Legislative Update, April 2011 – By Allen Place


As of April 4th, 2011, the Texas legislature only has 56 days left to complete their business in the regularly called session. Many people are predicting one or more special sessions due to budgetary issues. Last week, the House approved $3.1 billion from the Rainy Day Fund to pay the State’s bills from now through August of 2011. This was necessary as state revenues have not kept up with expenses. Although over $6 billion remains in the Rainy Day Fund, Governor Perry has said that he would not approve a budget for 2011–2012 that taps that emergency fund.

In regards to criminal law bills, TCDLA is tracking several hundred bills. Although we are playing defense on many of these bills, there are several positive bills making their way through the system. The eyewitness identification bill, from the Tim Cole Commission, has already received preliminary approval in both chambers. No other major legislation, either good or bad, has advanced at this point as committees are deep in their work. Last week, approximately ten lawyers came to the Capitol to speak against a poorly conceived bill that would significantly impair the ALR system. This was appreciated as this bill hearing fell on a Tuesday when we track three and sometimes four committee meetings at the same time.

Two bills vetoed last session are again under consideration. There are several expunction bills in both chambers that would clarify and improve this statute. Also, a bill improving the sex offender registration system for some offenders is being heard in the Senate Criminal Justice Committee the week of April 4th.

The surcharge system has been criticized since it began several years ago. More than one legislator indicated a bill would be filed to terminate or at least redefine the program. However, the leading proponent of repealing the surcharge program pulled his bill last week due to the high cost of doing so. In other words, the bill was pulled by the author because the State needs all available revenue.

We have had a lot of calls regarding the DWI deferred bill. This matter has not yet come up for a hearing in the Senate although the House heard the bill in late March. The bill is not a “pure” deferred adjudication and has some mandatory requirements, such as interlock. There are a lot of mixed feelings in the legislature on this subject and it is too early to predict the future of this bill.

Within the next two months, the legislature intends to do the following: pass a budget, draw new legislative and congressional districts, pass various Sunset bills to keep several state agencies operating, and pass several “emergency items” such as Voter ID, eminent domain, and elimination of sanctuary cities. Our goal remains the same—to promote bills that provide for equal justice and fair play in the criminal justice system. We will do our best to keep our eye on that goal every day, and I hope to see all of you at Rusty Duncan in San Antonio in June.

March 2011 Complete Issue – PDF Download




20 | Reactive Attachment Disorder – By John Niland
24 | Tell Me a Story: “60 Minutes”-Style Opening Statement – By Doug Murphy
29 | Dealing with ICE Holds – By Fernando Dubove
32 | Characters – By Judge Larry Gist
43 | Motion for Court to Take Judicial Notice of Nystagmus Causes Other Than Alcohol – By Johnathan Ball

8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comment
14 | Federal Corner
18 | Said & Done

5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
35 | Significant Decisions Report

President’s Message: Elected Officials Should Govern, Not Rule – By William Harris


Statement by Chief Justice Wallace B. Jefferson on Proposed
Disciplinary Rules Amendments’ Defeat

The Court is grateful to the many lawyers who contributed their time and wisdom to proposing revisions to the Texas Disciplinary Rules of Professional Conduct. The current rules are outdated, and must be amended to account for changes in the practice and in the law that have occurred since the bar last adopted comprehensive revisions 21 years ago. We intend to ask the Bar’s Board of Directors to make prompt recommendations about a timeline for future proceedings relating to the rules. In the meantime, the Court will consider what action, if any, may be necessary to carry out its responsibility to maintain standards of professional conduct that protect our justice system and the people it serves.

From the Supreme Court website

Recently, the State Bar’s referendum on the proposed changes to the Rules of Professional Conduct were resoundingly defeated by the lawyers voting. The statement above was Chief Justice Jefferson’s response to the defeat of the proposed rules changes in the referendum.

I do not know what motivated all the lawyers who voted no, but the Executive Committee of the Texas Criminal Defense Lawyers Association recommended a “no” vote to its members. For criminal defense lawyers, it seemed that the main issues related to the way we charge fees, the circumstances under which we may withdraw from representation for non-payment of fees, and weakening of the protections of confidentiality of client information. There were many who had philosophical issues with the State Bar’s open advocacy for passage of the rules changes. Finally, many of us questioned the need for the massive rewriting of rules that seem to most of us to be working well. In other words, this seemed a solution in search of a problem.

