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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.

Tips for Public Defenders & Indigent Defense

Practicing law is hard, regardless of who your client is. However, representing indigent clients adds an additional layer of complexity that increases the difficulty for both the client and the lawyer representing them. These complexities, combined with the additional challenges brought by COVID-19, necessitate that we pull all the resources we can to lessen our clients’ burden as much as possible.  To that end, here are five tips that attorneys who represent indigent clients can use to improve their overall situations. 

1. Electronic Monitoring Cost – CCP 17.43

Often on serious cases, a judge will order electronic monitoring, or, during a bond hearing, a judge might insist on electronic monitoring as a condition for lowering a bond. We all know that paying the deposit and fees on such a device can be a more significant hurdle for clients than paying the bond in the first place, especially when electronic monitoring costs are compounded with supervision fees and drug testing fees. However, the Code of Criminal Procedure provides an avenue to make this hurdle a little easier to clear. As always— with all things— your mileage may vary depending on your jurisdiction and the particular judges you practice in front of. 

CCP 17.43 allows for electronic monitoring fees to either be paid directly by the defendant or set as a reimbursement fee. See Tex. Code Crim. Proc. Art. 17.43(b). If you can successfully argue for the fee to be set as a reimbursement fee instead of being paid directly and are granted relief, your client can get out of jail and avoid the additional financial hardship.  Secondly, if the case ends up being dismissed, your client will likely avoid paying any of the reimbursement fees. However, if the case DOES end up pleading, CCP 42A.652(b) is what you should remember. This statute allows the judge to waive the reimbursement fees “if the judge determines that payment of the reimbursement fee would cause the defendant significant financial hardship.” See Tex. Code Crim. Proc Art. 42A.652(b). Of course, it is advantageous to you to provide as much documentation of your client’s financial difficulty as you can.  

2. Ability to pay inquiry – CCP 42.15

This is a particularly underutilized part of the indigent defense tool kit. CCP 42.15 indicates that a judge should be conducting an ability-to-pay inquiry in regards to fines and court fees, and it provides a way for fines and fees to be partially or completely waived. Under this statute, a judge can determine that your client has the resources to pay and can order them to: (1) pay the entire amount immediately; (2) pay the entire amount at a later date; or (3) pay the entire amount in installments. Conversely, the judge can also find that your client does NOT have the resources to pay and order the same conditions as (2) – (3) above (either in full or a partial amount). Additionally, the judge can order your client to satisfy what is owed via performing community service hours. Further, the judge can use a combination of all of these to allow your client pay what they owe. You can even go one step further and argue, utilizing CCP 42.15 in combination with CCP 43.091, for a full waiver of fines and court costs. 

3. Multiple Court Cost – CCP 102.073

If a court tries to double dip on you and attempts to collect more than one court cost fee, CCP 102.073 is your bread and butter. CCP 102.073 states that “in a single action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.”  See Texas Code Crim. Proc. Art. 102.073. Of particular note in this statute is the fact that it states “criminal action” and not “criminal episode.” Some courts may conflate the two and try to assess multiple court costs when they should not. This is exceptionally important to pay attention to because the court’s inappropriate application of this statute could cost your client hundreds of dollars. 

4. Proper clothes for trial, via clothes closet or other means

Certainly, this is old hat for many of you, but some things bear repeating: the clothes our clients wear can change the jury’s perception of them. It’s the reason why we don’t try cases with our clients in orange jump suits. Dressing appropriately is important from the moment you walk into the courthouse for trial until the very end. Even when first entering the courthouse, perspective jurors begin sizing up your client. They are judged constantly: from the hallway, through voir dire, and then finally from the jury box. If your client is wearing a pair of ancient jeans and a t-shirt because that is all they can afford, the jury doesn’t understand this as a manifestation of your client’s poverty. Rather, they perceive your client’s clothing as a reflection of a person who doesn’t care enough about his situation to put on a polo and decent pair of shoes. A clothes closet is the best resource we defense attorneys can access to address this problem. If you have a Public Defender’s Office, see about partnering them with the local defense bar to put together something that everyone can use.

A clothes closet requires a dedicated space and not all places can pull this off effectively.  There are, however, other options for making sure your client is dressed appropriately. One option is to go to the judge and discuss the issue with them. Ask for a modest clothing allowance to put on an attorney payment voucher at the end of the trial. Finding some appropriate decent looking clothing at a thrift store can be done cheaply, and you will find many judges are more than willing to pay out a few bucks to reimburse you for this. Also, in jurisdictions where judges are a bit more on the tightfisted side, local defense bars can set aside a bit of money for a fund that helps support appropriate courtroom dress. However, you have to do it, there are options available. Your client showing up appropriately dressed can make the difference in getting a two-word verdict. 

5. And finally – fight…

Of course, we always fight for our clients, right?  But sometimes we lose track of the more subtle and important ways to fight for them.  It’s important to remind judges, ADAs, probation officers, and anyone else involved in the criminal justice system that programs like drug court, DWI court, pre-trial interventions, and deferred adjudication are not just meant for rich people. Low-income citizens should NEVER be priced out of a better resolution to their case. Fight by reminding people of this at every opportunity. No good is accomplished for anyone when our clients are set up for failure. Pushing back against post-conviction financial injustice is the only way we can prevent indigent clients from being set up for failure.

Why Diversity Matters

Businesses, non-profit organizations, and government agencies have been creating diversity and inclusion divisions in the past decades, due to recognition that the demographics of the U.S. have changed. Texas is a minority-majority state, with African Americans being the largest minority group, according to the 2020 U.S. Census. If an organization wishes to continue to grow and succeed into the next millennium, issues of diversity and inclusion must be addressed.

For a criminal defense attorney, understanding issues relating to race, diversity, and inclusion can help one be a better lawyer. Here is why. 

Race in the Criminal Justice System

One cannot be a good criminal defense attorney and not be aware of issues involving race and racial bias in both policing and the criminal justice system. Over-representation of Black men in the criminal justice system is well documented. Black men make up approximately 13 percent of the male population, but make up to 35 percent of those incarcerated. One in five Black people born in 2001 is likely to be incarcerated, compared to one in 10 Latino people and one in 29 white people, according to a 2019 Vera Institute of Justice report.1  More than 70 percent of the people currently on Texas’ Death Row are Black or Hispanic, according to the Texas Department of Criminal Justice January 2022 report.2 A good defense attorney must understand the discrimination faced by many in the communities of color in order to understand why the criminal justice system is in it’s current state. It’s important to understand the historical and systemic racism that exists in these institutions to understand why your client was pulled over, why your client was searched, and how your client’s race plays in their case and/or sentencing. To ignore the racial aspects involved in policing and the bias that has been studied and documented to exist in the criminal justice system, may cause an attorney to fail in preparing for their case.

