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BEC/EAC Report Update

In 2019, TCDLA first requested information on the sophisticated scam known as Business Email Compromise/Email Account Compromise, (BEC/EAC), for short. Now, in 2022, it is unfortunate to report that the situation has only grown worse.

The BEC swindle is aimed at organizations and individuals who execute wire transfers. These cyber criminals utilize compromised email addresses and abuse virtual meeting platforms in order to advise victims to provide information that will allow them access to funds.

These cunning cons often use email platforms to manipulate company executives who approve wire transfers into transmitting fraudulent, large dollar amounts. Once the money is transferred overseas, it is exceedingly difficult to recover or prosecute. The best way to avoid being scammed is to learn about BEC/EAC, to spread awareness and to implement employee training.

Now, in the third year of the pandemic, virtual meeting platform usage in the workplace is the norm. The advent of these virtual meeting platforms came along with a rapid increase in BEC/ EAC attacks. The platforms used by so many businesspeople today were immediately recognized and targeted by the criminal world as a primary tool to advance their invasion. I would direct all readers to view the FBI Public Service Announcement at the following URL for full and complete details concerning how they, and others, may be at risk: https://www.ic3.gov/Media/Y2022/PSA220216.

It will point out that between the first alert in 2019, and until the end of 2021, there had been an increase in BEC/EAC complaints. Trend Micro has determined the five types of BEC/EAC frauds: the Bogus Invoice Scheme, the CEO Fraud, the Account Compromise, Attorney Impersonation, and Data Theft. You can find definitions here: https://www.trendmicro.com/vinfo/us/security/definition/business‑email‑compromise‑(bec).

The use of cryptocurrency, which is a form of virtual funds, is currently rising within these scams. The FBI PSA alert number I ‑041321 states that cryptocurrency “…is popular among illicit actors due to the high degree of anonymity associated with it and the speed which transactions occur.” You can find more information at:

https://www.ic3.gov/Media/Y2021/PSA210413

The BEC/ESA exploitation has undoubtedly spread due to the COVID‑19 epidemic, which launched the advent of virtual meeting platforms, and caused the separation of offices and employees, making individuals more susceptible to these digital deceivers.

It is truly incumbent upon the honest and initiative‑taking businesspeople in our global society to educate their staff and key personnel, while awareness at an all time high.

If you find that you are the victim of a fraudulent activity, contact your financial institution immediately to request a recall of funds. Regardless of the amount lost, file a complaint with www.ic3.gov or, for BEC/EAC victims, BEC.ic3.gov, as soon as possible.

M. “Mike” Adams, EnCE, TX DPS # A17351
TALI, TACDL, NACDL
www.pfforensics.com

Celebrating What Freedom and Independence Mean: Declaration Readings – 2022

Every year we gather together, across the State of Texas and beyond, to read the Declaration of Independence on the courthouse steps in order to remind those that seek to do injustice that we are here to defiantly stand in their way. This symbolic gesture probably means something different to each of the folks that read. However, regardless of our political and social backgrounds, we all read to protect the rights and liberties that we hold dear and that we fight to defend each and every day. The founder of this wonderful 13‑year‑old tradition—Robert Fickman of Houston—will join me in coordinating statewide readings again this year. Those of you who have been involved in the past—you know who you are—will soon be contacted with information about the 2022 readings.

If you are not familiar with the TCDLA Declaration readings, you have not been paying attention. Patriotic criminal defense lawyers across Texas gather at the local courthouse and simply read the Declaration of Independence. (Our readings have inspired similar events in other states and in foreign countries.) Sometimes, it means just one lawyer reading to an audience of none on a small town square. Sometimes, it means a dozen or more lawyers reading to large crowds on expansive courthouse lawns as flags fly and children play, and with everyone singing patriotic songs. We hope those who witness or participate in a reading come away with an appreciation of what Independence Day truly means.

The 2022 readings will take place on July 1 or on whatever date works best for your community around Independence Day. If you  have been involved as an organizer of a local Declaration reading in the past, we would appreciate you confirming with us you will organize again this year. If you have not been involved in a Declaration reading in years past but want to get involved this year, please contact us: Robert Fickman of Houston, 713‑655‑7400 (), or Chuck Lanehart of Lubbock, 806‑535‑2689 (chuck@lubbockcriminaldefense.com).

Please join us in honoring our nation’s most sacred document in the spirit of independence.

Claim your Community!

The Professional Ethics Committee for the State Bar of Texas – Opinion No. 690

This article was first published in the State Bar of Texas Journal in October of 2020.
Submitted by: Keith Hampton

Question Presented

Does a lawyer who represents a defendant in a criminal matter violate the Texas Disciplinary Rules of Professional Conduct if, after receiving tangible evidence from the lawyer’s client, the lawyer does not reveal the existence of the evidence until trial and refuses to allow the prosecuting attorney to inspect the evidence until the court orders the lawyer to do so?

Statement of Facts

A lawyer represents a client who is in jail awaiting trial in a felony domestic violence case. While in jail, the defendant receives several letters from a victim in the case that contain relevant information. The defendant gives those letters to the lawyer, who takes the letters to his office for safekeeping. The lawyer does not reveal the existence of the letters until trial. The prosecuting attorney informally asks to inspect the letters, but the lawyer refuses. The lawyer continues to refuse to allow inspection of the letters until ordered to do so by the court after a hearing.

Discussion

“Unlawful” obstruction or concealment in general. Rule 3.04(a) of the Texas Disciplinary Rules of Professional Conduct prohibits the unlawful obstruction, concealment, alteration or destruction of evidence. Rule 3.04(a) provides:

“A lawyer shall not… unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.”

To constitute a violation of Rule  3.04(a),  the  obstruction or concealment must be done “unlawfully.” The term “unlawfully” is not defined in the Rules.

Nevertheless, as discussed below, the term “unlawfully” is generally understood to refer to conduct that violates a statute, court order, or other mandatory disclosure obligation.

Any obstruction or concealment that violates criminal law would clearly be “unlawful” and therefore would violate Rule 3.04(a). Criminal conduct related to obstruction or concealment could also likely violate subsections (2), (3), (4), or (12) of Rule 8.04(a):

“A lawyer shall not:”

(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) engage in conduct constituting obstruction of justice; . . . [or]

(12) violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

Whether particular conduct violates a criminal obstruction statute is a question of substantive law that is outside the Committee’s purview. The Committee is not aware of any authority holding that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime.

Obstruction or concealment of evidence is also “unlawful” if it violates a court order. For example, a lawyer in possession of tangible evidence may violate Rule 3.04(a) by knowingly failing to obey a court order requiring production of the evidence. Such conduct could also violate Rule 3.04(d), which provides:

“A lawyer shall not… knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience.”

Finally, a lawyer acts “unlawfully” for purposes of Rule 3.04(a) if the lawyer knowingly fails to provide evidence when disclosure is mandated by the rules of the tribunal, a subpoena, a discovery obligation, a cooperation agreement, or the like (hereafter, a “Mandatory Disclosure Obligation”). It is not unlawful, however, for an attorney to withhold ordinary tangible evidence pending a ruling on a good faith, legally available objection, motion for protection, or other procedurally legitimate challenge to a Mandatory Disclosure Obligation.

Mandatory Disclosure Obligations of criminal defense counsel. There is no traditional discovery process in Texas that allows the State to obtain evidence from a criminal defendant. Absent a court order, therefore, a lawyer who receives ordinary tangible evidence from a client generally does not have an obligation to turn over the evidence to the prosecuting authority. In such a situation, the lawyer does not act unlawfully, and consequently does not violate Rule 3.04(a), merely by maintaining non‑destructive custody of such evidence.

Special Criminal Evidence. It is generally accepted that a lawyer has a self‑executing obligation to turn over some special types of tangible evidence. This opinion will refer to such evidence as “Special Criminal Evidence,” as opposed to “ordinary evidence.” The definition of Special Criminal Evidence varies by jurisdiction, but generally includes contraband, the instrumentalities of a crime, or the fruits of a crime. Common examples are illegal narcotics, a murder weapon, and stolen jewelry. Depending on the jurisdiction, the definition of Special Criminal Evidence may also include documents and records directly involved in the perpetration of a crime, such as book‑making receipts or falsified records, as well as other direct evidence of the client’s involvement in the crime (such as a bloody glove). The rationales offered to support the obligation to turn over Special Criminal Evidence are that (1) possession of such evidence—by anyone—is usually illegal, (2) preparing the client’s defense does not require counsel to possess the evidence, and any evanescent evidence (such as fingerprints) could degrade while in the lawyer’s possession.

