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Kudos

Kudos to our own Robert Pelton, recipient of the Jim D. Bowmer Professionalism Award presented by the College of the State Bar of Texas for his work in ethics statewide. As noted in the presentation letter: “Awarded annually since 1994 to an outstanding College member based on achievement or contribution to professionalism, the award is named in honor of Jim D. Bowmer, of Temple, Texas, the originator of the idea of the State Bar College and a co-founding father of the College.” Robert notes that the TCDLA ethics hotline keeps him busy: “I get calls day and night from lawyers all over the state,” says Robert, chairman of the TCDLA Ethics Committee. The award will be presented in July. Congrats, Robert.

Roy Barrera Sr. and son Bobby scored a controversial NG recently in a murder case in Bexar County, involving the shooting of a “Craig’s List” escort. The sensationalism of the verdict was covered by the national media as another “crazy Texas gun law” which said it was okay to kill a prostitute “who refused to have sex with you.” The facts in the case tell a different story.
 The evidence showed that on Christmas Eve 2009, Defendant Ezekiel Gilbert called an “escort” on Craig’s List and arranged for her to join him at 4 a.m. in his apartment for “sex.” She told Gilbert to place $150 in cash in an envelope for 30 minutes of her “time.” Upon her arrival the defendant handed her the envelope and she handed it to her “protector,” who then returned to his car to count it and wait for her return. The escort entered the apartment, walked around looking into every room, and exited after less than 20 minutes, saying she had to “check on her driver.” She walked out of the apartment giggling. The defendant followed the escort and told her and her protector that he hadn’t received the sex he paid for and wanted his money back. The protector (6’2”, 240 pounds) laughed in his face and said: “You paid for her time. If you want your money back you’re going to have to take it from me.” D said, “Give me my money back or I’ll call the police.” As D turned to retrieve his cell phone, the escort and her protector began to drive away. D fired two shots at the tire of the fleeing vehicle in an attempt to stop them from leaving with his money. A fingernail-size shrapnel fragment ricocheted and hit the escort in the neck, paralyzing her. She died seven months later when her tracheotomy tube became dislodged. Gilbert’s original charge of assault with a deadly weapon was enhanced to Murder.
 The defense—allowing the use of deadly force to prevent the commission of theft in the nighttime—was successfully used to gain the acquittal. The evidence showed that other “johns” had also been taken by the same ruse. The protector himself testified he had conducted this type of business scheme regularly, making “obscene” amounts of money. After 11 hours of deliberation, the jury agreed that the conduct of the escort was fraud, amounting to “theft in the nighttime,” and found Gilbert not guilty of murder. Kudos to the Barreras.

Steve Lee of Copperas Cover sent along congratulations to Kellie Price, who got a two-word verdict in an assault case. This came after the State “found” a new witness just days before the trial. The new witness happened to be a recent former client of Ms. Price, and she immediately filed a motion to withdraw in order to avoid having to cross-examine her former client. The motion to withdraw was denied. Kellie then attempted to get the complainant’s significant criminal (and, in particular, assault) history before the jury under a theory of self-defense, and was denied at every turn. Despite all that, the jury came back with a verdict of not guilty after about eight minutes of deliberation. Way to go, Kellie.

Katherine D. Stone of Stickels & Associates in Arlington represented a client in the first successful deregistration case in Tarrant County. Katherine waged a frustrating battle, treating with the Council on Sex Offender Treatment to secure approval for early terminiation. The Tarrant County DA’s office had no policy established on such hearings and ended up arguing vigorously against it. It had been 19 years since the conviction and her client had not re-offended, had always been in compliance with everything from probation to counseling to registration, and the counselor who evaluated him came to testify on his behalf. The judge stated as she signed the order that this was probably the only one should would ever sign (after requiring client to pass a polygraph). Way to keep fighting, Katherine.

Courtney Stamper and Mark Griffith of Griffith & Associates tried an Injury to a Child case in Ellis County, Texas. Parental justification was the defense. The child, through his own testimony, stated that he was being punished for not doing what D had told him. The issue then for submission in the charge was raised and ready. Problem: The judge did not follow the law, apparently became invested in helping the State. Solution: Courtney Stamper hammered this defense in voir dire and got the entire panel talking about it. They did not get the special issue or defense in the charge to the jury, but did get a 5-minute “not guilty” based on Courtney’s incredible voir dire. Congratulations, guys.

Pat Metze sent along kudos for Charlie Pelowski, Assistant Public Defender for the Caprock Regional Public Defender Office and Clinic, who received the two-word verdict from a jury on a 0.26 breath-test DWI in Knox County. He was assisted in trial by clinic fellow Terri Morgeson. Pat also gives special thanks to Chief PD Donnie Yandell and the entire third-year class that just graduated for working the case up for trial. Pat does caution, however: “Pelowski is one hell of a young trial lawyer. Keep your hands off him. I’m not ready for him to move on yet.”

