Ethics and the Law: The Ethics of Voir Dire and the Topic of Venue in Texas

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If you end up on this jury, and after hearing all of the evidence, you’re convinced that the State has proved every element of the crime beyond a reasonable doubt, except for whether or not it happened in this county, who will still vote guilty?”

That’s a question I first used in voir dire several years ago when picking a jury in a sexual assault of a child case in a rural East Texas county. My client had confessed during police questioning, and the State’s evidence was pretty solid. He rejected the State’s plea offer against my advice, and said he wanted a jury trial. I didn’t have much of a trial strategy, other than to make sure that everything was by the book and that he received full due process.

Our jury pool was full of folks in overalls, work boots, and Carhartt jackets, and I was wracking my brain for something that might delay the inevitable for my client. What popped into my head was the question at the beginning of this article. Not surprisingly to me, a lot, and I mean A LOT of people in the jury pool said they’d still convict, even if the State couldn’t prove beyond a reasonable doubt that it happened in the county where the State said it did. I was two people short of a busted panel when it was all over. I figured I’d found a pretty effective tool for weeding out potential jurors who are predisposed toward a guilty verdict; a weed‑killer, if you will.

Time passed, as it does, and I continued using that question in my voir dire, with varying degrees of effectiveness. The more serious the alleged crime, the more effective the question. Then one day during voir dire in district court, there was a hiccup. I was trying a case against an assistant prosecutor who I knew well; we’d tried several cases against one another in the past. I knew all of his voir dire tricks, and he knew mine. When I asked my weed‑killer question, Mr. Assistant District Attorney objected, asserting that I was misstating the law. It was that day that I learned for the first time that, according to Texas Code of Criminal Procedure Article 13.17, the State’s burden of proof where venue is concerned is by a preponderance of the evidence.

Now, most of you probably knew this already, but at that time I didn’t. Having read jury charges going back to 1999 that instructed the jury that the State must prove beyond a reasonable doubt each element of the alleged offense, including that it occurred in Fill‑In‑The‑Blank County, I assumed that that is what the law was. But now that I did know better, could I ethically continue to ask the question in voir dire?

What’s more, the Court of Criminal Appeals has ruled that venue is not an element of an offense, but, rather, something that must be proved to “establish [defendant’s] legal status.”1 However, the Fifth Circuit Court of Appeals has held that venue is an element of any criminal offense.2

So, it would seem that my weed‑ killer question is impermissible because 1) it is a misstatement of the law, and 2) because venue is not an element of a criminal offense.

And yet, take your garden‑ variety jury charge for a state jail felony possession of a controlled substance case. Where the charge regarding the elements is concerned, it will read something like this:

You must decide whether the State has proved, beyond a  reasonable  doubt,  two elements. The elements are that: 1) the defendant, Jane Doe, possessed garden variety Penalty Group I substance in Fill-In-The-Blank County on or about fill‑in‑the‑blank date; and 2) the defendant knew she was possessing a controlled substance. (Emphasis added.)

So, on its face it looks like you can’t ask the weed-killer question during voir dire because it misstates the law and venue is not an element of a criminal offense.  But your judge can misstate the law and include venue as an element of the offense in the jury instructions.  That seems like a non sequitur to me, but I don’t wear a black robe. 

Does a conflict between a judge’s jury instruction and the law have any consequence?  The Corpus Christi Court of Appeals says yes.  If the court’s charge requires the State to prove beyond a reasonable doubt that the offense occurred in Fill-In-The-Blank County, Texas (as almost every jury charge does), then the State does indeed have to prove venue beyond a reasonable doubt.3  In other words, the court’s jury instruction will change the State’s burden of proof if the instruction is clear that the State must prove venue beyond a reasonable doubt. 

The Texas Rules of Professional Conduct state that “an advocate has a duty to disclose directly adverse authority [to the court] in the controlling jurisdiction which has not been disclosed by the opposing party.”4  I would ask, then, under what, if any, circumstances the weed-killer question may be used.  One possible way is to file a proposed jury charge prior to voir dire using the language that sets the burden of proof for venue at beyond a reasonable doubt, and including it as an element of the offense, as we see in the jury charge example above.  If neither the State nor the court raises any objection to that specific language at the pre-trial hearing, you can reasonably argue that you expected that the court would require the State to prove venue beyond a reasonable doubt because of the absence of any push-back from the bench or opposing counsel.  Just for kicks, you might also suggest to your judge that she review a few of her most recent jury charges.

In summary, the Code of Criminal Procedure establishes the State’s burden for proving venue as preponderance of the evidence.  The Court of Criminal Appeals has ruled that venue is not an element of a crime, but is merely necessary to establish a defendant’s legal status.  However, the Fifth Circuit in Strain has ruled that venue is an element in every criminal offense, and the Cunningham decision from the 13th Court of Appeals tells us that the court’s charge to the jury on the State’s burden of proof for venue is what controls. As are many other legal issues, this one is as clear as mud to me.

If you are in need of assistance, please contact the Ethics Committee: 512.646.2734 •

Federal Corner: No Federal Habeas Relief Despite Sleeping Lawyer

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The Sixth Amendment right to counsel

“In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.

