President’s Message: Great Times in the Caribbean


“We take photos as a return ticket to a moment otherwise gone.”


This month I want to share a few photos to allow those of you who were not lucky enough to be with the 98 of us who traveled via Royal Caribbean to… well… to the Caribbean! An amazing time was had by all. From beautiful beaches to fine dining to a Hush Party, we didn’t miss a second of fun!  Two of our members even came in first and second in the ship’s sexiest man contest! I hope you enjoy the photos. TCDLA is truly my family and I can’t wait for our next adventure. Hope everyone plans to join President-Elect Grant Scheiner for his President’s Trip next February to D.C., where we will be sworn in before the U.S. Supreme Court. When we are together, great times follow!

Chief Executive Officer’s Perspective: New Beginnings


We are excited as we start off the new year with two new key staff. I would like to introduce Billy Huntsman, communications director and Briana Ramos, program coordinator, to our membership.

Billy Huntsman is originally from Albuquerque, New Mexico. He went to college in Las Cruces and moved to Austin in September 2018, following his girlfriend who got a good job here.

Billy has a degree in journalism and has previously worked as a newspaper reporter, social media editor, and public relations specialist.

He’s excited to work at TCDLA because he’ll get to flex his creative muscles and suggest ideas to make our organization work better and more efficiently for you, our members.

Billy lives in Cedar Park but doesn’t mind the commute—he’s usually got a few podcasts ready to listen to, in addition to the music of Bruce Springsteen, John Denver, Aerosmith, and Shinedown, to name a few.

Billy and his girlfriend have a 90-pound Rhodesian Ridgeback named Sully who thinks he’s the size of a Norfolk terrier. His appetite for affection is second only to his appetite for something to eat, which has included maggot-ridden pigeons. At home, you can usually find Billy pinned underneath Sully, watching some sort of horror movie. But if Netflix hasn’t freshened up their offerings, Billy also likes to read–Cormac McCarthy, Ernest Hemingway, and Patricia Highsmith are a couple of his favorites.

Billy is really looking forward to getting to know our members and helping them excel in defending their clients any way he can.

Briana Ramos is a native New Yorker. Briana went to Baruch College to study intercultural communications, where she joined Beta Phi Sigma Sorority in her freshman year. She quickly became the event planning chair for her organization. The success of those functions solidified her passion for event planning and led to the start of her career in the field.

She moved to Austin in March 2018 in search of sunshine, a new adventure, and space for her furbabies to roam. Briana’s a proud mom to two rescues: a sassy Labradoodle named Aura and a 120-pound Rottweiler named Pixie. In her free time, Briana enjoys gardening, swimming, volunteering, or exploring the beautiful sites that Austin provides.

Briana’s excited to be part of the TCDLA team because she found a cause she is passionate about. She can’t wait to infuse her enthusiasm and charisma into the group and is looking forward to all of the experiences to come.  

We hope each of you will get the chance to meet and engage with our new staff. With change comes innovation, energy, and excitement as we grow and strive for success!

Editor’s Comment: The Importance of Storytelling


Everyone has a story. And everyone likes to hear a story. Think about it: From the time we are little when we’re being tucked into bed at night, or riding in the car, we loved having stories read or told to us. Now, we tell stories to our children and to our grandchildren, and we relish their reactions to the stories we tell. We tell stories to our friends and our significant others. Stories are passed along from generation to generation; stories keep cultures and traditions alive.

As trial lawyers, we are storytellers by nature. The ability of each of us to tell our client’s story in the most compelling way—whether it be to judge, jury, or prosecutor—is a must.

So, what makes a good story great? And, what makes a good storyteller a great storyteller?