Congratulations to Williamson County Criminal Defense Lawyers Association, our newest affiliate association.

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Stan Brown scored another “not guilty” recently in a trial before a Taylor County jury. In a suppression hearing, client had testified that case agent came to his home (“knock and talk”) and on the front porch told him that they had info on him growing marijuana in his backyard, and that if he would consent to a search and only a relatively small amount was found, “it will go away.” Agent acknowledged that he could possibly have said something about like that, but added he would’ve said if a relatively small amount, “we can handle it.” Trial court took under advisement and denied a motion to suppress. Testimony essentially the same at trial, with a jury charge on voluntariness of consent: “Unless you are convinced beyond a reasonable doubt consent was freely and understandingly given, you will not consider the evidence seized as a result of the search.” After about two-and-a-half hours deliberating, jury found client not guilty. As one of the jurors said in the elevator, “They just didn’t do it right.” Stan says he’s very proud of this particular jury. And we’re proud of you, Stan.

David A. Schulman wanted brag on his friend, Bonham defense lawyer Steve Miears. Steve litigated the issue of whether a “non-judge” could not rule on a motion to suppress in a DWI case. He won that question at both the Court of Appeals and the CCA, then had to relitigate the case in trial court. As Steve said to David: “Raymond’s DWI video showed him stumbling all over the roadway and admitting to having had 10 beers at the VFW. However, he testified that in his opinion his left wheels did not cross the center stripe like the trooper said. I was able to get the judge to submit to the jury the issue of whether the stop was legal. The jury said he was drunk on his ass but the trooper had no reasonable suspicion to stop.” The two-word verdict made all his work worth it. Congrats, Steve.

Todd Hatter of Amarillo credits what he learned at John Ackerman’s Psychodrama seminar (now called Round Top III—see ad page 32) with a recent victory. In a felony jury trial in the 320th District Court in Potter County, Todd tried an assault family violence case (with a prior on the same charge in 2011). The indictment included the prior as jurisdictional element and was read to the jury. As Todd notes, the trial began at 10 in the morning, and the two-word verdict came back just after 4 in the afternoon, with the jury deliberating a little over 8 minutes. Well done, Todd.

The Harris County Criminal Lawyers Association held its 43rd annual banquet and awards ceremony on May 9, with special honorees. HCCLA President Elect Todd Dupont noted: “This year’s banquet was particularly special. Not only was HCCLA recognizing and honoring some of the finest criminal defense lawyers in Texas. HCCLA also had the unique opportunity to humbly honor Anthony Graves and Michael Morton—two men who, collectively, have wrongfully and unjustly spent 43 years of their lives behind bars, at the hands of rogue prosecutors.” Graves and Morton received the Torch of Liberty Award for their work with members of the Texas Legislature this session.
                Thomas D. Moran received the Sharon Levine Unsung Hero Award for his work on an international case for a client charged by the United Nations International Criminal Tribunal for Rwanda with nine counts ranging from genocide and crimes against humanity to war crimes and rape. His client, Prosper Mugiraneza, was acquitted on all counts.

Chika Anyiam recently got two NGs on two counts of Agg Sex Assault on a child under 6. A grueling trial revealed inconsistencies in the alleged victim’s “coach speak,” and after a bit of wiggling, the SANE admitted that there were no apparent injuries to the child’s genitalia. She simply didn’t know one way or the other. Things got weird during closing when the state said: “The defense attorney has given you little snapshots of the defendant’s life with the victim’s family, but just wait until the punishment phase. This is the first phase, but wait till the punishment phase and you will see the entire picture.” The judge and Chika both erupted at the same time: What the hell was that?! Chika requested an instruction to disregard, moved for a mistrial, and prayed the judge would deny it (having put in some good work). The judge denied, and the jury acquitted. Good job, Chika. Now take that vacation you richly deserve.

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Kudos to the firm of Habern, O’Neil and Pawgan, LLP, of Huntsville. The Houston Lawyers Association and the Houston Lawyers Foundation in June honored the firm with the Matthew W. Plummer Sr. Justice Award in honor of the black Houstonian who challenged Jim Crow laws in Harris County and—eventually—won. Bill Habern’s work with the prison and parole system also has been honored by the Harris County Criminal Lawyers Association, which last year gave him its Lifetime Achievement Award. Congratulations on another feather in the cap.