Most United States courts that have considered the issue have held that a lawyer who comes into possession of Special Criminal Evidence—however defined in that jurisdiction—has a self‑executing obligation to turn over the evidence to police or other law enforcement authorities. See Rubin v. State, 602 A.2d 677,  686  (Md.  1992) (collecting cases); see also Hitch v. Pima County Superior Court, 708 P.2d 72, 75 (Ariz. 1985); In re Ryder, 381 F.2d 713, 714 (4th Cir. 1967) (“It is an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime”); see generally Restatement (Third) of the Law Governing Lawyers § 119 (2000) (lawyer must notify prosecuting authorities or turn over the evidence after reasonable time for non‑destructive testing); Gregory C. Sisk, The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster’s Computer and Bloody Knives under the Stairs; 89 Wash. L. Rev. 819 (2014); Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan. L. Rev. 813 (2011).

It appears to be the general rule that, before turning over Special Criminal Evidence to law enforcement authorities, a lawyer may be allowed to examine the evidence and subject it to tests that do not alter or destroy material characteristics of the evidence. Restatement (Third) of the Law Governing Lawyers § 119 (2000). It also appears to be the general rule that if a lawyer turns over Special Criminal Evidence acquired from a client, the trial court should not allow the jury to learn the source of the evidence. See Rubin v. State, 602 A.2d at 688 (collecting cases); see also Henderson v. State, 962 S.W.2d 544, 556 (Tex. Crim. App. 1997) (holding that trial court properly compelled lawyer to turn over maps received from client when kidnapping victim was possibly still alive, but noting that neither the client’s communications to the attorney nor the attorney’s communications to law enforcement could be admitted at trial); Sanford v. State, 21 S.W.3d 337, 344 (Tex. App.—El Paso 2000, no pet.), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (“[b]y allowing the State to recover the evidence, the public interest is served, and by refusing the State an opportunity to disclose the source of the evidence, the attorney‑ client privilege is preserved”). At least one jurisdiction has endorsed a procedure designed to avoid disclosing the source of the evidence to the prosecution. See District of Columbia Rules of Professional Conduct, Rule 3.4, Comment 5 (D.C. Office of Bar Counsel may accept evidence and turn it over to proper authorities without revealing its source, thereby preserving the defense lawyer’s obligation of confidentiality).

At present, the scope of a lawyer’s self‑executing obligation to turn over Special Criminal Evidence has not been well‑defined in reported Texas law. E.g., Sanford v. State, 21 S.W.3d at 344, n. 6 (declining to decide question of whether attorney had an obligation to reveal to law enforcement the location of an instrumentality of the crime, which the lawyer had learned from client); Henderson v. State, 962 S.W.2d at 556 (referring to “cases in other states that require an attorney to release physical evidence in his possession to the authorities but prevent the government from disclosing to a trier of fact that the evidence came from the defendant’s attorney”). For purposes of this opinion it is sufficient to note that a Texas court might recognize a self‑executing obligation to produce Special Criminal Evidence. If so, a violation of that obligation would be “unlawful” for purposes of Rule 3.04.

Application to assumed facts. The Committee now turns to the specific statement of facts presented at the start of this opinion. The assumed facts involve an incarcerated client who, during a jailhouse visit, gives tangible evidence (letters) to his lawyer. At the time of receipt, the lawyer is not subject to any order or agreement that mandates producing the evidence to the State. The lawyer declines to produce the letters in response to an informal request from the prosecuting attorney but produces the letters when ordered to do so by the trial court.

The lawyer is not subject to a self‑executing obligation of production by virtue of the special character of the evidence. A letter from a victim does not qualify as Special Criminal Evidence, even if the letter might be incriminating or exculpatory. Specifically, such a letter is “ordinary evidence”— it is not contraband, a fruit or instrumentality of the alleged crime, a document directly involved in the perpetration of a crime, or other direct evidence of the client’s involvement in the crime (such as a bloody glove). A Texas criminal defense attorney has no obligation to turn over ordinary tangible evidence to the prosecuting attorney. That the lawyer receives the ordinary tangible evidence from an incarcerated client does not change the result, assuming the lawyer does not violate the law in the process.

No obligation to accept custody of evidence tendered by client accused of a crime. The Committee also notes that a lawyer is under no obligation to accept or act as custodian of tangible evidence tendered by a client accused of a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and assuming the lawyer counsels the client as to the applicable laws regarding evidence preservation, the most prudent course is often to decline a client’s request to accept custody of evidence related to an alleged crime. See generally “What Do I Do with the Porn on My Computer”: How a Lawyer Should Counsel Clients About Physical Evidence, 54 Am. Crim. L. Rev. 751 (2017) (comprehensive discussion of advice that lawyers should give clients if lawyer declines to take possession of tangible evidence).

Unaddressed issues. This opinion does not address (a) the destruction or alteration of evidence, (b) a lawyer’s obligation with respect to mere information received from a client related to tangible evidence (e.g., the location of a corpse or murder weapon), (c) a lawyer’s obligation with respect to tangible evidence independently discovered by the lawyer or the lawyer’s agents, (d) evidence that is not provided directly to the lawyer by the client, or (e) evidence that might exonerate a co‑defendant or third‑party. The Committee also cautions that it offers no opinion regarding the application of criminal obstruction statutes and that prosecuting authorities may take a broad view on what conduct constitutes criminal obstruction or concealment.

Conclusion

A lawyer who elects to take possession of tangible evidence from a client in a criminal matter may not conceal that evidence from a prosecuting attorney or obstruct access to that evidence if doing so would be “unlawful.” A lawyer’s conduct with regard to potentially relevant evidence is unlawful if it is prohibited by statute, court order, or Mandatory Disclosure Obligation, as defined above. In general, however, a Texas lawyer is not required to disclose ordinary tangible evidence in a criminal matter in the absence of a court order or agreement. The common law may impose a self‑executing obligation of disclosure if a lawyer takes possession of Special Criminal Evidence , such as contraband, instrumentalities of a crime, or fruits of a crime. The precise scope of such an obligation is a question of substantive Texas law to be addressed by the courts. The failure to comply with a judicially recognized obligation of disclosure would be considered “unlawful” and would violate Rule 3.04(a).

Under the facts stated in this opinion, a lawyer who obtains ordinary tangible evidence from an incarcerated client does not violate the Texas Disciplinary Rules of Professional Conduct by refusing to produce the evidence to the prosecuting attorney until ordered to do so.

A lawyer is under no obligation to accept tangible evidence from a client charged with a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and counsels the client regarding evidence preservation, the most prudent course may be to decline a client’s request to accept custody of evidence related to an alleged crime.

Opening a Public Defender’s Office: Setting the Foundation

There can be brilliant artistry in good lawyering. Everything that arises from nothing – say, progressing from an initial client meeting to charting a thorough defense strategy – has required at least one person in one moment to stand in front of something blank and wonder: what is the most right thing to do next?

The art lies in the repeated conquests of uncertainty, or perhaps, the ability to share space with that uncertainty yet find a way forward. The examples are many, but the one that comes strongest to mind is the anxiety we feel in those moments where trial creeps closer and closer and we find ourselves in that continual, turbulent swirl where we think we have the right words and questions and then, suddenly, on a late night drive back from a jail‑visit, wonder if anything we have done is remotely adequate. We are, in those moments, artists, and regardless of how self‑ critically we assess our own ability to create, that’s precisely what we must do. Because, no matter how we get there – through logic or invention or some combination of the two – the time will come when we must stand and show our slew of audiences what we have prepared. And it’s those moments that Gus from Lonesome Dove describes best: “Well, here’s where we all find out if we was meant to be cowboys.” Art and creation are at my perpetual forefront because I am the Chief Public Defender for an office that is barely three‑months old. On December 5, 2021, there was officially no such thing as the Concho Valley Public Defender’s Office. The next day there it was: grant‑funded with a seven‑county coverage area (centered in San Angelo), with no real playbook.1 But there it was and there I was, and in that long drive to the part of Texas that really should have some significant portion named for Tip Hargrove, I began my own wondering about what it means to create.

