Chapter & Verse: Hearsay Part 2


Dear and Beloved Colleagues,

After our date with John Wigmore (or was it more of a one-night stand? Hmmm? I’d see him again, but does he want to see me?) last issue, I was thinking about how we should get into the reality of this hearsay thing. It’s so much! Have I finally bitten off more than my big mouth can chew? Fear not dear reader, for I have the jaw muscles of a much younger woman.

I suppose that the best way to tackle this thing, now that we know what hearsay is, is to talk about admissible hearsay, exception by glorious exception. I can’t wait. Turn now, if you will, to Texas Rule of Evidence 803 and read along with me,


The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”

Ok, let’s stop there and evaluate this first exception: “present sense impression.” We are told in our law school evidence classes that the exceptions to the hearsay rules are time-honored traditions, truisms passed down throughout human existence that supply sufficient “indicia of reliability.” But that’s kind of bull, isn’t it? What does that mean, exactly? That it’s some kind of ancient Roman maxim that we all recognize the inherent truth in? If that’s the case, why don’t we also admit hearsay statements made under the influence of alcohol, since in vino, veritas, after all?

It turns out that the origins of some hearsay exceptions are not much more complex than just that. Present Sense Impression, along with some of the other exceptions we will look at in future columns, comes from trying to tease some sense out of the “res gestae” rule, which had, at the end of the 19th century, become a veritable dumpster fire on which judges burned the rights of defendants. In Latin, “res gestae” means “things done.” For our purposes, it basically means the story of the crime. We still use “res gestae” in legal Latin for other reasons, “the police said he made a ‘res gestae’ statement” (usually meaning that it was a voluntary utterance from someone at or near the time of the offense- “I shot that guy because he was coming at me!”) but just general “res gestae” itself as a whole blob of concepts doesn’t work as a hearsay exception anymore.

So back in the days when smarter folks than your dearest correspondent sat down to puzzle things out, they decided to try and define what, specifically, made statements that were otherwise hearsay credible, other than just being sloppily categorized as “res gestae.” In 1898, James Thayer, a Harvard law professor, issued his “A Preliminary Treatise on Evidence at the Common Law.” Yes, dear reader, it was as fascinating as it sounds, and beat out my own beloved John Wigmore’s evidentiary edicts by about six years. It was a big thing at the time, but if you look up the digitized copy that the Cornell library keeps on hand, it hasn’t been checked out since 1993. Boo. Hiss.

Thayer identified the present sense impression as a distinct type of res gestae statement with unique reliability. He indicated that the reliability of the present sense impression came largely from its proximity in time to the event that was being described, and clarified that the requirements for admissibility of such statements were that they were: spontaneous statements describing the event, made at the time of the event, and witnessed by another person who also witnessed the event.

Ok. So that’s a lot of requirements. Texas law doesn’t require the witness who also witnessed the event, instead teasing apart the elements thusly: “a statement must (a) describe or explain an event or condition, (b) be expressed by the person who made the observation, and (c) be made contemporaneously with or immediately after the observation.”

If you go digging Lexis or Westlaw for some cases about present-sense impression, you will find sadly very little. That said, there is some really interesting stuff on there that defense lawyers ought to be aware of.

“The rationale underlying the present sense impression is that: (1) the statement is safe from any error of the defect of memory of the declarant because of its contemporaneous nature, (2) there is little or no time for a calculated misstatement, and (3) the statement will usually be made to another (the witness who reports it) who would have an equal opportunity to observe and therefore check a misstatement.”
Fischer v. State, 252 S.W.3d 375 (Tex. Crim. App. 2008).

In Fischer, a trooper stopped defendant’s vehicle with the intention of citing defendant for failing to wear a seatbelt, and the trooper subsequently discovered that defendant had been drinking and arrested him for DWI. During the stop, the trooper contemporaneously dictated his observations on to his patrol car videotape. On appeal of the appellate court’s decision that the trooper’s taped observations were not admissible as a present sense impression hearsay exception under Rule 803(1), the court affirmed. The evidence showed that the trooper calmly walked back and forth from his patrol car to defendant several times, and that he carefully and deliberately narrated the results of his DWI field tests and investigation. The trooper’s statements were testimonial and reflective in nature, and they were the type of statements that were made for evidentiary use in a future criminal proceeding; therefore, they were not the sort of spontaneous, unreflective, contemporaneous present sense impression statements that qualified for admission under Rule 803(1).

One of the things I think we ought to be mindful of in this modern era is the use of social media as essentially present-sense impression machines. Twitter, Facebook, Instagram…aren’t they all just saying what we’re doing and feeling at any given time? If I were arguing against admission of a social media post, I might suggest that written statements are more calculated than oral exclamations, no matter how speedy the typist, and that the calculation and reflection sufficient to put something on social media defeats at least the spontaneity element. But the times, as they say, are a’ changin’.