In storytelling, we have all heard about the drama triangle­ with the rescuer, the persecutor, and the victim at each point. Dr. Stephen Karpman developed this drama triangle decades ago as a model to show the various roles of human interaction in conflict situations. We have all heard, and probably use, some version of Dr. Karpman’s drama triangle. At the start of any criminal case, the persecutor is our client, the victim is the actual victim or complainant, and the rescuer is the lead detective or the prosecutor. In order to be successful, we have to tell our stories to a jury such that the triangle flips, and the jury—rather than the police or prosecutor—becomes the rescuer of our client who is the victim (versus the complainant), and the persecutor is the lead investigator, the analyst, the prosecutor, etc. (instead of our client). Flipping the drama triangle is done through effective storytelling. It’s much easier said than done, though.

Every story, regardless of where or to whom it’s told, has a clear message or theme. So, too, must the stories that we tell in courtrooms. Sometimes the message or theme is apparent from the beginning and sometimes not. It’s there, though. We just have to find it and communicate it in a clear way.

The characters in our stories must have dimension. The jury must be able to really know the characters, whether those characters are our client, the complainant, the officer, or the eyewitness. And the jury must be able to see what motivates them. We must give these characters dimension (or not), depending on their role in the story.

Authenticity and passion are what turn good storytellers into great storytellers, no matter the venue. We must have some sort of connection with our client. It comes naturally in some cases and with some clients, but we must always work to cultivate that authenticity and passion. It takes time—investing our time to get to really know their story so we can effectively tell the story of the case. Juries can always spot a fake. Being genuine is what matters. If we don’t believe the story we are telling, we can’t expect a jury to believe it either.

In short, great storytellers invest their time, patience, and energy into their stories. Great storytellers take the time to develop the story, invest patience to discover the heart of the story, and give the energy to tell the story. With every story we tell—whether to our children, grandchildren, family, or friends—we have a chance to practice and improve our storytelling skills. We can, and should, also learn from those whose stories we enjoy hearing. We generally know someone in our circle who can just tell a really good story—someone who is a gifted storyteller. Study that person; what makes them a great storyteller?

It can be scary to stand in front of a group of captive strangers (i.e., a jury) and genuinely tell a story. Standing alone in the well of the courtroom with only the sound of your own voice can feel simultaneously terrifying and empowering. But it’s important to tell the story. Win, lose, or draw, it matters to our clients. It matters to our system of justice.

Enjoy the great stories in this issue from two great storytellers. You’ll find the Saga of Slippery Sam Cates an intriguing read, and Mr. Hart’s experience with discrimination, as told by his lawyer, is compelling. And, as always, we welcome and invite your stories, too.

Ethics & The Law: No Privilege


The lawyer client privilege is sacred. But it does happen that the client waives the privilege and, by doing so, allows the lawyer to respond to defend against allegations made by client.

This does not allow you to disclose other matters. Keep silent about other work product and privileged things you know. Keep silent about the bank robbery your client was involved in; but you must tell if client planning a future bank robbery.

Joseph Connors added that you have to be careful and if a client files a claiming that the lawyer did something wrong, the accused lawyer should only respond to those specific allegations and cannot bring up any other bad things the lawyer knows about client. This is not the lawyer’s opportunity to seek revenge against that former client.

A lawyer may reveal confidential information:

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.

(2) When the client consents after consultation.

(3) To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client.

(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client.

(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.

Thanks to Joseph Connors, Sharon Bass , Michael Mowla.

Federal Corner: Medical Marijuana and Supervised Release

[Note:  Mea Culpa.  If you thought that my last column – “Fingerprints, Thumbprints and Compelled Biometric Scans to Unlock Encrypted Devices” — was confusing, you were correct.  We unintentionally sent in what was supposed to run in the VOICE along with an earlier draft of the introduction to the column.  So, what you had was, at best, redundant.  The fault lies with me and not with our editor or TDCLA’s staff who are absolutely wonderful to work with.]

More than twenty years ago, I was aware of a conspiracy to obtain and distribute marijuana here in Tyler, Texas.  This is what happened.  Susie had terminal cancer and all the pain that went with it.  Only marijuana could give her any relief.  I had a client who had been an informant for the FBI for more than a dozen years.  With their knowledge, he would purchase marijuana and give it to one of the agents who supervised him.  The marijuana would then go to a former assistant United States attorney who would pass it on to Susie’s husband.  Then Susie could have her “medical marijuana.”  It was not long before Susie died, but, for those last months, she did not have the pain that had been so terrible for her.

