Executive Officer’s Perspective: Cyber Security

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“Don’t worry. I’m from the IT team.”

—Unknown

As we begin the month, it is time for TCDLA to run scans and ensure we pass all the PCI Compliant tests. These are security standards we must follow to process payments online while maintaining a level of security that protects data. After several days, countless hours of answering more than 200 questions, running tests on servers, and contacting IT on our website and database providers, we passed. The good thing is we get to do this all over again next year!

Coincidently, this month I attended a professional development training on cyber security and how it affects associations, members, and vendors. In addition, Mike Adams, TCDLA and Technology Committee member, submitted an article for this issue that complements mine perfectly.

What I have learned—and witnessed—is that anyone that can be a victim. Yahoo Finance reported cyber‑attacks increased by 341% during COVID‑19, according to Nexusguard Research. All too often, people are embarrassed to admit tobeing victims, and unfortunately, they don’t share their experiences, allowing us to continue thinking it can never happen to us. But think again. Attacks no longer take the form of emails with lousy grammar or fake voicemails intoning, “This is the IRS. You will be arrested . . .” (IRS repeatedly says they never call, always corresponding by mail.)

Just recently in my own world view I’ve seen deposit accounts altered, payment methods changed, ransomware paid, wire transfers intercepted by duplicate email accounts, and more—all when knowledgeable, professional people are the victims.

Data by RiskIQ suggests cyber‑ crime costs organizations $2.9 million every minute, with major businesses losing $25 per minute as a result of data breaches. Ransomware attacks have gone mainstream with the proliferation of ransomware‑ as‑a‑service (RAS), where cyber‑ criminal groups create and market ransomware to “affiliates.”

Who knew there were so many phishes (from information accessed here: Eight types of phishing attacks and how to identify them | CSO Online)?

Whaling: Seeking CEO or president credentials. When assuming office, our incoming president each year receives emails from members telling them “you have been hacked.” No, they’re not being hacked, just targeted as high‑profile titles. When you look at the sender’s email address, it may indicate, for instance, from Melissa Schank, mschank@tcdla. com <akfdjfalksdjfl;kaj@gmail. com>. If you look closely, you’ll see it’s not the actual email address it seems to be at first glance. Several such fake emails led people to think that I needed them for a minute, or wanted them to process something for me, or needed to make bogus payroll/vendor account changes. In our office we must remain alert about our established procedures for payment for members, vendors, or even staff (when dealing with in‑house payroll/401k updates).

Phishing : Mass-market emailing looking for you to log in. You might see, for example, an email saying your PayPal password expired; your storage has been exceeded; your account is frozen; or something as blatant as “click here to pay the outstanding invoice.” If you enter your information, they have you. If this should happen, of course, you’re advised to change your password(s) immediately and contact the entity to make sure nothing is billed you.

Spear Phishing: Targeting large corporations or government agencies. Assembling critical data, these criminals work for long periods researching then strategically attacking these organizations.

Clone PhishingCreating a near-perfect replica. The look is the same, often gaining entry by resending a message received previously that was intercepted by a cloned website. If you receive what seems to be an odd request or repeats a previous message, reach out to the end‑user directly to find out. (Some offices have particular code words or do not handle specific processing through email.)

Vishing: Phone call from a financial firm asking for personal information due to a “security problem.” Whenever I get one of these, I hang up and log into the secure site, determine if there is in fact a breach, make sure my password works—or even call the firm as needed.

Smishing: Pretending to send text messages from a company to get you to click on a link. Often attackers use the name of a reputable company, replicating the logo or site and asking you to log in. Recently I purchased something from Best Buy, using a Wells Fargo card, and the site asked for a verification code from my bank. My bank info is saved in contacts, so I know if they text or call. They responded to my inquiry: “Wells Fargo will never call or text you for this code. Don’t share it.” Why these are successful: 98% of text messages are read, with 45% responded to, while emails run 20% and 6%, respectively.

Snowshoeing:A viral type of spam. We get a message, open it—and every one of our contacts gets a message we didn’t send. We tell everyone not to open that email after someone tells us about it. At any rate, change your password immediately, then let people know not to open the infected message. The most virulent form can invade your contact list once you start clicking away and spread again. Most malware software will catch this, so it is essential to keep an active subscription. (When I notice something is working oddly on my computer, I immediately run a scan.)

Other attacks:

  • Man in the middle: someone pretending to be you and intercepting all your emails and transfers by having your information
  • Email Forwarding Activity: attackers set up email rules to hide their malicious activities or have emails forward
  • Ransom: send us bitcoins or we will hold your data hostage
  • Fake Malware and Updates
  • SQL Injection: attacking your database
  • Drive-by Attack :website loaded with viruses

A helpful to visit for more information is cissar.com.

Additional Preventive Measures (from information and graphics accessed from TSAE CEO Forum)

    1. Determine what data your organization saves that could be lost if you are Also, consider the cost to replace it (or pay reparations to members) for a breach.
    2. Conduct an annual review of the organization’s cybersecurity stance, policies and procedures, the threat landscape, any training program, and insurance.
    3. Implement multi‑factor authentication (MFA) for all.
    4. Make sure that your website is secure with HTTPS.
    5. Conduct a baseline, simulated phishing attack for both the board and staff to raise awareness and improve skills.
    6. Ensure that antivirus and malware detection is provided to all staff computers, then monitor, maintain, and review them regularly.
    7. Communicate and enforce clear password models. Promote the use of password vaults for all.
      • Make your password longer and harder to guess, with a minimum of 16 characters using a combination of letters, numbers, and special characters,
      • Change your password
    8. Develop business continuity plans that include what may need to happen in case of a cyber or ransomware attack. Then, create and communicate an incident response plan.
    9. Implement document retention and destruction plan.

How secure is my password?