Criminal defense practice is markedly different from civil practice. Particularly from the representation of wealthy individuals or business entities. Those types of clients are most comfortable with hourly billing. They budget for it and are sophisticated purchasers of legal services. They expect to have routine legal expenses and only want to pay for the time necessary to address those needs. The person charged with a crime has a large problem that they want resolved for an acceptable fee. They are not accustomed to routinely using a lawyer’s services. They want to know how much it will cost to secure representation to resolve that problem. They regard hourly billing as the opening of a vein with no specified limit. They prefer fixed fees for services.

The criminal defense attorney often finds that getting paid for services is a struggle. It is almost universally our experience that fees not collected in advance will simply go unpaid. As an old lawyer explained to me years ago, if you win their case the client feels he or she should not have to pay because they were not guilty. If you lose, you are not worth the cost because you did not achieve the result the client wanted. Finally, of course, if you lose and the client goes to prison . . . well, the pay rate is pretty low there. It is essential to the function of a practice that the lawyer be able to pay staff and maintain his or her office as well as make an income. We rightly distinguish the obligations of a profession from a business, but it is still the way we make a living.

These rules are perceived by the vast majority of criminal defense attorneys as fatally flawed. We assumed that the submission of the rules to the membership of the State Bar was in­tended to be a meaningful exercise, and that the Court and the State Bar would honor the result. It is our hope that rather than imposing the rules by fiat, we might open a new dialogue about why changes are needed and what those changes should be. TCDLA stands ready to participate in this process if the Court and the State Bar will allow us to do so. In a democracy, votes should matter. In the best tradition of democratic governance, officials should govern, not merely rule.

Executive Director’s Perspective: Board in Motion – By Joseph A. Martinez


Special thanks to Doug Murphy, Randy Wilson, and Teana Watson, course directors for the Cross-Examination seminar held in Houston. Thanks to their efforts and the efforts of our speakers, we had 184 attendees. Terry MacCarthy was one of the speakers.

Very special thanks to Lydia Clay-Jackson and Tim Evans, deans of the 35th Annual Texas Criminal Trial College in Huntsville. Very special thanks to our 40 faculty members who helped make this year’s college a big success, hosting 80 students. Thanks to all our members who recommended students to the college. Thanks also to the TCDLEI board for hosting the Hostility Room for the week. Thanks to John Yarabeck, Dean of Sam Houston College, and to Ms. Ann Broussard for their support. Also Mr. A. K. Khan, General Manager of the University Hotel, for his support. We could not put on the college without their help.

Special thanks to course directors Philip Wischkaemper, John Niland, and Brad Levinson for the Capital/Habeas seminar held in Houston February 3–4. A total of 79 attendees endured the chilling weather.

Special thanks to course directors David O’Neil and Bill Habern for the Post-Conviction seminar also held in Houston February 3–4. Thanks to their efforts and the speakers, we had 73 attendees.

Thanks to course director Jimmy Gonzalez, we had a very successful seminar in Edinburg, with 106 attendees—the largest number of lawyers we have ever had in Edinburg.

Special thanks to NACDL for asking TCDLA to co-sponsor a reception in San Antonio on February 18. Bill Harris presented NACDL President and TCDLA member Jim Lavine a Texas gift of appreciation at the NACDL Board meeting also held in San Antonio.

The TCDLA board of directors met in Houston on March 5, 2011. The following were informational items:

  • Grant Scheiner reported the Droid phone application would be ready by this year’s Rusty Duncan Advanced Criminal Law Course.
  • Greg Westfall reported the Voice Online had over 22,000 hits this month. Please visit the site. More information about both items are on the TCDLA home page and in Greg’s column this month.

The following motions were passed by the board:

Approval of Minutes of December 4, 2010, Board Meeting

  • Motion by Michael Gross to approve the December 2010 board meeting minutes.
  • Motion seconded by Gary Trichter. Motion carries.

Approved motion to include in minutes electronic motions passed

Hall of Fame Inductees

  • Email votes on February 15, 2011, approved to select Mr. Charles D. Butts (San Antonio) and Mr. F. R. “Buck” Files (Tyler) to be this year’s inductees into the Hall of Fame.

NACDL Reception

  • Vote on February 1, 2011. Motion by Craig Jett and seconded by Gary Trichter to make a contribution to NACDL for $8,000 for the NACDL reception in San Antonio on Friday, February 18, 2011. The final contribution given was a little over $4,000.