Understanding Race and Diversity Will Help You Understand Your Client

If the pandemic has reminded us of anything, it’s that we are social creatures…and social creatures have a need to be understood and heard. For many clients from communities of color, their attorney may appear to be vastly different than themselves in comparison. We may not look like them, talk like them, or even live in similar neighborhoods. These things may cause a client to build walls and see us as untrustworthy. To build rapport and trust, we must show these clients that we empathize with them and want to understand their story and history.  To do this, we must be truly open to listening with an ear towards understanding. I often represent black clients and have been accused of being biased against them, on multiple accounts, because of the historical tensions between the Asian and African American communities. I could deny that such tensions exist or say that those things were in the past. But if I did that, it would invalidate what my client has said and the fear they are feeling having me as their lawyer. By acknowledging that these tensions exist, I open a door towards a conversation that will help guide me to the fears and anxieties my client has about their case.  My acknowledgment also opens my client up to tell me the goals they have for their case. Attorneys are oftentimes more counselors-at law than attorneys-at law.

Understanding Race and Diversity Will Help You in Trial

Most attorneys practice in major cities. All the large cities in Texas are minority majority. That means more jurors from communities of color are part of our jury pool than in prior decades. We miss an opportunity to connect with the jurors if we do not acknowledge that race has played a critical part in their life experiences.  Bias, race, and racial bias are in the forefront of many jurors’ minds in the wake of cases such as George Zimmerman, George Floyd, and Ahmaud Arbery. 

As a lawyer, you must address how the police are viewed by communities of color to understand how your trial may be affected in instances where the main witness is a police officer. For some communities, the police have been known to threaten and harass their own. For others, there’s a fear of police because they’re from other countries, where the police are corrupt and brutal. An attorney must understand the racial and cultural dynamics of these communities. You will not connect with your jurors, and therefore not help your case, if you are not aware of and do not discuss these issues with the jurors beforehand.

We are Here for You

Discussions of race and racial bias can be scary and emotional. People are afraid of being called racist, stupid, or uncaring. However, the first step towards understanding is the desire to learn.  Our members at the Diversity, Justice, and Inclusion Committee are here to help answer your questions without judgment. There are no stupid questions if you’re asking to learn and understand. We want to have this dialogue with you to help you be a better lawyer, as well as a better TCDLA member. Monique Sparks and myself are the co-chairs of this Committee. Reach out to us anytime. Let’s talk.

Outcry Statements: ARTICLE 38.072, C.C.P. Part 1

In child abuse cases the “outcry statement” of a child witness may be admissible into evidence pursuant to Article 38.072, C. C. P., which establishes an exception to the hearsay rule of exclusion. Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013); Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005); Dorado v. State, 843 S.W.2d 37 (Tex. Crim. App. 1992); Dority v State, 631 S.W.3d 799, 791 (Tex. App.-Eastland 2021); Gibson v. State, 595 S.W.3d 321, 326 (Tex. App.–Austin 2020); Prince v. State, 574 S.W.3d 561, 571 (Tex. App.–Houston [1st. Dist.] 2019); Hines v. State, 551 S.W.3d 771, 780 (Tex. App.–Ft. Worth 2017); Alberts v. State, 302 S.W.3d 495, 504 (Tex. App.–Texarkana 2009, no pet.). It permits the introduction into evidence of an out-of-court statement of a child complainant which, in typical criminal or civil litigation, would be barred as hearsay. Bays v. State, supra at 585; Gibson v. State, supra; Prince v. State, supra. Testimony of an outcry witness about a complainant’s outcry is not expert testimony, but is admissible hearsay testimony about the facts of the case. Schmidt v. State, 612 S.W.3d 359, 367 (Tex. App.-Houston [1st Dist.] 2019, reh. denied, pet. ref’d).

A. Requirements

In the prosecution of any sexual offense involving a child, prohibited sexual conduct, sexual performance of a child, or an assaultive offense against a child, the prosecution may use as evidence of guilt, statements made by an alleged child victim who is younger than 14-years of age or is disabled. To be admissible, the following conditions must be present:

  1. The statement was made by the child against whom the offense was allegedly committed;
  2. The statement was made to the first person, 18-years of age or older, other than the defendant, to whom the child made a statement about the offense;
  3. The statement must describe the offense in some discernible way and not be merely a general allusion that something in the area of child abuse is going on;
  4. The adverse party must be notified 14 days prior to the beginning of the trial of the name of the outcry witness and be provided a written summary of the testimony of the outcry witness;
  5. The trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content and circumstance of the statement; and
  6. The complainant testifies or is available to testify in court or in any other manner provided by law.

Art. 38.072, Sec. 2, C.C.P.; Sanchez v. State, 354 S.W.3d 476, 484-85 (Tex. Crim. App. 2011); Dority v. State, supra; Prince v. State, supra; Nino v. State, 223 S.W.3d 749,752 Tex. App.–Houston [14th Dist.] 2007); Robinett v. State, 383 S.W.3d 758 (Tex. App.–Amarillo 2012).  Article 38.072 applies to outcry statements made by a child (under 18-years of age) who was the victim of sexual contact or abuse prior to age 14. Olivera v. State, 2009 WL 3740781, *7 (Tex. App.–Dallas 11/10/09, pet. ref’d); Cordero v. State, 444 S.W.3d 812 (Tex. App.–Beaumont 2014).  Prior to September 1, 2009, Art. 38.072 applied to child victims twelve-years of age or younger.  Acts 2009, 81st Leg., ch 710, Sec. 1, 2, eff. September 1, 2009.

A seventeen-year-old victim is a “child” for purposes of Article 38.072, so a seventeen-year- old cannot be an outcry witness, even though the seventeen-year-old may be an adult for other criminal law purposes.  Gutierrez v. State, 630 S.W.3d 270, 278 (Tex. App.-Eastland 2020, pet. ref’d 2021). A person who has not attained the age of eighteen-years cannot be an outcry witness.  Nino v. State, 223 S.W.3d 749 (Tex. App.- Houston [14th Dist.] 2007).  Where the victim of an aggravated sexual assault of a child charge is eighteen-years of age or older when she makes her outcry statement, the outcry testimony is not admissible under Article 38.072.  Cordero v. State, 844 S.W.3d 812 (Tex. App.-Beaumont 2014, pet. ref’d).  An outcry witness must be eighteen-years of age or older.  Prieto v. State, 337 S.W.3d 337 S.W.3d 918 (Tex. App.-Tyler 2011); Bargas v. State, 252 S.W.3d 876, 894 (Tex. App.-Houston [14th Dist.] 2008).