These attacks are exceptionally successful because the attackers are perfecting their craft. After all, this is what they do, and they do it well. At the end of the day, we all try to be as secure as possible, and awareness is critical. Unfortunately, there is a new scheme, attack, or virus every day. We can be so busy sometimes that we do what is fastest, all too often leading to otherwise‑avoidable consequences. I thank those who bravely share their stories. We’re not judging them, rather, thanking them for making others aware who might otherwise fall victim. By sharing this piece, I hope you were able to maybe take one new thing away—or just be reminded about the threats.

Editor’s Comment: You Might Not Like It, But You Better Get Used To It

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Last year at Rusty Duncan I had the pleasure of speaking on the topic of “Technology in the Modern Criminal Defense Law Office.” Normally that level of excitement is reserved for the time of day when everyone is taking a nap, but instead they had me speak at 8:00 a.m. on Thursday morning. One of the topics that had the crowd roused at such an early hour was the ethical implications in maintaining a “modern” law office. Attendees were a little shocked at the idea that if they didn’t maintain a fairly high level of technological understanding in maintaining and securing their technological information, it could be problematic.

As of 2019, comment 8 to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct states that,

  1. Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education. If a system of peer review has been established,the lawyer should consider making use of it in appropriate circumstances. Isolated instances of faulty conduct or decision should be identified for purposes of additional study or instruction.

Changes like that make each of us responsible for so much more knowledge and skill than our predecessors had to deal with. No longer are the days where lawyers could pass off changing technology as something for another professional to have to worry about. We all have an ethical duty to maintain a level of proficiency in the technology associated with the practice of law, and more importantly the associated risks. It isn’t hard to figure out that means we have to maintain a level of understanding of how to minimize those risks. Over the next couple of months, beginning with this edition, we will try to bring you relevant articles on that very topic. Not just from other lawyers, but from professionals who are equipped with the knowledge that not all of us possess to assist in maintaining the level of understanding that we are tasked with knowing. I know it may not always be the most riveting of topics, but I hope each of y’all learn something from the material.

Be safe.

Ethics and the Law: Sharing the Wealth – What You Need to Know About Shared Fees and Referrals

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The majority of us have been there. If you haven’t, it will come soon enough (pay attention young lawyers).

We are criminal defense lawyers. No one needs us until they need us. And when they need us, they really need us. For many people who find themselves with that need, they may only know the lawyer who, for example, took care of their divorce or handled their uncle’s personal injury case. They think any lawyer can handle a criminal case, so they call that lawyer first.

Of course, those lawyers may know nothing about handling a criminal case or simply don’t want to handle the case. But, there is something that catches their interest.

They see a client in need — a need that is typically unlike one they have seen with other clients — and they see that the client is willing to spend whatever amount of money it takes to get them out of the trouble they’ve found themselves in. Rather than focus on meeting that need, the lawyer cannot help but see a financial opportunity.

So, the lawyer calls you, a buddy from law school who is a top‑notch criminal defense lawyer, and lays it on you: “I’ve got a person looking for a criminal defense lawyer. I want to send them your way, but I need a referral fee.”

I scratch your back, you scratch mine, right? Quid pro quo. These are concepts as old as time. And, back in the “good old days,” paying what was referred to as a “naked referral fee” was a common and acceptable practice.

That all changed in the late 1990s and early 2000s as part of a push to maintain professionalism within our line of work with, among other things, the adoption of Rule 1.04(f) of the Texas Disciplinary Rules of Professional Conduct.1 The current version of that Rule provides:

f. A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if:

    1. the division is:
      1. in proportion to the professional services performed by each lawyer; or
      2. made between lawyers who assume joint responsibility for the representation; and
    2. the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, including:
      1. the identity of all lawyers or law firms who will participate in the fee‑sharing agreement, and
      2. whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and
      3. the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services performed, the basis on which the division will be made; and
    3. the aggregate fee does not violate paragraph (a).
    1.  

In sum, there are three key elements of a shared fee: (1) proportional or joint responsibility, (2) client consent, and (3) the total fee must be reasonable. More simply, you cannot accept or pay a referral fee to another lawyer (or non‑lawyer for that matter) for referring you a case nor can you require or request a lawyer to pay a referral fee for simply referring you a case.

So, with this in mind, you politely tell the lawyer, unless they are willing to associate with you on the case, share a proportion of the work or joint responsibility, and the client consents to the sharing of a reasonable fee for the work, you cannot pay them a referral fee. What happens then, when the lawyer replies by telling you, “Well then, how about we agree to refer each other cases? I’ll send you any calls I get for criminal matters and you send me all your calls for family law cases.” How does this comport with the Disciplinary Rules?

The recent amendments to the Disciplinary Rules last year addressed this very scenario and put some serious limits on it. Rule 7.03 added subsection (e)(2) which provides the following:

(2) A lawyer may refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if:

    1. the reciprocal referral agreement is not exclusive;
    2. clients are informed of the existence and nature of the agreement; and
    3. the lawyer exercises independent professional judgment in making referrals.

Under this new Rule, the lawyer’s proposal could work as a viable alternative. The problem, however, are the absolutes: “any calls I get for criminal matter” and “all your calls for family law cases.” As the Rule states, the agreement cannot be exclusive. Further, there must be assurances (in writing) from both attorneys that they will inform clients of the “existence and nature of the agreement.” To properly operate under this new Rule, it is best to have a list of lawyers that, based on your independent professional judgment, are fit to handle a particular matter that you can provide to a potential client.

Say then, for instance, the lawyer finally says, “Look, I get what you’re saying. I don’t want to lose my bar license over this. I’m going to give the client your name and number. Just take good care of them.” Do the Rules absolutely prohibit you from giving that lawyer anything of value for referring you the client?

Rule 7.03(e) states that, while a lawyer cannot “pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting or referring prospective clients for professional employment,” the Rule does explicitly create an exception for “nominal gifts given as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.” Although this Rule refers to a person “not licensed to practice law,” it is reasonable to interpret the Rule to permit giving nominal gifts such as a gift certificate or event tickets to that lawyer for referring you the potential client.

