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ABCs and 123s of Parole Law: An Introduction to Parole Law Pt. 2

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.

The initial article focused on introductory topics in parole law such as the Parole Board composition and voters, time credits, housing, and programming.  In this article, I will focus on the parole voting process and related topics. As in the previous article, I will focus the subject into question and answer format. I do so for the simple reason that these are the most typical questions I receive from attorneys, which their clients also ask them. 

Please note that that this article will cover the most common issues presented to criminal defense lawyers when discussing parole with their clients. There are a lot of nuances and sometimes there are exceptions but this is meant to be a thorough guide for the most common issues and areas that are commonly faced on a daily basis. 

Anyone who knows me knows that I am passionate about my work and can talk about parole law for hours.  With that in mind, after reading this article, if there are any questions you may have or want clarification regarding a topic please feel free to contact me and I’ll be happy to discuss.  

What is parole?

Parole is the discretionary release of an offender by a Board of Pardons and Paroles decision to serve the remainder of a sentence in the community under supervision.  There is NO RIGHT TO PAROLE, IT IS A PRIVILEGE.  There is no liberty interest for release on parole.  I say this, as many times, attorneys and offenders contact me about when an offender will get out.  While there are factors to consider to estimate the likelihood of release on parole, there are no guarantees.  Each case is decided on its own merits.

The parole review process starts 6 months before the Parole Eligibility Date (“PED”) for a first review and 4 months before a subsequent review.  The review process is the mechanism wherein an offender’s case is assembled and prepared for the Parole Board to review.  Among other things, the documents assembled may include court documents, police reports, disciplinary cases, work assignments, programming, and home plan verification, etc.

It is important to note that the PED is simply an eligibility date, not the date the case is going to be voted. Votes rarely happen on the actual PED. The Parole Board can vote on a case up to 2 months before the PED. They can even vote a case after the PED. Most votes occur a few weeks before or after the PED.  If an offender or their family are planning on submitting materials to the Parole Board, they should send them at least 2 months before the PED.

It is important to note that the date of the PED is determined by the statute at the time of the commission of the offense.1  Therefore if you have a case that was indicted years after the offense occurred or is based on a probation revocation from years ago, you must check the parole eligibility on the date the offense occurred.  

The risk factors used in evaluating a case are both static (non-changing) and dynamic (evolving). The static risk factors include age at first commitment, history of revocations, other incarcerations, employment history at the time of the offense, and the type of offense.  Dynamic factors include current age, threat group membership, education, disciplinary conduct, and current custody level. 

Additionally, the type of offense the offender is currently serving is taken into account as well. This is called the “offense severity class.” 

The risk factors and offense severity class are given numbers which are then “tabulated” to give a Parole Guidelines Score from 1-7, with 7 being the most likely to succeed on parole.

How much time will an offender serve before parole eligibility?

Naturally, this is the most common question posed to attorneys when a client is looking at a prison sentence.  In general, it depends on whether the offense is aggravated or non-aggravated.  

Aggravated Offenses are found in 508.145 of the Texas Government Code. They include:

  • 42A.054(a)/3G offenses (other than Capital Murder)
  • Any offense with an affirmative finding of a deadly weapon
  • 20A.03 Continuous Trafficking of Persons
  • 71.02 Engaging in Organized Criminal Activity
  • 71.023 Directing Activities of Criminal Street Gangs

For aggravated offenses, an inmate is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good time equals ½ of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release in less than 2 calendar years.2 

So for aggravated offenses, an offender must serve ½ their sentence without regard for good time before becoming eligible for parole. Good time has no impact on parole eligibility for aggravated offenses. And the first two years are to be served as “flat time”, meaning that a 2-year sentence would mean they would serve all two years.  

For all non-aggravated offenses, an inmate is eligible for release when the inmate’s actual calendar time served plus good conduct time equals ¼ of the sentence imposed or 15 years, whichever is less.3

If you recall, offenders serving a non-aggravated sentence receive good conduct time of roughly 30 days for every 30 days served (assuming they are in good disciplinary status).4 For example, an offender who is sentenced to 8 years on a non-aggravated offense will be eligible for parole after serving approximately 1 year of their sentence in custody. That is because their calendar time (1 year) plus good time (1 year) equals 2 years or ¼ of their sentence.  If that client has backtime credit, you can see how they may be eligible rather quickly even while looking at a somewhat lengthy sentence.