 I am hopeful that by understanding the underpinnings of the hearsay exceptions, the things that historical men with historical mustaches have thought made them as reliable as a live cross-examination would have, we can contest things that are not so reliable. The key to understanding is dissection. Next time, we will evaluate the EXCITED UTTERANCE, which I find fascinating since the utterance I am most likely to make as I’m witnessing a catastrophic event is usually a superlative expletive, which, if taken literally, are not accurate descriptions, unless such events are scatological or reproductive in nature. Until then, sweet reader, I remain,


Federal Corner: Saving the Confrontation Clause


The Confrontation Clause

One of the greatest trial rights and protections owned by a criminal defendant is the Sixth Amendment right to confront and cross-examine witnesses at trial. The Sixth Amendment of the United States Constitution states that: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him;”

 – U.S. Const. amend. VI.

The Confrontation Clause and the rule against hearsay found in the rules of evidence protect similar interests.  However, in California v. Green, 339 U.S. 149 (1970), the United States Supreme Court held that the 6th Amendment’s right to confrontation and the hearsay rule in the rules of evidence are not the same.  In doing so, the Court stated the following: “While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.”

The distinction of the confrontation right and the hearsay rule is significant.  Constitutional protections carry more weight than evidentiary rules in trial courts and on appeal. Further, the hearsay rule’s many exceptions do not apply to the confrontation clause.  California v. Green, 339 U.S. 149 (1970); See Barber v. Page, 390 U.S. 719 (1968); Pointer v. Texas, 380 U.S. 400 (1965).  

Crawford v. Washington

In 2004, the United States Supreme Court issued an important opinion in confrontation litigation, Crawford v. Washington, 541 U.S. 36 (2004).  In Crawford, husband, Michael Crawford, and wife, Sylvia Crawford, were charged related to the stabbing of a man. Both Michael and Sylvia gave recorded statements to the police at the police station regarding the incident. Michael admitted to stabbing the man in self-defense, but Sylvia’s statement to the police was inconsistent with Michael’s defense. At Michael’s trial, the State could not compel Sylvia to testify against Michael due to the spousal privilege rule in Washington. Therefore, the State introduced Sylvia’s prior recorded statement under the “statement against interest” exception to the hearsay rule over the Defense’s objection that the recording violated the Confrontation Clause. The Supreme Court in Crawford held that the introduction of Sylvia’s statement at trial without Sylvia appearing to testify in court violated the Confrontation Clause and was inadmissible. The Court held “that any out of court declaration that is testimonial in nature, is inadmissible if the declarant does not testify at trial and the Defendant has not had a prior opportunity to cross examine the witness.” 

Opening the Door Exception to Confrontation

In Hemphill v. New York, 2022 WL 174223 (2022), the Supreme Court had to decide whether the statutory exception to the Confrontation Clause violated the Sixth Amendment. The Confrontation Clause was under attack by New York, which had created an exception to the confrontation clause: “Opening the Door.”

Facts of the Case

A two-year old boy traveling in vehicle was killed by a stray 9-millimeter bullet shot by a person involved in a street fight. Police suspected that either Nicholas Morris or Darrel Hemphill was the shooter. A search of Morris’ apartment yielded 9-millimeter ammunition only and a .357-magnum handgun. Morris was initially charged with the murder of the child, but later was offered and agreed to plea to a charge related to possession of the .357-magnum handgun and dismissal of the murder charge.

Hemphill was then charged with the murder of the child. During Hemphill’s trial, Hemphill used a third-party culpability defense, blaming Morris for the murder.  During opening statement, Hemphill’s counsel told the jury that a search was conducted of Morris’s apartment hours after the shooting, and the police had recovered 9-millimeter ammunition, he ame aliber ammunition that had been used to shoot the boy. 

To controvert the Defense’s opening statement, the prosecution sought to introduce the plea colloquy transcript from Morris’ plea hearing in which Morris had pleaded guilty to possession of the .357-magnum handgun.  The State cited to the Reid Rule, as a judicially and legislatively created exception to the Confrontation Clause in New York that allowed the trial court to admit evidence at trial for the prosecution that would be otherwise inadmissible if the court determines that the defense has “opened the door” to the evidence by creating a misleading impression with the jury.  The Defense objected that the testimony sought by the prosecution (the plea transcript) violated the Confrontation Clause and Crawford v. Washington, because Morris was unavailable to testify and the defense had not had a previous opportunity to cross-examine him.

The trial court found that Hemphill’s attorney “opened the door” during opening statements by telling the jury about the 9-millimeter ammunition that was found in Morris’ apartment on the night of the murder. Therefore, the trial court allowed Morris’ plea colloquy transcript from the possession of the .357-magnum handgun charge into evidence to correct a “false impression” created by the defense.