As the year unfolds, I plan to write more about what it means to build a Public Defender’s Office – successes and failures alike – but for now, I want to focus on the three areas that have been most important to our foundation.

Figuring out who we are and what we stand for

In many ways, this will be an ongoing,  ever‑evolving  process – as it should be. But our leadership team has spent a great deal of time huddling, sharing and editing ideas and drafts, and zeroing in on the essence of our who we are. What does it actually mean to be our office? What our governing why is? What principles encompass all that we say and do? Being frank is a repeated exercise in radical self‑disclosure as is being candid about fears and hopes along with allowing room for what arises. The process itself has been unifying and revealing.

The gravest mistake, I believe, is to rush past this into court. Appointments are easy for a Public Defender’s Office to come by. What is not easy to come by is building a team of people that aspires to be more than “relevant” in court in the long‑run. It takes patience, and commitment to the idea that a few months of foundation‑cementing will not only pay perennial dividends, but will ward off any sort of hasty entrance into a world that existed long before you were there.

The significance here, I believe, is that an initial goal should be the development of an authentic, clearly defined set of values that becomes a constant reference point for every decision we make. This ranges from what we consider important when we hire and how we set clear internal expectations, to drawing lines and setting boundaries – that is, creating parameters of accountability.

These critical values are ones we want our early staff to assist in creating. The values are empty words if they are thrust upon an unaccepting audience, but are powerful unifiers if they are the product of like minds working towards a shared goal. What is staggering, though, is how bonding the actual art of creating this internal pledge is. Each of us brings to the table a great deal of history that informs what we want this office to stand for. It is fascinating to see just how overlapping and simple the asks of humility, aspiration for excellence, shared passion, some combination of a kind and caring and supportive workspace are. The list is not surprising, but the act of building it has been one of the best things we have done as a young office.

Finding, appreciating, and celebrating your people

In these early days, there are two leadership principles I feel lucky to have discovered. The first is striving to be the humble choreographer of everybody else’s brilliance. At its most basic, it means that at any given moment, on any given subject, delighting in not being the most qualified subject‑matter expert in the room. And, as importantly, feeling privileged that you have that heightened level of excellence and thoughtfulness down the hall.

Choreographing this includes focusing on creating the environment encouraging the person who knows the intricacies of how to fight court costs better. It includes encouraging the person who knows how to prepare bond writs better and the person who knows how to automate repetitive motion  creation  better. It is finding and attracting this eclectic combination of spectacular minds and unleash them on the world, not to hire and stifle and ensnare.

The second principle was one that John Cage taught me when I first discovered the beautiful silence of 4:33 – let the words and questions and concerns of others be the soundtrack to your silence; gather them all. Harvest them. Explore them, pay attention to them, and let them inform what’s missing, what to adjust. Anyone can walk into a room with a megaphone – sometimes, I believe, the art lies in finding comfort in listening.

Both of these principles, soft‑ spoken as they may appear, are active behaviors. To conflate curiosity and quietude with weakness or inaction is to misread the power of what it means to encourage the people around you to reach – endlessly, endlessly – towards their own exceptionalism, and give them the space to do so. Choreography, after all, is a noiseless practice.

The privilege of collaboration

When I think of the people outside any office I have worked in who have taught me the most, I think of three: Clay Steadman, James McDermott, and Lisa Greenberg. This is not to ego‑stroke, it is to acknowledge at critical moments in my career, I have been more than fortunate to be able to talk with people whose experience adds meaningful weight to their words.

I have realized I am a phone‑ call away from the most whip‑smart people in the State. We are building a semi‑enclosed entity in San Angelo, yes, but that is more a function of geography than anything else. To be able to call Paul Chambers to discuss automation, Michelle Ochoa to hone a contested MTR practice, or Jani Maselli for any reason – it makes me tap my heart in appreciation. It is impossible to imagine laying any sort of foundation without appreciating the exceptional resources across the State that continue to redefine what it means to be generous with time and wisdom.

That brings me to a line from a book called Complexity, one that dives into the chaotic brilliance of complex organizations (of which, I believe, Public Defender Offices are very much a part): “The edge of chaos is the constantly shifting battle zone between stagnation and anarchy, the one place where a complex system can be spontaneous, adaptive, and alive.”

My hope is that our office thrives on this precipice – a sense of aliveness pervading all that we do, a space of controlled disarray allowing for the nonstop collision of ideas, and the solidarity that lets us smile at the acknowledgement that we are all in it together.

My thesis is that none of this happens without the time spent up front getting things right. Time will tell.

Nueces County Veterans Treatment Court

A few years ago, the Texas Legislature passed legislation and provided funding for specialty courts to address and serve our combat veterans. Many veterans were being arrested for crimes varying from DWI and evading to assault family violence and aggravated assault. Many of the acts leading to the arrests were in direct relation to psychological injuries received while serving of our nation, such as PTSD and/or substance abuse. Up to 20% of veterans suffer from these problems due to their service, as well as many other mental health issues such as traumatic brain injury (TBI). In essence, when “Johnny” goes off to war, somebody different comes back home. Unfortunately, to compound the problem, typical probation does little to rehabilitate those who are suffering from combat stress.

According to 2021 population statistics, Nueces County alone has 27,152 veterans living within its boundaries, giving it the largest veteran population south of Bexar County. Naval Air Station Corpus Christi and Naval Air Station Kingsville – located in Nueces and Kleberg Counties respectively – house all branches of the military in some capacity, as well as many of the servicemen and women who remain in Texas after their deployment to enjoy South Texas beaches, BBQ, and freedom. To assist all of these veterans in the area, the Nueces County Veterans Treatment Court (NCVTC) specialty court was developed in Corpus Christi.

NCVTC is overseen by the Honorable Jack Pulcher, who presides over the 105th District Court covering Nueces and Kleberg Counties. Current District Attorney Mark Gonzalez has utilized NCVTC much more effectively than his predecessor, who viewed it simply as a mechanism to gain funding for a few more prosecutors. DA Gonzalez, has welcomed the program with open arms, and the effects have been notable – the specialty court has only a six percent (6%) recidivism rate. Thanks to extra funding from the Texas Veterans Commission, NCVTC now accepts low income veterans who did not previous qualify due to financial hardships, as well as assistance for unexpected needs such as utility, housing, and transportation on a case by case basis.

The program provides a second chance to veterans through a judicially supervised, team based approach that ensures participants are monitored and receive treatment for their underlying issues. veterans are screened, assessed, and approved for participation in the voluntary program. The local defense bar, Coastal Bend Defense Lawyers Association, has been trained to seek out and recognize veterans who may qualify for this. A local jail liaison also checks for inmates who qualify for the program, notifying the specialty court and the defense attorney to act at once if they find someone eligible. (After the defense attorney reviews discovery and performs due diligence defense of course).

The program is aptly named the Veterans Treatment Court because its mission is to treat the symptoms that led to the problem. NCVTC is a hybrid “Drug and Mental Health Court” that uses a typical drug court model while applying the principles of both drug and mental health courts. The specialty court is team‑based, with representatives from the U.S. Department of Veterans Affairs, state and local rehabilitation agencies, and volunteer veteran mentors (Vets helping Vets). There are two local veterans treatment centers in Nueces County that are used, as well as various inpatient and outpatient centers across the state of Texas. NCVTC participants often experience little to no wait getting into these centers.

NCVTC is available to prior or current service members of all the armed forces, including the Coast Guard. Active, reserve and National Guard members with honorable and other than honorable discharge awards are eligible to participate. Only individuals charged with murder, manslaughter, or sex offenses cannot participate. Applicants are assessed by a committee consisting of representatives from the district attorney’s office, the defense bar, veteran’s affairs, the jail, and probation. Counselors and veteran mentors and are approved on a case‑by‑case basis. Complaining witnesses are always contacted and their approval, although not mandatory, weighs heavily. The applicant also interviews in person on a case‑by‑case basis.