“An accused’s right to be represented by counsel is a fundamental component of our criminal justice system.” United States v. Cronic, 466 U.S. 648, 653 (1984). “[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” Id. at 658. The Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” Id. at 656 (internal quotation omitted).

“The right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial . . . That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” Strickland v. Washington, 466 U.S. 668, 685 (1985).

In McFarland v. Lumpkin, 26 F.4th 314 (5th Cir. 2022), the Court of Appeals for the Fifth Circuit held that the district court did not err when it found that 28 U.S.C. § 2254(d) precluded federal habeas merits review of petitioner’s claims that his Sixth Amendment right to counsel was violated when trial counsel was asleep and unprepared during his capital murder trial.

Facts underpinning Cronic and Strickland claims of violation of Sixth Amendment right to counsel

Mr. McFarland was convicted as an accomplice to capital murder and sentenced to death by a Texas trial court. According to the Fifth Circuit’s recitation of the facts, “[d]uring trial, the judge confronted a problem. Mr. McFarland’s retained counsel [] was sleeping through significant portions of the trial and otherwise presented as unprepared.”1 Indeed, in his briefing to the Fifth Circuit, Mr. McFarland explained that retained counsel was so obviously unprepared to try a capital case that the trial court appointed second chair counsel (without Mr. McFarland’s consent).2

The trial court, however,  instructed second chair counsel not to make any decisions in the case without the approval of first chair counsel and applicant, and that [first chair counsel] was to remain the “lead lawyer” and  “in charge” (Fifth Circuit opinion). In addition, the McFarland opinion noted it was unknown if the Trial Court actually informed Mr. McFarland expressly about its concern over his lawyer’s preparation and competence. In his briefing, Mr. McFarland further describes how, once trial began, first chair counsel then slept through significant portions of the trial.

Even after second chair counsel was appointed, neither attorney “ever interviewed the State’s key witnesses, the other alleged accomplice [] or [the State’s other key witness].” Defendant’s mitigation presentation in the punishment of the death penalty case totaled 15 minutes.

State habeas proceedings

In state post-conviction proceedings, Mr. McFarland alleged, amongst other issues, he was actually or constructively denied counsel and deprived of the effective assistance of counsel at trial  in violation of the Sixth Amendment under Strickland and Cronic. The Texas Court of Criminal Appeals denied relief as to all claims, finding that the presence of second chair counsel was sufficient to cure any denial of the right to counsel under Cronic and that trial counsel did develop a strategy sufficient to constitute effective representation under Strickland.3

Federal habeas proceedings in the district court

In federal habeas proceedings, Mr. McFarland re-urged his claims that he was constructively denied counsel and was denied effective assistance of counsel in violation of the Sixth Amendment, in reliance on Cronic and Strickland. Because both claims were adjudicated on the merits by the CCA, merits review by the federal court was prohibited pursuant to 28 U.S.C. § 2254(d), unless the State court’s adjudication “resulted in a decision contrary to, or involved an unreasonable application” of Supreme Court case law or “resulted in a decision that was based on an unreasonable determination of the facts” in light of the state court record.

The district court found that, whether as to Mr. McFarland’s Cronic or Strickland claims, the CCA’s adjudication on the merits neither amounted to an unreasonable application of Cronic and Strickland nor an unreasonable determination of the facts.4 The Federal District Court also found the CCA’s determination that the presence of second chair counsel was sufficient to cure any denial of the right to counsel did not constitute an unreasonable application of Chronic.  The Federal District Court also held the CCA’s finding that trial counsel had  a “trial strategy” did not constitute an unreasonable application of the Strickland test.5

Arguments on appeal to the Fifth Circuit Court of Appeals

Mr. McFarland applied for and was granted a Certificate of Appealability on, amongst other issues, whether the Federal District Court legally erred in determining that the 28 U.S.C. § 2254(d) re-litigation bar precluded merits review of his Cronic and Strickland claims6. As to his Cronic claim, Mr. McFarland argued the Court had failed to engage with his argument that prejudice should not have been presumed based on the circumstances requiring appointment of a second chair alone.7

In support of his circumstances argument, Mr. McFarland pointed to the facts that first chair counsel, as described by the Fifth Circuit, was unprepared and sleeping through significant portions of the trial. The second chair counsel was prohibited by the trial court from taking any actions not approved by first chair counsel and Mr. McFarland who was likely unaware of his own lawyer’s incompetence.8 Mr. McFarland argued the totality of these circumstances rendered any effective representation by second chair counsel impossible, and that he was thus constructively denied counsel under Cronic.9 Indeed, two State court judges had dissented from the majority and would have granted Cronic relief.10

Mr. McFarland also argued that the district court legally erred when it determined that the State court’s adjudication of his Strickland claim did not constitute an unreasonable application of the Supreme Court’s case law. Mr. McFarland urged that the CCA’s finding trial counsel had a strategy was unsupported by the record. Amongst other facts, Mr. McFarland pointed to the fact the record established that first and second chair counsel had very little contact prior to trial and could therefore never have discussed any strategy. Mr. McFarland further argued that the district court should have focused its analysis on whether, applying Strickland, it was reasonable to not investigate the State’s case on guilt as opposed to focusing its inquiry on what other actions trial counsel did undertake.