Question Presented

Whether New York’s “opening the door” rule to the Confrontation Clause is a violation of the Confrontation Clause.   The rule allows the trial court to admit evidence for the prosecution at trial that would be otherwise inadmissible if the court determines that the defense has “opened the door” to the evidence by creating a misleading impression with the jury.


The Court first analyzed some of the history of Confrontation Clause Jurisprudence. In 1980, the Supreme Court held in Ohio v. Roberts, 448 U.S. 56 (1980) that the Confrontation Clause did not bar the admission of statements of an unavailable witness, so long as the statements bear an “adequate ‘indicia of reliability,’” meaning that they fell “with a firmly rooted hearsay exception” or other “particularized guarantees of trustworthiness.”

However, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court abrogated Ohio v. Roberts.  The Court held “that any out of court declaration that is testimonial in nature, is inadmissible if the declarant does not testify at trial and the Defendant has not had a prior opportunity to cross examine the witness.”  

State’s Arguments on Appeal

In its arguments to the Court, the State conceded that Morris’ plea colloquy was testimonial, meaning the Confrontation Clause was implicated.  However, the State argued that New York’s “opening the door” rule was not an exception to the Confrontation Clause.  Instead, the State argued that the “opening the door” rule was a procedural rule, like failing to object to the confrontation clause violation, and thus there was no violation. 

The Court has approved procedural rules and allows the States and the Government to adopt procedural rules related to objections to testimonial evidence.  For example, in Melendez-Dias v. Massachusetts, 557 U.S. 305 (2009), the Court approved “notice and demand” statutes.  These statutes require the State to give notice that it plans on introducing testimonial evidence (such as a lab report) without a sponsoring witness and the defense is given a deadline by which to object to the introduction of the evidence.  Failure to object is considered a waiver of the right to confront the witness. 

The Court’s Analysis – Procedural Rules

First, the Court emphasized that it approves of procedural rules that allow for admission of testimonial evidence.  The Court reiterated its approval of the “notice and demand” statutes discussed in Melendez-Dias.  The Court also approved the rule stated in Illinois v. Allen, 397 U.S. 337 (1970), which allows for removal of a criminal defendant from his trial when despite repeated warnings, he has become so disorderly, disruptive, and disrespectful in court that his trial cannot be cannot be carried on with him in the courtroom. 

The Court’s Analysis – Substantive Rules

However, the Court held that New York’s “opening the door” rule was not a procedural rule, but instead it was substantive.  In other words, the “opening the door” rule was a substantive rule like the one in Ohio v. Roberts, 448 U.S. 56 (1980) that allowed the testimonial statements of an unavailable witness, so long as the statements bear an “adequate ‘indicia of reliability,’” meaning that they fell “with a firmly rooted hearsay exception” or other “particularized guarantees of trustworthiness.”  However, Ohio v. Roberts was rejected in Crawford v. Washington, 541 U.S. 36 (2004).  In rejecting Ohio v. Roberts, Crawford stands for the principal that judges are barred “from substituting their own determinations of reliability for the method the Constitution guarantees.”  In other words, a judge should not substitute her wisdom about reliability for the reliability of cross-examination.

Similarly, the Court held that New York’s “opening the door” rule was substantive, requiring the trial court to weigh evidence. “It was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression.  Such inquiries are antithetical to the Confrontation Clause.”

The Holding

Because New York’s “opening the door” rule was substantive, requiring the trial court to weigh evidence, the rule violated the Confrontation Clause.  Judges are not allowed to weigh the reliability, credibility, or misleading nature of testimony as a substitute for cross-examination. 

The Authors’ Thoughts

  • The Court properly distinguished between procedural and substantive rules.  Procedural rules like Texas’ Article 38.41 (Certificate of Analysis) which allows the State to give notice that it intends to introduce a laboratory report without a sponsoring witness, are approved because the defense has an opportunity to object to the evidence.  However, rules like New York’s “opening the door” rule rely on judge’s weighing the credibility, reliability, or weight of evidence are substantive in nature, and thus violate the principles set out in Crawford
  • This case is a significant opinion because the Court did not take a step back from Crawford. This is and 8-1 opinion.  Crawford is still the rule of law and confrontation continues to be one of the most important and protected trial rights for a defendant.

From the Front Porch: Patches of humanity: a writer, his ranch, and the art of storytelling


In 1974, John Graves published Hard Scrabble, a wide-ranging series of essays about his ranch near Glen Rose. The writing – “observations on a patch of land,” as he described it – meanders his property beautifully. He offers some armchair history, a lay of the land itself, and spends his time showing you the trees and describing all the birdsong and guessing at why the creek runs differently now than it did before. You’re walking with him, really, and trusting the gentle clip of your nicely-paced tour guide – happy that he seems particularly adept and knowing when to chat and when to let the world speak for itself.