There are two possible tracks once the applicant is admitted. Track 1, which is a diversionary track (pre‑trial diversion), leaves the charges pending until all fees are paid and the applicant graduates from the program. Expunction fees are waived and a volunteer attorney litigates the expunction on behalf of the graduate. Track II is the non‑ diversionary track. Any remaining supervision may be terminated early (except DWI 3rd or more, due to the law). If the participant qualifies for a non‑disclosure, assistance is provided. NCVTC, which is typically a 12‑24 month program, is 100% funded by the grant through the Texas Veterans Commission. Probation classes, abstinence monitoring and living assistance are all covered. A veteran who is already on probation can be transferred to the Veterans Treatment Court. Once the case is transferred, the Veterans Court treatment program controls, and all decisions are made by the Treatment Court and its staff. The Veterans Treatment Court has its own judge, with two prosecutors and two criminal defense attorneys assigned to serve the court. The court also has a designated probation officer, outreach coordinator from the Veterans Administration, jail liaison, and volunteer mentor representative who attends court and takes an active part in the program.

The positive aspect of the Veterans Treatment Court is that it focuses on the special needs of our veterans and the unique challenges that they face. It helps our veterans cut through the red tape and take advantage of the services offered by the Veterans Administration. Often, NCVTC leads to a disability diagnosis and support that the veteran would have never otherwise received. It does not follow the “cookie cutter” approach; rather the hands‑on specialty court focuses on the individual needs of the client.

Who Shot the Sheriff? The South Plains Trial of the Century

The following article was first published in the Lubbock Avalanche-Journal’s “Caprock Chronicles” column. It is also included in Chuck Lanehart’s upcoming book, “Marvels of the Texas Plains: Historic Chronicles from the Courthouse to the Caprock,” published by The History Press.

In the winter of 1935, two trials dominated South Plains newspaper headlines. The celebrated New Jersey trial of Richard Hauptmann for the kidnapping and murder of the Lindberg baby became known as “The Trial of the Century.” But on the South Plains, Hauptmann news coverage was overshadowed by the Lubbock trial of Virgil Stalcup, accused of murdering the Dickens County Sheriff.

Stalcup was born in New Mexico in 1907. He was small—five-feet-six and 140 pounds—with fair complexion, green eyes and balding light brown hair. Described as “pug-nosed,” he sported a gold-capped front tooth and smoked constantly. He was married at age 20, and the couple had a daughter. Stalcup found work as an auto mechanic but soon embarked on a more lucrative, brief, and intense life of crime.

His specialty was armed robbery, stealing from victims throughout the Southwest. At age 23, Stalcup landed in the Texas penitentiary, serving 125 years for robberies out of Wilbarger, Potter and Wichita Counties.

On April 13, 1934, Stalcup escaped from prison and made his way to the home of his father—O.B. Stalcup—near Lawton, Oklahoma. There, he hooked up with 38-year-old Clarence Brown of Snyder, Texas. They pulled off a string of robberies in Oklahoma, New Mexico and Texas.

When authorities closed in on O.B.’s home on June 17, there was a shootout. Stalcup was shot in the shoulder and his 54-year-old father was killed. Two police officers were wounded by gunfire. Stalcup and Brown surrendered.

After their arrest, Stalcup and Brown confessed to a number of crimes. Both were transferred to Dickens County to face trial for the robbery of a bottling company truck driver. Stalcup was transferred to Lamb County for a plea of guilty to a Littlefield robbery. After the judge sentenced him to a ten-year prison term, Stalcup told the judge he “had no intentions of serving the sentence.” He was returned to Dickens County.

The Dickens County Sheriff was 43-year-old Bill Arthur. Born in New Mexico in 1886, Arthur moved to Dickens County as a young man. He married Nannie Stegall in 1908 and the couple had six children. In 1931, he was elected sheriff and the family moved into the first-floor living quarters of the 1909 Dickens County Jail. Prisoners were housed on the second floor of the quaint stone structure.

In mid-July of 1934, Sheriff Arthur confronted W.J. “Jenks” Yarborough in McAdoo. Yarbrough, a 40-year-old farmer, was suspected of illegally carrying a handgun. Yarbrough pulled his .25 caliber pistol and shot Sheriff Arthur five times. The Sheriff did not fall. He pulled his pistol and fired but missed as the shooter fled. The Sheriff walked to a nearby icehouse and told the proprietor, “Let’s go to the hospital.”

He was treated at a Lubbock sanitarium. Doctors were unable to remove four bullets lodged in the Sheriff’s thigh, buttocks and chest. Nevertheless, the Sheriff was soon well enough to resume his duties.

His wife Nannie told Sheriff Arthur he should find another line of work. “I had rather he pick cotton – anything,” she said. But her sound advice was ignored.

Yarbrough was soon arrested and taken to the Dickens County Jail and housed in a cell adjacent to Stalcup and Brown.

On August 18, Stalcup and Brown—brandishing a knife—escaped from the jail. Within days, Brown was re-captured at his home in Snyder and returned to the Dickens County Jail. His attractive 27-year-old wife, Thelma, often traveled to see her husband in the hoosegow. On one such visit, she charmed jailers in order to smuggle a pistol into the jail. The pistol would later factor into the killing of the Dickens County Sheriff.

Stalcup remained free for a couple of months. In the badlands near Clarendon, the outlaw was spotted by a large posse of well-armed lawmen. During a wild ten-mile car-and-foot chase, deputies fired at him with machine guns. He was captured unharmed on October 23 and was returned to Dickens County. During his two months on the lam, Stalcup had committed robberies in at least three Texas counties. A reporter wrote he faced 254 years in prison.

Just four days later, the commode on the second floor of the jail overflowed. The layout of the tiny, five-cell jail required Sherriff Arthur to enter the cellblock in order to examine the problem with the toilet.

Stalcup and Brown played cards in the southeast cage as Yarbrough read in the northeast cage closest to the commode. Apparently, none of the cell doors were locked.

The Sheriff knelt over the commode to repair the plumbing. Suddenly, a shot rang out! Sheriff Arthur stumbled into Yarbrough’s cell and fell to his knees by the cot, mortally wounded from a bullet to his neck.

Stalcup and Brown were gone, along with the Sheriff’s weapons and car. Investigators suspected Sheriff Arthur had carelessly entered the cellblock armed and was killed with his own pistol.

A nationwide manhunt for Sheriff Arthur’s alleged murderers—Stalcup and Brown—paused on October 30 for the Sheriff’s funeral. More than 5,000 mourners, including dozens of law enforcement personnel from several states, attended.

Four days later, both desperados were arrested near Houston without incident. “I guess this is the last break I’ll ever make,” Stalcup said.

Talk of vigilante justice in Dickens meant the duo would be housed in the more secure Lubbock County Jail. Stalcup and Brown were indicted for capital murder. Stalcup’s case would be tried first, on a change of venue to Lubbock County.

Trial began Monday, February 5, 1935, in Lubbock’s stately 1916 courthouse. Described as “calm, cocky and pudgy-faced,” Stalcup smoked constantly during the proceedings. With his blonde wife holding his hand, Stalcup’s five-year-old daughter clambered over his lap, kissing him repeatedly—as two dozen officers stood nearby for security.

Stalcup’s young court-appointed lawyers were from Lubbock: Hugh Anderson, Dub Benson and Robert Allen. The prosecution was led by special prosecutor George Dupree, a legendary Lubbock trial lawyer. Dickens County DA Alton Chapman and Lubbock County DA Dan Blair augmented the State’s team. They subpoenaed 60 witnesses.

Jury selection was completed on Tuesday, and when testimony began Wednesday morning, the courtroom was packed with observers. Another 200 were turned away.

The State’s first three witnesses were prisoners present in the jail when Sheriff Arthur was murdered though none saw the attack. Jenks Yarbrough, serving a 15-year prison sentence for a previous shooting of the Sheriff, testified he looked up when he heard the shot and saw Stalcup “holding a big gun.”

Inmates Curtis Squyres and Luther Hall both saw Stalcup with a “drawn pistol” after the shot rang out. Squyres hollered for help as Stalcup ran down the stairs. Stalcup yelled, “Shut your (expletive) mouth.” Hall saw Stalcup open the cell block door with keys in his left hand and saw Brown follow Stalcup down the stairs.

