Shout Outs - Page 3

Shout out to David Hall and Ariel Payan, who were jointly awarded the Warren Burnett Award by the State Bar of Texas for extraordinary contributions to improving the quality of criminal legal representation to indigent Texans. TCDLA is proud to have you both as members!

Congratulations to Dr. Andrew Davies, who was awarded the Michael K. Moore Award for Excellence in Research or Writing in the Area of Indigent Criminal Defense by the Texas Bar Association. Dr. Davies is the director of research at SMU’s Dedman School of Law’s Deason Criminal Justice Reform Center. Thank you, Dr. Davies, for your contributions to the knowledge and practices of the bench, bar, and scholarly communities!

Kudos to the Rackspace Legal Team, which was awarded the W. Frank Newton Award from the Texas State Bar. The award recognizes the pro bono contributions of attorney groups whose members have made an outstanding contribution to the provision of, or access to, legal services to the poor. The Rackspace Legal Team launched a legal service called “Adopt a Non-Profit Legal Team,” the aim of which is to increase the team’s commitment to meet the CPBO Challenge initiative in which in-house legal teams across the country are challenged to perform pro-bono legal services. The Rackspace Legal Team, which is a branch of Rackspace Technology, “adopted” the in-house legal and compliance team at Haven for Hope of Bexar County, a San Antonio non-profit serving homeless individuals and families. The Rackspace Legal Team handled the legal and compliance issues for Haven of Hope. Thank you to the Rackspace Legal Team for setting an example of how corporate legal teams can contribute their expertise and resources to non-profits to benefit the poor and indigent. Congratulations!

Congratulations to Sally Ring, whose client was granted a writ of habeas corpus! The client was charged with three felonies but the judge granted PR bonds, stating Governor Abbott’s Executive Order GA-13 was unconstitutional, violating the U.S. and Texas constitutions, due process, and separation of powers. Way to go, Sally!

Shout out to Mark Bennett for his win in the Supreme Court in Ex parte EH 18-0932. Expunction ordered to be granted when case was based on former penal code 33.021(b) online solicitation which had been held by the CCA to be unconstitutional. Nice job, Mark!

Huge kudos to Northern District of Texas Federal Public Defender Jason Hawkins, Assistant  Federal Public Defender Michael Kawi, and civil rights attorney Stephanie Inman! The chief judge chose to hold a trial, despite the FPD office’s efforts to show, through several motions to continue, an emergency appeal, and a writ of mandamus, that holding a trial at this time is dangerous. The FPD office’s client, Timothy Tanner, was charged with felon in possession of a firearm with three-to-four witnesses. His trial was scheduled for June 1 – the first federal criminal trial in the nation post-pandemic. Mr. Tanner was found not guilty and knelt with the trial team outside the courthouse right after the verdict was rendered. Way to go!

If you see Gus Saper around, be sure to congratulate him on his getting his client’s nine-year sentence reduced to time served, six months home confinement, and 250 hours of community service. The case was not easy and only succeeded after Gus filed a motion for reconsideration of federal Judge Marina Marmelejo’s second order denying motion to reduce sentence. Awesome job, Gus!

Allison Clayton, Jeep Darnell, and Kyle Therrian have continued to step up to the plate during these challenging and uncertain times. They have given endless hours in supporting our members by reviewing and editing motions, writing a declaration in opposition of the governor’s Executive Order GA-13, and completed any task asked of them. They are truly our emerging leaders of the future.

Congratulations to Juan Ramon Flores, who received a motion to suppress the seizure of client. Client’s criminal history would have put him in criminal history category 4 or 5. Before the motion to suppress was granted, client thanked Juan for his efforts, saying he’d never had an attorney do so much and hadn’t expected much now. Needless to say the client was very happy. The motion was granted on Christmas Eve – the most wonderful Christmas gift imaginable. Awesome job, Juan!