Fourteen years earlier, Graves did something similar in Goodbye to a River. It was his homage to a portion of the Brazos River that he had known and loved quite intimately, one that appeared ready to change course with the construction of a series of dams. So, he took his dog, hopped in a canoe, and spent a few weeks traveling. You’re with him as he hunts, you feel the chill of autumn and the warmth of his fire – it’s as if he handed you a paddle, too, and asked for a little help from time to time.

He did it all again a few years later in From a Limestone Ledge, which, on its cover, was described perfectly: a celebration of “the casual but constant observation of detail, the noticingness of rural life.” More essays, more description, more questions, more thoughts. It was almost as if Graves spent his life quietly watching and hearing, comfortably quiet in his pauses between books, and offering up what I would consider to be the most magical writing about “place” I have come across.

When I moved to rural Texas (Beeville, more specifically) to begin my work as a public defender – what Graves may describe as when I “put my boots to earth with a mingled set of feelings” (Hard Scrabble, p. 44) – I was continually searching for the words that seemed to flow so easily from Graves. I was trying to understand a world I hadn’t known before, and his sentences became the soundtrack to my curiosities – it was as if he had decided to do something that felt resonant: tip the balance in favor of listening and looking and wondering.

On people: “There were cattle kings and horse thieves and half breeds and whole sons of bitches and preachers in droves and sinners in swarms.” (Goodbye to a River, p.200).

On the lovely dynamic between rain and land: “Hence, it depends not only on rainfall year by year but also on the way the land receives and handles the rain.” (Hard Scrabble, p.53).

On aging and time: “’Maybe it is, at that,’ said his grandfather, nudging dark loose earth with his toe and feeling in old hurts the certainty of rain. ‘We feed the dirt, and the dirt feeds us.’” (Hard Scrabble, p. 139).

Rural Texas mystique is (and always will be) a mine for creative plundering. There is a fierce identity to it, and a romance that accompanies its exploration. And, I firmly believe that defense lawyers whose practice carries them into the hard scrabble of Texas, will do well spending time with the likes of John Graves. He is not there to give you the answer, but he does prod you along to truly soak in what’s around.

His genius is to give the lesser known a profound, authentic, feeling identity. With him, you are not between other places, not described in reference to elsewhere, not on a road between somewhere you might know (Fort Worth) and somewhere else you might know (Abilene) – you are in Somervell County, and being there is just right. There is a depth of humanity that exists in each of Graves’ paragraphs, and with a level of simplicity that is reassuring. We, as lawyers, are also at our best when we can take in the complexities that lie before us and speak about them with some combination of plainness and straightforwardness and minimalism.

That Graves writes about rural Texas – and, therefore, the idea that his writing is applicable to it alone – is to miss out on what he teaches about the ways in which we can all find identity (and, in turn, humanity) no matter where our place is. In her brilliant collection On Photography, Susan Sontag offers a mission that defense lawyers can certainly borrow: “There is one thing the photograph must contain, the humanity of the moment.” (p. 122). The humanity of the moment, the humanity of our client – the re-insertion of these photographs into a process built upon its proficiency at stripping away those very things – that is our non-stop mission.

Current Issue: December 2021




12 | Blue Dot Marks the Spot? Questioning Location Service Data in Legal Cases – By Steve Watson & Lance Sloves
16 | A Great Criminal Defense Attorney is a Zealot, Despite its Negative Connotations – By Lara Bazelon
24 | The Law of Jury Selection Qualification & Disqualification in the Art of Voir Dire – By Clifford Duke
30 | Pre‑Trial Investigations – By Jeremy Rosenthal


5 | President’s Message
6 | Executive Officer’s Perspective
7 | Editor’s Comment
8 | Ethics and the Law
10 | Federal Corner
23 | Shout-Outs


4 | CLE Seminars and Meetings
33 | Significant Decisions Report

President’s Message: Happy Holidays!


“We are so grateful for all the sacrifices that you have made this year to support and serve others. May this Holiday season be a time for you to rest and recover, and to reflect on all that you have achieved.”


I do not know about all of you, but everything seems to be so much more difficult in our law practice these days. What was once easy to obtain in discovery or in witness interviews or trial preparation now seems so much harder. It sometimes feels like we are in quicksand. Add to these difficulties the strange emergence of jury trials during the pandemic. Masks and plexiglass and Zoom permeate the courtroom. In 2019 and earlier, a court coordinator could accurately tell us whether or not our case was going to trial the following week. No more. Everything seems to be in flux. These stressors may lead some to feel that our service to our clients and others is not appreciated. Ours is not an easy profession. It is not easy, for example, to enter a courtroom filled with 80 venirepersons and conduct voir dire on a murder case or other difficult case. These many stressors can sometimes be overwhelming. We have attempted to survive the pandemic and countless Zoom settings. We have maintained our law practices in spite of the difficulties resulting from the pandemic. We should remember, however, that we have adapted and overcome these stressors and should not allow them to dampen our holiday season. We are a TCDLA family and know that we may rely upon each other to get through these difficult times.