Matt Heermans landed the two-word verdict on his first DWI case in Brazoria County Court at Law 3. Arresting officer wanted a blood test (no breath test offered), which D assented to after speaking with his attorney. Jury didn’t see that as a full-blown refusal. Matt lost a suppression hearing, but officers claimed to know this was a DWI prior to stopping the vehicle. One officer stated that he had probable cause for DWI arrest after merely getting a phone call from his off-duty buddy about a truck stopped in the road. D was polite, looked good on some tests, not so much on others. Very slight speech slur. Traffic infractions leading to arrest were illegal but not indicative of DWI. D admitted to drinking three beers three hours earlier. Cops found two cold unopened beers behind the front seats. DA would not budge on offer. Jury deliberated four hours over a two-day period: not guilty. Congratulations, Matt. The first one’s the sweetest.

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Congratulations to Lockhart defense attorney John P. Bennett, who filed a Motion to Suppress the intoxilyzer test in a DWI case, and the motion was granted by a visiting judge in Hays County. The Court held that the State failed to prove “by clear and convincing evidence that the (defendant) voluntarily consented to the taking of the breath test.” The arresting officer gave conflicting accounts in the ALR hearing and the pretrial hearing about whether he had promised the defendant that if he blew under 0.08, he would let him go. The twist? The defendant was a seasoned criminal defense attorney. So was his lawyer. The DWI case was dismissed soon thereafter. Way to go, John.

Perry Minton and Sam Bassett tried State v. Gabrielle Nestande for 2 weeks in February. Ms. Nestande was charged with Intoxication Manslaughter, Manslaughter, and Failure to Stop and Render Aid in a case highly publicized in Travis County. The jury deliberated over 3 days on guilt/innocence and found her not guilty of all indicted charges and guilty of the lesser included offense of Criminally Negligent Homicide. After 4 more hours of deliberations on punishment, the jury sentenced her to a term of probation. As Sam notes, “This case was perhaps the most stressful of my 25 years, and I credit Perry’s hard work along with the help of great lawyers such as Terry Kirk, Reagan Wynn, and Bill Allison, who all pitched in at different points to steer us in the right direction. Jury consultant Robert Swafford also did excellent work for me in helping me through voir dire. What was particularly interesting is that District Attorney’s office refused to make any plea offer whatsoever in the case, in spite of our requests for them to do so.” This was some excellent teamwork on a very contentious case.

Thad Davidson heard good news recently after a long battle when the Sixth Court of Appeals in Texarkana reversed the judgment and prison sentence in Graylin Bo Rusk v. State of Texas. Thad was Mr. Rusk’s appointed attorney during a contested revocation of probation hearing and on appeal. The trial court revoked Mr. Rusk’s probation because he didn’t pay his probation fees. What the trial court failed to do, however, was ascertain whether Mr. Rusk could have paid his fees—though the State failed to put on any evidence that Mr. Rusk had money.
                At a revocation hearing nearly a year ago Thad was caught off guard when it became “a knife fight in a phone booth,” and Mr. Rusk was thrown into prison. On appeal the COA said that Thad did preserve error, that the trial court had abused its discretion, and that the State had failed to prove its case at the revocation hearing. More importantly, the COA said it is unconstitutional to lock up somebody because they’re poor, the point counsel had been trying to make.
                But there’s more. Thad then became Mr. Rusk’s court-appointed attorney in a new felony case, where he was accused of beating the “other” boyfriend of (Mr. Rusk’s alleged) girlfriend with a baseball bat—agg. assault with a deadly weapon, a 2nd-degree felony punishable by up to 20 years. In a negotiated deal, D pled guilty to the new felony and received 4 years back in prison. The original case? Mr. Rusk will be put back on probation in his original case—even while incarcerated on his second—and will serve out the probation concurrently while he’s serving time on the new case.
                All in a day’s (or a year’s) work . . . As Thad notes, “The good news is that a Texas Court of Appeals openly recognizes in the Rusk opinion (which is published for all other TX courts to see and rely on) that the U.S. Constitution is alive and well, that it is still the law of the land, and that it applies equally to good people and other-than-good people alike.”

Todd Hatter recently heard the two-word verdict in an emotional jury trial in Amarillo. D was charged with Agg Assault with a deadly weapon by threat, and offered initially six years in prison, then four years.
                The state’s version: A husband and wife were confronted by homeless scrungy person asking for a ride. When refused, D gets angry, cusses them, eventually pulls a box knife from his pocket, and threatens to kill husband. Police arrive and taze D to cuff him and recover box knives—all on video.
                Todd, in in first person, relates D’s case: A marine veteran just wanting a ride to Diana’s Burritos, still having tools from work with him, is ordered away and challenged by a man (husband) threatening to use a gun on him. Marine replies, “Big deal, I have a knife,” going to the other end of the parking lot, where he waits to tell police his version. Cops show up and point guns in D’s face, one screaming at him to “show me your hands.” D asks, “What have I done wrong,” and cop replies, “It doesn’t matter!
                As Todd notes, “I showed the jury two scenes, the client with husband, and client with cops. I pose the question, Can you blame my client for being confused, angry, non-compliant? I tell them police just told a man who served his country that his side of the story didn’t matter.
                The jury returned the verdict in two hours. Nice job, Todd.