There are a few other offenses that do not fit squarely into the aggravated/non-aggravated scenarios. Those are covered in Texas Government Code 508.145 (a) Sentence of death, a life sentence without parole, and convictions under 21.02 and 22.021(f) of the Texas Penal Code (no parole), 508.145 (b) Capital Felony when the inmate was younger than 18 (40 years until parole eligibility), and 508.145 (c), repeat sex offenders (35 years until parole eligibility).

Drug-Free Zone cases present an interesting twist. Although not considered an aggravated offense, they have a unique parole eligibility consideration. An inmate serving a sentence for which the punishment is increased under 481.134 (H & S Code), is not eligible for release on parole until the actual calendar time served, without consideration of good conduct time, equals 5 years or the term to which the inmate was sentenced, whichever is less.5 This means that an offender who receives a sentence for an offense in a drug-free zone will have to serve the first 5 years of their sentence before becoming eligible for parole (without consideration of good time).  

So as you can see, the difference between a plea or sentence to an aggravated or non-aggravated offense can have a huge impact on when an offender will be eligible for parole. Once again, please note that even if an offender is eligible for parole, it does not mean they will receive a favorable vote.

What are the chances an offender will make parole?

As mentioned in the previous article, the overall parole approval rate last year was 35%. That number included all offenders eligible for parole: aggravated, non-aggravated, first-time offenders, repeat offenders, parole violators, etc.   So as you can see, that number can be deceptive at first glance.  Let’s take a closer look.

A popular rumor in prison is that non-aggravated offenders get out quicker than aggravated offenders. While it is true that a non-aggravated offender is eligible sooner than an aggravated offender, they are not automatically more likely to be released sooner.  In addition to the Parole Guidelines Score, there are other factors the Board considers when reviewing a case. In general, offenders who stay out of trouble and don’t accumulate disciplinary infractions are looked upon more favorably. Offenders who engage in educational, vocational, and faith-based programming show the Board that they are making good use of their time. Additionally, offenders who are well-educated, who have work experience, and a solid parole plan make great candidates for parole. 

There is no “one size fits all” approach to when or how soon an offender will be released. It can be suggested that a first-time offender who is serving a sentence for an aggravated offense might be a lower risk than a repeat offender who commits the same types of offenses over and over again. In other words, a well-educated aggravated offender with significant job skills and work history who otherwise had never previously been arrested may be a better candidate for parole than an uneducated, repeat non-aggravated offender. As you can see, while a non-aggravated case may get an offender eligible for parole quicker, it does not mean they will necessarily be granted parole faster.  

What is Discretionary Mandatory Supervision?

Discretionary Mandatory Supervision (“DMS”) is one area of parole law that is shrouded in mystery among offenders and attorneys alike. DMS is also referred to as “Mandatory Date”, “Short Way”, or “Projected Release Date” in TDCJ vocabulary.   These terms are all synonymous. 

DMS is the legislatively mandated release of a prisoner to parole supervision when the combination of actual calendar time and good conduct time equal the sentence. 

It is important to first study the history of DMS. When first implemented in 1977 all offenses were eligible for DMS (then called Mandatory Supervision). That is, once an offender reached roughly half of their sentence, if they had not already been released on parole, they were released on mandatory supervision.6

Year by year, various “disqualifying” offenses were added to the list that rendered an offender ineligible for DMS. However, the basic rule still applied: if an otherwise eligible offender was behaving, they would serve approximately half of their sentence before being released (calendar time plus good time equaling their sentence). Plus if you were previously convicted of a disqualifying offense, but you came back to prison on a separate offense, you would be eligible for DMS review on your new case.

The disqualifying offenses for DMS are listed in Texas Government Code 508.149. Please note these offenses are more expansive than 3G offenses. For example, Robbery and Arson are disqualifiers for DMS but are not aggravated offenses.

By 1996, Mandatory Supervision was changed to Discretionary Mandatory Supervision. This was a major change in the law, as now offenders would not “automatically” be released once they had served half of their sentence. 

Additionally, the change in law barred offenders for DMS review who had previous disqualifying offenses. That is, if you were previously convicted of a disqualifying offense, you would never again be eligible for DMS. You will, however, still be voted for parole when eligible. Not being eligible for DMS has no impact on your general parole eligibility.  

Can you give me an example of DMS eligibility?