As we enter this holiday season and prepare for New Years, I hope each of us takes a moment to reflect on how our sacrifices this past year have helped and supported not only our families and friends but also our clients, their families, and their friends. My hope is that each of us may take a moment this holiday season and enjoy our families and rest up for this coming year. We need this time to recover and reflect on all that we have achieved. I wish the best for you and yours this holiday season and in 2022.

Happy Holidays!

Executive Officer’s Perspective: Setbacks


“Turn your setbacks into comebacks.”


The holiday season is here! It’s been too long since I’ve traveled or taken a vacation due to the pandemic, so I’m excited to be going to see my out-of-state relatives. It seems like years! We will be taking a trip out west, reuniting with cousins and getting together with our extended family.

But excitement over our plans was tempered when my daughter hurt herself—tearing her ACL and meniscus and straining the FCL and MCL. She was devastated that her basketball season was over before it even started. It broke my heart to see her work so hard this summer to prepare, only to be let down. This was to be her year. Now she is relegated to physical therapy for six weeks to allow the FCL and MCL to regain mobility and flexibility, then surgery.

The operation is scheduled a few days after we return from our holiday trip. The recovery process itself will require six to nine months, due to two tears in her meniscus. When the doctor explained the surgery process, it was surreal, sounding like something from a sci-fi movie.

As a parent, I wish I could shield her from sickness, or pain, or whatever plagues her. In a way, I feel the same about our staff and our members. Those moments when we’re excited over new developments then face some terrible setback. Those life-impacting hardships force us to figure a way to move forward. To strive to be stronger or better. None of these things can—or should—be done alone.

While we can’t control what befalls us, we can challenge ourselves to conduct the way we respond. We have the power to marshal our resources and overcome adversity. Strength comes from what you thought you couldn’t do! Similarly, we also can provide the support to help each other along our journeys. In either case, reaching the end, successful goal is so rewarding.

For my daughter, the saying “walk before you run, crawl if you have to” rings so true. In youth, in particular, we want to get there without undergoing any trials or tribulations. Persistence, not giving up, will be key. As the holiday approaches, we will add in a bit of patience.

And as the season winds down, we tend to reflect on the past year. I challenge all to take a moment during the holidays and enjoy time with family and friends. Give the best gift you can, your presence and undivided attention. Go above and beyond—connect with friends, loved ones, fill your heart. Spread some joy to someone and show them you care. Together we can lessen each other’s burdens, so sprinkle some kindness, plant some love. Make these holidays extraordinary and share it with someone close. Cheers to hope, overindulgence in food, and reenergizing (worry about getting back into shape next year—a small setback!). Happy holidays to you, and wishing you a peaceful, healthy, and prosperous year!

Editor’s Comment: The Christmas Miracle


By the time you read this we will have finished Thanksgiving dinner and we may be moving out of our respective food-comas.  I hope that each of you had a wonderful Thanksgiving, safe from COVID, and with the ability to enjoy all the family time that you can possibly handle. Now, on to Christmas, Chanukah, Kwanza, and other winter holidays that allow (require) each of us to do it all again. In case my tone is not clear via the typed word, too much family time is too much for me on occasion. I am known to reach my limit on extended family interactions somewhere around the first or second day of joyous festivities, and I suspect I am not alone in that need for space.  But, shame on me.

We, as criminal practitioners, know better than just about anyone what a privilege it is to spend time with family on the holidays. So many of our clients, whether they are pre-trial or post-conviction clients, don’t get to experience what we take for granted or what, in my case, tends to drive me nuts. I can’t tell you the number of jail calls I get beginning around the week before Thanksgiving begging me to try one more time to get someone out of jail. I know as well as the next person that not every client is being truthful about wanting to be home for their respective holiday celebration, but I’ve got a soft spot in my heart for the old line, “I just want to spend Christmas with my kids.” Even when I know the dude is full of it, it makes me wonder how I would feel if I couldn’t see my boys’ smiles on Christmas morning. Even if picking up all the trash after opening presents and the inevitable breaking of a Christmas present on Christmas morning is aggravating, seeing and feeling the joy of watching them open presents fills my tank and helps me get going for another year.