In 2015, the Texas legislature authorized prescriptions of low-THC cannabis for patients who were diagnosed with epilepsy; a seizure disorder; multiple sclerosis; spasticity; amyotrophic lateral sclerosis; autism; terminal cancer or an incurable neurodegenerative disease.1

In June, 2019, Governor Abbott signed a bill into law that expanded who can have access to medical marijuana products in Texas.  Effective immediately, specialty doctors can now prescribe medical marijuana to treat multiple sclerosis; Parkinson’s disease; ALS; terminal cancer; autism; and many kinds of seizure disorders.2

So, you ask, why are we talking about medical marijuana?  Because, eventually, we are going to have a much broader medical marijuana statute or series of statutes.  More Texans will be able to take advantage of medical marijuana – and some of them will wind up as defendants in federal criminal cases and be on supervised release.  And then they will be denied the benefits of the Texas medical marijuana statutes.

In Gonzales v. Raich,3 users and growers of marijuana for medical purposes under California’s Compassionate Use Act sought to declare the Controlled Substances Act (CSA), as applied to them, was unconstitutional.  Justice Stevens, writing for the Court, held that the application of CSA provisions criminalizing manufacture, distribution, or possession of marijuana to intrastate growers and users of marijuana for medical purposes did not violate the Commerce Clause.

United States v. Kelly4 is the latest case to discuss this issue. The opinion of United States Magistrate Judge Jay McCarthy reads, as follows:

Decision and Order

May an individual facing federal criminal charges use marijuana for medical purposes, provided that such use is legal under state law? For the following reasons, the answer is no.


Defendant is charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Indictment.  On October 26, 2018, I ordered him to be released from custody subject to various conditions, including that he ‘shall not commit any offense in violation of federal, state or local law while on release,’ and that he ‘submit to any method of testing required by the pretrial services office for determining whether he is using a prohibited substance.’ Order Setting Conditions of Release [4], §§(1), (8)(s).

On October 10, 2019, defendant provided the pretrial services office with a notice of his acceptance into the medical marijuana program at Dent Neurological Institute. That office has asked me whether he may participate in this program, and defendant has asked that I rescind his drug testing condition with respect to the use of marijuana for medical purposes.

The Bail Reform Act provides that any defendant who is on pretrial release must ‘not commit a Federal, State, or local crime during the period of release.’  18 U.S.C. §§ 3142(b), (c)(1)(A). ‘Compliance with federal law is a mandatory condition’ of release.  United States v. Arizaga, 2016 WL 7974826, (S.D.N.Y. 2016). Although New York State has legalized, ‘for state law purposes, approved forms of medical marijuana dispensed and administered under certain, highly regulated conditions’ (id.), ‘[t]he possession of marijuana [remains] illegal under federal law. See 21 U.S.C. § 844(a). There is no federal exception for medical marijuana.’ Id.

While acknowledging that it ‘cannot eliminate the mandatory legal compliance condition,’ the court in Arizaga nevertheless directed its pretrial services department ‘not to charge a violation of Defendant’s release conditions based solely on New York state-approved medical marijuana use or a drug-testing result consistent with New York state-approved medical marijuana usage.’  In doing so, the court invited disobedience of its release order, thereby ‘send[ing] the wrong message to recalcitrant parties … that defiance goes unpunished.’ Rosemond v. United Airlines, Inc., 2014 WL 4245974, (E.D. Va. 2014). A court order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded,’ Coene v. 3M Co., 303 F.R.D. 32, 49 (W.D.N.Y. 2014), and ‘[i]f the courts do not take seriously their own … orders who will?.’  Arnold v. Krause, Inc., 232 F.R.D. 58, 66 (W.D.N.Y. 2004), adopted, 233 F.R.D. 126 (W.D.N.Y. 2005) (Arcara, J.).