CCA mileage reduced to 45 cents

  • Motion by Gary Trichter to approve mileage rate of 45 cents
  • Motion seconded by Jim Darnell. Motion carries.

Federal Grant for Training Capital Lawyers

  • TCDLA received an email from Monique Gonzales with the Court, asking if TCDLA would consider submitting for a federal grant for training capital attorneys in Texas. The grant would be for a total of $250,000 for two years—$50,000 in administration fees will go to the Court and the remaining $200,000 will be split evenly between training criminal defense lawyers and prosecutors. TCDLA’s grant submission needs to be submitted by March 9, 2011.
  • Motion by Keith Hampton to apply for the grant.
  • Motion seconded by Nicole Deborde. Motion carries.

FY 2011 TCDLA Budget

  • Motion by Gary Trichter to approve the budget.
  • Motion seconded by Stanley Schneider. Motion carries.

Articles for Voice for the Defense

  • Board Members have an obligation to submit two articles to the Voice per year.
  • Motion by Pat Metze to approve that staff does not have to ask a board member for permission to use their materials submitted for seminars.
  • Motion seconded by Emily Detoto.
  • Proposed amendment by Pat Metze to get permission by the author of the material.
  • Question by Stanley Schneider. Motion carries.

Bylaw Committee motion to table discussion because of technical problems with conference call

  • Gary Trichter gives an overview of the proposed bylaw changes.
  • Motion by Susan Anderson to table, seconded by Emily Detoto.
  • Vote is a 15–15 tie.
  • Bill Harris breaks the tie and the motion is tabled.
  • Bill Harris and Gary Trichter will write pro and con articles on the bylaws for publication in the Voice.
  • The bylaws will be voted on at the June Annual meeting in San Antonio.

Committee Reviewing Advertising in the Voice

  • Jim Darnell sent email to Joseph suggesting that advertisements must be beneficial to the members, cannot be in di­rect competition, and have to be approved by the editor of the Voice.
  • Motion by Jim Darnell to approve the criteria for advertising in the Voice.
  • Motion seconded by Stanley Schneider. Motion carries.

Pro Bono Award Committee

  • The committee has extended the deadline for accepting nominees, expressed desire to name the Pro Bono Award the Charles D. Butts Pro Bono Award.
  • Motion by Scrappy Holmes to approve naming the Pro Bono Award after Charles D. Butts.
  • Motion seconded by Adam Kobbs. Motion carries.

Cynthia Orr has requested Bill Harris write a letter to the District Attorney to do what is right in a particular case.

  • Motion by Stanley Schneider to submit the request to the Amicus Committee.
  • Motion seconded by Pat Metze. Motion carries.

Adjourn Meeting

  • Motion by Warren Wolf to adjourn meeting.

Please start making plans to join us in San Antonio June 9–11, 2011, for the 24th Annual Rusty Duncan Advanced Criminal Law Course. Breakout sessions include Appellate, Boot Camp, and Computer/Technology. This year’s event will also celebrate TCDLA’s 40th anniversary. The Hyatt Regency will be the host hotel. The golf tournament has been moved to Thursday, June 9.

TCDLA’s legislative effort is being coordinated by the TCDLA Legislative Committee, chaired by Mark Daniel and Rick Hagen. Allen Place is our senior lobbyist, assisted by Kristin Etter and David Gonzalez. They will keep membership up to date on bills during the session.

We invite all our members to attend the Annual Membership Meeting on Saturday, June 11, immediately following the adjournment of the Rusty Duncan Advanced Criminal Law Course at the Henry B. Gonzales Convention Center in downtown San Antonio.

Good verdicts to all.

Editor’s Comment: Voice for the Defense Online – By Greg Westfall



The first video game (PONG) and the first handheld calculator (HP-35) are introduced. Five White House operatives are caught burglarizing the Watergate Hotel. The Volkswagen Beetle sets the record for the most cars sold worldwide. And Voice for the Defense is born as an eight-page hole-punched pamphlet issued four times per year. Over time, we have evolved into a ten times per year publication averaging between 40 and 52 pages per issue.

Thirty-nine years later, we take the logical next step. On February 11, 2011, Voice for the Defense Online was launched. See http://voiceforthedefenseonline.com/. With it, we also launched the Voice for the Defense Blog and the Voice for the Defense Online Facebook page. I affectionately call it “Voice Online,” or “VOL” for short.