CDLP Chair Sarah Roland sends along this shout-out to fellow warriors for their help: “A big thank you to Stephen Evans, Richard Weaver, Kelly Pace, Sarah Gunter, Bill Harris, and Geof Tait, who all provided affidavits—based on their extensive experience—for me on short notice. I attached these to my Subsequent Motion for Additional Funds for Expert Witness. This is a felony murder case where the underlying felony is injury to a child. There are numerous injuries, most of which are internal. The original trial judge authorized only $1,000, denied my request for additional funds after a hearing, found my client nonindigent, and removed me. Several months later she found him indigent again and appointed different counsel. She retired, and the new judge reappointed me to the case. I presented the subsequent motion—complete with the transcript from the first hearing and the affidavits—and she authorized an additional $8,500, which should get me very close to what I need. This is HUGE in Denton County. THANK YOU!” The trial is now set for May. That’s some good teamwork, guys.

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Congratulations to Houston’s Stanley Schneider of Schneider & McKinney, PC, for being recognized as the state’s top criminal defense lawyer in Texas Lawyer’s 2012 Go-To Guide. Every five years, the Go-To Guide names one lawyer in each of 18 practice areas for the Go-To Lawyer distinction. Texas Lawyer editors chose the winners after soliciting nominations from Texas attorneys and conducting extensive interviews with lawyers and judges. Stan previously was named by Texas Lawyer as one of “The 25 Greatest Texas Lawyers of the Past Quarter-Century” based on his work that not only changed clients’ lives but also helped open legal defenses for others accused in Texas. Way to go, Stan!

Also honored as Top-Notch defense attorneys by Texas Lawyer were David Botsford, Dick DeGuerin, Tim Evans, and Gerry Goldstein. No news to association members, but a nice feather in the cap for our longtime stalwarts. Congratulations, guys!

TCDLA Board member Danny Easterling deserves men­tion also for a victory in December. In the 176th Dis­trict Court of Harris County, after an investigation and evidentiary hearing, the court granted relief for Danny’s client in a Writ of Habeas Corpus that was based on the “actual innocence” of the inmate. The applicant was sentenced to 25 years after he was convicted of Aggravated Sexual Assault of a Child. The 18-year-old complainant, 11 years old at the time of the alleged offense, recanted her jury trial testimony from 4 years ago and testified that she lied to convict her stepdad. The findings signed by the trial court Judge Shawna Reagin now go to the Texas CCA for their review. Way to go, Danny.

Kudos also go out to W. W. (William) Torrey of Cameron, Texas, a member of TCDLA since 2000, who was elected District Attorney of Milam County. He took office on January 1st. Congrats, Bill!

CDLP Chair Sarah Roland notched a win when the 2nd COA reversed and remanded the punishment trials in Earnest Ross v. the State of Texas. Before the punishment trial began on charges of engaging in organized criminal activity and unlawful possession of a firearm by a felon, the judge ordered Ross shackled at the legs, wrists, and around the waist. His trial counsel, Mick Meyer, objected but the judge left him shackled for day 1 of punishment. (On day 2, the judge tried to reverse himself and actually unshackled him for the rest of the trial.) The state argued there was no harm from the shackles because the jury did not see them, the state didn’t reference them, and Ross was classified as an escape risk. The COA didn’t buy it and reversed for new punishment trials. Mr. Ross is considering filing a PDR to try to get complete relief. Way to go, Sarah.

Congratulations to San Antonio’s Demetrio Duarte Jr., who has been recognized by the National Trial Lawyers as one of the top 100 trial lawyers for 2013—for his “continued and extensive trial work in state and federal courts across the nation.” Good work, Demetrio.

Christopher W. Lewis (Crain Lewis, LLP) of Dallas had a fantastic outcome at the end of January in Navarro County that Kerri Donica wanted to share: “I served as local counsel and first watched Chris wow the jury during voir dire. After listening to the prosecutor call the venire by their assigned numbers, Chris called each of them by name. What followed over the next day and a half of trial was just plain ol’ fun to watch (for the criminal defense bar, that is). Chris represented a gentleman accused of sexual assault. The co-defendant (with no criminal history) was tried some time ago and was convicted and sentenced to prison. The prosecutor claimed her case was even stronger against Chris’ client. She was mistaken. After a day and a half of watching Chris cross-examining the alleged victim, the State offered a plea to Class C Assault and dismissed the sexual assault charges. A great outcome that I believe was the result of an incredible show of lawyering. TCDLA can be proud!” Congratulations, Chris.