Mr. McFarland argued that the Fifth Circuit should instead find that the State court’s adjudication constituted an unreasonable application of Cronic and Strickland such that the 28 U.S.C. § 2254(d) relitigation bar was met, thus permitting federal habeas merits review and relief.

No error in the Fifth Circuit

The Fifth Circuit summarily rejected Mr. McFarland’s claim under Cronic: “We are aware of no case where a sleeping co-counsel alone triggers Cronic’s presumption of prejudice.”11 The Fifth Circuit concluded that, based on the absence of such a Supreme Court case, the State’s court’s adjudication that the presence of second chair counsel was sufficient to cure any Sixth Amendment violation did not rise to an unreasonable application of Cronic.12 The Fifth Circuit, however, failed to engage with Mr. McFarland’s circumstances argument, despite clear language from the Supreme Court in Cronic itself in support of such an argument: “Circumstances . . . may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel is so small that a presumption of prejudice is appropriate without inquiry unto the actual conduct of the trial.”13

The Fifth Circuit found Mr. McFarland’s arguments under Strickland failed to survive the court’s “doubly deferential” standard under 28 U.S.C. § 2254(d) and Strickland. As to each of Mr. McFarland’s allegations of deficient performance, the Fifth Circuit found that he could not show that the State court’s determination that the Strickland test was not met was unreasonable.14 For example, the Fifth Circuit found that it was reasonable for the State courts to find that trial counsel’s failure to thoroughly cross-examine the State’s key witnesses (including the State’s sole eyewitness whose description of the perpetrator shifted over time) did not fall below prevailing professional norms because cross-examination is inherently risky and trial counsel did cross those witnesses but on different issues.15

Conclusion

This case is significant because it illustrates how, even in circumstances as egregious as a sleeping lawyer in a capital murder trial, 28 U.S.C. § 2254(d) precludes merits review (let alone relief) in federal habeas. Mr. McFarland’s argument that the circumstances at trial amounted to a constructive denial of the right to counsel finds clear support in the Supreme Court’s language in Cronic. Likewise, the incomplete cross-examination of the State’s key witnesses and truncated mitigation presentation support a Strickland claim. Even where the Sixth Amendment right to counsel is at stake, however, the Fifth Circuit will not disturb a state court’s adjudication of a state turned federal habeas petitioner’s claims.

From the Front Porch: As Simple as 2 x 2 = 4; Making the Fourth Amendment Relevant to a Jury by Doubling Down on the Second Amendment

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How do we make our client’s right to be free from illegal search and seizure under the Fourth Amendment important to jurors who feel that they have nothing in common with our client?  How do we help them understand that a constitutional right is not a mere “technicality”, and that we are not just attempting to use it to “avoid responsibility”? 

In Texas, and more particularly in rural areas, you will get the interest of many members of the jury panel by just mentioning the Second Amendment, “gun rights.” Here in East Texas, where some of us practice, gun rights can serve as an effective tool to focus the attention of jurors. The fear of the government taking away people’s guns is pervasive, and ignites strong passions from many potential jurors. The public is inundated with information from political campaigns on issues involving firearms. These beliefs are reinforced by television commercials, direct mail ads, Facebook ads, and speeches which stress the importance of protecting the right to bear arms. If that isn’t enough, advocacy groups such as the N.R.A. vet candidates and give ratings based on how pro-gun the candidates are, then mail the ratings to every registered voter (juror pool).

If you were to poll an average jury panel, it would be surprising if even a few could list the amendments to the U.S. Constitution and the corresponding rights that are associated with them. However, the one thing that Texans are more passionate about than BBQ and football is guns. Ask a panel what the Second Amendment protects and 9 out of 10 potential jurors would likely answer correctly.

So how does a criminal defense attorney get a panel member to be as passionate about a client’s Fourth Amendment rights as he or she is regarding their own Second Amendment rights? You must connect the importance of the juror’s Second Amendment rights to your client’s Fourth Amendment rights. They must understand that only by preserving the defendant’s constitutional rights can they preserve their own.

Relevant Rights:

Regardless of your interpretation of the Second Amendment, in Texas it is widely believed to be a safeguard of one of our most important individual rights. That belief presents an excellent opportunity for criminal defense lawyers to relate to jurors the importance of our other individual rights. If applied in the appropriate setting, such a discussion could help potential jurors appreciate and value other constitutional rights such as the Fourth  (or Fifth, Sixth, etc.) Amendments to the U.S. Constitution (as well as Article 1, Sections 9 and 10 of the Texas Constitution).

Most of us have little or no experience trying cases with actual Second Amendment implications, which makes it easy to dismiss the subject as having little to no relevance to our practice. However, after a recent acquittal in a misdemeanor DWI trial, we were surprised by a post-trial question from the foreman of the jury. The foreman asked: “Do you practice Second Amendment Law?” Mike was a bit perplexed but responded: “Yes, I practice criminal defense law which includes many different areas including issues related to the protection of individual’s constitutional rights.” The foreman went on to say that while deliberating, the jury disregarded evidence of intoxication due to their concerns about possible government abuses of the defendant’s constitutional rights, which were presented to the jury by the inclusion of an instruction in the jury charge under Article 38.23 Texas Code of Criminal Procedure. These concerns were bolstered by the foreman’s inherent distrust of the government due to his belief that the government was attempting to violate his rights under the Second Amendment.