When I was a baby lawyer, I had this yearly feeling by Thanksgiving that I was tired of it all and needed a break from the grind. I would try and coast as best as I could to the end of the year. (Let’s be honest, I still get that same feeling). Then, one year, I was set for trial in early December on an injury to a child case for an appointed client for whom I had been fighting for years. I knew the judge wouldn’t actually be calling any cases for trial that week and that all of the trials would be reset. I was grouchy and tired of the grind that Friday morning when I showed up at the courthouse just to reset my client’s case. My poor client had been beset by horrible health problems during the duration of her case, brought on in part by the anxiety of the pending charges. I walked into the court coordinator’s office to get my new setting and she instructed me I needed to conference the case with the prosecutor. Annoyed, I walked to the room where the prosecutors were waiting and grumpily informed them that I was told to conference with them before I got a reset and consider this grumpy message my conference and I was leaving. The lead prosecutor on my case, however, told me to wait a second. He told me that the case had been reset too many times and, although they knew they weren’t actually going to trial, they had subpoenaed many of the cases in order to determine if they actually had any witnesses to testify in the eventual trials.  Mine was one such case. He said, let’s go check and see if I have a witness. We walked out, together, into the foyer on that floor of the courthouse where he called for his witnesses, and none appeared. He walked me back into the court offices and filled out and signed a dismissal. After getting the Judge’s signature, I walked a copy to my client, handed it to her with a smile and told her something to the effect that the perpetual annoyance of her case was over. She burst into tears in the middle of the crowded foyer. She hugged me and told me that I had saved her life. 

I’m not re-living this story for an atta-boy. I’m telling y’all, and really reminding myself, that we all have a Christmas miracle in us that we can bring to one of our clients. And sometimes prosecutors surprise us near the end of the year, too. I don’t always get dismissals at Christmas time, but I might be able to get someone out of jail, or I might be able to do something as simple as going and visiting a client in jail, not to talk about the case, but just to visit and remind him or her that they aren’t alone. If we shrug off the tired at the end of the year, we can bring some semblance of joy to someone we represent and make this time of year a little happier. And who knows, that may make all the difference in the world to our client.

Be safe.

Ethics and the Law: Between a Rock & a Hard Place


Several teenagers from a Houston community became interested in satanic rituals. This was unexpected because this group was raised in a middle-class, law-abiding environment. However, one night the group was together and the subject of what it would look like to watch someone die came up. There was a young male who was not well-liked, and his name was mentioned as a possible victim of a satanic-like sacrificial killing. The teens made plans to lure him to a cemetery at night and then strangle him to death.

Sadly, the plan was executed. Two of the group were young girls who watched but did not participate in the planning or the actual ritual killing. However, they made no effort to stop it.

An investigation began once the body was discovered. When interest in Sharon became known, her parents realized she needed representation as the police were calling it a murder. Heavy stuff. We agreed to represent her. Not long after, the father informed us he had found a suitcase that may have contained items from the scene of the crime. We told him not to destroy it or its contents, and to bring it to our office for safekeeping until we determined if it might contain evidence, and if so, what to do with it.

So, the suitcase was delivered to our office and placed under lock and key. It was not going anywhere until we knew who owned it and what it contained. Meanwhile, our 16-year-old client was taken into custody and placed in a juvenile detention facility.

We began to investigate and interview witnesses. We knew the other girl in the group at the scene was Brittany1. We asked her for an interview. Our investigator, Gene Boyd, and I conducted a thorough interview of Brittany and determined neither she nor our client had participated in the deadly satanic ritual, but knew of it and were present at the time of the attack.

Meanwhile, the D.A.’s investigator had taken a statement from Brittany. Brittany agreed with them to wear a hidden recorder when she talked to us. We did not trust her, and we did not know she had a recorder when she came to our office. We brought out the suitcase, and she said it belonged to her. She identified a pair of tennis shoes as hers – and that Sharon was wearing them on the night in question.

I said, “Really, I didn’t even know they were in there” because we had not yet inventoried the suitcase and I was surprised they were even there. Meanwhile the D.A.’s investigator was parked down the street, recording the conversation.

We realized stains on the shoes could possibly be blood. We excused her for a short break, and I called my partner Jim Lavine to discuss the situation. We determined we did not know if the shoes really belonged to Brittany, if Sharon had really had them on that night, or if they were evidence. So, we decided we could not keep the shoes in our office, and Brittany owned them but could not keep them. We told her (and the attentive investigator parked down the street) that they may be evidence, and because they belonged to her, she needed to call the D.A.’s investigator and take them to him right away. We then prepared a receipt for the shoes and suitcase which she signed, and we sent her on her way.

The case against Sharon and the boys resulted in murder charges being filed and a motion to transfer Sharon to district court from juvenile court. In addition, the D.A.’s office decided to subpoena me as a witness to prove up the chain of custody of the shoes, possibly putting her at the scene.

However, we did not like the feeling we got by being placed in the chain of custody, especially if those spots turned out to be blood from the killing of the young man, linking the shoes to our client. We knew we were not going to testify willingly against our client.

We remembered hearing about the Texas Criminal Defense Lawyers Association Strike Force, which had been created not too long before this case occurred, to represent members who needed counsel in a legal dilemma like this. By good luck, the Strike Force Chair at the time was a long-time good friend of mine from San Antonio, Gerry Goldstein. When we called him, he could not believe the D.A. wanted to call me as a witness against my own client in a murder case – especially in one transferred from juvenile court.