The concept for Voice Online began at the 2009 Texas Criminal Trial College. I circulated a rough draft in September 2009, and the Board approved funding. Melissa Schank took the lead on getting a web designer lined up and found Stacy Clifford and Chili Pepper Web (http://www.chilipepperweb.net/). Melissa, Stacy, and Craig Hattersley have all gone way above and beyond in getting VOL off the ground. The support of the Board has been unflagging.

This is a major milestone in our evolution. In fact, fairly shortly we will phase out our print version, which, by the way, is really breathtakingly expensive to produce. This is not just a replacement for our print magazine, however. VOL is quite a bit more. I want to introduce you all to some of the features.


First of all, the VOL Archives contain almost every Voice for the Defense TCDLA has ever published—all the way back to Winter 1972 (I think we may be missing one issue). The archives section is keyword searchable. If you have ever written an article, run your name. It will probably come up. If the keywords you enter do not pull up what you think they should, just know that keywording is a work in progress and will be for a while. The tables of contents will be, for a while, continuously updated to include more information for searches. To help, there is a downloadable index available on the Archives page.

Each of the back issues has been scanned in as a downloadable PDF file. Click on the cover once and the table of contents will expand to show the features. Click on the cover a second time and the columns become visible as well as a blue button at the bottom of the page you click to download the entire issue. Good quality scanning is also a work in progress. We will be working on improving the quality of the archives for some time.

Voice for the Defense Blog

Click on the “BLOG” button and you will be taken to the blog page. Blog feeds appear on both this page and the front page. This is mainly for search engines and to showcase posts from the blog. You must click “Voice for the Defense Blog Home” at the top of the “BLOG” page to get to the front page of the stand-alone blog. Also, if you click on any of the feeds, you will be taken to that post on the blog, after which you can click either “Voice for the Defense Blog” at the top of the page or the little “Home” button with the green house to take you to the front page.

It is very easy to register with the blog, after which you can leave comments. Please do so. Also, if anyone wants to become an author, just let me know. Authors can post. Everyone else can comment. I would like to have a bunch of authors who would like to post as often as they can. I want both substantive posts and commentary. You can see the categories we have so far. There will be more. New categories will emerge as the content emerges. If someone wants to write on DWI, the Legislature, practice in a small town, whatever—just let me know. We would love to have you.

I have created a how-to PDF slide show that guides you though registering with the blog, viewing the blog, and leaving comments. You can access it by going to the BLOG page.

The Future

As it stands right now, Voice Online is technically not an online magazine. Over the coming weeks, we will become one. When you look at the opening page, across the top of the page you will see buttons for “FEATURES,” “SDR,” etc. At that point, we will be a true online magazine. Searchability will improve dramatically as individual articles become archived. We will still have archives back to 1972, but those will always be dependent on keywords for searchability, as they are scanned-in PDFs. From 2011 on, as actual text gets archived, everything will be searchable by words in the entries themselves. You will immediately see the improvement in searches.

This site is not for our members only. Anyone can research and download the archives. Anyone can leave comments on our blog. The site has been up for five weeks as of this writing, and we have had 75,000 hits. With content constantly changing, I can see a time in the not-too-distant future when we will be getting millions of hits in the space of a year. If some of our members become active bloggers and start to gain a following, we could see tens of millions. This would be a huge benefit to TCDLA as a whole.

Finally, I want to stress that this is still a project in the works. We need your input and suggestions. Every one of us will have a part in making this experiment work.

Federal Corner: 15 Years for 1.5 Seconds of Nudity—Reversed – By F. R. Buck Files Jr.


On February 25, 2011, the United States Court of Appeals for the Fifth Circuit reversed the conviction of a defendant charged with the production of child pornography. United States v. Steen, ___ F.3d ___, 2011 WL 667977 (5th Cir. 2011). [Panel: Circuit Judges Higginbotham, Smith, and Elrod (per curium) (concurring opinion by Judge Higginbotham)].

Let a voyeur with a video camera into a tanning salon and you can anticipate that he will engage in criminal conduct and be discovered. That’s what happened to Alan Ray Steen. He frequented the Electric Sun Tanning Salon in Odessa, Texas. Because the walls in the rooms did not reach the ceiling, Steen could stand on a chair, hold his camera on top of the partition between the rooms, and film the female in the adjoining room.