This led us to understand that jurors in Texas believe strongly in their own individual rights when they feel they are threatened by the government and they will enforce violations of the rights of others, when they make the connection. The key is engaging the jury early in voir dire regarding potential law enforcement overreach regarding the rights that Texans are most passionate about. You can force an all or nothing approach to protect everyone’s constitutional rights, including your client’s.

Getting them to care early:

Many attorneys miss opportunities to plant seeds early on in the trial process. Voir dire is the best opportunity for establishing trust and laying the groundwork for the “ah ha” moment for those that will serve on the jury. Introducing Article 38.23 to the panel in a carefully crafted manner is an effective way to lay such a foundation. The Texas Code of Criminal Procedure Article 38.23(a) states:

Art. 38.23. EVIDENCE NOT TO BE USED.  (a)  No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

If you have a case predicated on a traffic stop or any other encounter with the government that does not involve a warrant, consider whether you can make an Article 38.23 argument. It is important that you not only expose the panel to this concept, but also locate those who will, and those who will not, uphold the Constitution.

Remember, Texas gives us two “bites” at the suppression “apple”. Even if the Judge denies your Motion to Suppress in a pre-trial hearing, you can still argue the suppression issue to the jury. The following is an excerpt from a transcript of a voir dire in a trial that resulted in an acquittal in a felony drug charge tried to a jury:

“[I]n Texas, the people who established our laws a long time ago felt that they trusted jurors to make decisions about the legality of stops, searches and seizures. They put in the law what’s called Article 38.23 of the Code of Criminal Procedure. What it says is that if you as a juror hear evidence but then you believe that the evidence was seized by the government illegally, or if you have a question about the legality of that seizure of the evidence, then you’re required by law to disregard that evidence that you have already heard, and you cannot consider it for any purpose.”

After explaining the general nature of Texas Code of Criminal Procedure Article 38.23, the next key step is explaining what it requires of the jurors. Using an extreme hypothetical can demonstrate the importance of the law to the panel. An example used in the same voir dire:

“So, hypothetically, if you were to serve on a murder case and you’re a juror in a murder case and the only evidence that you see is a video recording of the murder taking place that undoubtedly shows the person to be guilty but that video recording was seized illegally by the police officer, you would be required by law to disregard that evidence and find that person not guilty.

That is a difficult concept because in Texas we value our Constitution, we value our rights to be free from illegal searches and we trust jurors to help make that decision.”

It is important that you phrase this in a way that lets the panel know this is a difficult concept, but a worthy one. Like most difficult concepts, when you ask someone on the panel if they can follow the law, you will get a lot of these types of responses: “maybe”, “I think I could”, and “I guess I need to know more about the facts.” You must press for a commitment that the juror will follow the law or, in the alternative, a statement that they will not commit to follow the law, making the juror subject to a challenge for cause.

This is where the Second Amendment comes in again. Another voir dire excerpt showing the transition:

Mike: Do y’all agree that the Constitution is important? How many of us believe the provisions of the Constitution should be upheld? How many of us possess firearms? Own guns? Mr. May, what would you do if the government came to get your gun?

Venireperson May: I’d probably raise a lot of hell when the police showed up.

Mike: And, Mr. May, who do you think enforces the Constitution against the government if they come to get your guns?

Venireperson May: Who enforces it?

Mike: Yes, sir.

Venireperson May: People.

Mike: Do you think if the people won’t stand up for the Fourth Amendment that they’re going to stand up for the Second Amendment?

Venireperson May: Probably not.

Mike: And is the constitution there to protect us or to protect the government?

Venireperson May: To protect the people.

Mike: And what does it protect the people from?

Venireperson May: The government.

Mike: And are police officers a branch of the government?

Venireperson May: I guess.

Mike: Thank you, Mr. May. So how many of us are willing to stand up for our Constitution? And how many of us are willing to do that by serving on a jury and applying the law as it relates to the Constitution? And how many feel like if we’re not willing to do it, nobody else is going to do it? I can tell you, it’s a difficult concept, but it is why in Texas we trust jurors to do that.

Using the murder hypothetical may appear extreme, but you want to make sure that each potential juror will follow the law in even the most extreme circumstances. This works for two reasons: 1) by getting the potential juror to accept the idea of disregarding evidence of a murder, disregarding evidence of methamphetamine, etc. is less of a problem; and 2) it “smokes out” jurors who truly cannot follow the law even if they thought they could.

Tailoring to fit your facts:

Once this point is established, the next step is to relate it back to a hypothetical more similar to the facts of your case. The following was taken from the same transcript and shows a transition from the murder hypothetical to a traffic stop:

[Let’s s]ay the officer said, I stopped the car because the right taillight wasn’t working. You get the video as the juror, you look at the video, and the right taillight is working. Don’t know why he said it wasn’t, but it was. Now, any evidence obtained as a result of that stop, what would we do with that evidence? We would disregard it. Okay? And if you couldn’t tell whether or not it was working and you had a reasonable doubt as to whether or not the stop was legal, those doubts as to whether or not the stop was legal, those doubts are taken against the government, against the State. And if you’re not sure whether or not it was legally obtained, you throw it out. Okay? That’s the way the law is set up in Texas. That’s what is required.