Illustration: In Zarco v. State, 210 S.W.3d 816 (Tex. App.–Houston [14th Dist.] 2006), a police detective was determined to be the proper outcry witness in an indecency with a child prosecution, although the child complainant first told her cousin about the abuse. However, the cousin was not 18 years of age at the time the complainant made her statements, and the testimony indicated that the detective was the first person, 18 years of age or older, other than the defendant, to whom the complainant made a detailed statement about the offense.

Illustration: In Harvey v. State, 123 S.W.3d 623, (Tex. App.–Texarkana 2003, pet. ref’d.), the testimony of victim’s boyfriend as to the content of victim’s outcry statement to him, that her step-father had sexually assaulted her when she was twelve-years old, should not have been admitted in a child sexual assault case, because the victim did not make the outcry to her boyfriend until after her eighteenth birthday.

Illustration: In Shaw v. State, 122 S.W.3d 358 (Tex. App.–Texarkana 2003), a handwritten note by a child victim that the defendant had sexual contact with her, was not admissible in an aggravated sexual assault prosecution as an outcry statement under the Article 38.072  because the victim testified she wrote the note after she told everybody, and the victim testified she did not give the note to her mother, but rather, her mother found it.

Illustration: Article 38.072 outcry statements may not be presented by means of a recording but must be presented by the first person to whom the child makes a statement about the offense charged. Bays v. State, 396 S.W.3d 580, 591-92 (Tex. Crim. App. 2013).

Since outcry testimony may only be about the offense charged, any testimony about conduct that occurred prior to the effective date of §21.02 (continuous sexual abuse of a child) cannot be the subject of outcry testimony. Bays v. State, supra at 585 (the outcry statute permits the first person to whom the child made a “statement about the offense” to testify).  The statement made by the child victim must describe the alleged offense. Art. 38.072, §2(a), C.C.P.; Mata v. State, 2016 WL 859037 (Tex. App.-Austin). The outcry statute does not apply to a collateral matter or extraneous offense.  Beckley v. State, 827 S.W.2d 74, 78 (Tex. App.–Ft. Worth 1992); Linney v. State, 401 S.W.3d 724, 780 (Tex. App.–Houston [14th Dist.] 2013, pet. ref’d); Chapman v. State, 150 S.W.3d 809, 816 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d 2005). 

The burden is on the State, as the proponent of the evidence, to satisfy each element of the predicate for admission of evidence pursuant to Art. 38.072. Rosales v. State, 548 S.W.3d 796, 806 (Tex. App.–Houston [14th Dist.] 2018); Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990); Vinson v. State, 252 S.W.3d 336, 340 n.15 (Tex. Crim. App. 2008). If the State presents such evidence, the burden shifts to the defendant to rebut that evidence. Eldred v. State, 431 S.W.3d 177, 183 (Tex. App.-Texarkana 2014). “The provisions of article 38.072 are mandatory and must be followed for the outcry statement to be admissible over a hearsay objection.”  Bays v. State, supra at 591 (the statute’s explicit content and procedural requirements are mandatory, even though they may at times result in admission of a less detailed statement of the child.); Hines v. State, 551 S.W.3d 771, 781 (Tex. App.–Ft. Worth 2017) (the proper outcry statement is not determined by choosing the most detailed statement); Robinett v. State, 383 S.W.3d 758 (Tex. App.–Amarillo 2012) (same); Owens v. State, 381 S.W.3d 696 (Tex. App.–Texarkana 2012) (same); Elder v. State,132 S.W.2d 20 (Tex. App.-Ft. Worth 2004) (same); Thomas v. State, 1 S.W.3d 138 (Tex. App.-Texarkana 1999) (same); Reynolds v. State,227 S.W.3d 355 (Tex. App.-Texarkana 2011) (same); Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (holding that outcry witness’s testimony is only admissible as a statutory exception to the hearsay rule if its procedures are followed);  If the trial court overrules a hearsay objection without complying with the provisions of article 38.072, the trial court has committed error.  Rollins v. State, 2010 WL 1568473 (Tex. App.–Houston [1st Dist.] 2010, pet. ref’d).

Where a trial court commits error by admitting hearsay testimony that does not comport with Article 38.072, an appellate court will not reverse unless the failure to comply with the requirements caused harm. Rollins v. State, supra at *6; Bays v. State, supra; Prestiano v. State, 581 S.W.3d 935, 946 (Tex. App.–Houston [1st Dist.] 2019).  A trial court’s decision to admit or exclude evidence under Art. 38.072 is reviewed for an abuse of discretion. Garcia v. State, 792 S.W.3d 88, 92 (Tex. Crim. App. 1990). “The erroneous admission of evidence becomes harmless error if other evidence proving the same fact is properly admitted elsewhere, or the evidence comes in elsewhere without objection.  Land v. State, 291 S.W.3d 23, 28 (Tex. App.–Texarkana 2009, pet. ref’d); . . .; see Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).” Prince v. State, 574 S.W.3d 561, 574 (Tex. App.–Houston [1st Dist.] 2019).  Testimony of an outcry witness is subject to a limiting instruction at the defendant’s request. Smith v. State, 40 S.W.3d 147, 150 (Tex. App.-Texarkana 2001)

B. Outcry Witness

The outcry witness is the first adult to whom the child makes a statement about the offense.  Robinett v. State, 383 S.W.3d 758 (Tex. App.–Amarillo 2012); Prince v. State, supra at 571; Dority v. State, supra at 792. The first person to whom the child made a statement cannot be the outcry witness if the person did not hear, does not remember, or did not understand what the child was saying. Foreman v. State, 995 S.W.3d 854, 859 (Tex. App.-Austin 1999, pet. ref’d); Dority v. State, supra at 792. To qualify as “outcry evidence,” the child’s statement must constitute more than a general allusion that sexual abuse has occurred.  Rather, the statement must describe the offense in some discernable manner.  Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); Hines v. State, 551 S.W.3d 771, 781 (Tex. App.-Ft. Worth 2017); Bargas v. State, 252 S.W.3d 876, 894 (Tex. App.–Houston [14th Dist.] 2008); Owens v. State, 381 S.W.3d 696, 702 (Tex. App.–Texarkana 2012). 