Simply put, once an offender’s actual time plus good time equal their sentence, they will be considered for release for DMS. The best way to think about DMS is the following. Consider a client sentenced to 8 years for a DMS eligible case. That client will be reviewed for parole after serving ¼ of their sentence, which would be 1 year of actual time plus 1 year of good time = 2 years. If denied, they will be reviewed again and if denied, reviewed again, etc. However, once they approach the halfway point of their sentence they will be reviewed for DMS. That is, once their calendar time plus good time equals their sentence (4 years calendar plus 4 years good time = 8 years) they will be reviewed for DMS and not parole. If denied at that time, they will continue to be reviewed for DMS and not parole in subsequent votes.

So what makes DMS voting different?  

As opposed to voting an offender for parole, the DMS law establishes due process safeguards. “The statute confers a liberty interest in the eligible inmate and the statutory presumption is slanted toward release. The parole panel must justify non-release. Unlike parole, which requires that the Board vote in favor of release, the mandatory supervision statute requires that the offender be released absent Board action to the contrary.”7

When considering a case for review under DMS, the Board must vote to release UNLESS there is a finding that the:

  1. Offender’s good conduct time is not an accurate reflection of the offender’s potential for rehabilitation, and
  2. Offender’s release would endanger the public.

Offenders under review for DMS must also be given written notice that they are under review. They must be given at least 30 days to provide supporting documents to the Parole Board.  If granted release under DMS, an offender will be supervised in the community similarly to someone released on parole.

The other thing to consider with regards to DMS is that opposed to parole, the Parole Board must vote the case before the DMS date. If you recall, the PED is just a date the offender is eligible for parole. Many offenders are voted on parole after their eligibility date. However, DMS is different. If the Parole Board fails to vote before the DMS date, the offender must be released. This happens occasionally when an offender is sentenced to a short prison sentence but has a lot of backtime credit by the time they enter TDCJ. By then they have already passed their DMS date. These are considered Retzlaff cases and they will be released without even a vote.8  If you have a case wherein a client is eligible for DMS and they are sentenced to a short sentence (i.e. 2 years) with a year of backtime, contact my office to discuss. 

To sum up DMS, offenders are eligible for DMS if they have no prior or current sentences for DMS disqualifying offenses listed in 508.149. Most offenders are eligible for DMS when they have served roughly half of their sentence. The important thing to know about DMS is that for virtually all offenders who are eligible, they will be reviewed for parole a few times before becoming eligible for release on DMS. If they are not DMS eligible they will still be voted for parole like any other offender. Given the nature of the “Discretionary” addition to DMS in 1996, now that DMS release is not “automatic”, its relevance to many offenders is not as important as before. Finally, when considering a plea offer to an offense, it is usually far more important if the offense is aggravated or non-aggravated than whether it is eligible for DMS.  

Being eligible for DMS does have some significance when we discuss Parole Revocation Hearings in the forthcoming article.

What are disqualifying offenses for DMS?

An inmate may not be released to mandatory supervision if the inmate is serving a sentence for OR has been previously convicted of the following 508.149 offenses:

  • Agg. Assault, 1st or 2nd Degree
  • Agg. Kidnapping, 1st or 2nd Degree
  • Agg. Robbery, 1st or 2nd Degree
  • Agg. Sex Assault, 1st Degree
  • Any Deadly Weapon finding
  • Arson, 1st Degree
  • Burglary of Habitation, 1st Degree
  • Capital Murder
  • Compelling Prostitution
  • Criminal Solicitation (1st Degree)
  • Continuous Sex Abuse of Child
  • Indecency with a Child
  • Injury to a Child, 1st Degree
  • Murder, 1st or 2nd Degree
  • Robbery, 2nd Degree
  • Sexual Assault
  • Sexual Performance by a Child
  • Trafficking of Persons 20A.03 & 20A.02
  • Engaging in Organized Criminal Activity/Directing Street Gangs
  • A felony Increased under Health and Safety Code (Drug-Free Zones & Use of Child in Commission of Offense)

Parole/Discretionary Mandatory Supervision was denied, how long until the next review?

When an offender is denied a release, the subsequent date they are reviewed again is called a “set-off.” In general, all offenders get an annual review after a denial decision. 

However, offenders currently serving a sentence for an offense under Texas Government Code 508.149 or Texas Penal Code 22.04 (2nd and 3rd-degree felony) are subject to a set-off from 1 to 5 years. Basically, if you are currently serving a sentence that is listed in 508.149, you can be set-off for up to 5 years.  

For example, if an offender was previously convicted of Aggravated Robbery (listed in 508.149) but they are currently serving a sentence for DWI, they will be subject to a potential 1-year set-off. The set-off rule only applies to sentences an offender is currently serving.