David Bires and Brittany Carroll tried a murder case in the 185th District Court with the help of Javier Martinez, a senior law clerk for Bires Schaffer & DeBorde. The trial went from January 14, 2013, through January 28, 2013. The court instructed the jury on all of the defendant’s requested instructions on self-defense, defense of property (theft at night), manslaughter, and deadly conduct. The facts involved a gun battle after a card-game dispute between the complainant, his three brothers, and the defendant. The complaining witness was killed, and two of his brothers—and the defendant—were wounded. The jury rejected murder and found the defendant guilty of deadly conduct and assessed punishment at 10 years in TDCJ. Two aggravated assaults are still pending. All in all, a good job by all.

Congratulations to Stan Schwieger for getting a PDR granted regarding the need for an objection when the trial court orders repayment of special prosecutor fees. This arose out of a special prosecution [attorney pro tem] case for Tampering with a Witness. The Court of Criminal Appeals granted review on an issue where Stan’s client was assessed costs of prosecution. Trial counsel was retained; Stan was appointed on appeal. The Tenth Court of Appeals held that client had “waived complaint” by not objecting at the trial level. Stan pointed out that no statutory authority existed for this, and as such, lacking statutory authority to do so, the trial court’s action was an “illegal act” and required no objection. Stay tuned for the ruling on this. As noted on the listserve: “Give ’em hell, Stan.”

Dispatches

The Young Lawyer’s Committee of TCDLA would like to announce the launch of a new email listserv for new lawyers. After speaking with many of our members and our president, we felt that a forum where members who are new to the practice of law and/or criminal law could ask the most basic of questions would be beneficial. From law office management to ethical questions, this listserv will be a forum dedicated to helping new lawyers be successful lawyers, which will ultimately benefit all of us and our clients. If you are interested in joining this listserv, please send an email indicating as such to the following address: .

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In October, Chris Raesz tried an Unlawful Restraint with Exposure to Serious Bodily Injury and an Aggravated Assault with a Deadly Weapon, both arising out of the same incident in Denton County. Client was on felony parole out of Colorado for what we call Intoxication Manslaughter. The initial story from the victim to the cops was that client and she had an argument, he hit her in the eye, she fell down, he helped her clean up then came back with a large knife, took her to the garage, obtained duct tape, taped her hands and feet, all the while threatening her with the knife. Amazingly, the victim had prepared her own affidavit of non-prosecution for presentation to the grand jury. That affidavit included that she struck client first while he was holding their child and he only hit her in self-defense, and that the duct tape was not used to restrain her on the night in question but earlier in adult ventures. Client was sure the victim would take the 5th at trial due to her false report, as she had been visiting him in jail during this time. She not only did not take the 5th; she testified to the initial story (and more) and admitted creating the affidavit of non-prosecution. Client took the stand in order to establish his self-defense and defense of his child, which was problematic due to his parole situation. Cross of the officers involved crime scene investigation and lack of followup investigations despite new information. Jury came back with two “not guilty” verdicts, and parole hold was lifted on client. Good work, Chris.

Zachary Maloney sent along word that Jim Hanley got a “not guilty” on a enhanced 25-to-life theft case. Instead of using the copper statute, the State indicted the defendant as just theft. The Brazoria County ADAs in 149th District Court couldn’t show value. Of course, he notes, the Jury went with a theory of their own. Either way, Zachary says Jim’s been on quite a win streak this year.

After more than 15 years behind bars, Kenneth Boyd Jr. was released from prison through the efforts of Gena Bunn of Holmes & Moore in Longview. In November, the Texas Court of Criminal Appeals in Austin issued an opinion vacating Boyd’s capital-murder conviction and life sentence and ordering his release. In 1999 Boyd was found guilty of capital murder and sentenced to life in prison despite the fact that there was no physical evidence linking him or any of his co-defendants to the murders. The State’s case against Boyd consisted essentially of a pair of jailhouse snitches who testified that Boyd confessed to them (both of whom have since recanted) and a handful of “eyewitnesses”—many if not all of whom were high on crack cocaine or other substances. In June, District Judge Charles Mitchell found that former ADA Karren Price had suppressed several items of evidence that would have helped Boyd, including a polygraph examination of a State’s witness indicating that he had information that another person was responsible. Also suppressed were letters sent from State’s witnesses to Price shortly before Boyd’s trial impeaching and flatly contradicting their trial testimony; offense reports indicating that another person besides Boyd was responsible for the murders; information that another State’s witness had failed a polygraph examination regarding his involvement in the murders then offered to “cut a deal” with the State for his testimony against Boyd; and evidence that this State’s witness had agreed to testify against Boyd in exchange for a sentence reduction in his federal case. He also found that Price had knowingly presented false testimony against Boyd. Great work, Gena!