Thus, in United States v. Pearlman, 2017 WL 7732811 (D. Conn. 2017), the court denied defendant’s request to remove the drug testing condition of his pretrial release so that he could participate in a state-sanctioned medical marijuana program. The court reasoned that ‘even if [that] Condition were removed, defendant would be barred by Condition 1, which is mandatory and not waivable, from using marijuana while on pre-trial release. Accordingly, the request made by defendant would not achieve the relief he seeks. The Court cannot, and will not, sanction the violation of federal law by a defendant on pre-trial release, even if state law and the weight of public opinion appear to contradict that federal law.’

Congress may one day decide to legalize the possession of marijuana for medical (or other) purposes. However, it has yet to do so, and ‘where, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.’  United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). See also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 736, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) (‘[t]he wisdom of Congress’s judgment … is not our concern. Our responsibility is to enforce [the statute] as written’). (emphasis added)


For these reasons, §§(1) and (8)(s) of my Order Setting Conditions of Release remain in effect.


There are no Circuit Court opinions on this issue.

In the Kelly opinion, Magistrate Judge McCarthy mentions Arizaga5 and Pearlman6. Kelly was from the United States District Court from the Western District of New York.  Arizaga was from the Southern District of New York and acknowledged the conflict between federal law and New York state law.  Pearlman was from the United States District Court for the District of Columbia and reached the same conclusion as Magistrate Judge McCarthy did in Kelly.

There are also other cases in which the defendant was prohibited from participating in a state medical marijuana program while on supervised release; e.g.,

  • United States v. Meshulam7
  • United States v. Small8
  • United States v. Bey9
  • United States v. Johnson10

My Thoughts

  • We live and breathe and have our being in the Fifth Circuit.
  • If Texas ever has a broad medical marijuana program, there is no reasonable expectation that the United States Court of Appeals for the Fifth Circuit or any district courts within the Circuit will authorize a defendant to participate in a medical marijuana program while on supervised release.

Shout Outs


Congratulations to Troy McKinney, who received the Tom Garner Distinguished Service Award from the Texas Board of Legal Specialization. Named after former TBLS Chairman Tom Garner, the award is given to an individual “who best epitomizes the best ideals of voluntary service by their knowledge, dedication, hard work and integrity.” You’re a rock star, Troy!

Congratulations to Gary Cohen for a great parole victory! Client received a 10-year sentence for intoxication manslaughter and two counts of intoxication assault. He had a very high BAC after a day of tubing on the river in New Braunfels. After serving five years, this was the client’s first parole review. Gary gave a masterful presentation to the lead voter. He received a favorable vote in less than 24 hours with no counseling provisions. A huge win! Nice work, Gary!

Kudos to Clark Birdsall, whose defense of a permanent-resident woman accused of illegally voting in Texas was the subject of a USA Today article published on February 21! USA Today has an approximate readership of 2.6 million people, so congratulations are indeed in order for Clark for helping to spread the important work he and other Texas criminal defense attorneys are doing!

Shout out to Steven Wright, whose client was on trial for a DWI with a BAC of .18 and a charge for unlawful carry. Because of Steven’s advocation, the jury returned a verdict of not-guilty within 12 minutes on the DWI charge and a dismissal on the unlawful carry charge. Way to go, Steven!

To be featured in our shoutouts, email details to Billy Huntsman at .

Current Issue: January/February 2020




22 | Protecting Your Client’s Conduct While Admitting the Accuser’s: Texas Rules of Evidence 403, 404, 412, and 609 – By Grant Scheiner & Will R. Vaughn
28 | A Practical Guide for Reviewing Evidence in DWI/DUI Cases – By Sol Bobst
30 | Back to Basics: Attack SFSTs, Not the Officer – By Mark Ryan Thiessen & Frank Sellers


6 | President’s Message
7 | Executive Director’s Perspective
9 | Editor’s Comment
11 | Ethics and the Law
16 | Federal Corner
20 | Shout Outs


5 | CLE Seminars and Meetings
39 | Significant Decisions Report

President’s Message: On the Agenda


As I put pen to paper, it is a cold January day. The saving grace is that I know in just a few days we will be sailing the ocean blue with so many of my favorite people in the universe on my TCDLA President’s Cruise! We will have great CLE, beautiful beaches, and incredible fun!