The Sheriff’s 12-year-old daughter Creola was home in her family’s first-floor jail apartment when she heard the shot. Tearfully, Creola told the jury she saw the jail door open and Stalcup with a gun. As Stalcup drove away in the Sheriff’s car, Creola chased on foot, returning to see her daddy’s lifeless body being carried down the stairs.

Stalcup never testified but granted interviews to a reporter during the trial. “I didn’t kill the man,” he said, refusing to name the shooter. He praised Sheriff Arthur. “I admired him myself. I respected him. He was always kind to me.”

A firearms expert testified the gun used to kill the Sheriff could not have been either of the two weapons known to belong to the Sheriff, a .38 and a .45. An older model revolver was presented as evidence. It had been left at Brown’s brother-in-law’s home by Stalcup and Brown after their jail break. However, no evidence was offered to show Brown’s wife smuggled the revolver into the jail, and no evidence connected the revolver to the Sheriff’s murder.

The State rested. The defense called a dozen quick but ineffective witnesses, most of whom had already testified for the State. Impassioned final argument lasted six hours on Monday, February 11, 1935, and jury deliberations began. The unanimous guilty verdict came at 9:13 Tuesday morning, and the jury recommended the death penalty. It was the first death sentence ever imposed by a Lubbock County jury.

Upon hearing his fate, Stalcup’s lips began to twitch. It was the only emotion he displayed during the entire trial, but it did not last long. Two minutes after the verdict, the condemned man was smiling as he shook hands with his lawyer.

***

In April of 1935, a slender and bespectacled Clarence Brown pled guilty to the Sheriff’s murder and was sentenced to 99 years in prison. He died in the Texas penitentiary in 1959. His wife Thelma was sentenced to two years in prison for smuggling the pistol into the jail. She served 13 months in the pen and seemed to disappear.

A year later, Stalcup’s appeals failed over the next year. He was returned from death row to Lubbock to receive his execution date. He spoke to reporters, who wrote he had, “lost his bravado and embraced the Catholic faith.” Again, he denied killing the Sheriff and complained of “perjured testimony” during his trial. “There’s a higher power that will even up all these things some time. They’ll have to pay for it someday.”

His execution date was scheduled for May 4, 1936. Stalcup left the courtroom arm-in-arm with his mother, but his wife and daughter were not present. During a search, authorities found he was in possession of Sheriff Arthur’s handcuff key, though it did not fit the shackles he was wearing.

The evening before he was to be electrocuted, Stalcup was offered a special last meal. He refused. At 12:03 am, he walked firmly to “Old Sparky” and died calmly without making a statement.

Stalcup was the 129th man to be executed by electrocution in Texas. The state’s electrocution method of execution, which began in 1924, took the lives of 361 men, no women. Since the first lethal injection took place in 1982, Texas has executed 573, including six women (through February of 2022).

To Get to the HEART of the Matter, You Need to Look at the ACEs: Adverse Childhood Experiences and their Correlation to Substance Abuse and other Health Concerns

As many of us know, substance abuse is a common factor in criminal defense work. On any typical day, a felony courtroom anywhere in the state of Texas (or any state for that matter) may see dozens of cases, and I would venture to argue that the majority have a substance abuse component to them.  As some of these cases are non-violent or non-aggravated, many of these clients are screened for drug rehabilitation programs as part of a probation recommendation. Some of these clients get sober, complete the required program, and go on with their lives.

Unfortunately, many clients relapse and find themselves in the unfortunate situation of another charge and perhaps enhanced penalties. Research shows that those who use drugs are more likely to offend than those who do not use drugs. Drug users were 7-8 times more likely to offend than nondrug users.1 Drug users are also more likely to reoffend. 65% of drug offenders are rearrested within 3 years of release from prison, 74% were arrested within 5 years, and 81% percent within 10 years.2 Perhaps the next time your client is discussing their drug addiction, it might be helpful to consider where this behavior first started and how it led to their current situation. Perhaps we are treating the symptom and not the catalyst for the addiction.

When I reflect on the large number of cases I’ve worked on over the past 20 years, it’s clear that a surprisingly high number involved substance abuse, albeit many times that was not the offense charged. For some offenses, like possession of a controlled substance or driving while intoxicated, the substance abuse was clear. However, in many of the other cases, it was an essential element for the actions committed. In my experience virtually all property-related crimes involve substance abuse issues. For example, an addict needing to secure funds to support their habit might commit a burglary or robbery. So the offense was charged as a property-related crime, but the underlying issue is substance abuse.

From there I started to notice that many of my clients had suffered significant childhood trauma. I began to think about the relationship between drug addiction and childhood trauma. Even more so, these addiction problems sometimes began years later and continued decades after the trauma. Surely there must be a connection? How was it that so many of my who clients were deep in addiction also had suffered significant trauma during their formative years? It surely couldn’t be a coincidence that persons who underwent troubling and significant distress during their childhood later turned to drugs. After all, no one wakes up wanting to be a drug addict. The drugs must be a means to an end; to ease the pain and to help forget of the terrifying ordeals they went through and continue to endure today as a result of their trauma.

Due to my curious nature, I started doing some research to see if there was any research on the subject. This led me to the study of ACEs (Adverse Childhood Experiences), an article by Jane Ellen Stevens, and a research article in the American Journal of Preventative Medicine.3 4 This literature began to put the pieces together of the puzzle that had been eluding me for years.

So what are Adverse Childhood Experiences (“ACEs”) and why should we care? ACEs are basically traumatic events that occur before the child turns eighteen (18). ACEs can take many forms like abuse, trauma, and violence and be both direct and indirect. The study of ACEs looks at the relationship of childhood trauma and adult health risk behaviors and disease.5 This does not solely include drug addiction. Evidence from epidemiological and neurobiological studies suggest ACEs such as sexual and physical abuse and related adverse experiences to be closely related to enduring brain dysfunctions that, in turn, affect physical and mental health throughout the lifespan.6

In essence, an ACE questionnaire asks ten (10) questions regarding childhood trauma.7 These question categories cover topics such as psychological abuse, physical abuse, sexual abuse, substance abuse by a parent, depression in the household, and loss of a parent. Research suggests that a high ACE score leads to a greater risk of chronic disease, mental illness, substance abuse, and similar issues.8 9 10

Compared to people with zero (0) ACEs, people with ACE scores are two (2) to four (4) times more likely to use alcohol or other drugs and to start using drugs at an earlier age.11 People with an ACE score of five (5) or higher are seven (7) to ten (10) times more likely to use illegal drugs, to report addiction, and to inject illegal drugs.12

Research has shown that drug use is the coping behavior that people adopt because they weren’t provided with a healthy alternative when they were young.13 Many young people exhibiting early signs of trauma such as trouble concentrating, acting out, depression, or anxiety are placed on prescription drugs to calm them down. While the intent behind this is surely commendable, research shows that the body “keeps score”.14 That is, the brain of someone who suffered multiple ACEs is still triggered by things that remind them of their trauma. Zoloft, Ritalin, and other related prescription drugs do not erase those triggers, memories, or flashbacks.15 Similarly, narcotics ease the pain, albeit temporarily.  The linking mechanisms appear to center on behaviors such as smoking, alcohol or drug abuse, overeating, or sexual behaviors that may be consciously or unconsciously used because they have the immediate pharmacological or psychological benefit as coping devices in the face of the stress of abuse, domestic violence, or other forms of family and household dysfunction.16

As mentioned earlier, high ACE scores do not only lead to drug usage. They also can lead to significant health issues. An ACE score of four (4) or more nearly doubles the risk of heart disease and cancer. It increases the likelihood of becoming an alcoholic by 700 percent and the risk of attempted suicide by 1200 percent.17 Exposure to four (4) or more ACEs also had an increased risk for sexually transmitted disease, physical inactivity, and obesity.18 Exposure to higher numbers of ACEs increased the likelihood of smoking by the age of 14, chronic smoking as adults, and the presence of smoking-related diseases.19

Exposure to ACEs can also affect a person’s mental health and related behaviors. There is clear evidence that ACE and ACE-related disorders are associated with enduring effects on the structure and function of neural stress-regulatory circuits such as for example the hippocampus, the amygdala or the ACC (anterior cingulate cortex) and promote alterations in stress sensitivity and emotion regulation in later life.20 Exposure to ACEs can create disturbances in cognitive and affective processing such as a heightened attention toward threatening stimuli, heightened experience of loneliness, social cognitive functioning, and social interactions including aggressive behaviors.21

According to Jane Ellen Stevens’ article, some practitioners consider addiction to be the wrong term to describe those addicted to drugs. It is argued that the term “ritualized compulsive comfort-seeking” should be used instead.22 They state that “ritualized compulsive comfort-seeking” is a normal response to the adversity experienced in childhood, just like bleeding is a normal response to being stabbed.23

As you can see, exposure to ACEs can have detrimental, long-term effects on a person’s personality, behavior, and cognitive functioning, as well as their physical well-being. These do not simply go away when someone becomes an adult. They stick around and affect choices that are made on a daily basis years after the trauma.