Beware, though, of Standifer v. State, 59 S.W.3rd 177 (Tex. Crim. App. 2001), which prohibits improper “commitment questions”.  Be sure you are familiar with those limitations! 

Sample Charge:

The inclusion of an Article 38.23 charge must be based on a question of fact that can be answered by the jury. Again, this requires a conflict within the evidence/testimony. Something as simple as an officer stating “I thought your lights may not have been on” should be enough for the argument and inclusion of the instruction. A sample charge:

You are instructed that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

You are further instructed that before an officer has the right to make a temporary investigative detention of a defendant, the officer must have a reasonable suspicion that the defendant is connected with some criminal activity that is or has occurred.  To justify an investigative detention, an officer must have specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances.  The test for reasonable suspicion is not whether conduct is innocent or guilty, but the degree of suspicion that attaches to noncriminal acts.

Now, therefore, before you consider the testimony of Officer “X” concerning their observations of the defendant after his detention, you must first find beyond a reasonable doubt that the officer had such reasonable suspicion, and if you do not so find beyond a reasonable doubt you will disregard such testimony.

This instruction allows you to make a dual layer argument for an acquittal by telling the jury to first make a decision regarding the Article 38.23 charge before even considering the ultimate question of guilt/innocence. The goal is to get the jurors to deliberate on the legality of the stop, which creates an additional hurdle for the prosecutor.

In closing argument, you can then argue the jury has a “short” analysis or a “long” analysis depending on their Article 38.23 decision. Argue that each analysis will ultimately reach the same conclusion. We refer to this argument as a “parallel argument.” The arguments are consistent but involve a separate analysis to reach the same conclusion, “not guilty”.

Conclusion

Closing argument will allow you to bring your case back around to the foundation that you laid in voir dire.  Conclude the Second Amendment and Fourth Amendment comparison in a manner something similar to this:

The government is not here today to take away your Second Amendment rights, but what they are asking you to do would deprive him of his Fourth Amendment rights.  Are you going to stand up for the Constitution today?  More importantly, if you do not stand up, who will?  The sacrifice of the Fourth Amendment today forfeits the Second Amendment tomorrow.  Only you have the power to stop it.

This connection of the Second Amendment to the Fourth Amendment may sway a juror who might feel that they have nothing in common with your client and no empathy for your client’s situation to your side.  Help them understand they are defending their Second Amendment rights because in Texas, rural Texas especially, Second Amendment defenders are not likely to back down from an opportunity to defend their rights!

Shout Outs

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Kudos to Joseph Esparza who litigated from February 28th to March 6th, then received a NOT GUILTY verdict after a long fought battle in a general court‑martial at JBSA‑Randolph in San Antonio. The client fired his first defense team, who wanted him to plead guilty. He faced two sex charges involving his teenage, adopted daughter and two computer charges involving his ex‑wife, soliciting men online to have sex with her and posting intimate visual images of her online. But, pretrial motions filed got the defense some relief, the most important being the defense could elicit and admit evidence of the client and complainant’s cuckold lifestyle, which had defense implications for the offenses involving the ex‑wife. Great job!

Amazing work to Mike Ware, who was recently honored for his devotion to the Innocence Project of Texas. He and his freed client, Jason Hernandez, who is now an advocate and community leader, came together with NACDL and TCDLA to raise funds for both organizations. Way to go, Mike!

A metaphorical round of applause for Cynthia Eva Hujar Orr, who is the 2021 recipient of the Charles R. English award, given by the American Bar Association. Charles English was a California trial attorney who specialized in criminal defense cases. He was an active member of the American Bar Association, having served as a member of the Criminal Justice Section Council and Chairperson of the Section’s Committee on the Association Standards for Criminal Justice. He was well respected by members of the bench, and both prosecutors and defense bar. In 1998 he was named Outstanding Defense Attorney by the Los Angeles Bar Association. Congratulations on your merited accolade!

Congratulations to Jeff Kearney and David Gerger who won a rocket docket in Fort Worth. They got a one hour NOT GUILTY verdict in the Boeing federal fraud trial. The pilot was the only on tried for the Boeing crashes associated with new planes equipped with a MCAS system. Amazing job!

Congratulations to Eddie Cortes for his acquittal on maximum charges. His client will serve 15 years TDC with the possibility of parole at 50%, while the original anticipated outcome was 25 to life without the possibility of parole. Great work! Kudos, Eddie!