Illustration: In Elder v. State, 132 S.W.3d 20 (Tex. App.–Ft. Worth 2004), pet. ref’d, cert. denied, 544 U.S. 925, habeas corpus denied, 2007 WL 2191333, the child’s mother was  determined to be the outcry witness where the child made statements to her that the defendant “stuck his weenie” into her mouth, and “licked her privates,” had told her “boys can do that,” had touched her breast and had taken pictures of her with her panties off, which was more than mere allusion that something in the area of child abuse had occurred, even though the child later told the case manager some details she had not mentioned to the mother.

However, the decisions are not consistent as to what constitutes a “discernible manner.”  Several courts have held that the proper outcry witness is the first adult to whom the complainant tells “how, when and where” she was assaulted. Hanson v. State, 180 S.W.3d 726 (Tex. App.–Waco 2005, no pet.); Muzolf v. State, 2016 WL 2842066, *1-3 (Tex. App.–Dallas 05/10/16); Rodgers v. Sate, 442 S.W.3d 547, 552 (Tex. App.–Dallas 2014, pet ref’d); Mitchell v. State, 381 S.W.3d 554, 559-60 (Tex. App.–Eastland 2012, no pet.); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.–Dallas 1999, pet. ref’d); Brown v. State, 381 S.W.3d 565, 571 (Tex. App.-Eastland 2012). In Mata v. State, 2016 WL 859037,*2 (Tex. App.–Austin 03/04/16), where the defendant was charged with continuous sexual abuse of a young child, the trial court did not abuse its discretion by finding the first witness to whom the child described the offense to be the witness to whom the child described the time element, in conjunction with describing the abusive conduct, because that is when the child discussed the “how, when and where” of the abuse.  In Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008), the court held that just providing an interviewer with a general confirmation of sexual abuse, but providing no specificity as the “how, when, where” does not make that interviewer the proper outcry witness if the complainant tells a later interviewer the details of the abuse.

On the other hand, several courts of appeal have rejected the position that how, when and where are necessary to constitute a proper outcry statement. Instead, they rely on “the well-established rule that, to be a proper outcry statement the child’s statement must describe the offense in some discernible manner and must be more than an allusion to sexual abuse.” Brown v. State, 189 S.W.3d 382, 386 (Tex. App.–Texarkana, pet. ref’d 2006); Sims v. State, 12 S.W.3d 499,500 (Tex. App.–Dallas 1999, pet. ref’d); Reed v. State, 974 S.W.2d 838, 841 (Tex. App.–San Antonio 1998, pet. ref’d); Eldred v. State, 431 S.W.3d 177, 181 (Tex. App.–Texarkana 2014); Rosales v. State, 548 S.W. 3d 796, 806 (Tex. App.–Houston [14th Dist.] 2018).  The Court of Criminal Appeals has not resolved the apparent conflict as to which standard should be applied.

Frequently, family members are viewed as having received only general statements of abuse, and subsequent statements to adults outside the family are labeled the “outcry evidence.”

Illustration: In Castelan v. State, 54 S.W.3d 469 (Tex. App.–Corpus Christi 2001, no pet.), a child told her grandmother that the defendant had “put his thing in through the back.”  The child later described the offense to a school counselor. The appellate court ruled that the school counselor was the proper outcry witness because the earlier statement to the grandmother had not communicated specific details of the abuse. 

 Illustration: In Rosales v. State, 548 S.W.3d 796, 807 (Tex. App.–Houston [14th Dist.] 2018), the court held that a statement to Aunt Mary that the defendant “touched her in the wrong way” was no more than a general allusion that abuse had occurred.

Illustration: In Shaw v. State, 329 S.W.3d 645 (Tex. App.–Houston [14th Dist.] 2010, pet. ref’d), the child victim’s mother was the first person, 18 years of age or older, to whom the complainant made a statement describing the offense; but the court found that the complainant did not disclose sufficient details to her mother to describe the alleged offense.  The complainant had told her mother that the defendant was the one who got her pregnant.  The court held that although this statement might raise an inference of penetration, it did not clearly describe the alleged offense that the defendant penetrated the victim’s sexual organ (how else could the defendant have impregnated her).  The court ruled the school principal was the outcry witness.

Illustration: In Reynolds v. State, 227 S.W.3d 355 (Tex. App.–Texarkana 2007, habeas corpus denied 2016 WL 5393852), the program director of a child advocacy center qualified as an outcry witness regarding an offense involving the genital area of a child complainant, as the mother of the child did not testify that the complainant told her about an offense involving the genital area. 

Illustration: In Smith v. State, 131 S.W.3d 928 (Tex. App.–Tyler 2004), pet. ref’d, the court properly determined that an employee of a children’s advocacy center, rather than the child’s mother or doctor, was the proper outcry witness, even though the child made statements both to his mother and the doctor before talking to the advocacy center employee. The child’s statements to the mother that the defendant had been performing oral sex on him did not relay specific enough details about the charged offense and the trial court could have reasonably determined that the statement was nothing more than a general allusion that sex abuse was occurring, and the record did not demonstrate that the child told his doctor anything more than he told the mother.

Illustration: In Monreal v. State, 2006 WL 220857 (Tex. App.–Houston [14th Dist.]), the trial court properly determined that the victim’s mother, rather than the defendant’s wife, was the proper outcry witness, even though the four-year old victim made a statement about the touching to the defendant’s wife before making the statement to her mother, the record was devoid of specific details of the statement made by the victim to the defendant’s wife, the victim’s mother was not present when the victim told the defendant’s wife about the abuse, no testimony was heard at the hearing from the defendant’s wife or the victim, and the victim specifically told her mother that the defendant had touched her private parts with his finger.

As these cases illustrate, the trial court has broad discretion when deciding which of several witnesses is the outcry witness.  Generally, reviewing courts will not disturb that decision absent clear abuse of discretion.  Guzman v. State, 591 S.W.3d 714 (Tex. App.–Houston [1st Dist.] 2019); Martinez v. State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005); Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008); Robinett v. State, supra; Chapman v. State, 150 S.W.3d 809 (Tex. App.–Houston [14th Dist.] 2004, pet., ref’d 2005); Juarez v. State, 2016 Tex. App. LEXIS 3492, *13 (San Antonio 04/06/16).  However, in Brown v. State, 189 S.W.3d 382, 385-86, (Tex. App.–Texarkana, 2006, pet. ref’d), the conviction was reversed because a counselor was not the proper outcry witness where the child had previously told her father of the offense in a discernable manner. A written summary has been found to be insufficient where the summary was deemed to have provided less information that the indictment.  Biggs v. State, 921 S.W.2d 282, 285 (Tex. App.–Houston [1st Dist.] 1995, pet. ref’d 1996); Gay v. State, 981 S.W.2d 864, 866 (Tex. App.–Houston [1st Dist.] 1998); Davidson v. State, 80 S.W.2d 132. 136 (Tex. App.–Texarkana 2002.