The bottom line is that we should be focused on providing quality legal representation to clients and, when we cannot provide those services ourselves, making sure they are referred to good lawyers who can do so. It should not be about the money. As Robert Pelton once wrote, “If the other attorney gets hired and collects a handsome fee, good for the other attorney. I consider the referral a ‘gift’ to the other attorney for which I expect nothing in return (nor will I accept anything in return), and I make the referral based only upon my confidence in that attorney’s abilities.” No one can doubt that is good advice to follow.

Stay ethical my friends.

Federal Corner: The State of Borden in the Fifth Circuit

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The state of common Texas offenses almost a year after Borden

Last year, federal criminal defendants won a big victory when the Supreme Court held in Borden v. United States, 141 S.Ct. 1817 (2021), that offenses bearing a mens rea of recklessness lack “the use, attempted use, or threatened use of physical force against the person of another” as an element. The controlling opinion in Borden focuses on the restrictive phrase “against the person of another,” which it holds to imply an “intentional targeting” of the victim, and to exclude accidents. Borden arose in the context  of the Armed Career Criminal Act’s (“ACCA”) definition of “violent felony,” but the language it construed (or very similar language) appears (and is cross‑ referenced) throughout the U.S. Code and Sentencing Guidelines. See 18 U.S.C. 16(a), 18 U.S.C. 924(c) (3)(A), 18 U.S.C. 924(e)(2)(B)(i), 18  U.S.C.  3156(a)(4),  18  U.S.C. 3559(c)(2)(F)(i); USSG 2L1.2, comment. (n. (1)(B))(2015), USSG 4B1.2(a)(1). Most importantly, the language appears in ACCA (which elevates the penalty for firearm possession from a 10‑year maximum to a 15‑year minimum), and in Guideline 4B1.2, which can render the defendant eligible for elevated penalties under the firearm Guideline (USSG 2K2.1) or for the cataclysmic penalties of the career offender Guideline (USSG 4B1.1).

Of course, Borden left circuit courts the task of applying its holding to offenses it did not address. Results in the Fifth Circuit have been mixed, and not everything has been settled. Nonetheless, we do know how some of the most common Texas offenses have fared after Borden. It’s worth remembering that while everything below describes current law, this area of law is notoriously prone to change. Zealous practitioners will no doubt find arguments worth preserving, or that have not yet been addressed, even when the law appears to qualify their clients for an enhanced sentence.

Robbery and Aggravated Robbery

Texas robbery may be committed in either of two basic ways: by causing injury during the course of a theft, or by threatening or placing another in fear during the course of a theft. See Texas Penal Code 29.02(a). Because the Texas offense of robbery‑by‑injury may be committed by the reckless infliction of injury, the Fifth Circuit held in United States v. Ybarra, 2021 WL 3276471 (5th Cir. 2021)(unpublished), that it no longer qualifies as an ACCA “violent felony” under Borden. This is so even if the record establishes that the defendant pleaded guilty to causing such injury intentionally or knowingly. See Ybarra, 2021 WL 3276471, n.1. The three different mental states with which a defendant may commit robbery‑ by‑injury (intent, knowledge and recklessness) in Texas do not define separate offenses, so the crime is not “divisible” for the purposes of criminal history enhancements. See id. (For more on the “divisibility” of prior statutes of conviction for the purpose of criminal history enhancements, see the remarkable case of Mathis v. United States, 136 S.Ct. 2243 (2016), an unsurpassed aid to federal criminal defendants facing recidivism enhancements). The Fifth Circuit has not yet decided whether all forms of aggravated robbery‑by‑injury (e.g. infliction of injury during theft with a deadly weapon, infliction of serious bodily injury during theft, or infliction of injury against a disabled or senior victim during theft) constitute “violent felonies” after Borden. But decisions from the aggravated assault context, see below, strongly suggest that the addition of these aggravating factors will not change the basic analysis.

No such luck for those convicted of robbery‑by‑threat. The Fifth Circuit held in United States v. Garrett, 24 F.4th 485 (5th Cir. 2022), that Texas simple robbery‑by‑ threat qualifies as a “violent felony” under ACCA. This is because Texas robbery‑by‑threat, unlike robbery‑ by‑injury, can only be committed intentionally  or knowingly,  not wrecklessly. And unsurprisingly, the Fifth Circuit held in United States v. Jackson,  F.4th , 2022 WL 951232 (5th Cir. 2022), that aggravated robbery‑by‑threat is likewise a “violent felony” under ACCA. Note, however, that if the government does not produce a record of the defendant’s robbery conviction showing that it stemmed from the statute’s threat prong, ACCA will not apply. See United States v. Balderas, 2022 WL 851768 (5th Cir. 2022)(unpublished).

Borden does not appear to help those subjected to USSG 4B1.2 on the basis of Texas robbery convictions. In contrast to ACCA’s definition of “violent felony,” Guideline 4B1.2’s definition of “crime of violence” specifically enumerates “robbery.” That is, a prior conviction can be a “crime of violence” under USSG 4B1.2 if it either has force as an element, or “is… robbery.”1 And the Fifth Circuit has held that Texas robbery, see United States v. Williams, 2022 WL 71826 (5th Cir. 2022)(unpublished), and aggravated robbery, see United States v. Nava, 2021 WL 5095976 (5th Cir. 2021)(unpublished), are both equivalent to “generic robbery” as the Guideline uses the term. There are good reasons to wonder about this conclusion – Texas, in contrast to most states, does not require that the defendant acquire property as a consequence of his or her act of  violence – but the Fifth Circuit isn’t biting on that distinction yet.