Current Issue: March 2022

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Features

24 | Do’s and Don’ts of Being Second Chair – By Michelle Ochoa
27 | Tips for Public Defenders and Indigent Defense – By Mark A. Melchor, J Ryan Crisler, and Rachel Crisler
30 | Why Diversity Matters – By Thuy Le
33 | Outcry Statements: ARTICLE 38.072, C.C.P. Part 1 – By Craig Jett

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
9 | Editor’s Comment
10 | Ethics and the Law
12 | Shout-Outs
13 | Chapter & Verse
15 | Federal Corner
20 | From the Front Porch

Departments

4 | CLE Seminars and Meetings
38 | Significant Decisions Report

President’s Message: Thank You

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I want to take this opportunity to thank all of the hard-working people who are dedicating their time and talents to making TCDLA the wonderful organization it is for our members. Each of the committee chairs and members have been such a great amount of help for me during my time this year as president.

These excellent TCDLA committees are: Affiliate, Amicus Brief Curiae, Awards, Budget and Finance, By-Laws, Cannabis, Capital Assistance, Client Mental Health, Corrections and Parole, COVID-19 Task Force, Criminal Defense Lawyers Project, Diversity, Justice & Inclusion, DWI Resource, Ethics, Executive, Health and Wellness, Indigent Client Defense, ICC, Judicial Conduct, Juvenile, Law School Students, Legislative, Listserv, Long-Range Planning, Media Relations, Membership, Memo Bank, New Lawyers, Nominations, Past Presidents, Prosecutorial Conduct, Public Defender, Reapportionment, Rural Practice, Strike Force, Technology, Transcript Database, Veterans, Voice for the Defense, and Women’s Caucus. I also want to include the Texas Criminal Defense Lawyers Educational Institute and local Affiliate Criminal Defense Bars.

Almost daily, TCDLA s confronted with challenges from various areas of concern. It is a relief to know that I can refer these challenges to our brilliant committees knowing that I will receive a collective consensus on how to best tackle any given issue. I always know that I will get the most astute advice possible from these outstanding individuals. After obtaining the advice from a committee, I then refer the issue to our Executive Committee for their input. I want to thank my Executive Committee for their tireless and wonderful guidance during my presidency on the many issues we have faced together. Heather Barbieri, John Hunter Smith, David Guinn, Jr., Clay Steadman, Nicole Deborde Hochglaube, Jeep Darnell, Betty Blackwell, David Moore, David Botsford, Grant Scheiner, Monique Sparks, and Paul Tu each deserve our heartfelt thanks for their dedication and contributions to TCDLA. I am truly blessed to have such wonderful support from these individuals.

Last but not least, I want to thank our hardworking TCDLA staff and their excellent leader, Melissa Schank. The number of CLE’s alone that are produced by TCDLA keeps our staff working long hours and oftentimes away from home. Thanks so much for your service to TCDLA. Melissa is the leader that keeps all of this running for TCDLA. Her fortitude, experience, thoughtfulness, and steady hand at handling the many issues confronting TCDLA is truly awesome. I cannot thank her enough. The next time any of our members are at a TCDLA function, please take the time to seek out these people and thank them for their contributions to our wonderful organization.

In the future, it is my hope that our members who have not yet taken part in our committees will take the time to help our organization continue to grow by dedicating their time to committees or any other part of our organization.

Executive Officer’s Perspective: Fast and Furious

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“In life, it’s not where you go, it’s who you travel with.”

—Charles Schulz

February flew by. The month started with seminars during the Austin shutdown, led by our fearless course directors Rick Wardroup (Capital); Jani Maselli Wood (Appellate); Teri Zimmerman, John Shelburne, and John Convery (Veterans); and Rick Wardroup and Alyse Ferguson (Mental Health). Special thanks to all the speakers and attendees who braved the weather and made this event possible.

Next up was TCDLA’s Federal Law & Gumbo. The excellent topics and speakers in New Orleans kept the entire audience entranced each day till 4:30 pm. Speakers then lingered and met with attendees individually, and the questions continued at length. You know it’s good when no one leaves early on a Friday! Course directors John Convery and David Botsford hosted a stellar lineup. (If you missed the event, you can find it in the on-demand portion of our website.)

Of particular note was the presentation of the TCDLA Distinguished Service Award to Roy Barrera Sr., surrounded as he was by a number of attending past presidents. It was such an honor to meet a legend and listen to his stories. At the age of 95, Roy still retains clients and actively litigates, including in a recent criminal felony. He may be the longest-standing criminal defense attorney in the state, licensed more than 70 years. In 2021, Roy had two jury trials—one trial to verdict and another ending in a mistrial. He truly is one of our gentle giants.

The fun times did not end with the seminar; this also included our President’s Trip, hosted by Michael Gross. His choice social events combined great times, delicious meals, plus the camaraderie of our past presidents, officers, lifelong members, and new faces. We spent four days and evenings together and really got to know each other and catch up. The photos can’t begin to show just how much fun we had!

Gene Anthes and Sean Levinson from the Membership Committee also put together a rousing get-together: our first Members Social Event Touring the Cowboys Stadium. This was a great idea to bring members and families together to meet and form relationships in a fun, relaxing environment. The Membership Committee has three more social events planned this year: a Dallas Stars Hockey game, a Texas Rangers game, and a Wine Tasting—Austin to Fredericksburg. We will be sending more details soon.