Bill McKinney had an incredible string of victories re­cently—three NGs and a bar from prosecution in less than a week. Bill received the first two “not guilty” findings from a jury in a 2nd-degree possession of meth and a 2nd-degree possession of cocaine. The cases were consolidated for trial in the 108th. (The client was found under a bed with the dope lying next to him.) The other 2-word verdict came from a jury in the 320th. The charge was 3rd-degree possession of meth. It seems the client was sitting on 1.68 grams of meth, found when he was ordered to exit the vehicle. And then Bill found out that his client charged in the 181st with 3rd-degree possession of tetrahydrocannabinol (THC) had been discharged from further prosecution because of a finding of collateral estoppel after client received an NG verdict. Quite a week, Bill. Congratulations.

Kudos to Jani Masselli and her team for winning a sub­sequent writ for Cathy Lynn Henderson, convicted of capital murder and sentenced to death for killing a three-month-old baby, burying his body near Waco, and fleeing to Kansas City, Missouri. During trial, the medical examiner testified that the baby’s death could only have been intentional and not accidental, as Henderson asserted. However, in 2007, the CCA remanded the case for an evidentiary hearing during which six experts testified regarding new developments in the scienceof biomechanics. These witnesses testified that the type of injuries that the child suffered could have been caused by an accidental short fall onto concrete, as Henderson had always claimed. Dr. Roberto Bayardo, the medical examiner who testified at trial that Henderson’s position that the injuries had resulted from an accidental fall was false and impossible, testified at the evidentiary hearing that he now believes there is no way to determine with a reasonable degree of medical certainty whether the baby’s injuries resulted from an intentional act of abuse or an accidental fall. The trial court found that Bayardo’s re-evaluation of his 1995 opinion was based on credible, new scientific evidence constituted a material exculpatory fact and concluded that Henderson had proven by clear and convincing evidence that no reasonable juror would have convicted her of capital murder in light of her new evidence. The CCA ruled the trial court’s findings were supported by the record and consequently granted relief in the form of a new trial.

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A big association congrats go out to Kristin Postell, who got the two-word verdict on her very first solo jury trial—in Taylor County Court at Law #1. An assault family violence case, the complainant and defendant were estranged at the time of the alleged assault. Both testified, part of only two-and-a-half hours of testimony, and the jury deliberated for just two hours. As listserve compliments rolled in, a common theme predominated: You never get tired of hearing those two words, Kristin. Way to go.

Stan Brown received a “not guilty” on a charge of first-degree possession of cocaine with intent to deliver (involving about 9 grams), following one day of testimony and two hours of deliberations. Stan’s client, a 73-year-old grandmother, simply never took much interest in the comings and goings of her 20-something-year-old grandsons, and the jury agreed. After the trial court sustained the State’s objection to medical records showing COPD and chronic back problems requiring lots of medication, Stan rested. Congratulations, Stan, on a job well done.

Will Lara secured the two-word verdict on a tough battle over a charge of harassment. Client was accused of harassment by telephone, alleged to have left several messages on (ex-wife) complainant’s voicemail that “alarmed” her with the threat of bodily injury. In the course of the trial in Webb County Court of Law #1, Will says the judge allowed introduction of extraneous offenses, denied a hearing outside the presence of the jury, denied a presentation of a complete defense, and included definitions for common terms that would rise to the level of commenting on the weight of the evidence in the jury charge. State did not have the voicemail and intended to introduce detail of specific messages through a witness and officer. (The alleged voice messages were not presented because the lead investigator failed to preserve the evidence. The officer alleged that he listened to these messages and transcribed them the “one” time he heard them.) A blow-by-blow account can be seen on the TCDLA listserve. Nice work, Will.

Kudos to TCDLA member Casie Gotro, who heard the two-word verdict in a murder case in the 263rd in Harris County. Heather Lytle, who sat second chair with her, says she wishes she could have videotaped her performance: “From voir dire through closing, Casie told her client’s moving story of self-defense and defense of his wife, and pulled the jury into that story. It was a hard-fought battle, against a good prosecutor and a difficult judge. The verdict came in an hour and a half. When we talked to the jury afterward, one man said to Casie, ‘I just knew you were the real deal.’” High praise indeed. Good work, Casie and Heather.

Mike Trent scored a big victory on a 25-Life habitual on an agg assault charge. He notes that it boiled it down to the word of the complaining witness and they didn’t believe her. Mike thought it was going to be a death march in the morning, but the acquittal only took 16 minutes. As Mike says: “The moral is: have hope! No case is un-winnable!” Well done, Mike.

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Kudos to former TCDLA employee Celeste Villarreal, whose stellar career has led to yet another honor. In September, Celeste was named president of the Mexican-American Bar Association of Texas (MABA-TX). An associate judge in Austin Municipal Court, she served as editor of the TCDLA Capital Litigation Update as well as a legislative lobby assistant and research clerk. Way to go, Celeste.