Aggravated Assault

As with the Texas robbery statute, defendants can violate the Texas aggravated assault statute by either inflicting injury or threatening it. See Tex. Penal Code 22.01(a), 22.02(a). The Fifth Circuit found in United States v. Combs, 2022 WL 287556 (5th  Cir. 2021)(unpublished), that aggravated‑ assault‑by‑injury lacks the “use of force against the person of another” as an element and accordingly does not constitute a “violent felony” under ACCA. See also United States v. Gomez-Gomez, 23 F.4th 575 (5th Cir. 2022)(same result under 18 U.S.C. §16(a)). Because the three mental states associated with aggravated‑assault‑by‑injury do not represent distinct offenses, it will not matter if the records of conviction show a conviction for intentional or knowing infliction of injury. See United States v. Lara-Garcia, 2021 WL 5272211 (5th Cir. 2021) (unpublished). The Fifth Circuit has held that aggravated‑assault‑ by‑threat represents a violent felony after Borden, see United States v. Lopez, 2022 WL 576407 (5th Cir. 2022)(unpublished), because it requires intentional or knowing conduct. The Fifth Circuit’s post‑ Borden aggravated assault rulings under ACCA, in other words, track its rulings regarding robbery.

Here too, Borden doesn’t seem to help those subjected to an enhanced Guideline range. Guideline 4B1.2 names “aggravated assault” as a “crime of violence.” USSG 4B1.2(a) (2). And the Fifth Circuit has held that the Texas offense falls within the “generic” definition of “aggravated assault.” See United States v. Guillen-Alvarez, 489 F.3d 197, 200‑201 (5th Cir. 2007). It reaffirmed that conclusion after Borden. See United States v. Blackmon, 844 Fed. Appx. 729 (5th Cir. 2021) (unpublished). But note that there is a long‑standing circuit split as to whether Texas aggravated‑assault‑by‑injury qualifies as “generic aggravated assault,” centering on the significance of its reckless mens rea. See United States v. Barcenas-Yanez, 826 F.3d 752 (4th Cir. 2016). Because the Supreme Court has said that it will usually not take up circuit splits on Guideline questions, see Buford v. United States, 532 U.S. 59 (2001), the issue must likely be resolved by the Sentencing Commission, should it ever again enjoy a quorum.

Family Violence

Texas has two felony assault offenses that require a family or dating relationship between the defendant and the victim. One of these requires a prior conviction for family violence, see Tex. Penal Code 22.01(b)(2)(A); the other requires the defendant to impede the victim’s breath or circulation, see Tex. Penal Code 22.01(b)(2)(A). Both offenses may be committed recklessly, so the Fifth Circuit held in United States v. Greer, 20 F.3d 1071 (5th Cir. 2021), that neither is a “crime of violence” under USSG 4B1.2. This holding should exclude both offenses as “violent felonies” under ACCA as well. Setting aside the timing requirements under USSG 4B1.2, all offenses that meet the definition of “violent felonies” ACCA qualify as “crimes of violence” under USSG 4B1.2.

Assault on a Public Servant

Because the Texas offense of assault on a public servant may be committed recklessly, the Fifth Circuit held that it does not satisfy the definition of a “crime of violence” under USSG 4B1.2. See United States v. Bates, 24 F.4th 1017 (5th Cir. 2022). (Older Fifth Circuit authority found that it is not equivalent to the enumerated offense of “aggravated assault.” See United States v. Fierro-Reyna, 466 F.3d 324 (5th Cir. 2006)). As with family violence, this holding would also appear to preclude its use as a “violent felony” under ACCA.

Murder

The Fifth Circuit ducked a chance to decide whether murder is a “violent felony” after Borden in United States v. Vickers, 2022 WL 780421 (5th Cir. 2022)(unpublished). There is good reason to think it might not be. Texas murder may be committed by causing death through “an act clearly dangerous to human life” in the course of another felony, a standard that sounds a lot like recklessness. See Texas Penal Code 19.02(b)(3). “Murder” is an enumerated offense under USSG 4B1.2, so disqualifying it as a “crime of violence” under that Guideline may pose more of an uphill battle.

Burglary

Borden does not appear to affect Texas burglary offenses under either ACCA or USSG 4B1.2. Under pre‑ Borden precedent, Texas burglary constitutes a “violent felony” under the ACCA, see United States v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc), but does not represent a “crime of violence” under USSG 4B1.2, see United States v. Reado, 776 F. App’x 261, 262 (5th Cir. 2019)(unpublished).

Drug Trafficking

Likewise, Borden does not seem to affect Texas drug trafficking offenses. Both delivery and possession with intent to deliver qualify as “serious drug offenses” under ACCA, see United States v. Prentice, 956 F.3d 295 (5th Cir. 2020), but do not represent “controlled substance offenses” under USSG 4B1.2, see United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017). There may be some hope for defendants facing ACCA sentences on the basis of drug conviction. Some other circuits have found that state drug laws criminalize a greater range of substances than federal law, rendering some drug convictions from those states overbroad for the purposes of ACCA. See United States v. Ruth, 966 F.3d 642 (7th Cir. 2020); United States v. Hope, 28 F.4th 487 (4th Cir. 2022).

Shut up and give us the chart, Joel:

ACCA

USSG 4B1.2

Texas Robbery by Injury

No longer qualifies. United States v. Ybarra, 2021 WL 3276471 (5th Cir. 2021)(unpublished)

Qualifies. United States v. Williams, 2022 WL 71826 (5th Cir. 2022)(unpublished).

Texas Aggravated Robbery by Injury

Undecided, but likely does not qualify. See United States v. Ybarra, 2021 WL 3276471 (5th Cir. 2021)(unpublished) and United States v. Gomez-Gomez, 23 F.4th 575 (5th Cir. 2022).

United States v. Nava, 2021 WL 5095976 (5th Cir. 2021)(unpublished).

Texas Robbery and Aggravated Robbery by Threat

Qualifies. United States v. Garrett, 24 F.4th 485 (5th Cir. 2022); United States v. Jackson,  F.4th , 2022 WL 951232 (5th Cir. 2022).

