believe it’s been that long now. I would like to think I have made a positive impact on the Voice and will be leaving it better than when I began. That’s always been my goal, at least. I have certainly enjoyed the work and the opportunities this position has provided.

Thank you, George, for brainstorming with me and editing the editor. George is my brother and best trial partner hands down.

Thank you all for reading the Voice and for trusting me to be your editor for so long. Thank you for all your submissions. Thank you for all your feedback – both good and bad. We value it all. Truly. Keep it coming because the goal will always be to continue to make the Voice a better resource for our members, and keep on submitting your articles. Your articles are the lifeblood of the Voice.

You likely know I’m a defense lawyer because of my late dad, George Roland. I’ve mentioned him before in my articles. He was the biggest Willie Nelson fan ever, so it seems appropriate to quote Willie (though somewhat out of context given the rest of the song) –

Turn out the lights, the party’s over
They say that, ‘All good things must end’

Thank you. It has been an honor.

Editor’s Comment: 250 Seems Like a Good Number

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I am saddened to inform you that after 250 articles (yes, 250!) Buck Files has decided to put his pen down/close down his computer. As you know, Buck has been a consistent and prolific author of the Federal Corner column for a long time – probably for about as long as you can remember, in fact. Those of you who have had the benefit of reading his articles every month know we have a treasure in Buck. But, as Buck told me, “250 seems like a good number.” No doubt. It’s a record that will undoubtedly stand for years to come.

As the editor for the past five years, Buck’s articles were a dream. They came in on time, with superb content, and in great shape every month. I couldn’t have asked for more.

Buck’s Federal Corner column would never tell you about him and his accomplishments. However, I think it’s important that we all acknowledge the giant who has been amongst us and indeed led us for all these years.

Buck is a charter member of TCDLA and has consistently and continually strived to uphold the culmination of our mission statement – “…to promote justice and the common good.” Buck is a Marine. He has been married to his wife, Robyn, over 50 years. Buck served as president of the State Bar of Texas for 2012‑2013. He has been an active leader in both TCDLA and SBOT for many years. In 1975, he was part of the charter class to be certified as a specialist in criminal law. In 2011, Buck was inducted into TCDLA’s Hall of Fame. The next year, Buck received the Lifetime Achievement Award from the Criminal Justice Section of the State Bar of Texas. You should all know, if you don’t already, that in addition to all the above‑earned accolades Buck is a genuinely polite and kind person. I will miss him. Buck, we are all thankful for you and your contributions that have made us all better, and we wish you the very best.

The Federal Corner column is an important part of the Voice, and we will continue to bring it to you without interruption with rotating columnists.


The Voice’s New Assistant Editor!

The Voice for the Defense is excited to announce San Antonio‑based lawyer Amanda I. Hernandez has joined as an associate editor!

Amanda is an associate at the Flanary Law Firm, PLLC, and has jury trial experience with misdemeanor, felony, and federal cases.

Amanda currently serves as a board member for the Texas Criminal Defense Lawyer’s Association (TCDLA) and the San Antonio Criminal Defense Lawyers Association (SACDLA). She is also on the board of directors for the Texas Coalition to Abolish the Death Penalty (TCADP). Amanda is a zealous advocate and has been recognized by her peers as SACDLA’s “2019 Young Lawyer of the Year” and as a 2020 Top Attorney featured in San Antonio Magazine’s November 2020 issue.

She is also a 2017 graduate of the Tim Evans Trial College, an intensive program run by TCLDA in which new lawyers learn trial strategy from some of the best criminal attorneys in Texas.

Amanda earned her degree in International Business from the University of Texas at San Antonio in 2011 and went on to attend St. Mary’s University School of Law, graduating in May of 2016. After graduation, Don Flanary started the Flanary Law Firm, PLLC, and quickly promoted her from being his long‑time law clerk to the first associate attorney in his practice, where she remains today.

Editor’s Comment: Tattoos Can Be Removed, But Can a “Gang Member” Label?

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It all started simple enough. A question popped up in my inbox from a probation officer. It wasn’t a question about a particular client of mine – just a question from a good probation officer who, seeing beyond the criminal offense, was trying to help one of his young probationers.

“Do you know anything about the process that a probationer could use to be removed from the gang registry?”