Thank you to Jason Edward Neihaus of Denton! Early during the COVID-19 pandemic, Jason drafted an application for habeas corpus and CCP Article 17.151 motion seeking to release inmates in jails and detention centers and made these applications available to other defense lawyers. Jason distinguished himself in generating and sharing these pleadings when there was yet no consensus on the severity of the pandemic, let alone agreement regarding course of action by criminal law practitioners. Events since have demonstrated Jason’s instincts were on point. The selfless sharing of his work product distinguished him as possessing foresight and the sort of leadership that is often talked about but less often demonstrated. Thanks again, Jason!

Shout out to the Innocence Project of Texas, who helped get Joe Bryan, who had been incarcerated for more than three decades, released on parole! IPTX Staff Attorney Jessi Freud represented Joe, under the guidance and supervision of IPTX Board Member and Waco attorney Walter M. Reaves, Jr. TCDLA is proud to partner and co-sponsor numerous events with IPTX. Way to go!

Big CONGRATS to Mark Thiessen, who recently passed the NCDD exam and is now board certified in DUI defense by the National College for DUI Defense through the American Bar Association. Mark joins Troy McKinney, Gary Trichter, Mimi Coffey, and Doug Murphy in becoming so certified. Mark is now one of only three lawyers in Texas who are board certified in criminal law by TBLS and DUI Defense by NCDD. What a HUGE honor!

Congratulations to Shellie Stephens and Investigator Billy Meeks, who won their client a $300,000 cashier’s check from the Central District of California! The battle started in December and Shellie and Billy are now fighting for another $250,000 plus interest and treble damages for fraud. Good luck to you both!

Michael Mowla successfully stayed the execution of John Hummel on March 18. Michael argued that the panic and concerns related to COVID-19 could impact the courts, the governor, and the Board of Pardons and Paroles making a fair decision when considering final appeals and clemency pleas. Congratulations once again to Michael for fighting for fairness in the criminal justice system!

Daniel Werlinger and Lisa Andrews of Harris County helped get a capital murder charge dismissed for Jeff Wax’s client, Amir Yarbrough, who had been in jail for two years awaiting trial. Werlinger and Andrews argued Yarbrough was not culpable and the state would have difficulty proving the case beyond a reasonable doubt in trial. Way to go!

Lisa Greenberg and Adam Rodrigue got another mistrial for their client accused of capital murder. One of their previous cases, also a capital murder case, was dismissed after three mistrials and two hung juries. Rulings like those are testaments to how outstanding your defense of the accused is!

Clint Broden obtained a rare reversal in the Eastland Court of Appeals for a client sentenced to 68 years imprisonment after a drug conviction.  Court of Appeals ruled the trial court committed reversible error when it refused to give a 38.23 instruction. Awesome work, Clint!

Veronica Veyhl and Phillip Hall obtained a verdict of not guilty on nine counts of continuous sexual abuse of a child in Tarrant County. The case was tried in the 371st District Court and the jury returned the not-guilty verdict within 50 minutes. Way to go, Veronica and Phil!

Congratulations to Troy McKinney, who received the Tom Garner Distinguished Service Award from the Texas Board of Legal Specialization. Named after former TBLS Chairman Tom Garner, the award is given to an individual “who best epitomizes the best ideals of voluntary service by their knowledge, dedication, hard work and integrity.” You’re a rock star, Troy!

Congratulations to Gary Cohen for a great parole victory! Client received a 10-year sentence for intoxication manslaughter and two counts of intoxication assault. He had a very high BAC after a day of tubing on the river in New Braunfels. After serving five years, this was the client’s first parole review. Gary gave a masterful presentation to the lead voter. He received a favorable vote in less than 24 hours with no counseling provisions. A huge win! Nice work, Gary!

Kudos to Clark Birdsall, whose defense of a permanent-resident woman accused of illegally voting in Texas was the subject of a USA Today article published on February 21! USA Today has an approximate readership of 2.6 million people, so congratulations are indeed in order for Clark for helping to spread the important work he and other Texas criminal defense attorneys are doing!

Shout out to Steven Wright, whose client was on trial for a DWI with a BAC of .18 and a charge for unlawful carry. Because of Steven’s advocation, the jury returned a verdict of not-guilty within 12 minutes on the DWI charge and a dismissal on the unlawful carry charge. Way to go, Steven!