It is not error to allow two different outcry witnesses where the child describes different conduct to each of them.  Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Matthews v. State, 152 S.W.3d 723 (Tex. App.–Tyler 2004, no pet.); Alvarado v. State, 2016 WL 191935, *3 (Tex. App.-Houston [1st Dist.]). However, an outcry statement is event-specific, rather than person-specific.  Ruedas v. State, 2015 WL 9584002, *4 (Tex. App.–Eastland).  There may be two outcry witnesses if they each testify about different events, but there may be only one outcry witness as to the victim’s statement about a single event.  Guzman v. State, 591 S.W.3d 713 (Tex. App.–Houston [1st Dist.] 2019); Eldred v. State, 431 S.W.3d 177, 181-182 (Tex. App.–Texarkana 2014); Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.–Texarkana 2000, pet. ref’d); Reynolds v. State, 227 S.W.3d 355, 368 (Tex. App.–Texarkana 2007); Hankey v. State, 231 S.W.3d 54, 57 (Tex. App.–Texarkana 2007); Cervantes v. State, 2019 WL 6607003 (Tex. App.–Waco) (trial court acted within its discretion in allowing both mother and grandmother to testify as outcry witnesses to a minor child’s initial statements describing the alleged conduct with the minor, in a prosecution for indecency with a child by contact and by exposure, despite the defendant’s contention that it was error to allow multiple outcry witnesses; although both witnesses described sexual contact, they described different events; the grandmother’s testimony was limited to describing a gesture made by the minor when describing her interaction with the defendant and the mother testified as to the statements the minor made that the defendant made her touch his “thing” while sitting on the couch.); Smith v. State, 459 S.W.3d 707 (Tex. App.–Texarkana 2015, pet. ref’d) (complainant’s mother was proper outcry witness who could testify to her out-of-court outcry statements in aggravated sexual assault prosecution, as there was nothing before the trial court suggesting that the complainant had made event-specific outcries to any person other than her mother); Eldred v. State, 431 S.W.3d 177, 181-185 (Tex. App.–Texarkana 2014), habeas granted 2015 WL 5076834, pet. ref’d, (hospital employee, rather than forensic examiner, was the proper outcry witness concerning two initial events of sexual abuse that occurred the night before the victim’s hospital visit; medical record contained several quotes attributed to victim concerning abuse, which were entered by hospital employee prior to when the victim met with the forensic examiner.  It is not error to admit more than one statement that the child made to more than one outcry witness. Josey v. State, 97 S.W.3d 687 (Tex. App.-Texarkana 2003) (if a child victim first describes a different type of abuse to a second outcry witness, the second witness may testify about the different issue of abuse). In Zinger v. State, 899 S.W.2d 423 (Tex. App.–Austin 1995), rev’d on other grounds, 932 S.W.2d 511 (Tex. Crim. App. 1996), it was permissible to admit multiple statements the child made over a three-day period, where they were all considered part of the initial outcry.

The outcry witness must present the outcry testimony in trial before the trier of fact. If the outcry was elicited during a forensic interview with the child complainant, the forensic interviewer may be the outcry witness, but the outcry testimony may not be presented by means of a recorded statement. Bays v. State, supra; Dunn v. State, 125 S.W.3d 610 (Tex. App.–Texarkana 2003).

C. Reliability Hearing

Prior to admitting the outcry statement, the trial judge must conduct a hearing outside the jury’s presence to determine that the statement is reliable. In making that determination the judge must consider the time, content, and circumstances of the statement. Sanchez v. State, 354 S.W.3d 476, 484-85 (Tex. Crim. App. 2011); Duncan v. State, 95 S.W.3d 669 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d).  The statute charges the trial court with determining the reliability based on “the time, content and circumstances of the statement. . .. [I]t does not charge the trial court with determining the reliability of the statement based on the credibility of the outcry witness.” Sanchez v. State, supra at 487-88. The statute does not require that the reliability hearing be conducted prior to trial, only prior to the admission of the outcry statement. Sanchez v. State, supra at 485 n.16; Smith v. State, 131 S.W.3d 928 (Tex. App.–Eastland 2004, pet. ref’d).  The complainant must either testify or be available to testify at the hearing.  Eldred v. State, 431 S.W.3d 177, 181 (Tex. App.–Texarkana 2014), habeas granted 2015 WL 5076834, pet. ref’d.

Admission of the evidence without a hearing is an abuse of discretion but is subject to a harm analysis.  Moore v. State, 233 S.W.3d 32, 35-37 (Tex. App.–Houston [1st Dist.] 2007).  In order to preserve error, the defendant must object to the trial court’s failure to conduct a preliminary reliability hearing.  Diaz v. State, 125 S.W.3d 739 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d).  Even in the face of an objection, error in failing to conduct a reliability hearing may be deemed harmless. Adams v. State 2003 WL 21087716 (Tex. App.–Austin 2003, no. pet).

Technology in the Modern Criminal Law Office

If your office is anything like the office where I work, the end of the year is when we take a minute to look at what needs to be fixed or improved as we move into the next year. So, as we move towards the end of the year, I recommend to each of you to take an inventory of your office computer systems and, most importantly, your security. It should come as no surprise that as attorneys, and more specifically as criminal defense attorneys, our office computer or network security is paramount. The information that we receive and likely maintain on our networks or computers is not only protected by the attorney-client privilege, but also by privacy laws like HIPAA, FERPA, and other statutory protections. Accordingly, ethically we must do everything we reasonably can to protect all of that information, including our email communications.  However, how do any of us have the time to maintain such an area of technical knowledge on top of our work as lawyers?