And do you know what? I didn’t know, and I felt bad for not knowing. I could tell him all about other legal mechanisms to help restore a person – early release, expunctions, sealing records, and judicial clemency – but nothing about getting off the gang registry. So, I made it a point to find out.

When in doubt about a question like this, turn to the CCP to see if there’s guidance. The answer to the question above is found in Chapter 67. Before answering the question though, it is necessary to understand a little about the gang database.

As an initial matter, it is important to note that Texas is one of a minority of states that have a gang database. In 2005, the FBI established the National Gang Intelligence Center that integrates gang intelligence from across law enforcement agencies at all levels.

Article 67.051 mandates that the State compile and keep a database for the purpose of investigating or prosecuting the criminal activities of combinations or criminal street gangs. Subsection (d) requires local law enforcement to send to the department such information the agency compiles and maintains under Chapter 67. So, first, the database is required at the State level, and local law enforcement agencies are required to participate in providing information to the database.

Article 67.054 outlines the submission criteria for inclusion in the database:

(b)  Criminal information collected under this chapter relating to a criminal street gang must:

(1)  be relevant to the identification of an organization that is reasonably suspected of involvement in criminal activity; and

(2)  consist of:

(A)  a judgment under any law that includes, as a finding or as an element of a criminal offense, participation in a criminal street gang;

(B)  a self-admission by an individual of criminal street gang membership that is made during a judicial proceeding; or

(C)  except as provided by Subsection (c), any two of the following:

(i)  a self-admission by the individual of criminal street gang membership that is not made during a judicial proceeding, including the use of the Internet or other electronic format or medium to post photographs or other documentation identifying the individual as a member of a criminal street gang;

(ii)  an identification of the individual as a criminal street gang member by a reliable informant or other individual;

(iii)  a corroborated identification of the individual as a criminal street gang member by an informant or other individual of unknown reliability;

(iv)  evidence that the individual frequents a documented area of a criminal street gang and associates with known criminal street gang members;

(v)  evidence that the individual uses, in more than an incidental manner, criminal street gang dress, hand signals, tattoos, or symbols, including expressions of letters, numbers, words, or marks, regardless of how or the means by which the symbols are displayed, that are associated with a criminal street gang that operates in an area frequented by the individual and described by Subparagraph (iv);

(vi)  evidence that the individual has been arrested or taken into custody with known criminal street gang members for an offense or conduct consistent with criminal street gang activity;

(vii)  evidence that the individual has visited a known criminal street gang member, other than a family member of the individual, while the gang member is confined in or committed to a penal institution; or

(viii)  evidence of the individual’s use of technology, including the Internet, to recruit new criminal street gang members.

(c)  Evidence described by Subsections (b)(2)(C)(iv) and (vii) is not sufficient to create the eligibility of a person’s information to be included in an intelligence database described by this chapter unless the evidence is combined with information described by another subparagraph of Subsection (b)(2)(C).

So, it is important to recognize and acknowledge that the “gang member” label can be, and likely is, applied without due process and outside the walls of any courthouse. And as becomes obvious from a further read, removing a tattoo is easier than removing a “gang member” label.

The answer to the question of how to remove information from a gang database is contained in Article 67.151 which provides, in relevant part:

(b)  Subject to Subsection (c), information collected under this chapter relating to a criminal street gang must be removed after five years from an intelligence database established under Article 67.051 and the intelligence database maintained by the department under Article 67.052 if:

(1)  the information relates to the investigation or prosecution of criminal activity engaged in by an individual other than a child; and

(2)  the individual who is the subject of the information has not been arrested for criminal activity reported to the department under Chapter 66.

(c)  The five-year period described by Subsection (b) does not include any period during which the individual who is the subject of the information is:

(1)  confined in a correctional facility operated by or under contract with the Texas Department of Criminal Justice;

(2)  committed to a secure correctional facility, as defined by Section 51.02, Family Code, operated by or under contract with the Texas Juvenile Justice Department; or

(3)  confined in a county jail or confined in or committed to a facility operated by a juvenile board in lieu of being confined in a correctional facility described by Subdivision (1) or committed to a secure correctional facility described by Subdivision (2).