Gerry filed a motion to quash with a brilliantly written memo in support. Fortunately, the law was clear in cases like this and we followed it: seeing to it that the evidence was delivered to authorities (immediately after leaving our office building, as it turned out) not altered in any way, and was available for use by the State if necessary.

But the State thought it was going to have to call the defendant’s attorney to prove how the evidence was delivered un-tampered to law enforcement. A hearing was scheduled before the criminal district court judge who had been assigned the case after transfer.

The prosecutor almost came to blows with Mr. Goldstein, but we prevailed. The subpoena was quashed  and the TCDLA Strike Force added luster to its already shining reputation.

Ethical Issues

  1. Can a criminal defense lawyer be subpoenaed and forced to testify against a client at trial? No.
  2. Can a criminal defense lawyer keep potential evidence from the prosecution in a criminal case in Texas? No.
  3. How does the defense lawyer explain this procedure to the client? See the discussion below.
  4. What is the defense lawyer’s obligation to the court in such a situation. See the discussion below.
  5. Was it prudent for defense counsel to enlist the assistance of the TCDLA Strike Force? Yes.


  1. In 1987, the law was not settled in Texas. A resolution was adopted unanimously by the Board of Directors of the Texas Criminal Defense Lawyer Association, that the Texas Supreme Court and the Texas Court of Criminal Appeals adopt a rule of ethics that it is unprofessional conduct for a prosecutor to subpoena an attorney at a grand jury without prior judicial approval where the prosecutor seeks to compel the attorney/witness. The then-president of the TCDLA cited authority from the states of Tennessee and Massachusetts, the United States Court of Appeals for the First Circuit. The trial court granted a motion to quash and a motion in limine. Note that the evidence was brought to us by a third-party agent of the client (father), not just a third party. This preserved the attorney-client privilege. See Rules 1.05, confidentiality of information, 1.06, conflict of interest, 1.14, safekeeping property, Texas Disciplinary Rules of Conduct, as of Sept 2021.
  2. A lawyer cannot keep, destroy, or prevent the discovery of incriminating physical evidence in a criminal case, or counsel the client to destroy or prevent discovery of such evidence. See Rule 8.04, Texas Disciplinary Rules of Conduct.
  3. The lawyer in this situation should advise that the lawyer cannot destroy or keep evidence, but that the lawyer cannot be subpoenaed to testify against the client about such evidence. See Rules 1.05 and 8.04, Texas Disciplinary Rules of Conduct.
  4. The lawyer’s obligation to the Court under these circumstances is to file a motion to quash the subpoena and a motion in limine to prevent the prosecutor from bringing such information to the attention of a jury. See Rule 1.05, Texas Disciplinary Rules of Conduct.
  5. Under the state law at that time, it was absolutely the proper thing to bring the matter to the attention of the Texas Criminal Defense Lawyers Association, especially the TCDLA Strike Force. The Strike Force chair at the time personally appeared at a hearing for us and we prevailed on a motion to quash and a motion in limine. Strategic conclusion of an author.


Of the five teenagers tried and convicted as adults, two males received life sentences, one male pleaded guilty and received a 60-year sentence, and the fourth male traded his testimony for a 20-year sentence. Sharon, the only female tried, went to the jury after being convicted on a parties theory. The prosecutor forcefully demanded of the jury a sentence of 60 years for Sharon and finding that she personally used or exhibited a deadly weapon, which would affect the timing of her parole.

We asked for a 10-year sentence, probated, and a finding that she did not use or exhibit a deadly weapon. The jury almost hung, but finally assessed a 15-year sentence and found that she did not use or exhibit a deadly weapon. The court released her immediately on an appeal bond. Ultimately, her appeal was unsuccessful, and she was paroled after serving five years. She went on to become a wife and mother. When compared to what could have happened, this outcome was definitely a defense victory.

Federal Corner: Fifth Circuit Provides a Tool to Contest Firearm Enhancements


Experienced federal practitioners are conditioned to wince upon the mention of a gun in proximity to a drug deal or even just near a stash of drugs intended for sale. Those combinations can produce a two-level enhancement under USSG §2D1.1(b)(1), the drug Guideline, for possession of a firearm in connection with a drug offense; a four-level enhancement under USSG §2K2.1(b)(6), the firearm Guideline for use of a firearm in connection with another felony; a cross reference from the firearm Guideline to the drug Guideline under USSG §2K2.1(c)(1); or, worse, a 5-year mandatory minimum under 18 U.S.C. §924(c). Sometimes, it’s tempting not to fight the Guideline enhancements,1 even when the evidence seems to show nothing more than the mere presence of guns and drugs. The courts have hammered into us that firearms are “tools of the trade”2 when it comes to drug dealing, and the Application Notes to both USSG §2D1.1(b)(1)3 and USSG §2K2.1(b)(6)4 rather strongly encourage their application when guns and drugs are together. But, a recent Fifth Circuit opinion reminds us not to concede the issue too readily.