Offenders serving a sentence under Texas Penal Code 20A.03, 21.02, 21.11(a)(1) or repeat sex offenders under 508.145(c) have a minimum 3-year set-off. Offenders serving a sentence for Aggravated Sexual Assault or a life sentence for a capital felony have a minimum 3-year set-off with a maximum of 10 years.  

Are there any ex post facto issues in regards to set-offs?

Unfortunately, set-offs can be applied retroactively. Earlier we mentioned that the PED must be determined based on the date the offense occurred, not the law in effect today. However, for set-offs, that is not the case. That is, an offender who is subject to a 1-year set-off on the day they were sentenced can be subject to a longer set-off if the law is changed in the future. “The Board’s ability to impose a longer set-off between parole reviews creates only a speculative risk of increased punishment. The change in parole laws did not mandate that the Board impose a longer set-off, it simply vested the Board with the discretion to do so.”9

What is Parole in Absentia?

Parole in Absentia (PIA) is when an offender is voted on parole while not in the custody of TDCJ. That usually means they are in custody in a county jail or a federal prison. In practice, I usually see PIA in two situations. The first is when a client is in county jail awaiting transport to prison on a short sentence and has a lot of backtime, especially if they are DMS eligible.  The other situation is rather unique and interesting.  

A little known fact of criminal law in Texas is that offenders sentenced to 10 years or less can choose whether to stay in county jail or go to TDCJ if appealing their conviction. Article 42.09, Sec. 4 of the Texas Code of Criminal Procedure reads:

If a defendant is convicted of a felony, is eligible for release on bail pending appeal under Article 44.04(b), and gives notice of appeal, he shall be transferred to the Texas Department of Criminal Justice on a commitment pending a mandate from the Court of Appeals or the Court of Criminal Appeals upon request in open court or upon written request to the sentencing court.10

Texas law has clarified that the term “upon request” means that the request has to come from the offender. “Thus, where a defendant receives a sentence of ten years or less, he may only be transferred to the Department of Corrections if he so requests.”11 Therefore, the offender chooses where to spend their time pending appeal. This potentially has parole implications to consider.  

Many times, an offender would prefer to stay in county jail when appealing their sentence. Usually, the county jails are closer to their family and have liberal visitation schedules and easy access to phone calls. Plus, they are still gaining credit towards their sentence. 

However, for an offender who already has significant backtime and is going to be eligible for parole rather quickly, the offender may choose to go to TDCJ while their appeal is pending. Even though the client will be reviewed for parole in county jail when their PED approaches, it may benefit the client to go to TDCJ. There are a few reasons for this. Most county jails do not have the wide array of job assignments or programming that TDCJ offers. Many times an offender will sit in county jail for months or years without any meaningful job assignment (if any), educational classes, or vocational instruction. However, TDCJ generally has options for offenders to learn new job skills, study a trade, and engage in a multitude of rehabilitative classes. When the offender is reviewed for parole (while pending appeal) they can at least show they have: been working their job assignment, staying out of disciplinary trouble, and engaging in programming. The offender who stayed in county jail may not be able to show the same when being reviewed. This is a determination that should not be made hastily and should be made with the advice of counsel.  

In the next article, I will discuss the Parole Revocation Hearing Process.

Blinded Justice: Lessons Learned from Trying a Case via Zoom

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On a Thursday morning, we logged into Zoom like it was any other day. For months, Zoom had been used, like in many other settings, to keep court operations running. There in the gallery view on our computer monitors were cameras facing the well of the court with counsel tables, the judge, and a spattering of other attorneys logging in for morning docket. But this was not just a regular docket. The day before, six people were selected to sit as a jury in a trial. Our trial.

I unmuted my microphone and pointed out to the judge — who had already overruled every objection I had made about the proceedings leading up to that moment — what I thought was a simple oversight: “Your Honor, I see they are setting up a camera facing the witness stand but I don’t see a camera facing the jury.” Her response, “I’m not putting a camera on the jury since we’re live-streaming this. I don’t want their faces shown in the live-stream.” In my mind, I thought, what difference would it make since the jurors were wearing masks? But I had already toed the line on being held in contempt and was not about to face the prospect of being jailed during the pandemic. I politely asked, “How will we be able to see the jury then, your Honor?” The judge replied, “You are welcome to come down here and be present in the courtroom, but I am not going to put a camera on the jury.”

And so began a jury trial where a defendant and we as his attorneys — who refused to put ourselves at risk of contracting a deadly virus for which there is no vaccine and no studies to show the long term effects — were faced with no other choice but to appear for trial by Zoom. And for the entire trial, we would be blind. Unable to see the jury that would be judging us and our client. The jury would be in the courtroom, along with the judge, the witnesses, and the prosecutors. Myself, my associate, Sierra Tabone, and our client would appear on television monitors in the courtroom. And so, began an abomination.