Qualifies. United States v. Williams, 2022 WL 71826 (5th Cir. 2022)(unpublished); United States v. Nava, 2021 WL 5095976 (5th Cir. 2021)(unpublished).

Texas Aggravated Assault by Injury

No longer qualifies. United States v. Combs, 2022 WL 287556 (5th Cir. 2021)(unpublished); United States v. Gomez-Gomez, 23 F.4th 575 (5th Cir. 2022).

Qualifies. United States v. Blackmon, 844 Fed. Appx. 729 (5th Cir. 2021)(unpublished).

Texas Aggravated Assault by Threat

Qualifies. United States v. Lopez, 2022 WL 576407 (5th Cir. 2022)(unpublished).

Qualifies. United States v. Blackmon, 844 Fed. Appx. 729 (5th Cir. 2021)(unpublished).

Texas Felony Family Violence by Recidivism or Impeding Breath or Circulation

Undecided, but implicitly disqualified by United States v. Greer, 20 F.3d 1071 (5th Cir. 2021).

No longer qualifies. United States v. Greer, 20 F.3d 1071 (5th Cir. 2021).

Texas Murder

Uncertain.

Uncertain.

Texas Assault on a Public Servant

Undecided, but implicitly disqualified by United States v. Bates, 24 F.4th 1017 (5th Cir. 2022).

No longer qualifies. United States v. Bates, 24 F.4th 1017 (5th Cir. 2022).

Texas Burglary

Qualifies. United States v. Herrold, 941 F.3d 173 (5th Cir. 2019)(en banc).

Still doesn’t qualify. United States v. Reado, 776 F. App’x 261, 262 (5th Cir. 2019)(unpublished).

Texas Delivery of a Controlled Substance and Possession with Intent to Deliver

Qualifies. United States v. Prentice, 956 F.3d 295 (5th Cir. 2020).

Still doesn’t qualify. United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017); United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016).

From the Front Porch: Practicing Law in Rural Areas

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What do I know?

When I was deciding what to write for this column, I wanted to discuss the differences between practicing law in rural areas and urban areas. Also, I wanted to give some pointers for those of us who choose to practice out in the sticks. However, in order to discuss the differences, one should know something about both situations, right? The first thing that dawned on me was, what do I know about practicing in an urban area? I have been practicing in a rural setting for nearly 28 years. So, in writing this column I have done my best to draw on information that I have received from my friends who practice in larger cities as well as personal experiences in dealing with big city lawyers.

You’re not going to get a lot of hard‑hitting legal analysis from me. Not here anyway. The law and procedure in Texas are the same, whether you practice in the country or in the city. The difference between the two is not with the law, but rather how we practice the profession.

Can’t we just all get along?

One of the first differences between practicing in the country and the city that comes to mind is the fact that, out here, lawyers seem to get along with one another better than they do in the city. I’m not sure why. Maybe it’s because there are not as many lawyers, and we all know each other much better than our counterparts in the city do. Maybe it’s because we see each other a lot. Not only do we see each other at the courthouse, but we also see each other at the grocery store, at church, at a Friday night football game, and at our children’s and grandchildren’s soccer games and other events on the weekends.

This is not to say that “we are all in bed together.” That’s a myth that some people believe about hiring a lawyer from a small town for a case pending in said small town. I don’t hear it as much as I used to, but there are still some that believe it. It’s nothing for some of us to engage in a long, bloody, acrimonious fight at the courthouse for hours or even days then go have a beer together when it’s all over. Believe it or not, it is possible to represent your client vigorously, and to the fullest extent of your ability, and still be courteous and civil with opposing counsel and the Court. Heck, some of us are actually very good friends. Many years ago, I went on an Elk hunting trip to Colorado with a group of guys that included criminal defense attorneys, the elected District Attorney, a criminal investigator with a local police department, and a probation officer, among others. Not a single case was decided or even discussed on that trip.

A lot of irons in the fire

Another difference between the country lawyers and city lawyers is that out here, we don’t generally get to specialize. That’s just the nature of making a living. In the larger cities a lot of attorneys are able to focus on specific practice areas like criminal defense, family law, civil litigation, real estate, and the list goes on and on. There are some lawyers that even sub‑specialize. For instance, there are some lawyers that handle only DWI cases, or drug cases, etc.

In rural areas, we tend to handle more than one kind of case, and in some instances several. I have always done criminal defense. It’s my passion. I majored in criminal justice in college. Most of my friends in college wanted to go into law enforcement of some sort. Not me. I wanted to practice criminal law. However, it’s very difficult if not impossible to make a good living doing just criminal defense in a small town. I have always practiced family law as well. In my career I have also done civil litigation (DTPA, Contract Disputes, Personal Injury / Medical Malpractice) and probate. For many years I was a title examiner and closer for a local title company. Rural practice just seems to be more diverse.

I have found that my experiences in other areas of the law have served me well in my criminal law practice. For example, I have received many referrals from other attorneys to represent people, who had criminal charges pending, in their divorce case. The referral may come from a divorce attorney that does not feel

comfortable handling both cases, so they refer both to me or sometimes just the criminal matter. Either way it’s good for business. For years, we had an attorney here that practiced only family law. She was board certified and very well respected. There were several times when she would hire me, and pay me well, to advise she and her client on complex real estate issues in large estate divorces. This was simply based on my knowledge and experience with not only family law, but also real estate law and financing.

Stay Educated

Staying educated is important no matter where you practice. In order to be competent, one must stay current on all developments in the area or areas of law in which they practice. There are many ways to accomplish this. You can attend CLE conferences in person or online. You can do self‑study. Personally, I find that I get much more out of continuing legal education if I attend in person. When I’m at the conference I’m a captive audience. I don’t have the phone constantly ringing, fires to put out, and office staff needing answers every few minutes. I’m there to listen, learn, and network. Networking… we’ll get to that in a minute.