Interestingly, the person named in the database does not have to be informed they are named in the database. However, the CCP outlines procedures for determining if a law enforcement agency has collected or is maintaining gang information, requesting a review of criminal information that may have been incorrectly included in a gang database, and also for judicial review of any such determination made. See Art. 67.201- 67.203.

The Texas Department of Criminal Justice calls gangs “security threat groups.” TDCJ recognizes 12 such security threat groups: Aryan Brotherhood of Texas, Aryan Circle, Barrio Azteca, Bloods, Crips, Hermanos De Pistoleros Latinos, Mexican Mafia, Partido Revolucionario Mexicanos, Raza Unida, Texas Chicano Brotherhood, Texas Mafia, and Texas Syndicate. TDCJ has created a process for inmates to renounce their membership in one of these security threat groups (aka “gangs”). And it is a process – a 9-month process with several phases – called the Gang Renouncement and Disassociation (GRAD) Process. Of course, there are myriad considerations, not address herein, that must be evaluated before an inmate embarks on the GRAD Process. To say it is dangerous is an understatement. And the fact that an inmate has completed the GRAD Process doesn’t mean the “security threat group” notation will be forever removed. Rather, it means that the new notation will be “ex-security threat group member.” See www.tdcj.texas/gov/divisions/cid/stgmo_GRAD.html (last visited 2/9/21).

I’m thankful I received that email question. Chapter 67 is worth reading. And it’s worth a visit to the TDCJ website to check out the security threat groups and GRAD Process too. The bottom line is that it seems much easier to remove or cover up a tattoo – even a gang tattoo – than to remove the same label law enforcement has applied.

P.S. – We all weathered the recent winter blast together but experienced it in very different ways. Many of us may have experienced only minor inconveniences for a week while some of us were really hit hard and are still recovering from the damage caused. Please know that your TCDLA family is here for you. If there is anything we can do to help you, please reach out to any of us. Let’s take care of each other.

Editor’s Comment: Here for Each Other

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A new year. A fresh start. Or so it’s supposed to be. We are all still dealing with COVID-19 and all its many implications on our profession. Many of us are balancing work with helping our children with connected learning. Some of us have lost loved ones. We have all been, and continue to be, impacted. Amidst all this, please know that TCDLA continues to be out front fighting for us. Your officers and executive director work incessantly for the interests and benefit of all of us. Recently, our leadership reached out to Governor Abbott about vaccine prioritization for criminal defense lawyers. After all, as we know, criminal defense lawyers are essential to a fully functioning criminal justice system.

Keep on keepin’ on (as my Dad would say), stay safe, and let’s continue to take care of each other.

Sarah

Two New Year Reads

I want to share a couple of books with you that I recently read and think you will enjoy.

Uncomfortable Conversations with a Black Man
By Emmanuel Acho

I had heard about this book a while back and considered reading it but honestly just happened to pick it up on a whim recently. I’m so glad I did. I couldn’t put it down. The book is exactly what its title indicates. There’s nothing pretentious about it. Acho, the son of Nigerian immigrant parents who grew up in Dallas, played for the NFL, and who now is an analyst on Fox Sports, fully acknowledges his experience is not representative of all black people, and that gives the book a certain credibility. Each chapter begins with a question – a question many people have thought if not wondered out loud at some point. Then, each chapter discusses the history behind the question, the uncomfortableness around the question itself, and how to come together. The book is appropriately divided into three parts: 1) You and Me; 2) Us and Them; and 3) We. Acho doesn’t talk down to the reader or make the reader feel ashamed, and he provides actionable suggestions to become a part of the solution. This is a quick but thought provoking read. You will learn something about yourself and someone else. As Acho points out (and we all know from experience), black men are disproportionately arrested, convicted, and imprisoned in our justice system. You won’t regret spending the time to read this book if you haven’t already.

Murder in Montague: Frontier Justice and Retribution in Texas
By Glen Sample Ely

Even though I’m a Baylor/Texas Tech girl, Mr. Ely and the University of Oklahoma Press was kind enough to send me Murder in Montague to review. If you love history, this book is for you.

On a sweltering August night in 1876, a Methodist minister, his wife, and children were brutally slaughtered in their North Texas home. Acting on deathbed testimony, three men were arrested and tried for the murders. The book is a blend of true crime reporting, social drama, and legal history and presents a vivid snapshot of frontier justice in Texas following the Civil War.