COVID-19 and OCA’s “Experiment”

Our client was charged with driving while intoxicated back in December of 2018. Delays in obtaining evidence from the prosecutors and then the State having to retest our client’s blood contributed to multiple delays, and the case was not scheduled for its first trial setting until January 2020. The case was not reached and ultimately rescheduled to April.

But by then, the COVID-19 pandemic had set in. Government officials had made declarations of disasters and declared states of emergencies. The judicial system followed suit with the Texas Supreme Court and Court of Criminal Appeals issuing Emergency Orders that grinded the judicial system to a halt. The wheels of justice, however, could not come to a complete stop for too long, and judges throughout the state scrambled to figure out how to get those wheels turning again.

One of the first solutions was to use Zoom or some other videoconferencing application. Although awkward at first, it turned out to be a workable stopgap. Courts resumed holding non-trial dockets where attorneys for the State and the defense would confer with the courts to determine case status and discuss other issues.

As for jury trials, however, those obviously could not resume. So, like for our client, many defendants had to wait for their day in court. All that would change at the end of June when the Supreme Court issued its Eighteenth Emergency Order Regarding COVID-19 State of Disaster. In that order, it laid out an ambitious plan to have the Office of Court Administration (“OCA”) coordinate with Regional Presiding Judges and local administrative judges to “assist trial courts in conducting a limited number of jury proceedings prior to September 1.”1 These limited numbers of “test trials” had to

  1. be at the request of the judge presiding over the case;
  2. ensure adequate social distancing and other restrictions and precautions [were] taken to ensure the health and safety of court staff, parties, attorneys, jurors, and the public;
  3. take all reasonable steps to protect the parties’ constitutional and statutory rights;
  4. require the admonishment of petit jurors as appropriate to ensure that proper attention is given by each juror and that outside influence is removed; and
  5. permit the OCA to observe the processes used during the proceeding in order for the OCA to prepare a report to submit to the Supreme Court and to develop best practices for other courts’ use.2

A number of judges around the State jumped at the opportunity to get their dockets moving again and requested to hold jury trials.3 OCA approved a total of 85 requests to hold jury trials and so began the “great experiment.”4

While several of the cases were ultimately resolved without the need for a trial, a total of twenty jury trials were held throughout the state.5 As required by the Supreme Court’s order, the OCA observed those proceedings, prepared and submitted its report to the Court, and made a number of recommendations for allowing courts to move forward with jury trials between October 1 and December 31.6

Surprisingly, not mentioned anywhere in the OCA’s report was an account of an alarming incident that occurred with two trial proceedings that took place in Brazos County.

On August 17, the Honorable Steve Smith, Presiding Judge of the 361st Judicial District Court of Brazos County, started a jury trial in a criminal case where the defendant was accused of burglary. At or about that same time, the Honorable Kyle Hawthorne, Presiding Judge of the 85th Judicial District Court of Brazos County, located across the hall from Judge Smith’s court, started a jury trial in a criminal case where the defendant was accused of continuous family violence assault. Both trials were on the OCA’s approved jury trial list and presumably followed the directives set out in the Supreme Court’s Eighteenth Emergency Order to limit the transmission of COVID-19 in these “test trials.”

While both trials apparently commenced with little difficulty, something went terribly wrong on August 18. As reported by a local television station and newspaper, Judge Hawthorne had to declare a mistrial after it was discovered that a COVID-19 positive inmate was accidentally transported to the courthouse along with the defendant in trial before him.7 That other inmate: the defendant in trial before Judge Smith.8 Judge Smith ultimately had to call for a two-week recess of the punishment phase in that trial.9

In the OCA’s report to the Supreme Court, this was all that was reflected regarding those two trials:

And even though the OCA’s report had a date-by-date account of significant events related to its “pilot program,” this incident was surprisingly omitted from their report.

The OCA nevertheless made its recommendations to resume in-person jury trials and, based on these recommendations, on September 18, the Supreme Court  issued its Twenty-Sixth Emergency Order Regarding COVID-19 State of Disaster allowing for in-person jury trials to commence following the recommendations set out by the OCA.10

The Dreaded E-Mail and the Decision to Withdraw

Because the Supreme Court’s Twenty-Sixth Emergency Order had not yet been released, our case, which had a trial setting on September 16, was rescheduled to November 11, 2020. We began anticipating and preparing for trial but awaited further instruction from the judge in our case, the Honorable Toria Finch, Presiding Judge for Harris County Criminal Court at Law No. 9, to determine if she was going to follow the Supreme Court’s directives regarding in-person jury trial proceedings as other judges in Harris County were beginning to do.