The downside to rural practice as it relates to continuing legal education is that if you practice regularly in different areas of the law, you need to attend CLE in those areas to stay current. This can be time consuming and expensive. However, I find that it is worth the time and expense because it helps me to better serve my clients.

Networking – making and maintaining relationships

Again, networking and relationships are areas that are important no matter where you practice. However, I believe that they have tan extra level of importance for rural lawyers. Networking and maintaining relationships help to build business. The more people we know and associate with, the more channels for referrals of business. Also, the more attorneys that we know from other areas of the state that practice in our field, the more sources we have to discuss issues and bounce ideas off of one another. In rural areas it is vitally important to build and maintain relationships with those in the community, not just the lawyers. These are the people that will be on our juries. As criminal defense attorneys, we all know that more criminal cases go to jury trial than any other type of case.

Also, in rural areas, where we practice more than one area of the law, we have to be mindful to always be professional and courteous to others that are opposing parties in a case. If we are not, someone might wind up on one of our juries and hold that against us. I have tried many jury cases where there were several people on the jury panel that were either former clients (divorces, real estate transactions) or the opposing party in a case in which I was involved (mostly divorces). If the ex‑wife or ex‑husband of one of my former divorce clients winds up on that jury, it would be very detrimental for my client if they decided to hold a grudge against me.

For example, in one criminal jury trial, there was a lady on the panel that was the opposing party in a divorce case that I had previously handled. I flagged her immediately as someone that I did not want on my jury. During the State’s voir dire, she indicated that she knew me because I represented her ex‑husband. We approached the bench to do further examination outside of the presence of the whole panel. During that discussion she told the Judge that she did not hold anything against me because although I represented her husband, I was always professional and courteous with her. My client and I decided to not strike her. It went well. The case ended in a hung jury and she was one of the not guilty votes.

It also helps to maintain a good working relationship with law enforcement, when you can. There have been several times during my career when I called up someone with local law enforcement to ask questions and get help. If you don’t have a good working relationship with law enforcement they generally won’t talk to you. Again, for example, there have been several times when I was representing someone in a child custody case, and my client thought that the other party was up to no good but didn’t have any solid information. A couple of phone calls later I knew what they were doing, and whom they were associating with. These officers that provided information showed up at my hearing and willingly testified.

Recently, I represented a defendant in a large EOCA (Engaging in Organized Criminal Activity) case. The initial discovery was very large. It took me quite some time to go through it. Once I did, I was unable to find where my client was involved with the criminal organization. I called the lead investigator on the case, whom I have known for many years. I asked him to explain to me where my client was involved with the EOCA case. He basically told me that he believed my client was a drug user, but not involved with the EOCA. I asked him if he would relay that information to the D.A. He did. I spoke with the district attorney, and after a short time, my client’s case was dismissed. If I had not had a good working relationship with the detective, it would have taken months or years to have that case dismissed.

Stay on the appointment wheel

In rural areas, it is very important to stay on the appointment wheel, even when your practice is doing well, and you don’t think it’s necessary. If you continue to receive appointments, these can be great sources for referrals. I have even had previous court appointed clients hire me on new cases because they liked the way I treated them when I was appointed. Staying on the wheel keeps your name out there and almost always produces more retained clients.

Unknown waters

If you are an attorney from a larger urban area and you are representing a client on a case in a small town, please consider the following advice.

Ask questions. Call a local attorney in that area and get the lay of the land. Many of us in TCDLA are more than happy to answer a few questions for our brothers and sisters. You will need to know all of the quirks about the Judge, the prosecutor, and how things are done. You need to know the local procedures of the Court.

Consider associating local counsel. A dog barks louder on his own front porch. In a rural community, these prosecutors who are used to working with the same defense lawyers day in and day out may not trust a lawyer coming in from a metropolitan area like they do the attorneys they know. If you are going to consider hiring local counsel, ask around, and be sure you associate someone who has a good working relationship with the Court and the prosecutor. Also, associate someone who the locals know is not afraid to try a case, and will if they have to. Finding someone who has a good working relationship with law enforcement helps also.

These are just some of my thoughts about practicing in a rural area. There are other areas to discuss, but I’ll save those for another time. Until then, remember:

“If you want to be successful, it’s just this simple. Know what you are doing, love what you are doing, and believe in what you are doing.”

‑Will Rogers

Shout Outs

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Shout‑out to local Tyler attorney Brett Harrison of Files Harrison, P.C. for his big NOT GUILTY in Anderson County last month. Brett’s client was indicted on two counts of aggravated sexual assault. Outstanding work, Brett! Congratulations!

Kudos to TCDLA Law School Committee Member, Jeff Shearer, who hosted a law school training session at Texas A&M School of Law, in Fort Worth. Thanks for representing TCDLA, Jeff!

Congratulations to Danny Easterling for his recent win on a murder case. The jury deliberated for 3 hours before determining their verdict of NOT GUILTY. Way to go, Danny!


Staff Highlights: Chief Financial Officer

Mari Flores

Title: Chief Financial Officer
Native State: Texas
Zodiac Sign: Libra
Favorite Color: Pink
Loves: Going on vacation

Mari Flores has been with TCDLA for 10 years serving as the Chief Financial Officer. Her 20+ years of financial experience has been in the nonprofit sector. She graduated from St. Edwards University in Austin, TX with a BBA in Finance and later with an MBA in accounting. She is married to her college sweetheart, Pepe Flores. They have four children, two girls ages 10 and 11, and two boys ages 15 and 26. They also have two miniature schnauzers, King and Bella. They keep busy with their children’s sporting events and vacationing when they can fit in the time!