Kudos also to John Stickels, who secured a favorable ruling for a veteran in U.S. District Court in Fort Worth. The charges carried an offense level of 33—which meant a 135- to 168-month sentence. John managed a 36-month probation for him. Good work, John.

Emily Detoto won the first battle in a Houston case originally filed as a super felony, 25 to life, on two charges of aggravated sexual assault of a child, an 8-year-old female. After about 9 hours of deliberations over two days, the jury sent in a note indicating they were deadlocked on one charge, and that vote never changed. The judge then brought the jury in, and they returned one verdict of “not guilty” in the count alleging D performed oral sex on the “victim,” at which point Emily moved for and was granted a mistrial on the cause the jury deadlocked on. Emily reports that the DA refiled the case, set to be tried in November.

Randy Mack scored a directed verdict for his client on a burglary of a habitation charge in Nueces County this September. Senior Judge Manuel Banales granted the verdict after the State was unable to prove the identity of the defendant. Good work, Randy.

Robert Pelton and Jennifer Vielman, with the assistance of investigators Alan Steuart and Carolyn Kizzee, recently got a capital murder case dismissed in Harris County. Witnesses said the client admitted to the killing and was spending money saturated with the victim’s blood. After doing their own investigation and presenting their findings to the Assistant District Attorney, the DA’s Office fulfilled their oath to seek justice and dismissed the case. Congratulations on a job well done.

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Kudos

Mark Griffith and Monica Bishop, of Griffith and Associates, won the dismissal of a sexual assault case for their client, an 18-year-old who had been a Harvard student when the allegations were made. After the arrest, he lost his full-ride scholarship and was prevented from participating in his full senior year. He had been a star athlete in both football and baseball and ranked 4th in his class in academics. Over an 11-month investigation, the State not only failed to turn over exculpatory evidence (1,000 text messages between the “victim” and the client and valuable information from the “victim’s” computer), but fought the defense every time they tried to discover the evidence via subpoena, etc. The State “lost” a SIM card for a phone that also had information important to the defense on it. At trial, the first witness is the complainant. After 6 hours of cross-examination with all the exculpatory material the defense had obtained, there was a break for lunch with about 4 more hours of cross to go. When the parties came back from lunch, the State dismissed the case. The young man is happy—he was always innocent—but will never get those 11 months back.

John Young recently secured a “not guilty” verdict after five days in trial in the 142nd District Court, Midland County, after only 45 minutes of deliberation. The State alleged that the attorney wife, estranged from client, had been sexually assaulted. The State offered evidence of an 8 year “pattern of abuse” and battered wife syndrome. The “victim,” also licensed in Illinois, traveled back to Chicago on several occasions prior to making the allegations, apparently “setting up” the false claim. The parties resided together in Midland and the wife worked at a local law firm. They spent the weekend of the alleged assault together. They were seen shopping at Target on the day after the alleged offense by a former boss from the Midland law firm. On Monday morning the client went to work and his wife went to the district attorney’s to file sexual assault charges. The State had offered 8 deferred to felony family violence. The “victim” filed for divorce in Illinois and obtained the final divorce within 10 days of making the allegation. She also lied about work relationships in Midland. Story within the story: State offered her cell phone records from November 5–7 to show she tried to call someone for help. The defendant was out of the house for 4 hours Saturday, the day after the alleged event, and part of the day Sunday, providing her oppor­tunity to leave. The calls showed she did in fact make several calls to lawyers—all on Saturday between about 4 and 6 pm and to the office phones. She calls everyone she knows won’t be available to answer her calls, obviously trying to set up a story of sex assault.

Constance Luedicke and Danice Obregon obtained “not guilty” verdicts on an aggravated sexual assault and an indecency with a child case in July. This trial followed one for the same accused in May for 22 counts of possession of kiddie porn. The porn case resulted in 22 “not guilty” verdicts. Both cases were pushed by the mother of the defendant’s children, brought after she abandoned him for a female partner. The defense theory was that the former lover and her current partner fabricated the allegations to get access to a trust fund that supported the accused. The trust comprised compensation for injuries suffered as a three-year-old. Danice and Constance divided the work, with Danice handling the cross-examination of the child because she has a child of the same age. She developed a rapport that worked well in her questioning. The child was believable in her recollection of what happened, but Danice was able to advocate successfully that the child had been coached and influenced by her “new aunt,” with whom she and her sister and the mother now live.