Despite the desire by many lawyers to do so, we cannot simply avoid technology all together in order to avoid this ethical requirement, as was seen during the COVID-19 pandemic. Many of our fellow criminal defenders across the State scrambled to catch up and figure out what they needed in order to attend Zoom hearings and keep their practices going.  So, the questions arise: 1) what virtual office technology should every criminal defense attorney have, at a minimum, to ensure that he or she can continue to work in the hyper-evolving age while maintaining the safety of the privileged information they possess; and 2) how does each criminal defense attorney gain the necessary knowledge to answer question number one?  I don’t believe there is a single answer to the over-arching question of what technology each of us needs, but the answer to the second question is relatively simple; hire an information technology (IT) company to assist in developing, maintaining, and securing your office computer system. It is clear that the age of defying technology and remaining entirely in paper is gone and every criminal defense attorney must incorporate technology safely into their practice.  Zoom hearings are here to stay in some form or fashion and the transfer of information will forever be almost entirely electronic.

Below is a starter checklist that I have developed in working to secure our office that I give each of you to consider and to speak with an IT advisor about as you modernize your office technology.

Top 10 Office Technology Checklist:

  1. What are the hardware tools (computers to servers to scanners) I need to run a technologically efficient law firm?
  2. What is the minimum internet speed I need to support Zoom or other videoconferencing services? Do I need increased internet capabilities to support a virtual office, which would allow me to be able to work remotely?
  3. Should I utilize cloud computing for my virtual office or should I work entirely over a Virtual Private Network (VPN)?
  4. What safety measures need to be in place in order for me to work remotely and not unethically expose my privileged materials to an attack?
  5. How do I ensure that my email remains privileged and beyond the reach of a subpoena, especially email communications with clients?
  6. How do I organize my virtual office so that it is easy for me to use? (I recommend setting it up to match your paper office).
  7. Where is my network backed up, either to a local server or to the cloud?
  8. What level of support is needed to assist and protect me as I move forward with my virtual office?
  9. What programs should I utilize to integrate calendaring, email, and document production?
  10. What are the best programs for me to utilize in order to review electronically produced discovery?

This checklist may lead to more questions, but the questions above are what led me to modernize our office and the answers to the questions allowed us to continue working, even at the worst of the pandemic. We always want our clients to ask for a lawyer before it’s too late, please use the same thought in developing your office technology.

Remembering C.D.

It was an ordinary Tuesday night. I glanced at my cell phone and noticed my former supervisor had forwarded an email to me about one of my former juvenile clients. His email message to me contained just two words: Sad news.

My former 18-year old juvenile client, C.D., passed away over Thanksgiving weekend.

I replied to my former supervisor back to see if he knew what happened and he replied he didn’t have any information.

I sat there in shock, unable to believe that C.D., who to me was nothing more than a goofy kid, was dead. How was that possible?

I understand losing clients is a grim reality as a long-time public defender representing clients in capital cases. I remember visiting with a client on his last day here on earth and witnessed his state-sanctioned murder even as his mother and family members cried. As painful as that was, I was also comforted in remembering my client spent his childhood summers with his grandparents in Alabama fishing and eating his grandmother’s homemade blueberry pie; the mother of his victim did not want him to be executed; his ex-wife loved and forgave him for nearly killing her; and his two adult sons were good men who loved him dearly.

But an 18 year-old? What chance had he had to live?

Despite his youth, C.D. was a beloved grandson, son, brother, nephew, and cousin. He was also an expectant father whose child will never know his love for his family, his infectious grin, and his fun-loving personality. He loved doing construction work and dreamed of being a builder and a real estate agent someday.

C.D. struggled mightily with abandonment and anger issues. His father was incarcerated in federal prison for bank robbery. His mother moved the family from Memphis to Houston, hoping to get a fresh start. Unfortunately, the change in scenery did not help C.D. deal with his problems. He began hanging out with a rough crowd and ended up in juvenile detention.

C.D. was incarcerated during the height of the pandemic. Juvenile detention was hardly an ideal setting for an active teenager, yet somehow he managed to stay out of trouble. We spoke regularly on the phone and I visited him when I was allowed to visit in person. More than anything, C.D. wanted people to understand he was not a bad person and he wanted and needed a chance to prove himself.

C.D. showed he could succeed when he had the right kind of structure and support in place. Tragically his ability to continue making progress on his own was limited and the bad habits he had worked so hard to correct soon resurfaced.

As public defenders, we sometimes tend to believe that once a case has been resolved, the matter has concluded. Sadly, however, the challenges our clients faced before we met them do not just magically disappear once their legal issues have been resolved. We must always be mindful life goes on for our clients with or without us and that many of our former clients need ongoing assistance and support to turn their lives around.

As their advocates, we must continue fighting for them.

C.D. deserved better. He deserved a chance to hold his newborn baby, to laugh with his family and friends, and to tell his mother that he loved her.

Hopefully, his unborn child will be able to do all of that and much more.

ABCs and 123s of Parole Law: An Introduction to Parole Law Pt.3

This is a continuation of ABCs and 123s of Parole Law: An Introduction to Parole Law Pt.1 in the December 2020 issue of Voice for the Defense and ABCs and 123s of Parole Law: An Introduction to Parole Law Pt.2 in the January/February 2021 issue of Voice for the Defense.

For starters, let’s review basic parole eligibility. Offenders convicted of aggravated offenses will serve ½ of their sentence before becoming eligible for parole. Good conduct time is not awarded to these offenders. Offenders convicted of non-aggravated offenses will be eligible for parole upon serving 25% of their sentence. This 25% includes actual custody time and good conduct time. For simplicity’s sake, we calculate good conduct time as 1 day credited for each day in custody. Therefore, offenders are actually eligible for parole on non-aggravated offenses after serving just 1/8 of their sentence.

The Scenario

Let’s say it’s a leisurely Monday afternoon and a potential new client walks into your office. The client mentions that they were arrested for a misdemeanor DWI on Friday night and were given a PR bond the same day. You think to yourself, “Great, I’ve handled many DWI’s in the past, I can’t wait to get started.” Then the client says, “Oh, by the way, I’m also on parole! I might have a Blue Warrant; can you get it lifted? If not, how long will I be in custody? What will happen if I am convicted of the new offense?” As you slump back in your chair, you realize, I need to speak to a parole attorney ASAP. Before you pick up the phone to call my office, this article will provide you a guide to some of the common issues presented in these situations.

The Basics

So, let’s talk about parole revocations and how you can advise your client when presented with this scenario. Parole revocation caselaw starts with the landmark Supreme Court decision Morrissey v. Brewer, 408 U.S. 471 (1972). In Morrissey, the Court held that parole revocations are not part of a criminal prosecution and thus the “full panoply of rights does not extend to parole revocations”. The Court did hold that parole revocation hearings do call for “some orderly process, however informal”. The Morrissey holding establishes the following minimum rights of due process in parole revocation hearings:

  • Written notice of claimed parole violations;
  • Disclosure to the parolee of evidence against him;
  • Opportunity to be heard in person and to present witnesses and documentary evidence;
  • The right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
  • A “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and
  • A written statement by the fact finders as to the evidence relied on and reasons for revoking parole.