Current Issue: April 2022

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DOWNLOAD PDF VERSION

Features

21 | Who Shot the Sheriff? – By Chuck Lanehart
25 | To Get to the HEART of the Matter, You Need to Look at the ACEs – By Sean Levinson
28 | The Critical Role of Race in Juvenile Justice – By Rubén V. Castañeda
32 | Outcry Statements: ARTICLE 38.072, C.C.P. Part 2 – By Craig Jett

Columns

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

Departments

4 | CLE Seminars and Meetings
36 | Significant Decisions Report

President’s Message: Keeping the Geofence Shut

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We all remember in law school how Katz v. United States, 389 U.S. 347 (1967), evaluated recording devices in public telephone booths. Over twenty years ago, the Supreme Court in Kyllo v. United States, 533 U.S. 27 (2001), looked at thermal‑imaging devices and how they affected the Fourth Amendment. Just a few years ago, the Supreme Court then addressed cell‑site location data in Carpenter v. United States, 138 S.Ct. 2206 (2018). The hot new topic now is geofence warrants which request a user’s location data within a given time and a particular area.1 Google and other such companies collect large amounts of location data from users, and law enforcement are now issuing geofence warrants to obtain this stockpile of data.2 The question now for courts is whether or not these geofence warrants violate the Fourth Amendment. In Chatrie, the defense filed a motion to suppress the geofence warrant, and surprisingly, Google filed an amicus brief.3 Google argued that its location data “is not a business record, but is a journal stored primarily for the user’s benefit and is controlled by the user.”4 Google stated that location data “can often reveal a user’s location and movements with a much higher degree of precision than [cell cite location information].”5 Google argued that a user has a Fourth Amendment right in geofence information because users have a reasonable expectation of privacy in location data.6 For those of us brothers and sisters who have ever attempted to subpoena Google information for our cases, this is quite a change from Google’s invocation of the Stored Communications Act to quash our subpoenas.

A law enforcement geofence warrant served on Google identifies a geographic area (the geofence), identifies a period of time (a few minutes to a few hours), and requests location history for all users located within the given area during the given time.7 The first geofence warrant served on Google was in 2016, and there has been a 1500% increase in geofence warrants from 2017 to 2018 in addition to a 500% increase from 2018‑2019.8 The court expressed concern that Fourth Amendment law is “materially lagging behind technological innovations.”9 The court stated that a geofence warrant provides the government with an almost unlimited pool of location data and “‘whoever the suspect turns out to be’, they have ‘effectively been tailed’” because they enabled location history.10 The court was concerned with the Fourth Amendment violation of a geofence warrant because such a warrant “authorize[s] the search of every person within a particular area” which requires the government to “establish probable cause to search every one of those persons.”11 The court also could not determine whether or not the defendant voluntarily agreed to disclose his location history.12 The court saved the government with the good faith exception but cautioned the government that it was now duly warned that geofence warrants must establish particulared probable cause.13 Where does this leave those of us who are representing the citizen accused and encounter a geofence warrant? It is thought that the Chatrie order “could make it more difficult for police to obtain the warrants in the future — and more likely that judges will suppress evidence obtained from them, experts said.”14 “There are more and more of these warrant requests going around, and judges are starting to look more closely at them, and they are becoming aware of the problem with them.”15 The great work by the federal public defender in Chatrie is a lesson to all of us in how to ensure Fourth Amendment rights and other rights of our clients are properly evaluated and analyzed. We should all keep proper vigilance in our preparation and protection of the citizen accused in the face of a geofence warrant or whatever is awaiting us in the future. Good luck to you.

Executive Officer’s Perspective: Gatherings

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“This is the power of gathering: it inspires us, delightfully, to be more hopeful, more joyful, more thoughtful: in a word, more alive.”

-Alice Waters

Cynthia Orr orchestrated a joint fundraiser with the NACDL Foundation for Criminal Justice (NFCJ) and the Texas Criminal Defense Lawyers Educational Institute (TCDLEI) in Austin. Both organizations honored Mike Ware and Jason Hernandez, gathering in Austin at the home of the Hoches.

Mike Ware, executive director of the Innocence Project of Texas, directs their investigative and legal services. In addition, he is an adjunct professor at Texas A&M University School of Law and supervises the Texas A&M Innocence Project legal clinic, an Innocence Texas partner.

In 1984, Mike began private practice, specializing in criminal defense. His practice included representing police officers in criminal, civil, and administrative matters, as well as investigating and litigating whistleblower claims. From July 2007 until July 2011, Mike was the Special Fields Bureau Chief for the Dallas County District Attorney’s office, which included the Conviction Integrity Unit. In 2014, he received the Texas Criminal Defense Lawyers Association’s Percy Foreman Criminal Defense Lawyer of the Year award.

Jason Hernandez, an advocate and community leader, was a nonviolent drug offender sentenced to mandatory life in prison at age 17. President Obama commuted his sentence to 20 years in 2013. You can find more information on his story at www.nationofsecondchances.org/jason‑hernandez.

It was truly an evening of fun and entertainment while recognizing the two and raising money for these two organizations. We want to thank our TCDLA members for joining us.

  • Kerri Anderson Donica
  • Samuel Bassett
  • Brock Benjamin
  • David Botsford
  • Cory Clements
  • Aaron Diaz
  • Mikel Eggert
  • Lance Evans
  • Michael Heiskell
  • Nicole DeBorde Hochglaube
  • Audrey Moorehead
  • Gerry Morris
  • Carmen Roe
  • John Toland
  • Amber Vazquez

Also on the calendar was an interactive Voir Dire seminar out of Houston hosted by course directors Stanley Schneider, John Hunter Smith, and Carmen Roe. Participants enjoyed working in smaller groups with our speakers, followed by a one‑on‑one with Joshua Karton. We then gathered for a board dinner and enjoyed our usual camaraderie.