On October 21, we received an email from the judge informing us that she intended to start trial on November 11 and our case was number one on the list. The judge also informed us that the trials were to commence as scheduled following the court’s safety plan as well as the plan created by the Harris County Judiciary.

Myself and my associate reviewed the court’s safety plan and we both had concerns. First, the plan specified that witnesses would not be required to wear masks and would be placed behind a Plexiglass barrier which we knew not be effective at containing the spread of the virus.11 We were also concerned that the plan allowed for the judge to ask any person before the court to remove their masks if needed to make a proper record. We were also concerned that, if the trial took more than one day, the plan did not account for what trial participants, including jurors, would be doing when they were not in the courtroom and returned home where they were not subject to the protections in the safety plan.

Right about that time, our fears were validated when we learned about another incident in Beaumont. As reported by a Beaumont news station, in Jefferson County’s first jury trial since the COVID-19 pandemic began, a juror in a criminal case tested positive for COVID-19 requiring the judge in that case to declare a mistrial.12

Approximately one week later, on October 28, it was reported that health care officials and government leaders were “pleading with Houstonians: Act now to prevent, or at least minimize, a third wave of infections across Greater Houston” that had developed over the previous weeks.13

By that point, we felt we had to move for a continuance. Aside from our personal concerns for our health and safety, we were concerned how proceeding to trial would infringe upon our client’s constitutional rights at trial. Hence, on October 29, we filed our motion for continuance modeled largely on the TCDLA COVID-19 Task Force’s motion for continuance.

Prior to presenting it to the judge, however, we began to prepare ourselves for the judge to deny the motion. That meant we had to begin to consider our obligations to our client and whether we could still effectively and, more importantly, ethically represent him if we were forced to trial on November 11.

 Rule 1.06(b) of the Texas Disciplinary Rules of Professional Conduct states, “a lawyer shall not represent a person if the representation of that person . . . reasonably appears to be or become adversely limited by . . . the lawyer’s . . . own interests.”14 As the comments to the rule state, “Loyalty is an essential element in the lawyer’s relationship to a client.”15 And, when “an impermissible conflict of interest . . . arises after representation has been undertaken, the lawyer must take effective action to eliminate the conflict, including withdrawal if necessary to rectify the situation.”16

What myself and my associate concluded after much consideration was that we had to put our own interests in our personal health and safety above that of our client and his case and potentially withdraw due to the conflict of interest.

We held out hope, however, and made our case to the judge at a pretrial conference on November 4, which ironically was held by Zoom. After presenting our arguments, as anticipated, the judge denied the motion and indicated to the parties that we were to appear at the NRG Arena for jury selection on November 11. We then expressed to her our ethical concerns and the possibility of withdrawal. Despite not having made a formal motion, the judge quickly replied that she would be inclined to deny that motion.17 In terms of reasonable alternatives to allay our fears, we asked if the judge would consider requiring all trial participants to submit to diagnostic tests prior to appearing for the trial or even possibly holding the trial in an outdoor venue. Again, denied.

After several difficult discussions with our client, we informed him that we had to move to withdraw and did so on Tuesday, November 10. Expecting the judge to deny that motion, however, I had spent the entire weekend before preparing a petition for writ of mandamus. While I had seen other attempts at mandamus fail based on a denial of a motion for continuance, I felt we had a better shot because ours was based on the failure of the judge to let us withdraw. Caselaw clearly established that mandamus relief was appropriate where a trial court refused to allow an attorney burdened by an actual conflict of interest to withdraw.18

The petition was filed and assigned to the First District Court of Appeals in Houston that Tuesday afternoon at 2:51 p.m. along with a motion to order a temporary stay of the proceedings in the county criminal court at law. At 4:20 p.m., we received an email from the Court of Appeals notifying us that our motion for the temporary stay was denied.

We were overwhelmed with a feeling of defeat. Again, we had seen other cases where parties moved for and were denied a continuance, including a case involving a tax dispute in Scurry County where the lead counsel for one of the parties sought a continuance due to his age and underlying health conditions, and because his physician had directed him to self-quarantine for at least twelve weeks. He sought mandamus relief to the Eastland Court of Appeals and the Texas Supreme Court, both of which denied his request without opinions.19 We had heard of other attorneys throughout the state and in Harris County whose motions for continuance and petitions for mandamus relief were also summarily denied. The evidence was there to support a strong inference that although there was no explicit directive, there was tacit direction from the top down to deny any motions and overrule any objections that would delay the proceedings.