In United States v. Sincleair, __ F.4th __, No. 20-10495, 2021 WL 5001783 (5th Cir. Oct. 28, 2021), a drug defendant suffered arrest at the home of a downstream customer, that is, a man who bought drugs from the defendant’s own buyer. In fact, these two customers of the defendant were transacting two ounces of methamphetamine when police arrived. The police also found a gun in close proximity to all concerned. Although police ultimately found that the gun was registered to one of the customers (the resident), the district court nonetheless imposed a two-level enhancement for possessing a firearm in connection with the drug offense.

A divided panel of the Fifth Circuit vacated the sentence and remanded. The panel majority did not think the district court was sufficiently clear about the reason for the adjustment. That is, the district court did not clearly say whether the defendant had personally possessed the firearm, or whether, instead, he was vicariously responsible for another’s possession through principles of relevant conduct. The panel said:

It is not clear whether the district court determined that Sincleair personally possessed the firearm or that one of Sincleair’s “unindicted co-conspirators” possessed it during the commission of an offense. The PSR addendum presents both of these options as possibilities, and the district court did not explain which form of possession it attributed to Sincleair. In such a situation, our circuit precedent supports vacating the sentence and remand for the district court to make the appropriate findings.

Id. at *3. Sincleair thus confirms Fifth Circuit precedent. See United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010) (requiring district courts to make explicit findings in support of their Guideline calculations, including those underlying the gun enhancement to USSG §2D1.1).

Perhaps more significantly, the panel found insufficient evidence to support either a theory of personal possession or of vicarious sentencing liability through relevant conduct. It said:

Moreover, there is not enough in the record to support the firearm enhancement based on Sincleair’s personal possession of the firearm because the PSR did not include sufficient facts establishing a temporal and spatial relationship between the gun, the drug trafficking activity, and Sincleair. The Government (and the probation officer) did not provide any evidence establishing that Sincleair owned the weapon, brought the weapon with him to [downstream buyer]’s house, or had any other connection to it. Neither the PSR nor any other evidence supports a finding of temporal proximity between Sincleair’s drug trafficking activity and the weapon found in [downstream buyer]’s house. The only relevant facts in the PSR are that Sincleair was [direct customer]’s source for methamphetamine, and Sincleair and [direct customer] and their girlfriends were present at [downstream buyer]’s home for a social gathering around the time that [direct customer] sold an ounce of methamphetamine to [downstream buyer]. Thus, the only drug transaction that is documented in the PSR occurred in [downstream buyer]’s home between [direct customer] and [downstream buyer]. Even if it may be inferred that Sincleair sold the methamphetamine to [direct customer], there is no evidence of any temporal proximity between Sincleair’s sale and the presence of the weapon; there is no evidence that the sale occurred on the same day, same week, or even same month as [direct customer]’s sale to [downstream buyer]. There is also no evidence that Sincleair promoted or assisted in the sale in any way. The temporal connection between the firearm and any drug trafficking by Sincleair was thus tenuous at best.

Sincleair, __ F.4th at *4.

Though the opinion doesn’t say as much explicitly, it does seem to bolster a defendant’s argument against personal possession of a firearm – notwithstanding its proximity to both the defendant and the drugs – whether it might just as plausibly have been possessed by another person. It also supplies a good argument against the application of the gun enhancement based on possession by co-defendants. Specifically, it seems to hold that a co-defendant’s possession of a gun in connection with drugs will not justify the adjustment unless the defendant is involved in the particular transaction where the gun is present. Remarkably, this may be so even if he or she previously delivered the very quantity at issue.

Shout Outs


Shout Out to Emily Miller who received a NOT GUILTY verdict after a three day trial in Mills county on retaliation against a Peace Officer. Emily referenced information found on the listserv. Way to be resourceful! Amazing work, Emily!

Kudos to Steven Green, who celebrated two NOT GUILTY verdicts on a sexual assault of a child case in Van Zandt county. Way to go, Steven!

Great work to Srav Muralindhar, who received a NOT GUILTY in Van Zandt County on an atypical felony stalking case. The alleged victim was the county court at law judge,  and involved facts that included a randy bull and the judge’s harlot cow, cutting barbed wire fences, and courthouse confrontations. And all of this while Srav coped with a hostile visiting judge who denied his request for a jury shuffle and gave the incorrect information to the jury. Congratulations Srav!

Congratulations to Will Vaughn! He received a NOT GUILTY verdict on a continuous family violence felony case, plus three lesser misdemeanors in Washington county. Great job, Will!

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