The month continued with an Indigent Defense seminar in Dallas, where Lynn Richardson assembled a talented lineup for an overwhelming turnout of attendees. This event has always been popular due to Lynn’s leadership and support. In addition, we hosted two Juvenile Training Immersion Programs. Bill Cox and Kathleen Casey-Gamez worked tirelessly with trainers who prepared materials and a written curriculum designed specifically for Texas. The series of small group interactive programs—each a different topic—proved to be a resounding success. The next one is March 4 in El Paso on Adolescent Development. The final program of the series will be held virtually on April 29, dealing with “The Role of Counsel and Organization 101: Managing the Juvenile Caseload.”

It must be noted that we have worked closely with the grant on innumerable related items. We want to thank Judge Hervey and the Texas Court of Criminal Appeals judges in general for their continued support for the education of criminal defense attorneys and support staff.

We also held a successful Career Pathways training to engage law-school students, new lawyers, and lawyers exploring a specialty or new career. More than 40 criminal defense attorneys shared their experiences, career paths, local county cultures, and norms—whether in private practice, firms, or PD/MAC offices. If you missed out, you can still view this on the website.

TCDLA also joined with the NACDL Foundation in a united effort to fund TCDLEI scholarships. We appreciate all our members who contributed and/or attended. The Texas Criminal Defense Lawyers Educational Institute Board met to prepare for the Rusty Duncan Silent Auction as well as plan for the remainder of the fiscal year. Do you have something you would like to donate—artwork, vacation home, jewelry, memorabilia? We welcome anything!

The Future Indigent Defense Leaders 3.0 class has been finalized, and we will next turn to planning travel to Gideon Core 101 in April. If you didn’t get in this year, applications will open up for 4.0 in November. We had so many qualified applicants that TIDC and HCPDO really had a hard time selecting candidates. The client-centered focus was overwhelming, listening to each applicant’s story. Special thanks to those who assisted in the numerous interviews—Thuy Le, Brandon Ball, Kathleen Casey-Gamez, Bill Cox, and Rick Wardroup. We have weekly planning meetings with these folks as well as Geoff Burkhart and Alex Bunin.

As Michael mentioned in his article, many of our other committees met this month. The Awards Committee, for one, met to select the recipients and research candidates—itself quite a task! All our committee volunteers should be lauded, as they continuously look for ways to provide services for our members.

This month has indeed flown by. I worked night and day to catch up so I could enjoy my time spent with members, whether traveling, zooming, or on the phone. Time flies when you’re having fun, and enjoying what I do in life is its own reward itself. Now time for March Madness!

Editor’s Comment: Baseball and Wind; That’s Just Life

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By the time y’all read this we will be moving out of February and into March. This season brings me immense happiness, but also carries incredible frustration. I love spring because it means baseball is coming back. Take Easter and Groundhog Day, roll them into one and that’s the day I embark on the annual trek to Phoenix, Arizona.  My Dad, my little brother, and my two little boys head over to watch Major League Baseball’s Spring Training. Days are spent watching sleepy baseball games while enjoying the beautiful weather and getting to spend generally uninterrupted time with my boys. But, for those of you in west Texas (I’ll even count Lubbock as part of that for these purposes, although a map would prove each of my friends up there to be wrong). March means the god-awful, sand-filled wind that brings along all of the dust anyone could ever bear, and some we can’t. I hate the damned spring winds. But, I suppose that is life and it’s a little bit of a microcosm of what we experience pretty regularly. I don’t know of many people, save for Derek Jeter or Mickey Mantle (I’m a Yankee fan), who probably experience the highs that we do when we get two-word verdicts, especially in the cases we’re supposed to lose. But, I don’t know that most folks know the pain of sitting next to someone you’ve worked your butt off to save only hear to the jury come back with one miserable word. I suspect maybe Jeter knew a pain close to that feeling when the Yankees lost to the Red Sox in ALCS after being up three games to none, but at least he didn’t have to get hit in the face with the damn dust-filled wind coming out of the west at a million miles per hour. Each issue I try to think of what I can say that could possibly reverberate with all of the criminal defense attorneys in this State. What ties bind us? Fortunately, or unfortunately, I think the ties that bind us are the extreme highs and lows of our practice. Be kind to one another because unless one of us is friends with Derek Jeter, the only people that truly know how high and low we feel at work are the brothers and sisters we encounter in court, correspond with on the Listserv, and see at CLEs and Board meetings. Just like I know that only my dad completely understands the beautiful experience of rebirth that I feel getting to spend days at baseball games with my young sons. Also, I know that only the men and women of this organization completely understand how I feel when I walk a client out of a courtroom after a hard-fought battle. Just the same, only the folks of west Texas (yes, even Lubbock) know how bad the wind sucks in March, and only the men and women who practice criminal defense know what it’s like to have your head caved in during a defeat. Keep fighting brothers and sisters. Rusty is just around the corner.

Be safe,
Jeep Darnell

Ethics and the Law: Is it ethical to charge a non-refundable retainer?

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The answer from the State Bar’s Texas Center for Legal Ethics is a definite “maybe”. There are several Rules of Professional conduct that cover attorney’s fees. From the State Bar’s point of view, the most important one, is that an attorney must return any unearned fee. Rule 1.15(d) of the Texas Rules of Professional Conduct. The problem for the attorney in charging a non-refundable retainer, is that the burden is on the attorney to prove that the fee has been earned.