To be featured in our shoutouts, email details to Billy Huntsman at .

A big shout out to ALLISON CLAYTON of Lubbock, whose sleuthing on an appointed case resulted in the reversal of a conviction just before Christmas. It seems that D was charged with failure to register as a sex offender based off a 2002 conviction in Oklahoma—for assault with intent to commit a felony (based on an allegation D, then 19 years old, had slept with a 14-year-old). Lady with Lubbock PD said that DPS had found that the OK conviction was “substantially similar” to sexual assault in Texas, which meant D had to register for life. D thought he was long done with the OK stuff and didn’t register—but then was found guilty and sentenced to 10 years TDCJ. Allison went through open records and discovered OK’s “assault with intent” was substantially similar to an attempt offense in Texas but not sexual assault. (Attempt would get 10-year registration, not lifelong.) She then dug into open records again to find out why DPS determined it “substantially similar”—and they said they never heard of the guy. Allison emailed the prosecution about this misrepresentation of material fact leading to the conviction, and they checked into it, discovering the PD lady had essentially done it on her own. A Motion to Reverse motion filed on Monday led to a reversal on Thursday. Fine detective work, Allison. Congratulations.

Kudos to the MIKE WARE LAW FIRM for their latest win—in the case of Lydell Grant, who spent eight years in prison after being wrongfully convicted of murder. In June, IPTX hired a firm to analyze the HPD’s data, finding another’s DNA under the victim’s fingernails. A search of the FBI’s CODIS database discovered a match, a man tracked down in Georgia where he’d fled after the murder. The suspect confessed to the murder to HPD detectives, and the Harris County DA’s office has charged him with murder. A landmark case, this is the first time an independent party outside of Iaw enforcement—in this case, the Innocence Project of Texas—initiated the use of the FBI’s database to identify the actual perpetrator of a crime. Six eyewitnesses had fingered Grant in a photo lineup, a classic example of mistaken eyewitness identification. The National Registry of Exonerations has said that mistaken eyewitness identification is the most common cause of wrongful convictions. In his tenure with IPTX, Mike has overseen at least 30 exonerations. Congratulations, team, on another blow for justice.

A hat tip to PATTY TRESS and NICOLE STEPHENSON of Denton, who recently received a just and right NOT GUILTY verdict on an Aggravated Assault with a Deadly Weapon. D, who is 69 years old, was enhanced to 5–99 years or life in prison. The police officers did not get permission from D to search his garage—instead got it from CW (who did not live there). Patty says in a strategic move they did not move to suppress, as everything there helped in showing D’s version of events. “He cried when the jury read the verdict and is now free after 6 months in jail waiting for trial.” Patty was effusive in expressing her thanks for the team helping her on this: “Thank you Alyssa Jade Piland of Joplin Investigations for all of your hard work. I really could not do it without you. Thank you to Emma Guzman Ramon for helping with my other cases while I was in trial. Thank you to Heather Fisher, Michael Kiesel, Jason Niehaus, Chris Abel, Chris Raesz, Clay Steadman, Sarah Roland for letting me bounce ideas off y’all and helping with the more complex legal issues! It takes a large team to make it work, and I couldn’t do it without y’all!” And thank you Patty and Nicole for your continued good work.

A shout out to MICHAEL YOUNG and the Bexar County PD office for their righteous decision in a habeas case out of the CCA. Parole requires that a final revocation hearing is held within 41 days of an arrest on a blue warrant, but this time is tolled if there are “charges pending.” Michael says their client was arrested in another county and posted bond, but hadn’t been indicted. The issue before the CCA: Were “charges pending” based only on the arrest or is an indictment or filed complaint needed to toll the 41 days. As Michael note: “As of the date of the decision, our client had languished in Bexar County jail for 260 days with no indictment filed on the new case or no final revocation hearing.” The CCA, in a 5–4 decision, ruled this was a denial of due process and ordered the blue warrant be dismissed and D released. Michael also said: “Our office was given the road map on how to file this writ from Dale Heish, a TCDLA attorney in Fort Worth, and we couldn’t have done it without his guidance. Dale was great about sharing his resources and we’d be glad to do the same with anyone who wants a copy of the pleadings we filed.”