So where do we go from here? Why is this important? As any responsible attorney, let alone compassionate human being, one might consider questioning their clients during interviews about their childhood. Instead of focusing on the drug usage, it might be more helpful and probative to inquire about the reasons for the addiction. “Dig a little deeper,” I would say.  

Think of it this way, drug treatment without treating the root cause is like putting a band aid on a bullet wound. We can treat the symptoms, but we won’t see lasting results until we take the bullet out and let the healing begin. Likewise, our clients dealing with debilitating drug addiction will not get better until we discover the root cause(s) of their addiction. Once we identify and treat the reasons for the addiction, the need for drugs dissipates. For many clients, a referral to a therapist can make all the difference. Therapy with a trained mental health counselor is fundamental in addition to rehabilitation with a drug treatment provider.

Many times, during a negotiation or sentencing hearing, attorneys argue that their client had a difficult upbringing. Later on, they also discuss drug usage. However, in my experience it is rare for attorneys to connect the dots to show the relationship. That relationship absolutely exists, so we must connect the dots to help the judge and the jury see the complete picture.

Hopefully this article gave you something to think about. While so many of our clients are struggling with drug addiction, the “root cause” of their forage into substance abuse likely had its basis in childhood traumas and struggles decades earlier. While this does not condone or excuse the offending behavior, it surely puts a different light on it and the many reasons for the conduct and actions that follow. Perhaps the next time your client is discussing their drug addiction, it might be helpful to consider where this behavior first started and how it led to their current situation.

The Critical Role of Race in Juvenile Justice

Excerpt from the Texas Education Code Section 28.0022, effective December 02, 2021:

“(4) a teacher, administrator, or other employee of a state agency, school district, or open-enrollment charter school may not:

(A) require or make part of a course inculcation in the concept that:

(vii) the advent of slavery in the territory that is now the United States constituted the true founding of the United States; or

(viii) with respect to their relationship to American values, slavery and racism are anything other than deviations from, betrayals of, or failures to live up to the authentic founding principles of the United States, which include liberty and equality.” See Tex. Educ. Code § 28.0022(a)(4).

“Not everything that is faced can be changed, but nothing can be changed until it is faced.”  — James Baldwin

Race has played and continues to play a significant role in the Texas juvenile justice system. Children of color, particularly African American children, comprise a disproportionately higher percentage of children referred to the juvenile justice system.  They also comprise a disproportionately higher percentage of children who receive the most severe consequences. It is critical to understand this fact. If we are to improve the system, we must honestly examine where we are and where we came from. Only then can positive systemic change begin to happen.

Harris County, a Case Study

Harris County has a population of approximately 4.7 million. According to the U.S. Census Bureau in its July 01, 2021, population estimates, 43.7% are Hispanic/Latino, 28.7% are White alone (not Hispanic or Latino), and 20.0% are African American alone.  One might think that juvenile court referrals in Harris County would track similarly to these demographics.  However, the most recent Harris County Juvenile Probation Annual Report from 2020 (Report) shows a distinct contrast between the demographics of the county as a whole and the demographics of the children referred to Harris County Juvenile Court.

According to the Report, there were a total of 3,830 referrals made to juvenile court in 2020. That was down significantly from 2019, when a total of 6,579 referrals were made. It is likely that the pandemic and the closing of many schools for part of the year contributed to the drop in referrals.

Of those 3,830 referrals in 2020, 1,698 were for Hispanic/Latino children, 1,662 were for African American children, and 404 were for White children, with the remaining 66 referrals classified as other. By percentage, that breaks down to 44.3% Hispanic/Latino, 43.3% African American, and 10.5% White.

The disparity is even greater for children who were detained that year in Harris County. The Report shows children of color were more likely to lose their liberty.  Of all the children who were detained, 47.4% were African American, 44.2% were Hispanic or Latino, and 7.21% were White.

African American girls had it worst of all. Of the girls detained, more than half, or 52.3%, were African American, while 34.9% were Hispanic/Latino and 10.5% were White.

This brief case study is illustrative as to how significant and troubling the racial inequities are for children of color entering the juvenile justice system. Other counties, such as Dallas County, have similar statistics.

And while it is important understand the racial disparities in the juvenile justice system as they currently exist, it is more important to answer the question, why do they exist? The solution to this problem may be complex, but the answer as to why we have this problem, even into the 21st century, is not.

Racial disparities and unequal treatment of people of color, particularly African Americans, have existed since the inception of Texas.

Contrary to what the newly enacted Section 28.0022 of the Education Code claims, slavery and racism are not a deviation, betrayal, or failure of our founding values. Slavery and racism are an integral part of our founding values. The ramifications of these values have permeated our systems throughout this state’s history and continue to do so today.

Republic of Texas Constitution

The Constitution of the Republic of Texas was drafted on March 1, 1836, adopted 15 days later, and ratified by the people of Texas in September of that year. The drafters of the constitution borrowed many concepts from the U.S. Constitution, such as a preamble and separation powers among three branches of government. There were also provisions that deviated from the U.S. Constitution.

What is clear, though, is that Texas aggressively sought to be a slave holding republic. This is made plain in section 9 of the constitution, under the “General Provisions,” which states:

“All persons of color who were slaves for life previous to their emigration to Texas, and who are now held in bondage, shall remain in the like state of servitude, provide the said slave shall be the bona fide property of the person so holding said slave as aforesaid. Congress shall pass no laws to prohibit emigrants from the United States of America from bringing their slaves into the Republic with them, and holding them by the same tenure by which such slaves were held in the United States; nor shall Congress have power to emancipate slaves; nor shall any slave-holder be allowed to emancipate his or her slave or slaves, without the consent of Congress, unless he or she shall send his or her slave or slaves without the limits of the Republic. No free person of African descent, either in whole or in part, shall be permitted to reside permanently in the Republic, without the consent of Congress, and the importation or admission of Africans or negroes into this Republic, excepting from the United States of America, is forever prohibited, and declared to be piracy.”

For its brief existence, the Republic of Texas was a slave holding, whites-only nation. If the above still leaves doubt that racism and white supremacy were a part of this state’s founding values, Texas’ declaration of secession 25 years later should erase those doubts.

“A Declaration of the causes which impel the State of Texas to secede from the Federal Union”

On February 2, 1861, the state of Texas seceded from the United States of America. The document proclaiming the secession, with the above cumbersome title, listed Texas’ various grievances against the Union. In reality, there was only one reason that Texas left the Union. The reason was slavery. Texas seceded because it wanted to maintain that peculiar institution. Texas, along with the other seceding states, was concerned that slavery would eventually be abolished in the expanding United States of America of the mid-19th century.

The excerpt below from Texas’ declaration of secession makes clear the state’s intent behind secession:

“We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.

That in this free government all white men are and of right ought to be entitled to equal civil and political rights; that the servitude of the African race, as existing in these States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator, as recognized by all Christian nations; while the destruction of the existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave-holding States.”

Racial Disparities Continue Into the 20th Century and Beyond

Texas’ foundational racism has touched every part of society, including the juvenile justice system. History is replete with examples of disparate and discriminatory treatment toward children of color, especially towards African Americans.