Why Might a Blue Warrant be Issued?

First and foremost, all offenders are given parole conditions that they must abide by when released on parole/discretionary mandatory supervision (“DMS”). Failure to abide by of any of these conditions could result in a violation being filed and a parole warrant (aka, Blue Warrant) being issued. Offenders who are on parole/DMS may be subject to Blue Warrants for technical or new offense violations. These Blue Warrants are NO BAIL.

Technical violations typically include:

  • Failure to report
  • Delinquent parole fees
  • Positive drug tests
  • Failure to reside in an approved location
  • Home monitoring/curfew violations

New offenses

  • Class C and up offenses.1

When will a Blue Warrant be issued?

Traditionally, a Blue Warrant will be issued anytime an offender is accused of a technical or new offense violation. Recently, there have been some changes to Blue Warrant issuance.

Technical violations will still continue to result in Blue Warrants. Those hearings will be conducted within 41 days of the blue warrant being executed.

New Offense violations are now subject to new rules. TDCJ-Parole Division (“Parole Division”) will now issue Blue Warrants upon notice of a new offense under different parameters. They will no longer “automatically” issue Blue Warrants due to a new offense violation. Blue Warrants for new offenses will be issued according to a new tier system.

Offenses in the first tier (Murder, Sexual Assault, etc.) will result in Blue Warrants being issued automatically. Those cases will have both preliminary and revocation hearings within 41 days. 

All other offenses will not result in an automatic warrant issuance. Instead, those offenders will be free to post bond on their new offense and resume parole supervision. Once those cases are indicted, the Parole Division may staff those cases to determine if a warrant shall be issued. If no Blue Warrant is issued, the offender will continue on supervision until the case is adjudicated. Upon adjudication, the Parole Division may issue a warrant and proceed to a hearing.2

Please be careful with these situations involving a Blue Warrant and a new criminal charge. Often, a client will bond out prior to the Blue Warrant issuance. This usually happens when an offender is arrested on a weekend and the Blue Warrant doesn’t issue until Monday morning (for those offenses subject to automatic warrant). If the offender is later taken into custody on the parole hold, they will not be “in custody” on the new criminal case. A consideration should be made into raising their bond on the criminal case so the client gets credit for both the parole case and the new law violation.

Where will hearing take place?

Once a Blue Warrant is executed the preliminary/revocation hearing will take place in the county where the client is located, not necessarily where the violations occurred. That is, the county the warrant was executed in determines where the hearing will take place. So a client who is reporting to parole in Dallas but was arrested in Houston, will have their hearing in Houston. (If the basis for the Blue Warrant was for a new criminal offense, the client may be “bench warranted” back to the county where the criminal offense is pending.)

Who is present at the hearing?

Hearings are presided over by hearing officers, who are employees of the Texas Board of Pardons and Paroles (“Parole Board”), not the Texas Department of Criminal Justice (“TDCJ”). The hearing officers conduct hearings to determine whether a violation occurred and make recommendations to the Parole Board. In these hearings, the hearing officer presides over the case much like a judge in a courtroom. Hearing officers examine witnesses, rule on admission of evidence, and make rulings regarding motions and objections, among other duties.3 The parole officer, employed by the Parole Division, acts much like a prosecutor in a courtroom. The offender is present at the hearing along with their attorney, if one has been appointed or retained. As mentioned earlier, the Hearing Officer may examine witnesses in addition to the parole officer and offender/attorney.

Who gets a Hearing and when are they informed about the Allegations?

Every offender accused of a violation is entitled to a hearing. The offender (and attorney if appointed/retained) must receive the hearing packet (aka, discovery) within 3 days of a preliminary hearing and 5 days before a revocation hearing. Prior to scheduling a hearing, the offender will be asked if they want to have a hearing or waive it. As a general rule, it is advisable to never waive a hearing.

Does the Offender have a right to Counsel?

While an offender may hire an attorney, there is no automatic right to counsel in parole revocation hearings. However, the Parole Board can appoint an attorney in certain situations. The Board may appoint an attorney based on the following factors:

  1. Whether the offender is indigent;
  2. Whether the offender lacks the ability to articulate or present a defense or mitigation evidence in response to the allegations; and
  3. The complexity of the case and whether the offender admits the alleged violation.4

This request for an attorney can come from the offender, parole officer, or hearing officer. In my experience, the Parole Board errs on the side of caution and will not hesitate to appoint an attorney to an offender they believe cannot adequately represent themselves; this usually happens because of a low IQ or mental illness.

What types of hearings are there?

There are two types of hearings: preliminary and revocation.

A preliminary hearing will take place if an offender is accused of a new law violation. The burden to sustain an allegation is low: probable cause. If probable cause is found, the case is usually continued to a later date to hold a revocation hearing after the criminal case is adjudicated.5 The client will remain in custody pending the outcome of the criminal case and the subsequent revocation hearing.

Revocation hearings are held for technical-only violations and for new offense violations that have been adjudicated in court. At this hearing, the burden is preponderance of the evidence. Please note, that just because a criminal case was dismissed, DOES NOT mean there will not be a revocation hearing. The burden is preponderance, not beyond a reasonable doubt!

What are the Preliminary and Revocation Hearing Procedures?

Both preliminary and revocation hearings have two parts, a fact-finding and an adjustment portion.

The first part is considered the fact-finding portion, much like a trial. Documentary evidence is submitted, and testimony is taken from witnesses who are subject to cross-examination. Likewise, objections can be made to introduction of documents or testimony. The offender can testify if they so chose.

In preliminary hearings, the parole officer usually submits the Probable Cause affidavit as evidence to support their burden. Clients should be warned that any testimony they give is under oath and can be used against them as impeachment at trial. Therefore, most of the time it is inadvisable for a client to testify at preliminary hearings.

Due to the low burden, success for offenders at preliminary hearings is generally low. However, the offender can call witnesses to the hearing. These witnesses could include law enforcement, eyewitnesses, and even the alleged victim(s). As all testimony is under oath and recorded, this could be useful for impeachment at a subsequent trial.

If the requisite burden is not met at either type of hearing, the case will not advance any further. This would be akin to a Directed Verdict at a trial.