Steen had done this several times before being discovered and arrested for a violation of Texas Penal Code §21.15 (Improper Photography or Visual Recording). When investigators examined his camera, they found a recording of C.B. When they learned that she was 16 years old at the time, Steen’s life took a turn for the worse.

Federal authorities made the decision to prosecute Steen for a violation of 18 U.S.C. §2251(a), the federal child pornography statute. At trial, the issue was whether the videotape included a “lascivious exhibition of C.D.’s genitals or pubic area.” An appendix to the opin­ion sets out what was on the video that was admitted into evidence and played for the jury. The entire video is only 44 seconds in length. Below is a description of how the video progresses by the seconds:

Seconds 1–14: Blurry views of the tanning room and ceiling.

Second 15: Tanning bed comes into view.

Seconds 18–21: C.B.’s arm and part of her hair is visible.

Second 21: A more extended part of the C.B.’s back (including her lower back) and long hair may be seen.

Seconds 22–26: Blurry view of the ceiling.

Second 27–34: C.B. comes into view, and she is bending down toward the ground (and toward the camera). The video displays her head, back, and top of her buttocks for about two seconds. She stands up, turning away from the camera and towards the tanning bed; the video does not display any part of the front of her body.

Second 35: C.B. moves out of camera’s view (only the tanning bed is visible).

Second 37: C.B. sits into the tanning bed; her hair, stomach, and upper thigh are visible. Her pubic region is not visible because of how she is seated and the camera angle.

Second 38: The camera moves; C.B. is not visible.

Second 39: C.B. is fully nude lying on her back in the tanning bed. Her breasts are in the center of the shot, and her pubic region is visible on the far right side of the frame. Her legs are outside the camera’s view.

Second 40: The camera is moved, and the view of C.B. is partially obstructed by the wall partition. Her face is visible, but half of her body is hidden. (Part of her pubic region and left breast are visible for about half of a second.)

Second 41: C.B. closes the tanning bed and can no longer be seen.

Seconds 42–44: Blurry view of the ceiling.

[Emphasis added.]

At the conclusion of the evidence, Steen’s lawyer moved for a judgment of acquittal that was denied by United States District Judge Robert Junnel of the Western District of Texas. After the jury convicted Steen, Judge Junnel assessed his punishment at 15 years in a federal correctional facility—the minimum sentence under the statute. Steen timely appealed.

The Court’s per curium opinion contains, in part, the following:

[The Statute]

Section 2251(a) makes it unlawful to “use” a minor “to engage in . . . sexually explicit conduct” for the purpose of producing a visual depiction of that conduct. In assessing conduct under §2251(a), we ask “two questions: Did the production involve the use of a minor engaging in sexually explicit conduct, and was the visual depiction a depiction of such conduct?” Steen clearly used C.B. for the purposes of producing a nude video, but the statute requires more—the film must depict sexually explicit conduct. Accordingly, this court has found, “a child could be used in the production of a photograph, but the image in the ultimate photograph could be one that did not capture the child engaging in sexually explicit conduct. If this were so, a defendant might be charged under a different statute—perhaps child molestation—but not child pornography.”

[“Lascivious Exhibition” and the Dost Factors]

Here, the parties focused on whether the video was a “lascivious exhibition” of C.B.’s genitals or pubic area. The jury instructions included a description of the six factors first proposed in United States v. Dost that have been applied in this circuit to assess lasciviousness. These factors are:

1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

This list, however, “is not exhaustive, and no single factor is dispositive.” Any determination of lasciviousness “will have to be made based on the overall content of the visual depiction.” Moreover, we note that these factors have never been deployed where a defendant’s conduct said to be criminal under the statute at issue proved to be no more than voyeurism.

[The Dost factors and the language of 18 U.S.C §2251(a)]

In considering the Dost factors and the statutory text, we find that the evidence was insufficient to find a lascivious exhibition of the genitals. First, the focal point of the visual depiction is not on C.B.’s genitalia or pubic area. Her pubic region is only visible for about 1.5 seconds. Moreover, the film did not accent the pubic area—to the contrary, the brief seconds the pubic region is visible, it is on the far side of the image’s frame. The first factor lacks factual support here. It does not point to a finding of lasciviousness.