Hats off once again to the Waco Wildcat, MARK GRIFFITH, for his recent win for a client charged with two counts of Aggravated Sexual Assault of a Child. Mark says the prosecutor never produced a Brady notice, but his team retrieved all counseling records and school records and found out the girls accusing the client had a habit of lying—and about big things. There were eight large binders of discovery they found that the DA never took the time to find. Dr. Aaron Pierce was lined up to talk about Reactive Attachment Disorder and Borderline Personality Disorder, which both children showed signs of. Says Mark: “Makenzie Keene and Sarah Jacobs organized the perfect trial folder, and we showed up for trial and announced ourselves ready—and the DA presented a Motion to Dismiss on both charges. I had, three days earlier, e-mailed the DA and told him I was going to ask for a mistrial if he did not provide an official notice of the more than 200 inconsistent statements made by the complainants. It was a good day for justice and a great day for my client. Keep the trial fires burning.” Way to take it to them, Mark.

Kudos to Senior Lobbyist ALLEN PLACE of Gatesville and Austin, who was successful in obtaining parole for two female clients recently. The first case involved a Harris County case originally resulting in a death sentence but later commuted to life. The second case involved parole being granted after 6 years of incarceration on a 99-year sentence for DWI. Both cases were decided by the Gatesville panel of the Texas Board of Pardons & Paroles. Congratulations, Counselor, on your good work.

Send your kudos, katcalls, and/or letters to Editor Sarah Roland at or Billy Huntsman at .

A big shout out to appellate adept Keith Hampton for his win in the long-running case of Greg Kelley—finally found innocent in the CCA. All the judges agreed he was innocent, and left undisturbed Judge King’s findings and conclusions regarding Kelley’s other claims of ineffective assistance and due process. His case was sent back to Williamson County, where DA Shawn Dick had no plans to further pursue charges against him. Then District Court Judge Donna King declared Greg actually innocent, making him eligible for a wrongful conviction payout of $80,000 for each year he was wrongly imprisoned. The former Leander football star, who can now entertain college offers, spent three years in jail and has waited another two years to hear the good news. Way to keep battling, Keith. We can now hope that you take your experience and provide a voice for justice on the Court of Criminal Appeals.

And a big shout out as well to Kristin Etter of Austin, whose painstaking efforts have lead to another victim of Williamson County justice under Ken Anderson being cleared of a charge haunting him for decades. D, railroaded in 1993 into a plea of molesting a 4-year-old girl, was hounded from neighborhood to neighborhood by the specter of a sex-offender status originally set to expire after 10 years. After 20 years, he contacted Kristin for help—who in her investigation of the case discovered that evidence not revealed at the time showed that the prosecutors of the time were ready to drop the case for lack of credible evidence. She then approached a district judge with her findings, who took minutes to undo the bogus conviction. This and the Morton case point to the crying need for a thorough review of all convictions during the Anderson era. The details of her efforts can be found in the Austin paper (https://tinyurl.com/shl6srn). Way to go, Kristin! You make us proud.

Kudos to Dean Watts of Nacogdoches, who recently had an Assault Family Violence case dismissed by the state halfway through trial. D was forced to trial in the Class C case because a plea would lead to immigration problems. The prosecutor would not change or reduce the charge despite the fact that an affidavit of non-prosecution had been signed by D and the victim asked several times that the charges be dropped. As Dean notes: “At trial, the victim did not show up. Undeterred, the prosecutor tried to use only the police officer to convict the defendant. After I objected to the State trying to offer inadmissible hearsay statements and a videotape without the proper predicate being laid, the State finally dismissed the case mid trial.” Congrats, Dean, for a righteous win.