Some jurisdictions have outlawed the practice of charging non-refundable retainers because it deprives the client of the right to change lawyers without suffering monetary penalties.

If the attorney withdraws from the case or is terminated, the amount of the fee retained must be related to the services performed, and if not, the fee may be found to be unreasonable, in violation of Rule 1.04(a) of the Texas Rules of Professional Conduct.

Criminal Defense attorneys have a particularly difficult time in drafting contracts that will allow them to get paid for the work that they perform.  Experienced attorneys know that it is virtually impossible for an attorney in our field to be paid after the case is completed. Thus, the attorney will want to be paid prior to the end of the representation. We cannot terminate out representation without approval of the court and therefore are at the whim of the judge assigned to the case.   Once we designate as attorney of record, we can be required to complete the criminal case through a jury trial and the 1st appeal of any sentence, even if unpaid by the client, if a judge refuses to approve our motion to withdraw. Rule 1.15(c)Texas Rules of Professional Conduct.

This is probably the hardest concept for most civil lawyers to understand about our profession. If they are unpaid, they can simply notify the client that they will longer do work for them. We do not have that luxury. Most of the attorneys who volunteer to serve on grievance committees come from the civil side and the concept of being paid prior to work being completed, is foreign to them.

Because of the very real possibility of having to complete a case without getting paid for our services, utilizing a contract that includes a non-refundable retainer becomes tantalizing to the criminal defense bar. But there are serious issues that can land the lawyer in trouble with the grievance system.

Opinion 391 sets out the difference between a true retainer and an advance fee. A true retainer belongs to the attorney at the time it is received because it is a fee to secure the lawyer’s services and remunerate him/her for loss of the opportunity to accept other employment. Opinion 431 says that the lawyer must substantiate that other employment will probably be lost by representing the client. Thus the burden is on the lawyer to prove it is a retainer fee. Even then, Opinion 431 goes on to say that if the client discharges the attorney before any opportunities have been lost, or the attorney voluntarily withdraws, then the attorney must refund an equitable portion of the retainer. Opinion 431 specifically says that a fee is not earned simply because it is designated as non-refundable. Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) came to the same conclusion.

The most recent opinion concerning non-refundable retainers is Opinion 611.  The question presented was whether an attorney could charge a non-refundable retainer that included payment for services up to the time of trial and then charge an additional fee for trial. The answer was a clear “NO”. This type of contract violates the Rules of Professional Conduct.  It is in fact an advance fee. That is, it is a fee for services not yet performed. That means, that the fee has not been earned by the attorney at the time it was received, and because it belongs to the client it must be deposited into a trust account, Rule 1.14(a).

The Ethics committee went on to say that there is no prohibition in the Rules from an attorney requiring a payment of a fixed fee at the beginning of the representation. The advance fee must be separated from the attorney’s and placed in a trust account and only transferred to the operating account when it is earned.

After serving 6 years on the State Bar’s Commission for Lawyer Discipline, and 5 years as the Chair, I do not recommend that criminal defense attorneys use the words non-refundable in their fee agreements. It is simply a red flag for the state bar and not worth the headache of going through the grievance process.

Shout Outs

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Congratulations to Mark G. Daniel for his reappointment to the Texas Forensic Science Commission! TCDLA is proud to have one of our own serve the great state of Texas! Exceptional work, Mark!

Outstanding work to Angelica Cogliano who won her case, challenging the constitutionality of Operation Lone Star. Ultimately, the state agreed that her client (therefore all 2,000 defendants) deserve relief. Amazing work, Angelica!

Kudos to David Lee Botsford on a recent 5th Circuit victory! It deals with the affirmative defense of the statute of limitations. Argued on December 8th, reversal and remand: to determine which of the 4 counts may be barred by statute of limitations, and new trial on any of the 4 counts that are not barred. Great work, David!

Amazing work to Kathy Ehmann-Clardy and Sean Bajuk who heard the sweetest words ever spoken – NOT GUILTY, not once, not twice, but FIVE times. They tried five cases to a jury in Somervell County, working for three days on ABIFV, interfere 911 call, criminal trespass, criminal mischief and theft. Kudos, Kathy and Sean!

A job well done to appellate counsel, Alan Bennett, for winning his trial in a Waco District Court. Opinion affirmed the exclusion of evidence that was not turned over by the State “as soon as practical”. Evidence produced on the eve of trial was excluded… and his ruling affirmed. Way to go, Alan!


Staff Highlights: Seminar Clerk

Jessica Steen

Title: Seminar Clerk
Native State: Texas
Zodiac Sign: Scorpio
Favorite Color: Sea-foam Green
Loves: hiking nature trails and quilting
Interesting Fact: She has had pet reptiles since age six

Jessica Steen is currently studying at ACC for general studies, with the hope to transfer to a university in order to continue her studies in forest and wildlife management. She has participated and staffed countless Girl Scouts and Boy Scouts events, holding a variety of positions, which include secretary work, accounting, administration, and training. At TCDLA, Jessica works on mailing publications and merchandise to members, and packs materials for seminars. In her downtime, she can be found chilling with her animals or starting a new quilting project.

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