If the requisite burden is met, the hearing will move on to the adjustment portion, which is akin to a sentencing hearing at a trial. During this part, the parole officer will testify as to the offender’s adjustment during supervision. They will advise the hearing officer as to the offender’s overall compliance with parole conditions, prior warrants, employment status, drug test results, and home plan verification.

Offenders can also testify, submit documents, and present live witness testimony during this stage. Most cases are won or lost at this stage.6 Even though there may be a finding as to an allegation at a revocation hearing, the evidence presented at the adjustment portion may make the difference between a revocation and a less severe punishment. It is vital to present mitigating factors during the adjustment portion. This is the only opportunity the hearing officer will have to gather information about the offender’s life, hardships, accomplishments, and lessons learned. 

Mitigating factors might include:

  • Client’s character
  • Good moral standing in the community
  • Job skills
  • Employment history
  • Family
  • Education
  • Mental health concerns
  • Medical issues, etc.
  • Future educational, professional, and personal goals

At the conclusion of the hearing, the parole officer will make a recommendation. The hearing officer will then conclude the hearing without making a recommendation. The hearing officer will type up a report and send it to the local Parole Board with their recommendation. A Parole Board analyst reviews the file and makes their recommendation to the Board who then issues their decision. The Board’s decision is later tendered to the offender in person.

What are the possible outcomes?

The Board has 30 days to issue a ruling on the case. A majority of the 3 voters is required for a ruling. The Board can then:

  • Accept the findings of the Hearing Officer and Analyst, (most common)
  • Overrule their findings, or
  • Send the case back to the Hearing Officer for further development of factual or legal issues.

If the Board accepts the findings, they will then determine what sanction to impose. Generally, the Parole Board takes a graduated sanctions approach to violations. The possible outcomes from a revocation hearing are:

  • Return to Supervision (possibly with new or modified conditions)
  • Intermediate Sanction Facility (ISF)
  • Substance Abuse Punishment Facility (SAFP)
  • Revocation

Can you appeal the results?

An offender can only appeal a Board’s decision if the vote was to REVOKE. If so, then the offender has 60 days from the Board’s decision to file a Motion to Reopen. This motion must be based on:

  • Newly discovered evidence,
  • Findings of fact that are not supported by preponderance of credible evidence or are contrary to law, or
  • Procedures followed in the hearing are violative of the law or Parole Board Rules.7

What happens after the Parole Board’s decision?

If offender is returned to supervision, they will be released from custody and resume parole supervision. If ordered to go to ISF or SAFP, they will wait in the county jail until a bed opens and then be transferred. Upon completion of ISF or SAFP, the offender will resume parole supervision. Even though offenders ordered to attend ISF and SAFP will be housed in prison to complete their program, this is not considered a revocation. For offenders who are revoked, they will remain in the county jail until they are transferred to TDCJ.

What about street time credit for those who are revoked?

If the offender is sentenced to ISF or SAFP, they will eventually be returned to supervision upon successful completion of the program. If the client is revoked, however, the stakes are much higher. Most offenders are worried about losing their street time if revoked for parole. Certainly, offenders who are revoked will get credit for the time they spent in custody prior to being paroled and any time they spent in custody after the blue warrant was executed. However, they may not keep their street time.

To determine if an offender will keep their street time, we must look at two things: their criminal convictions and how long they have been on parole. Offenders will get credit for street time upon revocation if:

  • They have no current or previous convictions for offenses in 508.149 of the Government Code (DMS disqualifying offenses), and
  • They must have been on parole/DMS for at least ½ of their supervision term at the time the Blue Warrant was issued.

Being eligible for DMS is not as much of a concern for offenders going to prison but it has greater impact on revocations. Now you can see why although DMS has “lost its bite” for many offenders when up for review, it is crucial in determining street time credit.

To be clear, if an offender is currently on parole for or has ever been convicted of a 508.149 offense, they will NEVER be eligible to “keep” their good time upon revocation now or in the future!

Additionally, upon revocation any good conduct time the offender earned prior to being released on parole/DMS will be forfeited.8

Let’s take a look at some examples to give you a good understanding of parole revocations and street time.

Example 1:

  • Client has no prior felony convictions.
  • Client is sentenced to 8 years for DWI.
  • Client was eligible for parole after serving 25% of their sentence
  • 1 year of actual time + 1 year of good time=25%
  • Client was granted parole after serving 1 year of actual time.
  • Client is placed on parole for remainder of sentence: 7 years
  • Client is on parole for 5 years and is then revoked.

What about street time? Is client DMS eligible? YES. (No convictions for 508.149 offenses)

Has offender completed at least ½ of their parole at time of Blue Warrant: YES.

Therefore, client will return to prison with 1 year of actual time served plus 5 years of street time. In essence, client has “banked” 6 years towards their sentence. The client does lose the 1 year of good conduct time, but that is eclipsed by the street time credit.

Example 2:

  • Offender has 2 previous felony convictions for POCS.
  • Client is sentenced to 8 years for DWI.
  • As in the prior example, let’s assume client was granted parole at their first review after serving 1 year of actual time.
  • The client is placed on parole for the remainder of sentence: 7 years
  • Client is on parole for 3 years and is revoked.

What about street time? Is client DMS eligible? YES.

Has offender completed at least ½ of their parole at time of Blue Warrant? NO.

Therefore, client will return to prison without credit for any of their 3 years of street time. They will also lose the 1 year of good time they accumulated prior to being released. Client will go back to prison with just 1 year of custody credit.

Example 3:

  • Offender has 2 previous felony convictions: A 1997 conviction for Aggravated Assault with a Deadly Weapon and a 2005 conviction for Evading Arrest in a Vehicle.
  • Client was sentenced to 8 years for DWI.
  • As in the above examples, client was released on parole after their first review after serving 1 year of actual time. The client is on parole for the remainder of sentence: 7 years.
  • Client is on parole for 6.5 years and is revoked.

What about street time? Is client DMS eligible? NO (Aggravated Assault with a Deadly Weapon is a DMS disqualifier) No need to go to any further.

Due to the client not being eligible for DMS, they will return to prison without their 6.5 years of street time. They will also lose the 1 year of good time they accumulated prior to being released. This client will go back to prison with just 1 year of credit.

In the above examples, the offenders will re-enter the parole review process once they have the requisite credit. They will be eligible for parole just like any other offender. For offenders who “keep” their street time after being revoked, they may be eligible immediately upon returning to prison.

As you can see there are a lot of moving parts to the parole revocation process.  Please feel free to contact me with questions regarding any parole topics.