Hats off to Dana Williams of Livingston for her recent win in Polk County. D, a 62-year-old man, was accused of 2nd-degree felony Aggravated Assault with a Deadly Weapon. State alleged that D entered CW’s yard and swung a machete at him, a paraplegic, and his family. Dana said D had complained earlier that day about CW’s loose pitbulls terrorizing anyone who passed on the street. Records showed over 20 complaints about the dogs. State called witnesses to back up CW’s story, but they admitted to taking the machete from D, almost severing his arm, before they kicked and beat him and left the scene. Officers tased D within 30 seconds of arriving, saying he was “resisting arrest”—even though video showed D to be compliant. Officers also admitted they never considered the statements of two independent witnesses, who called 911 because D was being severely beaten and testified that they never saw D enter CW’s yard or swing the machete at anyone. D was the only person injured, requiring 21 stitches after the incident. The DA argued “consciousness of guilt” due to D’s inability to return from out-of-state, resulting in his failure to appear. The jury returned a verdict of NG after an hour and 15 minutes. Congratulations, Dana, on a good win.

A shout out to Mark Griffith of Waxahachie for his latest win but in a different venue. Dallas client was charged with Sexual Assault of a child. The State gave discovery that did not have near enough in it, says Mark: “We got the rest and all was full of Brady. I had never met prosecutor until that day. She then spent an hour talking to complainant. She still did not know what she was doing, so I told her I had never lost a sex case without a confession.” Some 20 minutes later the case was dismissed. Mark says that Sarah Jacobs and Makenzie Zarate were co-counsels and deserve most of the credit. Great work, team, in the big D.

Kudos to Amber Vazquez of Austin for a recent Facebook post with a lot to say about the defense lawyer’s life: “Today I witnessed a great act of mercy and watched another client get sentenced to a long prison sentence—both events will forever change many lives. In the first, Judge Cliff Brown offered my young client another shot at redemption, even though he did something bad and reckless. This young man was truly remorseful, and I had the good fortune to work with Jeremy Sylestine as the prosecutor, who was fair and kind. My client’s parents cried with joy, as did my client afterwards. It’s amazing what one act of grace can do in changing a person’s path forever.
 “Then, this afternoon in a different court, I had a father of five children, one of whom is special needs, sentenced to longer than he deserved for an act borne out of desperation. My team and I had fought so hard to keep him free, so it was incredibly heartbreaking.
 “I never forget the heartbreaks and the humans that I could not save, but I know it’s the losses that make me a better lawyer, not the wins. It always makes me think of this passage from the Velveteen Rabbit about becoming real:
 “‘It doesn’t happen all at once,’ said the Skin Horse. ‘You become. It takes a long time. That’s why it doesn’t happen often to people who break easily, or have sharp edges, or who have to be carefully kept. Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out, and you get loose in the joints and very shabby. But these things don’t matter at all, because once you are Real you can’t be ugly, except to people who don’t understand.’”

Kudos to ex-prez Randy Wilson for an impressive victory in Federal Court in hometown Abilene. D, charged with Possession of More than 5 grams with intent to deliver, had 2 prior drug convictions and faced 10 years to life. Undisputed evidence showed that while the D was being arrested, he was patted down twice before the officer discovered over 11 grams of meth in the pocket of his shorts. The defense charged that the Abilene PD planted these drugs because D had been arrested over 50 times, knew he was about to be arrested, and would not have come out of the house with any contraband—which was surrounded at the time by the Abilene Police Department Special Operations Unit and a Deputy U.S. Marshal. Randy convinced the jury that his client, a convicted drug dealer, did not have this meth in his possession. D testified that he was cuffed when he exited the house, then searched at least two times before being placed in the vehicle for transport to jail. He further testified that the person who found the methamphetamine in his pocket was the commander—after he was placed in the officer’s vehicle. The jury took two hours to return the big NG verdict. Quite a job there, Randy. Congratulations.

Kudos also to Greg Westfall of Fort Worth for his efforts in winning a new trial for his client in the First Court of Appeals. The decision reads as follows: “Molina contends the trial court abused its discretion in admitting evidence of contraband the State conceded belonged to his passenger. Concluding that the probative value of the evidence of the passenger’s contraband was significantly outweighed by the danger of unfair prejudice, we conclude the trial court abused its discretion in admitting the evidence. We further conclude that the admission affected Molina’s substantial rights and warrant reversal.” Way to go, Greg.