Said & Done

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Kudos

Thad Davidson and Norman Ladd were rewarded for outstanding efforts by a “not guilty” verdict in a Rusk County retaliation case. A woman who was taking pictures of their client’s son’s birthday party had an altercation with the client and called 911. The SO dispatched Deputy Reynolds, who arrived at the scene traveling at over 100 miles per hour.
                Reynolds drove into the client’s driveway and parked his cruiser. Audio-video was on, but the camera was angled such that much of what soon transpired was not visible. The audio was recorded. Reynolds sounded the air horn on his cruiser. The client, who was in his house, did not respond. Reynolds shouted “Hey!” in an aggressive tone. A few seconds later, the client and his wife left their residence and walked to their front gate, which was closed. Reynolds demanded to know (from the client) what had happened between the lady and him.
                The client began explaining. He thrust his hand in the direction of Reynolds—without ever striking him—demonstrating what the woman had done to him. Reynolds flipped out, seized the client’s wrist and began screaming at him, saying he was under arrest (without saying why). The client called Reynolds a stupid SOB and other choice (and possibly accurate) names. Reynolds threw the client to the ground and held him down by force, hurting the client, who has a crippled shoulder and a damaged hip. Reynolds accused the client of “retaliating” against him (Reynolds), allegedly for saying that if Reynolds would get off of his back, he would show Reynolds “resisting.”

At the jail the night of the arrest, the client reported that Reynolds came into the jail, strapped him into a chair, and struck him while jail personnel were present. (Two jail personnel later personally apologized to their client for what Reynolds did to him in the jail.)

When his wife bonded him out of jail, the client did not recognize his own wife and was dazed and confused. He was taken to the hospital, where it was discovered he had a broken neck.

The defense attorneys went to the Rusk County Sheriff Office a week or so before trial and talked to Reynolds’ superiors. They obtained a video, which they had previously been told didn’t exist by the DA’s office.

The jury deliberated for less than thirty minutes. Justice was done.

Chuck Lanehart prevailed on a Motion to Suppress blood evidence where the State issued a grand jury subpoena for his client’s medical records—even though there was no grand jury investigation into the client or offense. Chuck relied primarily on HIPPA as the basis of his client’s expectation of privacy. The State dismissed the case and obtained the records relating to the blood test using a legitimate grand jury subpoena and filed a second DWI case. Chuck filed a second motion to suppress, arguing the HIPPA violation, that there was no inevitable discovery rule, and that the taint of the use of a false grand jury subpoena made the records inadmissible. Great job of book-whipping the cheaters, Chuck.

Jim Hanley’s efforts resulted in the State making an acceptable offer on a sexual assault case in Bexar County. Jim’s client and the purported victim had participated in a night of drinking and partying on a “party bus.” The complaining witness had sex with someone but could not say who. Her memory was affected by alcohol and ecstasy. The State’s offer was always prison time on a plea to sexual assault. After several re-settings, with a jury panel in the hall, the State offered a two-year probation on assault and agreed not to oppose the court’s deferring adjudication. This disposition didn’t sully Haney’s record in sex cases this year. Six cases, four not-guilty verdicts, and two dismissals on the day of trial. Congratulations.

Tony Vitz’s client heard the two-word verdict in a DWI case where he had given a breath test resulting in a .149. The defendant couldn’t accept the probation plea offer and keep his job, so a trial was the only alternative. Vitz believes that his client’s connection with the jury gave them the strength to reject the State’s argument. The jury foreman was the last holdout. We should all read Tony’s blog post— http://archive.voiceforthedefenseonline.com/legalblog/?p=402 —because there is far more to Tony and this case than is obvious from this wonderful result.

Kudos are in order for E. G. “Gerry” Morris of Austin, who was sworn in as Second Vice President of the National Association of Criminal Defense Lawyers (NACDL) at the Association’s 54th Annual Meeting in San Francisco on July 28. Gerry has served on the NACDL Board of Directors since 2001. He has served as Co-Chair of NACDL’s Indigent Defense Committee and its Fourth Amendment Committee, as well as Vice Chair of NACDL’s Audit Committee. Congratulations, Gerry.

David Botsford, the incoming chair of the Criminal Justice Section of the State Bar of Texas, sent along this word of yet another honor for Buck Files: “In early 2012, the Criminal Justice Section of the State Bar of Texas, acting by and through its Council, unanimously decided to bestow a ‘Lifetime Achievement Award’ to Buck Files. Buck’s attributes and contributions to the State Bar of Texas and the criminal justice system are far too numerous to list, but suffice it to say that Buck has endlessly devoted himself to the improvement of the criminal justice system. Indeed, Buck has had a pronounced impact upon thousands of people, lawyers and non-lawyers, and effectuated incredible change within the criminal justice system throughout his long and storied career. We know he will continue to contribute even after the conclusion of his tenure as our State Bar President, but the Council wanted to acknowledge and honor him at our annual meeting in July 2012. Accordingly, the Council salutes and applauds Buck, and on behalf of the 3000 members of the Criminal Justice Section, we extend him our highest honor. It is well deserved to be sure.” And we certainly agree with that.

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