To make today even better, I attended a 7:00 a.m. Navarro College Martin Luther King Jr. Breakfast. The keynote speaker was none other than our former board member Audrey Moorehead! Audrey now serves as a Dallas County Criminal Court Judge, and she was as amazing as ever. She reminded everyone about the complete relevance of MLK even today and implored them to be a part of civic responsibility—vote, give back, be your best! An incredible (and of course hilarious) presentation from an even more incredible woman!

Speaking of Navarro College—everyone is already obsessed with our junior college of late, thanks to Netflix’s “Cheer” series about the Navarro College cheer program. If you have haven’t watched it—DO! You all know how much I love to share my hometown with everyone, and this is a great example of good things happening in smallish towns across our country!

TCDLA has some extremely good CLE in the near future! DON’T MISS IT! Our Criminal Defense Lawyers Project Chair Laurie Key has forced us to suffer through CLE at the Lajitas Golf Resort on February 28 so we can spend time with our incredible West Texas lawyers. Should be so much fun and educational as well. Then Anatomy of a Trial will be in Austin March 5th & 6th. This is going to be so very good: Our course directors are Betty Blackwell and Clay Steadman, and NOTHING they do is less than stellar! Check out the agenda on our website and make plans to be there.

I’m thankful for each of you, and I can promise I am ready for spring. Keep fighting the good fight! You are a blessing to me, to your clients, and to each other.

Executive Director’s Perspective: A New Year at TCDLA


There is always strength in numbers. The more individuals or organizations that you can rally to your cause, the better.

—Mark Shields

I hope everyone started off the new year with a bang! It seems like each year, time passes faster and faster. We become burdened by more responsibilities and others’ expectations. With all these expectations as well as impending deadlines, we can be overwhelmed. We must take care of ourselves and attend to our health. While taking care of personal well-being, attorneys are also tasked with another critical responsibility—their clients. This means taking care of your clients, making sure their mental health is considered so you can provide the best defense.

With that in mind, TCDLA would like to recognize the tireless leadership and dedicated support in this regard of Judge Barbara Hervey of the Texas Court of Criminal Appeals, chair of the Grants Committee and co-chair of the Judicial Commission on Mental Health. TCDLA would also like to acknowledge the generous financial support of the Texas Court of Criminal Appeals and the Judicial Court Personnel Training Fund. Recently Judge Hervey and the CCA awarded TCDLA a mental health grant that allows TCDLA to provide additional mental health training as well as funding for travel stipends for attendees.

We have four CCA-funded seminars February 20-21, 2020, in Austin: a mix-and-match combination of Appellate, Veterans, Capital, and Mental Health sessions. We also have mental health seminars on our online CLE, though if you would like to view this material without CLE credit, we now host a video library.

In addition, TCDLA has a Mental Health Committee chaired by Alyse Ferguson and Melissa Shearer. The committee has held several meetings and is working hard to provide additional resources. Through the CCA, the committee has provided a Mental Health Resource Guide and a Mental Health pamphlet.

The Mental Health Resource Guide was created by Judge Hervey and is a publication of the Texas Court of Criminal Appeals. The Mental Health pamphlet—compiled by Chris Lopez, attorney for the Health and Human Services Commission—contains flow charts covering Chapter 46B (Incompetency to Stand Trial) and Chapter 46C (NGRI/Insanity Defense). Both, provided free courtesy of the grant, can be ordered through TCDLA by calling 512.478.2514 or on the TCDLA website,, under publications.

In addition, all the grant-funded and TCDLA seminars are listed on the website. Please visit the site and sign up for one of the upcoming seminars. If you have particular interest in mental health seminars, email me at .