On  Friday  and  Saturday criminal defense attorneys from all districts met and worked on TCDLA business. A subcommittee of the Rural Committee—Clay Steadman, Jody Griffith, Michelle Ochoa, and Judson Woodley— is fashioning a pretrial and trial checklist for rural practice (divided into two parts to make it more user friendly). Michelle took notes during the meeting, and I asked her to type them up and email them so I can help compile the checklists. The Legislative Committee met to discuss legislation, SB6 training, and other developments around the state. Legislative Counsel David Gonzalez will do a two‑ hour introduction breaking down the elements of SB6. Finally, the Executive and CDLP committees met to prepare for the upcoming year.

Sam  Basset,  TCDLEI  Board member, and Michael Gross, TCDLA President, presented Symphony Munoz the Charlie Butts Scholarship Award at the board meeting. Past president Sam Bassett set up the scholarship through the Texas Criminal Defense Lawyers Educational Institute to award a 3L law student demonstrating interest in criminal law, especially criminal defense. Eligible students must share their views on our role in the criminal justice system and present recommendations from a member and a professor. Applications for the annual award are due each year in December.

This year TCDLA awarded the scholarship to Symphony Munoz, who is a 3L student at Texas Tech University. Symphony grew up in a small, west Texas town. Her father was the first in his family to earn a master’s degree, and her mother was the first in her family to attend college. She stated, “Now, I am adding to their legacy as the first person in our family to obtain a professional degree.” Despite her parent’s achievements, she has siblings who are also pursuing their own educational paths. At first, Munoz worked as a server, but soon realized her studies needed to take priority. She now expects to graduate Summa Cum Laude.

Dwight McDonald, a Texas Tech University alumni himself, worked in a private criminal defense practice for 22 years. In 2015, he transitioned to the clinical professor position he currently holds. He wrote Munoz a letter of recommendation which helped earn her the scholarship.

Mr. McDonald confidently stated, “I have witnessed firsthand her ability to take complex legal matters, dissect them, explain it to her client in terms they could understand and then provide the Court or opposing counsel a compelling argument based on the facts and the law and secure a favorable outcome for her client. Symphony attacks all assignments and the challenges of representing clients as a student attorney with a positive attitude and a set of intellectual tools that are indeed superbly attuned to quickly mastering and integrating new ideas, facts and the law.”

This month we will hold two more interactive programs with group discussions in Austin— Women in Law and their Male Allies (April 21) and Race in Criminal Law (April 22). Come to one or both! Visit our website for a detailed agenda or email to sign up today. We will cover one or two nights of hotel stay.

Editor’s Comment: The Castle Doctrine

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On occasion, we are reminded that what is old may be useful. See Chuck Lanehart’s article in this edition. I recently had the pleasure of handling a murder court martial at Fort Stewart, Georgia. The one and only real issue in the case was whether my client properly acted in self‑defense when he shot and killed a civilian who entered my client’s off‑post home in the middle of the night after beating on the door and threatening to come inside and do some form of harm (depending on whose story you believe). The government argued throughout the pretrial proceedings that the Texas defense of self‑defense, or the Castle Doctrine, applies to members of the military since the defense is not codified in the Uniform Code of Military Justice (UCMJ). Our judge in the case, Colonel Cook from Fort Bragg, was one of the best and most thoughtful judges in front of whom I have had the pleasuring of practicing. At one of our 39a sessions (motions hearing), we were scheduled to argue for any nonstandard panel instructions. I convinced all three of my fellow defense counsel that we needed and were entitled to the Texas jury instruction on self‑defense within one’s home. Although I had said all the right words, i.e., equal protection and the right not to die in your own home, my team told me if we were going to wade off into that fight, I had to write the brief. And so, I started down the path of proving what I knew had to be true. I was shocked at the literal death of caselaw that existed on the topic within my normal time‑period search ranges. I mean, I knew about the seminal case, District of Columbia v. Heller, 554 U.S. 570 (2008), but I had to be honest with myself, I hadn’t done a deep‑dive into that case in a few or more years. I have to admit, Justice Scalia was not always a friend of the criminal defendant, but that case is worth going back and reading. Justice Scalia, in what may be dicta, essentially recognized the castle doctrine as a constitutional right. In deciding that the rights afforded by the Second Amendment were unconnected to service in a militia, Heller, 554 U.S. at 595, Justice Scalia specifically addressed the history of what we now refer to as the castle doctrine, noting that the right to protect one’s “castle” was recognized by at least 1866. Id., at 616. Scalia even went so far as to state that the handgun ban at issue in Heller amounted “to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose” and “extends, moreover, to the home, where the need for defense of self, family, and property is most acute.” Id. (emphasis added). The opinion went even further and noted that the statutory requirement that “any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable,” id., “[made] it impossible for citizens to use them for the core lawful purpose of self- defense . . .” Id. at 630 (emphasis added).

So, what you might ask, is so old about a case from 2008? Nothing. It was the rest of my research that led me to a gem from 1896. In Alberty v. United States, 162 U.S. 499 (1896), the Supreme Court recounted a case from a year earlier: “In the case of Beard v. United States, 158 U.S. 550, the doctrine of the necessity of retreating was considered by this court at very considerable length, and it was held, upon a review of the authorities upon the subject, that a man assailed upon his own premises, without provocation, by a person armed with a deadly weapon, and apparently seeking his life, is not obliged to retreat, but may stand his ground and defend himself with such means as are within his control . . .” Alberty, 162 U.S. at 505. Although not named specifically “the castle doctrine,” this right has long existed in our jurisprudence. When I made the argument that our client had a constitutional right to defend himself in his home but, according to the government, forfeited that right by joining the United States Army, Judge Cook bristled . . . and denied my motion. He clarified that I was not going to get the entire Texas jury instruction. However, the issue was going to remain pending until trial, and he would revisit the issue once evidence was presented because he did not believe that a man or woman forfeited their right to be safe in their home just because they joined the Army. Ultimately, the government and the commanding authority did the right thing and dismissed the case. I don’t believe any of them, from the general on down, truly wanted to admit they wouldn’t use force in their own homes either.