The second and third factors consider whether the setting or pose of the depiction is sexually suggestive or unnatural. Traditional settings that meet this standard are beds or bedrooms. A tanning salon is not a sexually suggestive setting, nor are C.B.’s movements unnatural for someone who is tanning. Because she did not know she was being filmed, she is, of course, acting naturally. Under certain circumstances, lying on one’s back may be sexually suggestive, but that is not the case when the non-sexual activity being displayed requires one to lie on the back. The fifth factor, suggesting sexual coyness, is irrelevant in this case because C.B. did not know she was being filmed. She neither acts coy nor willing to en­gage in sexual activity.

The fourth Dost factor is nudity, which Steen’s video satisfies since C.B. was fully nude for her tan. However, the Supreme Court has held that “nudity, without more is protected expression.” Surreptitiously filming a nude tanner, on its own, does not meet the standard for producing child pornography.

The sixth factor is the most difficult to apply—whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Here, the primary evidence of intention to elicit a sexual response is that Steen surreptitiously filmed a nude 16-year-old. However, as a Missouri district court held in a similar case:

These videos could not be considered to have been intended to elicit a sexual response in the viewer any more than mere nudity would, which several courts have concluded is not of a sexual character. We do have some limited context . . . that [the defendant] set up a camera . . . but that context indicates nothing more than an attempt to capture mere nudity and is very different than a person . . . telling a minor to undress, lay on a bed, and open his legs for a nude photo.

Even if one assumes Steen was stirred by his voyeuristic pursuits, there is insufficient evidence to conclude that the image of C.B.’s genitals was designed to elicit a sexual response or whether, perhaps, merely being a voyeur excited Steen. When a photographer selects and positions his subjects, it is quite a different matter from the peeking of a voyeur upon an unaware subject pursuing activities unrelated to sex.

[The Court’s Conclusion]

We have previously adopted the ordinary meaning of the phrase “lascivious exhibition,” which we defined as “a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.” Here, the government’s evidence cannot meet this standard.

My Thoughts

  • As the Hon. Henry Politz, former Chief Judge of the Fifth Circuit, would have said, “Steen is a rara avis.” The Government has made the decision not to pursue a motion for rehearing or a motion for rehearing en banc. Alan Ray Steen wins.
  • One of the joys of reviewing the cases for this column is the opportunity that I have to see great lawyers at work. Steen was represented by TCDLA stalwarts Dan Cogdell and Brian Wice. Dan set up the issue in the district court, and Brian spiked it at the Fifth Circuit. Steen could not have had better representation.

Said & Done



Kudos to Greg Westfall for his tireless effort starting up the Voice Online website (http://voiceforthedefenseonline.com/). As his Feb. 15 post on the TCDLA listserve indicated, from its Feb. 11 launch, the site recorded some 7,000 hits. As Greg noted: “At this time, we may very well be the only statewide criminal defense organization with an online magazine like this. This is due in large part to the Herculean efforts of two people—our assistant executive director, Melissa Schank, and our web designer, Stacy Clifford of Chili Pepper Web (www.chilipepperweb.net). Melissa, in particular, oversaw the scanning of almost 40 years’ worth of the Voice. Stacy got it all online. Thanks, you all.” And kudos to Greg for making it all happen.

Gerry Goldstein had a big win recently with the able assist of Cynthia Orr. After 12 years of post-conviction litigation in federal and then again in state court (as Gerry says, “thanks to Cynthia’s diligent and tenacious efforts at trying to make me look good”), they received a 55-page opinion from Judge Rayes in Atascosa County, Texas, vacating Pedro Sosa’s death sentence. The judge found Sosa to be mentally retarded, and he has been on Death Row facing repeated execution dates for the past 27 years. A PDF of the opinion is posted on the TCDLA listserve. Way to go, guys.

Greg Russell did yeoman’s work on a murder trial in the 405th District Court, Galveston County. The deceased was in the police academy, girlfriend of Greg’s client. She was strangled and found lying in her garage after Mardi Gras on Valentine’s Day 2010. The state called 29 witnesses and showed over 300 exhibits. Greg called one witness (not the defendant). After a week and half of testimony and three solid days of deliberation, the judge declared a mistrial on Feb. 11. According to the DA’s office, he may well have to try it again. That’s toughin’ it out, Greg.