A shout out to Wade B. Smith of Houston, who won a recent Motion to Suppress in a DWI case. D was pulled over by a 36-year veteran officer of the HPD after he said he almost hit him and “kind of” ran a stop sign. D, who speaks little English, stopped and got out. Cop grabbed and searched him, cuffed him, then put him in the cruiser. DWI unit conducted SFSTs, though D refused blood draw. A warrant lead to a .237 alcohol content. At the hearing, Wade put the officer on the stand and crossed him on the absence of signs of intoxication, using the officer’s own body-cam recording. A portion showed the officer tell the DWI unit he thought he was intoxicated because he almost hit him in the parking lot. He told the unit that he didn’t see red, glassy, or bloodshot eyes, notice any issues with D’s balance, or smell alcohol. Through the officer’s testimony and the video, Wade established that the only facts officer relied on for his believing D was intoxicated was the driving behavior and what he called slurred speech. The judge herself said she couldn’t determine if the speech was actually slurred or if it was due to his difficulty with the language. And without something more than the driving facts, she said, there was no reasonable suspicion to expand the stop into a DWI investigation, granting the motion to suppress. Congratulations, Wade, on a good win.

Tip of the hat to Sean Hightower of Nacogdoches for his recent win in a big case. He notes that the state’s offer was 16 years in prison on “the largest drug case they’ve ever had.” Sean called on all his lawlerly skills, concluding, “Judge granted probation—after yours truly begged, pleaded, rolled my eyes, cursed under my breath, and talked about common sense.” Whatever works, counselor. On another note, Sean rates another congratulations for being selected a 2020 Rising Star, another TCDLA lawyer in ascendance.

Kudos to Mark Thiessen for his work in a recent case not always within his purview. As he explains: “Today was a nice closure for a young man who I have spent almost 2 years getting back on track. Charged with Aggravated Robbery for stealing a truck by point a gun to a stranger’s head, a judge gave him a second chance at life today. It was truly eye-opening to see what can happen if your child falls in with the wrong crowd. Had loving parents and never a problem until his senior year in HS. Then fell in with the wrong crowd and in 3 months confessed to 7 other Aggravated Robberies. Not a case for trial. So instead, I got this young man back on track and begged for mercy and compassion from the Court. Judge showed tremendous compassion and mercy and gave this man a second chance to get his life back. Walked in looking at 5 to 99 years. And he walks out with deferred adjudication. I look forward to seeing him at the end and how far he has come. This horrible charge and 3 months may just be the thing that saved his life and transformed him. Big THANK YOU to Judge.” And to you, Mark, for caring about him.

Shout out to David Mee of Allen, who just watched a client walk with a full dismissal in Montague County from a charge of First-Degree Arson. “Great expert out of Lubbock,” says David. “His report and my motion to dismiss seems to have carried the day. Thanks to Michael Payne out of Wichita Falls for letting me come in for some late briefing and bullpen help! Michael did the first three years of work. Happy to share any good results! First post in a dozen years from a former prosecutor.” Congratulations to both of our members for a job well done.

A big shout out to Dean Watts of Nacogdoches for his recent win in the 12th Court of Appeals, who affirmed his motion to suppress. D was stopped for failing to change lane on a roundabout, then subsequently was arrested for DWI. The trial court granted the motion and the State appealed. The 12th said they agreed with the trial court’s finding that the officer in question turned on his lights to pull D over before he committed a traffic violation. Dean says the big challenge for him was making sure his brief said “the trial court did not err” instead of the usual “the trial court erred.” Congratulations, Dean!

Kudos to Assistant Bowie County PD Amanda Gunn of Texarkana on her 20-minute NG verdict in an Assault with Bodily Injury–Family Violence trial in Bowie County. The alleged victim had signed two) Affidavits of Non-Prosecution and refused to contact the DA or appear at trial. The DA filed a motion requesting the Court find that D forfeited his 6th Amendment right to confrontation based on his efforts making the alleged victim unavailable. The State called three witness at the hearing, but they had no evidence D did anything to keep the alleged victim away from the trial. Amanda presented evidence the AV voluntarily appeared in the DA office and signed an ANP in their presence. Yet the Court granted the State’s motion allowing them to present hearsay evidence—evidence violating his right to confrontation. The State called two police officers, who both presented hearsay evidence on what the AV stated happened. The AV had no marks or bruises on her body, but D had scratches on him. He asked to press charges against her, but the police officers refused and arrested him. Over counsel objection, the Court also allowed an unauthenticated audio recording played to the jury of an argument between the two. There was no evidence who recorded the event, who turned it over to the DA, or when the recorded argument occurred—but it was still allowed into evidence. Way to hang in there, Amanda, and see justice done.