The sheer brutality of the Montague murders terrified settlers already traumatized by decades of chaos, violence, and fear – from the deadly raids of Comanche and Kiowa Indians to the terrors of vigilantes, lynchings, and Reconstruction lawlessness. But the crime’s aftermath – involving five Texas governors, five trials, five appeals, and life at hard labor in the state’s abominable, inhumane prison system – offered little in the way of reassurance or resolution.

Viewed from any perspective, the 1876 murders were both a tragedy and a miscarriage of justice. Combining the long view of history and the intimate details of true crime reporting, this book captures this moment of reckoning as vigilante justice grudgingly gave way to an established system of law and order.

Editor’s Comment: Is the Risk Worth it?

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The Voice has always been an important benefit of this organization. Back in 2007, I submitted my first article for publication to the Voice. It addressed the presentment requirement of search warrants as applied to search for blood.1

Now, 13 years after my first article – and along with many other Americans, I’m certain – I find myself contemplating more and more another topic related to search warrants: no-knock warrants. The requirement has long been a part of history even before Justice Thomas authored the opinion for a unanimous SCOTUS in Wilson wherein he wrote: “At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.”

Wilson v. Arkansas, 514 U.S. 927, 929 (1995). The case involved a search warrant based on information from a confidential informant. Police had information that the target had previously been convicted of arson and firebombing and also that he had threatened the confidential informant with a semiautomatic weapon. Police officers announced entry contemporaneous with, rather than prior to, entry in this case. The SCOTUS ultimately reversed and remanded the case to the Arkansas Supreme Court to address whether evidence of potential danger to law enforcement and destruction of evidence justified the failure of law enforcement to announce their presence prior to breaching the door.

Thus, since 1995, the knock and announce requirement is part of the reasonableness inquiry of a Fourth Amendment analysis. But now, especially given all the recent events, the question is: does the ever-increasing cost of no-knock warrants outweigh their potential benefits?

The scene in executing these no-knock warrants is often the same – an arsenal of police in military-type tactical gear (versus typical patrol uniforms that we are all used to) load up under the cover of darkness and surround the target house often giving hand signals to communicate. To anyone watching, they appear ready for war. Then, when the signal is given, they breach entry with some sort of battering ram, again under the cover of darkness, throw flashbangs while simultaneously screaming commands, and storm the location with guns drawn and shields up. The occupants are often sleeping, and there are frequently noninvolved people – sometimes kids and/or elderly – present at the location. They are awoken or interrupted suddenly by the sounds of flashbangs and screaming. Through an open interior door, the occupants may see smoke and guns pointed at them. Predictably, panic and chaos often ensue, and gunfire is often exchanged.

In my experience and reading, these no-knock warrants are typically employed in drug raids. Certainly, the same concerns that existed in Wilson as justifications for the failure of the police to announce their presence will exist in the execution of a warrant in virtually every drug (and every other criminal) case. The consideration, then, has to be is it worth the risk. Is it worth the risk to any one law enforcement life? Is it worth the risk of life to the sometimes completely innocent occupant? Importantly, to answer the question, we must acknowledge that “it” is most frequently a covert drug bust. The problem is further compounded by the fact that Texas is a proud “stand your ground” state. Gunfire, or the sound of gunfire, will often predictably be met with the return of gunfire. Is the risk of harm really worth it? Not a chance.

Just search “no-knock warrants” and you will find that many police departments in Texas are now suspending or severely limiting the use of no-knock warrants for precisely this reason. And, in June, Kentucky Senator Rand Paul introduced the Justice for Breonna Taylor Act to prohibit no-knock warrants at the federal level and for states or any local law enforcement agency that receives funding from the Department of Justice.2 What harm will it actually do to eliminate or severely restrict the use of no-knock warrants like many police departments and legislation propose? None. The warrants will still be executed, police will still come prepared, and people will still be arrested. The risk isn’t worth it.

And finally, although our country is clearly divided, let us not become so. Let us embrace the differences in each other and let us remember that whatever our differences may be, we stand united because we all are criminal defense lawyers.

Peace on earth and goodwill to all.

P.S. – A huge thank you to all those committees and individuals who have committed to contribute to the Voice. Your thoughtful contributions are what continue to propel the success of this publication.

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