It was then that we realized we were no longer operating by the same system of rules and protections we have. Although the Texas Supreme Court had stated, “The Constitution is not suspended when the government declares a state of disaster,” the actions of every court in Texas demonstrated the exact opposite.20 We knew we had to shift the paradigm and adapt to our situation.

We could not just show up and participate in person as it would have been counter to everything we had represented to both the trial court and appeals court. We were not going to participate in the trial.

The judge had given us an option: we could appear by Zoom. Instinctively, it sounded like a good solution because it resolved what, in our minds, was our primary concern: our personal health and safety. But almost instantaneously, we were equally concerned with the multiple constitutional violations that it would involve.

First and foremost, it would deprive our client of his constitutional right to be physically present at his trial.21 Although the judge had said it was our choice to appear by Zoom, it was really a “Hobson’s choice” because the alternative was that our client would be deprived both of his right to conflict-free representation and effective assistance of counsel.22 There was also the fact that our client would be giving up his constitutional right to physically face those who testify against him.23 Effective assistance of counsel would also be compromised simply because we would not be in the courtroom to witness everything that was taking place. The list just seemed to go on and on.

Because we were faced with a true “Hobson’s choice,” we decided to move forward as intended and not be physically present at trial but instead appear by Zoom while making all the necessary objections to preserve the error for appeal.

Voir Dire and Preparing the Jury to See Us on Zoom

The morning of November 11, we had to appear at NRG Arena — a convention hall located next to NRG Stadium and the old Astrodome site that had been converted to a massive jury assembly hall — because there was no indication that the voir dire rooms were equipped for Zoom. That was indeed the case when we arrived.  While the county had not provided that sort of technology, we heard the sound of cash registers ringing as we walked in and saw large numbers of staff to assist jurors and parties, as well as high-end audio and video equipment. This included individual voice-activated microphones and Sony headsets at each “juror station,” a seat for each veniremember spaced six feet apart from the others. For us, we too would wear headsets to be able to listen to everyone speaking, be it the judge, the prosecutors, or the veniremembers responding. Hearing would have been otherwise been impossible given the cavernous space that we occupied.

Our concerns about our health and safety were not as great as they were for the actual trial proceedings that would take place the following day at the Harris County Criminal Justice Center in the courtroom for County Criminal Court at Law No. 9. Veniremembers wore not only face masks, but county-provided plastic face shields. Staff members came through before and after voir dire spraying down equipment with what appeared to be disinfectant. Sanitizer sessions were spread out throughout the venue.

As expected, Judge Finch was not there but instead, like other courts using NRG, used a visiting judge to conduct the voir dire proceedings.

As the veniremembers filed into the room, we realized the first problem. While we had questionnaires for each, we had no idea what they looked like. Wearing the masks was bad enough, but with the face shields which just reflected the ceiling lights each time the veniremember moved, there was no way we could see each individual veniremember except for maybe on the first two rows; even then, we could only barely see their eyes.

The visiting judge started the voir dire and surprisingly made little mention of COVID-19 and the abnormal environment we were in. He gave a standard voir dire covering general principles of law applicable to a criminal case. The prosecutor likewise made little mention of COVID-19 and went through the standard State DWI voir dire (e.g. review the elements, discuss potential grounds for cause).

When it came time for me to start, I knew I had a tough road ahead. Ordinarily, I use a power point to talk about the burden of proof and other issues related to the issues in my case. I threw it all out. Again, I knew I had to shift the paradigm and had to prepare the veniremembers for what lied ahead.

The DWI was important but, like I told the jurors, there was a bigger elephant in the room, and it was a really big elephant given the size of the hall at NRG arena we were in. That elephant: COVID-19. I talked to the jurors about their opinions about the pandemic, setting it up as a scaled question where a “4” was a person who was hypervigilant and hardly ever left their home, while a “1” was a person who thought the virus was a hoax and was appalled about wearing masks. This gave us the opportunity to get an idea of who would be receptive to our position. And then we told them ours. I explained how I was somewhere between a 3 and 4, my brother-in-law being an epidemiologist and having lost friends to COVID-19; my associate was also between a 3 and 4 as her mom was immunocompromised having just beat breast cancer.