Editor’s Comment: A Fresh Start


A new year. Another fresh start. It is hard to believe it’s already 2020—nearly incomprehensible really. Everything happens so fast and yet also uncomfortably slow at times. We operate daily in a profession of “hurry up and wait.” But it’s the New Year that often helps us refocus on what is important in our lives, both professionally and personally. We all have new resolutions and goals for our lives. So, too, do our clients. So, we may be getting the phone calls about sealing and expunging records—so our clients can have a real fresh start.

Expunction is obviously the preferred course of action if a person is so entitled. See Tex. Code Crim. Proc. art. 55.01, et. seq. But if the person isn’t entitled to have their record expunged, it may be that they can have it sealed. Because the Legislature radically expanded the sealing laws in 2017, it is worth a review of some of those laws. See Tex. Gov’t Code sec. 411.071, et. seq. These laws—with the exception of automatic sealing — apply to an offense committed before, on, or after September 1, 2017.

  • Automatic Nondisclosure (411.072)—applies to a person who receives a discharge and dismissal for certain nonviolent misdemeanors on or after September 1, 2017; has never before been convicted of or placed on deferred for another offense other than a traffic offense that is punishable by a fine only; is mandatory and does not require a petition, just a request; requires some evidence establishing that person is eligible (can be an affidavit from client); can happen as soon as 180 days from the date person placed on deferred; and is only a $28 fee.
  • Non-Automatic Nondisclosures (411.0725)—applies to a person otherwise ineligible for an automatic nondisclosure; and mandates a two-year wait for certain misdemeanors and five-year wait for felonies before filing; no requirement of no prior criminal history.
  • Completion of Veterans Treatment Court (411.0729)—specifically applies to a person who completes a VTC program; applies regardless of whether the petitioner meets other eligibility criteria under the subchapter.
  • Misdemeanor Convictions (411.073)—section applies to a person placed on straight probation for a misdemeanor (other than the regular disqualifiers); a person who has never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense that is punishable by fine only; not the result of a revocation; mandatory waiting period for certain enumerated misdemeanor offenses; if ineligible under 411.073, then may still be eligible under 411.0735. (Note: There is no provision that provides for sealing records for the successful completion of straight felony probation.)
  • Deferred Probation in DWI Cases (411.0726)—there must be evidence in the petition that the person is entitled to file a petition; no revocations; has never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense that is punishable by fine only; not eligible if evidence presented that offense involves car accident involving another person (not the driver/petitioner); two-year wait after discharge and dismissal.
  • Probation in Certain DWI Cases (411.0731)—there must be evidence in the petition that the person is entitled to file a petition; no revocations; has never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense that is punishable by fine only; not eligible if evidence presented that offense involves car accident involving another person (not the driver/petitioner); two-year wait if interlock for six months; five-year wait if no interlock; may be eligible under 411.0736 if ineligible under this section

Of course, a petitioner under any section of the Government Code cannot have been in trouble for anything other than a traffic ticket during any applicable waiting period.

Importantly, Section 411.0755 explicitly states that the person who has obtained the nondisclosure is not required in any application for employment, information, or licensing to state that the person has been the subject of any criminal proceeding related to the information that is the subject of the order of nondisclosure. However, Section 411.0775 states that the criminal history record information that has been sealed may be admitted in trial during any subsequent offense if the information is admissible under the Rules of Evidence or disclosed to a prosecuting attorney for a criminal justice purpose.

The remainder of the sections detail the requirements for petitions and orders; they are substantive. Are you feeling overwhelmed about preparing a petition with all the (relatively) new nuances? Don’t. The Office of Court Administration has a form petition and order for each type of nondisclosure at

Helping a client expunge or seal their record is a happy part of our job. There’s no real risk involved and it’s something the client wants. We could all use a fresh start every so often. So, let’s be a part of helping our clients achieve their own fresh start.

P.S. –  You may notice a fresh, clean look to the Voice this year, too!  We are always striving to improve and get you the best quality publication possible. We officially welcome Billy Huntsman as TCLDA’s new communications director.  Be sure to send your articles and let us know how we can continue to improve.

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