Tiger Russell scored a victory in the 355th District Court. A “guilty” verdict was returned in less than 30 minutes, and a deliberation of 3 hours yielded a sentence of 4 years. But he began the day with a 30-year recommendation for Agg Sexual Assault before the DA backed off and only proceeded on one count. As Tiger says, “The DA knows my position about asking for a lesser charge if I believe he cannot prove up the charge he goes forward on, so that might have forced his hand to only go forward to the lesser offense.”

Robin Matthews of Lubbock got a 30-minute “not guilty” on an aggravated sexual assault of a child. Seems the doctor at the emergency room the day of the “event” saw no damage, but two months later the CAC nurse did. Good work, Robin.

Jimmy Parks and Ed Camara of San Antonio got a “not guilty” verdict against two special prosecutors from the TX Atty Gen’s office in February from a jury in the 25th District Court of Comal County (New Braunfels). The case involved a Seguin defense lawyer who had been indicted for tampering with a witness after talking to the complaining witness in a child sex case (allegedly threatening the complainant to prevent him from testifying). The jury agreed that the defense lawyer/defendant was merely doing her job by representing her client zealously. Ed says the jury deserves credit for not buying into the bombast and siding with the lowliest of the lowly—a defense lawyer.

Michael Mowla noted in his kudo to Greg Westfall for the Voice Online the excellent work done on the December Voice article “Crawford Flowchart and Step-by-Step Commentary” by Angela Moore, Ted Wood, and Marshall Shelsy. Corrections, however, are due: We not only spelled Marshall’s name wrong; we were also remiss in not including their bios. The box on the page following includes bio information.


Ted Wood has been employed as Assistant General Counsel with the Office of Court Administration since 2002. A Randall County Judge from 1995 to 2002, Ted served as a briefing attorney for the Honorable Justice Bryan Poff Jr. for the Seventh Court of Appeals in Amarillo. He was an adjunct government instructor at Amarillo College from 1996 to 2002 and is a frequent speaker at judicial education seminars. A 1991 graduate of Baylor Law School, he is married to Jani Maselli.

Angela Moore is the Chief Appellate Public Defender in Bexar County, Texas. She is a former briefing attorney to Senior Judge W. C. Davis at the Texas Court of Criminal Appeals and in 2003–04 worked at the Court as the Chief Staff Attorney. She also has worked as an assistant county attorney, assistant district attorney, and assistant United States attorney. Angela has also been an adjunct professor at St. Mary’s Law School. She is board certified in criminal law and a 1988 graduate of St. Mary’s Law School.

Marshall Shelsy is a 1980 graduate of South Texas School of Law. He is a staff attorney at the Harris County Office of County Court Management. He is a frequent speaker across the state and a member of the Houston Bar Asso­ciation.

January/February 2011 Issue



13 | Proposed Changes to the TCDLA Bylaws
20 | Confrontation & Blood Tests: A Bull is Coming – By Doug Murphy
24 | I Had No Idea That Could Happen: Collateral Consequences in Family Violence Cases – By Sam Bassett
30 | Three Defensive Issues to Consider When Contesting a No-Refusal Weekend Blood-Draw Search Warrant – By “Mrs. Carrie Nation”
32 | An Invitation to Apply for Certification in Criminal Appellate Law – By Buck Files
42 | Motion to Instruct Venireman and Jurors to Not Discuss or Research Using the Internet or Electronic Devices or to Seize Said Devices – By Toby C. Wilkinson

8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comments
14 | Federal Corner
18 | Said & Done

5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
36 | Significant Decisions Report

December 2010 Issue




13 | Proposed Changes to the TCDLA Bylaws
20 | And Now for Something Different? – By Randy Wilson
28 | Crawford Flowchart and Step-by-Step Commentary – By Angela Moore, Ted Wood, Marshall Shelsey
45 | Defendant’s Ex Parte Motion for Appointment of Mental Retardation Expert for Mitigation Issues – By Mark D. Griffith


8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comments
14 | Federal Corner
18 | Said & Done


5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
40 | Significant Decisions Report

November 2010 Issue




13 | Proposed Changes to the TCDLA Bylaws
20 | Prairie Dog Photos – By Chuck Lanehart
24 | Personality Disorders, or Why is My Client Such a Jerk? – By Jeanette Kinard
30 | Can Defendants With Retardation Be “Restored” to Competency? – By Melissa L. Shearer
44 | Defendant’s Ex Parte Motion for Expert and Investigative Assistance – By Richard Davis


8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comment
14 | Federal Corner
18 | Said & Done


5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
34 | Significant Decisions Report

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