Kudos go out to our own Larry McDougals, both of Richmond, with the senior Larry writing: “Our Aggravated Sexual Assault of a child trial is over—not guilty on all counts. Special congratulations to Larry McDougal Jr for his amazing cross of the state’s experts, making them our experts.” Larry was quick to share the credit: “We had a great support team, David Green II doing lots of the behind-the-scene work, Mandy Miller sitting with us and researching all the law on all the objections, and our paralegals, Marissa Fuentes, Sarah Elizabeth Montalvo, and Tara Pirsch, who sat with us.” Congratulations, team, on a job well done.

A shout out to former prez Rick Hagen of Denton for an odd win in a strange case. D was accused of first-degree felony theft of over $300,000. Defense maintained that the complaining witness committed tax fraud and accused his bookkeeper after the IRS levied his account. After D’s opening statement, the Judge appointed a lawyer for the CW because the Judge was concerned he would be required to admit to multiple felonies during cross-examination. Lawyer then advised CW to plead the 5th. “In 29 years of practicing law,” Rick says, “I’ve never heard of a case being dismissed after a defense opening statement.” Good work, counselor, on this bit of oddity.

Sometimes a “win” can be described in different terms, and for this tale a shout out to DWI co-chair and board member Mark Thiessen of Houston. In his words: “Our Harris County jury showed tremendous heart and compassion today. Our client was a 26-year-old man that hadn’t been drinking in 6 months—and was way over-served. He didn’t remember anything but somehow ended up traveling 16 miles the wrong way on the highway. It ultimately ended in a tragic accident, with the victim sustaining a broken ankle. The client was incoherent. We pled guilty and begged the jury for mercy. He went to treatment and has been sober since the accident. The State’s case was tried by very talented DAs who put on a great case with a lot of extraneous offenses and conduct. We begged for mercy and the jury showed it, sentencing him to 5 years to be probated. (The State’s pretrial offer was 5 years prison in Texas Department of Corrections.) Thank you to the jury for showing us your heart and exercising mercy when they had ultimate power. He’s a good young man, he will earn his life and freedom back. Thank you to my second chair/wife, Taly Thiessen—you’re my rock! And thank you to Judge Brian Warren, who ran a very fair trial with tons of complicated and emotional issues. Not every case can be a Not Guilty. Sometimes all we can do is try and save you from years in prison. Thanks to God for bringing all the moving parts together.” A win by any other name—to go along with wins in three different DWI trials in the month, with one a personal-best .342 blood test. Congrats for walking the walk, counselor.

Taly Thiessen can be excused for a bit of prejudice in mentioning that hubbie Mark was one of only two criminal defense lawyers named to the 100 Top Super Lawyers in Texas in 2019—the other being David Gerger of Houston. Congratulations, you two, for being so honored.

A big shout out to Richard Gladden of Denton for his recent appellate victory at the Second COA in Dowdy v. State, No. 02-18-00112-CR (Tex. App.—Fort Worth 7/30/19) (not designated for publication). The jury con­victed Appellant of POM, Class A, and sentenced him to 180 days in the county jail and fined him $4,000. Somehow, the jury left the verdict form completely blank, though. Although the COA didn’t reach Richard’s argument that a blank verdict form is not a legal verdict regardless of whether the jury verbally announces its decision to convict, the COA reversed and rendered a judgment of acquittal based on insufficient evidence. This is an interesting opinion worth a read. Perhaps tellingly, the COA highlighted, among other things, that the corporal “admitted that Appellant and the Impala’s driver did not look alike. But he asserted that the person he saw coming from around the wall near Apartment 12—who he could not identify as Appellant—matched the Impala’s driver ‘in certain ways’: Both were black men who happened to be wearing white t-shirts” (at p. 6). Really?! Way to go, Richard!