For instance, in the 1920s, some of the children who had been committed to the State Juvenile Training School in Gatesville were “leased out” to work on local farms. Most of those “leased out” were African American. The practice of leasing inmates was essentially slavery by another name. Another example is the 1913 Juvenile Act, which states that “the white boys shall be kept, worked and educated entirely separate from the boys of the other races, and shall be kept apart in all respects.”

African American girls didn’t fare much better. In the first part of the 20th century, because of discrimination, African American girls were not allowed into training schools. Thus, African American girls who were arrested would likely either be placed in adult jail or released into the community.

In 1927, the Texas Legislature finally authorized the construction of a training school specifically for African American girls. This authorization was meaningless, however, at least for the next 20 years. It took that long for the legislature to provide funding for the construction. After the school was built, and then through most of its existence, the administrators had to manage with less funding and fewer physical resources than the other schools.

More recently, in this century, we can see inequalities in the commitment of children to the state’s carceral system for juveniles, the Texas Juvenile Justice Department (TJJD). TJJD’s most recent profile of new commitments is for FY 2013-2017. These statistics show that for that time-period, 43.7% of new commitments were Hispanic or Latino, 37% were African American, and only 18.8% were White. Compare that with the Texas demographic data from the 2020 census, which shows the population to be 41% White alone (not Hispanic or Latino), 39.7% Hispanic or Latino, and 12.9% African American.

Truth

To deny that slavery and racism have been integral parts of Texas’ legacy is to deny the truth. History and statistics bear this out. As James Baldwin intimated, we must face this uncomfortable truth if we are to make positive changes. Turning a blind eye and forcing teachers to teach a whitewashed version of our state’s history does a disservice not just to our children of color, but to all children. And it will likely doom us to repeat those same injustices over and over again. We can, and must, do better.

The opinions expressed in our published works are those of the author(s) and do not necessarily reflect the opinions of TCDLA and/or its editors.

Outcry Statements: ARTICLE 38.072, C.C.P. Part 2

D. Notice Requirement

1. Contents

The prosecutor must give notice of intent to offer the outcry statement. The notice must be in writing and must give the defendant adequate notice of the content and scope of the outcry testimony.  The summary must describe the alleged offense in some discernable manner; that is, it must inform the defendant of the essential facts relating to the outcry statement.1  The notice must identify the sponsoring witness by name. It must provide a written summary of the outcry witness’s statement.2 Courts reviewing the adequacy of the notice will contrast the prosecutor’s written summary with the witness’s testimony at trial.3

The notice must inform the defendant of the essential facts to be related in the outcry statement.4 A general allusion that something in the nature of sexual abuse has occurred is not specific enough to constitute the outcry referenced by the statute.5  The indicia of reliability that a trial court may consider in determining whether to admit a child’s hearsay statement under Article 38.072 are:  (1) whether the child testifies at trial and admits making the out-of-court statement, (2) whether the child understands the need to tell the truth and has the ability to observe, recollect and narrate, (3) whether other evidence corroborates the statement, (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults, (5) whether the child’s statement is clear and unambiguous and arises to the needed level of certainty, (6) whether the statement is consistent with other evidence, (7) whether the statement describes an event that a child of that age could be expected to fabricate, (8) whether the child behaves abnormally after the contact, (9) whether the child has a motive to fabricate the statement, (10) whether the child expects punishment because of reporting the conduct, and (11) whether the accused had the opportunity to commit the offense.6

In Espinoza v. State, 571 S.W.3d 427 (Tex. App.–Ft. Worth 2019), the trial court was found to have acted within its discretion when it allowed a forensic interviewer to testify as the minor’s outcry witness although the minor had told her sister something about the abuse before the forensic interviewer, where neither party developed any testimony about what the minor victim told her sister, leaving the record void as to any specific details of the statement to the sister.  Inconsistency in a child’s outcry in later trial testimony is a matter of credibility and goes to the weight of the evidence, not the reliability of the statement or its admissibility.7

2. Timing

Notice must be given to the defense fourteen days prior to the date the proceeding begins.8  The purpose of the 14-day notice is to prevent the defense from being surprised by the introduction of the outcry testimony.9

3. Remedies for Non-Compliance

If outcry notice is not filed in a timely fashion, or is insufficient in its scope, the trial court may exclude the statement from evidence. Alternatively, on proper request, the court may grant a continuance allowing the defense fourteen days to prepare for the statement. If a court declines to exclude the evidence due to non-compliance with the notice requirement the defendant probably must ask for a continuance in order to preserve error.10

4. Harmless Error Potential

The purpose of the notice requirement is so that defense counsel receives timely, adequate notice of the content and scope of the outcry statement.  Several cases say this is done to prevent surprise inherent in its introduction.11 Thus, if the defendant has actual knowledge of outcry testimony substantially before trial, and if there is no evidence of surprise, appellate courts have held that failure to satisfy the statutory notice requirement is harmless.12

The improper admission of hearsay of a child abuse complainant is non-constitutional error that is harmless unless it affects the defendant’s substantial rights.13  Failure to provide notice is harmless if the defendant has been permitted to review the State’s entire file.14 Additionally, failure to give the required statutory notice is deemed harmless if the statement is testified to without objection by the complainant or other trial witnesses.15  In Padilla v. State, 278 S.W.3d 98, 107 (Tex. App.–Texarkana 2009), the State’s failure to give the defendant written notice of the outcry statement was harmless because defense counsel admitted he was not surprised and he was prepared to continue with the trial and the jury had heard much of the same testimony from the complainant during the trial.  In Prieto v. State, 337 S.W.3d 918 (Tex. App.–Amarillo 2011, pet. ref’d.), the Court found the admission of erroneous outcry testimony to be harmless because similar testimony had been admitted into evidence under Rule 803(4) and the victim had testified in great detail, and without objection, to multiple instances of abuse by the appellant.16 In Owens v. State, supra at 704, the court held that any error in the substance of the outcry notice was harmless where there was no indication the defendant was surprised by the outcry testimony and the difference between the notice and the testimony.

The idea that the purpose of the notice of the outcry testimony statement is just to prevent surprise is contrary to an explanation by Judge Clinton in Garcia v. State regarding the purpose of Article 38.072 notice. There, Judge Clinton observed that Article 38.072 ameliorates the lack of reliability of hearsay “by ensuring that the opposing party not only be given notice that it will be introduced, but also be provided the witness’s name and a summary of the proposed evidence at least fourteen days before trial. This gives the opposing party the opportunity to investigate the witness and the ‘time, content, and circumstances of the statement’, and thereby prepare for the reliability hearing also required under the statute.17  Having been given this opportunity for investigation and preparation, the adverse party may then reveal to the trial court any reasons which exist for doubting the reliability of the hearsay.  Even if the trial court finds that the hearsay is reliable enough to be admitted as substantive evidence on the guilt or innocence of the accused, the statements remain inadmissible unless the child testifies or is available to testify, as required by § 2(b)(3) of the statute. By requiring the testimony or availability of both the speaker (the child) and the listener (the outcry witness), the adverse party is ensured the opportunity to highlight for the fact finder any contradictions about the statements through trial examination and cross-examination.”18  According to Judge Clinton there is much more to the purpose of Article 38.072 than merely preventing surprise to the defendant.  His analysis is based on the content of the statute and not just judicial supposition.