Kudos to Allison Clayton, chair of the Amicus Curiae Brief Committee, for her work through the Innocence Project of Texas—along with students of the Innocence Clinic at the TTU School of Law Clinical Programs—on the case of Ed Ates, chronicled for all to see in the Texas Monthly article “Crowdsourcing Justice” by Michael Hall (available here: https://bit.ly/2GYM0mj). Ed went to prison for 20 years for a murder he didn’t commit but paroled out through the work of Allison and friends—and the unlikely support of a podcast, as Allsion relates: “Thank you as always to the indelible Bob Ruff and his amazing Truth & Justice with Bob Ruff Army for insisting that IPTX Executive Director Michael Ware listen to a podcaster from middle-of-nowhere Michigan. Y’all are the army of change that our justice system so desperately needs. You deserve all the praise and more. Congratulations on such a well-deserved recognition!“ Allison and team have been working on exoneration for nearly 4 years and have no intention of stopping now. Y’all are an inspiration to everyone for the work you do.

Kudos also to Colin McFall of Palestine for an impressive win on a charge of Continuous Sexual Assault of a Child. Colin says the State abandoned the Continuous allegation just before they rested, but they still faced two counts of Aggravated Sexual Assault of a Child and four counts of Indecency with a Child by Contact. In addition, the State elected to include every lesser included offense of each of the six counts in the Jury Charge. But in the end, “the Judge read all of the jury’s 14 verdicts of ‘Not Guilty.’” Congratulations, Colin, on this big win.

Shout out to Ethics Chair/Editor Robert Pelton and an “HCCLA members defense team” for landing a plea for life when the prosecution sought death. Robert credits Terry Gaiser (who, he says, did most of the work), mitigator Amy Martin, and investigator Molli Steinly. D had been identified in the capital murder case by a Crimestoppers tip, a surveillance video, and witnesses. Sometimes you have to play the hand you’re dealt, and the Houston team did everything they could with those cards. Also of interest: Robert and fellow TCDLA members Jim Lavine, Earl Musick, and Jack Zimmermann appeared at a book signing because of their involvement in a case dramatized in a new true-crime book, Out Here in the Darkness by Abra Stevens. They’re our sort-of reality stars . . .

Kudos to DWI Committee Co-Chair Mark Thiessen of Houston for his latest wild win—a .342 blood test on a DWI 2nd in Harris #7. As he relates: “Car was pulled over doing 95 in a 60. In the almost 3 minutes that it took the officer to approach the driver’s window, my client and the driver switched seats. So my client was sitting in the driver’s seat drunk as a skunk when the officer came to the window. Client couldn’t even figure out how to open the door. Client told them the entire time that he switched seats and wasn’t the driver, but he wasn’t believed because of his prior 2004 DWI. Thank God for dash and body cams! The jury was able to see the brake lights and car movement while the officer was writing a ticket and not looking. The jury got all the evidence and got to hear how the real driver had warrants and a suspended license . . . Common sense prevailed the day, and the jury followed the law that the State did not prove client was driving beyond a reasonable doubt. I stipulated to everything but driving. Stipulated to all the evidence. Tried it solely on driving. Thank you to the jury for following the law and holding the State to their burden.” Way to keep it interesting, Mark.

A robust response from TCDLA and NACDL members to a vote at the ABA House of Delegates meeting in San Francisco saw ABA Resolution 114 postponed indefinitely, by a wide margin. You can read all about it in the ABA Journal: www.abajournal.com/news/article/resolution-114.

Note: In the print version of the July Shout Outs, a picture mistakenly identified Chuck Lanehart as the recipient of this year’s James G. Denton Distinguished Lawyer Award. In fact, Chuck, who won the award last year, presented it this year to Justice Phil Johnson, also shown. We regret this error. In traditional High Plains justice, the proofreader was pistol-whipped and turned out to pasture.