E. Confrontation Clause

In De La Paz v. State, 273 S.W.3d 671 (Tex. Crim. App. 2008), the defendant was charged with aggravated sexual assault of his daughter K.D. The trial court admitted K.D.’s medical records in which medical personnel wrote that K.D. said that the defendant had poked her in the vagina with “his pee pee.” The defendant objected to the reading of the records under the confrontation clause. Neither K.D. nor any of the hospital employees who made the entries testified at the defendant’s trial. The Court of Criminal Appeals held that once the defendant objected to the admission of the notes under Crawford v. Washington, the burden shifted to the State, as the proponent of the evidence, to establish that it was admissible under Crawford, citing its own decision in Vinson v. State, 252 S.W.3d 336 (Tex. Crim. App. 2008). The Court held that once the defendant objected, “the State was obligated to establish either (1) that the notes did not contain testimonial hearsay statements or (2) that the notes did contain testimonial hearsay statements but that such statements were nevertheless admissible under Crawford.”19  The Court concluded that the State failed to carry its burden because the hearsay statements contained in the notes were not obviously non-testimonial, and therefore the trial court erred in admitting the notes.20 However, on remand, the Court of Appeals held that the error in admitting the notes was harmless, and due to the strength of the other evidence, it did not contribute to the conviction or punishment.21

In Kelly v. State, 321 S.W.3d 583, 602-05 (Tex. App.–Houston [14th Dist.] 2010), it was reversible error for the trial court to allow, over a Confrontation Clause objection, DFPS workers to testify to statements made by other children and adults that were interviewed as part of their investigation, but who did not testify at trial. Once the Confrontation Clause objection was made it was the burden of the proponent of the evidence (here the State) to establish the statements were admissible under Crawford v. Washington. Art. 38.072 does not deny the defendant his constitutional right to confrontation, as long as the child declarant is available for cross examination at trial.22  The admission of a child’s testimony from an Article 38.072 hearing, when the child is not available to testify at trial, violates the defendant’s Sixth Amendment confrontation rights, because the narrow scope of the Article 38.072 hearing does not provide sufficient prior opportunity to cross-examine the declarant.23

Whether an out-of-court statement of a witness, offered into evidence in court, is subject to the Confrontation Clause, is determined by whether its primary purpose is testimonial, that is, whether the “primary purpose” of the conversation is to “creat[e] an out of court substitute for trial testimony.”24 In Ohio v. Clark, the Supreme Court held that a three-year old’s statement to his pre-school teachers about who caused his visible injuries, was not testimonial because the interest of the teachers was to find out what happened to the child in order to address what appeared to be an emergency situation, not to gather evidence for a criminal prosecution. “Where no such primary purpose exists, the admissibility of a statement is the concern of the state and federal rules of evidence, not the Confrontation Clause.”25

F. Impact On Sufficiency of Evidence Determination

A child’s outcry statement is substantive evidence of guilt.26  The outcry statement of a child victim may, standing alone, be sufficient to support a verdict. It need not be corroborated or substantiated by the child’s testimony or by other independent evidence.27

Read Part 1 in the March 2022 issue of the Voice Online.

Do’s and Don’ts of Being Second Chair

Whether you are a seasoned attorney or a new attorney, being a second chair comes with its own unique challenges and pitfalls. However, if done right, the experience of being a second chair will be invaluable for all parties involved, including the client. This article presents suggestions of things to do and things to avoid doing as we advocate for clients as a second chair attorney. One becomes a second chair on a case in many ways, some of which include: new lawyer needing trial experience to get on the wheel, complicated case that calls for the assistance of a court appointed second chair, retained lawyer with resources to hire additional trial help, or even a seasoned attorney helping our next generation of advocates develop trial skills.

No matter the circumstances around a second chair assignment the following steps should always be taken:

  1. Read the discovery;
  2. Read the indictment;
  3. Read the applicable statute(s);
  4. File a designation of attorney;
  5. Have a meeting to decide exactly what help is needed or what will be provided and establish compensation if any.

First Chair Considerations

Expectations must be clear. This can look different for everyone, and it can look different in every case. Do you just want someone to hold your briefcase or bring you water?  Do you want a second chair to support family members and coordinate witnesses during the trial? Do you want your second chair to focus on the client, fielding questions, explaining the process so you can focus on the substantive trial issues? Do you want your second chair to handle a specific witness or area of law i.e.-experts or jury charge?  Do you want your second chair to make objections on the record, or just support you in crafting your objections? Do you want your second chair to brainstorm a theory of the case with you? Do you want your second chair to research specific issues? If so, do you want a brief, case law, or just an oral report back what they found? Do you want them to review and or summarize medical records, or CPS records? If so, how do you want the information provided to you? Do you want them to prepare sample direct or cross questions based on the records, do you want sticky notes, or outlines? Giving the assignment is just as important as how you want the assignment completed. Do you want them to review media?  If so, what are they looking for? Are they watching for redactions?  Are they watching for incriminating statements, exculpatory statements, extraneous offenses? Are they time stamping and transcribing? Are they just reviewing for due diligence purposes because you have a ton of irrelevant media and need a heads up if something important is there?  Be very specific about what you want them reviewing these records for. Are you looking for other possible suspects, or witness credibility issues? When using a baby lawyer, the more direction you can provide, and the reasoning behind it, the better results you will see in return. For example, “I want you to read the CPS records, I am debating between these two defensive theories—the complaining witness is making it up, or some other dude did it. Note each page and highlight the relevant portions that tend to support one or the other theory. If you see another pattern develop, such as parental alienation, note that as well again, with pages and highlights.  We will discuss your review of the records in two weeks and based on what we learn, I will decide which strategy is best for the case.”

Most importantly give and receive deadlines. I have had the unfortunate experience of not giving specific enough assignments and deadlines in the past.  It led to more work for me on each case and added a level of frustration that was not necessary if I had spent more time at the beginning discussing the assignment and clarifying my expectations. I ended up having to do review all CPS records before trial and in another case, I ended up having to deal with a forensic expert on a phone dump at the last minute. As Brene Brown would say, paint done!1

My last big take away no matter what chair you are serving as is to bring a code book to trial and use it. One of the most memorable experiences I have had with this suggestion was as a second chair. We invoked the Rule at the beginning of evidence and then there was an issue whether the expert needed to be excluded. My first chair did not have their code book. I knew what the Rule was, but I had no idea where it was. We frantically combed the one code book we had in the courtroom, and I painstakingly learned that the rule governing witness exclusion is TRE 614, and experts are excluded from the rule.

Being a second chair as a less experienced lawyer

Watch the jury, opposing counsel and the Judge. During voir dire, take notes of attitudes and demeanors of jurors. The lead attorney is going to be focusing on time constraints and making sure the areas of law that are important to the case are covered. They need your eyes and ears to see the jury from a different perspective. During trial, the lead attorney will be focusing on the witness so they might not be able to read the jury or opposing counsel at the same time. Observe and supply feedback to lead counsel. Don’t be afraid to pass the lead attorney notes with questions or comments. Do you think another question should be asked? Does something need to be clarified? If you did not understand something you can bet the jury did not get it either. 

Don’t show up late to court if you are sitting at counsel table. The jury is watching you; act accordingly. Stay off your phone. The jury has been instructed to be off their phones you should as well. Take notes. Track exhibits, number of the exhibit, comments, objections, which witness it was offered through and whether it was admitted. I once leaned over and asked my second chair if the witness said what I thought they had said, and my second chair was not paying attention or taking notes. Infuriating. Ask the first chair if you can get them anything at lunch, and debrief with them after court at the end of the day. Act like part of a team. You are not just sitting second chair to get felony qualified. You should be sitting second chair to help the client. Do not second guess the trial theory. Trials are stressful enough; lead attorneys do not need back seat drivers in the courtroom.

Being a second chair to a less experienced lawyer

Again, have that first meeting to discuss what roles each of you will have. Don’t take over as the senior attorney.  Your job is to guide and teach.  Remember the saying, “If you give a man a fish, you feed him for a day. If you teach a man to fish, you feed him for a lifetime.” Mistakes made by the first chair attorney are okay if they do not rise to the level of ineffective assistance of counsel. Mistakes and struggles are how we learn. 

Watch how they navigate and use technology in the courtroom. I am a flip chart and sharpie kind of girl.  Watching the young lawyers in my office use power points during voir dire has helped me develop and grow as an attorney. Focus on deferring to the first chair for decisions and strategy calls. For example, I was recently in trial in county court as second chair and the prosecutor kept asking me questions, like would we stipulate to priors. I had to be mindful that it was not my case. I know what I would do, but I wanted the prosecuting attorney to have that conversation with the first chair attorney. Remember there is also an emotional element to trying cases. They might need a little more support and feedback from us while gaining trial experience. Remind them that this is hard work, and everyone makes mistakes, that is why we call it the practice of law. Finally, balance any constructive criticism with specific compliments on their skills and successes as appropriate. If your feedback is professional and helpful, a young lawyer is more likely to take it to heart. Then, your efforts contribute to developing the advocacy skills of a less experienced lawyer.

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