I then explained to them how things have been working in the criminal justice system since the COVID-19 pandemic began, how judges were panicked about the wheels of justice coming to a halt, and how they were pushing things to get moving again.

I then talked to them about Zoom and other videoconferencing apps to see how many of them were familiar with it and used it regularly. I then explained how we in the criminal justice system had been using it on a daily basis for day to day court appearances and to keep the “wheels turning.”

Then, I turned to our present dilemma. With the presiding judge not being there, it was easy for me to scapegoat her. I told the jurors that we had pleaded with her to push this off until after the pandemic settled and how we did not need to put ourselves or jurors at risk. I told them, as much as they did not want to be there, we wanted to be there even less. I felt this would make them less likely to punish us for their plight.

But then I explained that the judge had given us the option of appearing by Zoom. We told the panel that we wanted everyone to appear by Zoom – the prosecutors, the witnesses, and, most importantly, them. But logistically, it was not going to work so I then reached the climax of the voir dire: we could not pass up appearing by Zoom — that myself, my associate, and our client did not want to put our health and safety at risk being in the courtroom. At that point, we asked who would be offended by that and, as grounds for cause, who could not treat us impartially even though, while they would be in the courtroom, we would only be on television monitors.

By then, having had an open, honest discussion about COVID-19, the jurors were willing to open up. Several said they were indeed offended and would not treat us the same; those jurors would ultimately be struck for cause by the visiting judge. Fortunately, there was a good number of other veniremembers who gave us their commitment that they would hold the State to their burden and not treat us differently. At the end, we got six good jurors and one alternate. Before I concluded, I told them, it was going to be the last time we saw each other in person. It was a surreal moment.

“Uh, We Can’t See the Jury”

The following day, while we were expecting to not see them in person, we were not expecting to not see them at all. But that is exactly what happened.

Having spent the afternoon before, after voir dire talking with the prosecutors about exhibits (which we agreed to preadmit) and witnesses, things started off smoothly putting agreed motions in limine on the record and renewing my objections to the proceedings. But then, when I pointed out to the judge that we could not see the jury — and she responded by saying she was not putting a camera on the jury — we knew we were in for nothing short of a kangaroo court.

I was set up on my computer in my office without a mask. My associate was similarly situated in her office. Our client was set up on his laptop at his office. We would use text messaging to communicate with each other (which had its limits).

We had a camera view of the well of the court with counsel tables where we could see the prosecutors. The judge had arranged to have a laptop set up in front of the witness stand which allowed us to see the witness and the witness to see me during questioning. The judge’s camera was helpful, not for being able to see her, but because it allowed us to see one of the monitors in the courtroom set up behind and to the side of her bench.

This would be a critical component of this entire process because it allowed us to see what the jurors were seeing in the courtroom on the “Zoom screen.” Even though I would be set up with gallery view or have whoever was speaking “pinned” on my monitor so I could watch them, the judge controlled what was published on the monitor in the courtroom. Instead of having a gallery view (where each party on the Zoom is shown), it only showed whoever was speaking. Since that was almost always me, it was almost always my face on the screen. The only time the jurors saw our client was when he was arraigned and pleaded “not guilty” and then, at the end of the trial when, at the beginning of my closing, I asked him to say “hello” so that his voice would switch the voice-activated camera to him and show him on the monitor. I wanted the jurors to see his face one last time to remind them that they held his fate in their hands. Otherwise, with his face not being shown, we did not have to worry about an expression, smirk, or laugh being heard or seen by the jury.

Of course, we were not going to have the same benefit. When I gave my opening statement, I was talking to a computer monitor that had my face on it. I could not see the jury. It was like practicing my opening in front of mirror except I could hear my voice through the computer speakers as well. I also had my notes in a separate window below the Zoom window on my computer monitor as if I had a teleprompter I could read off or look at to remind me what I wanted to say to the camera.

When the prosecutors called their first and only witness,24 surprisingly, he had a mask on. This was contrary to what the judge’s trial safety plan had provided. Nevertheless, we were able to watch him in a separate Zoom window. We turned off our cameras (except our client; the judge wanted to make sure he was watching) and muted our microphones so that I would not be shown on the monitor in the courtroom. This was beneficial because I could take notes, look up things in exhibits, exchange text messages, even do legal research on my second computer monitor without the jurors seeing me fidgeting around or even hearing what I was saying as I was talking with my associate in her office down the hall.

When it came time for cross-examination of the officer, I knew I was in for a different experience. Not being there, not being able to see the jury and read their reactions, and not being able to physically get up in his face put me at a distinct advantage. But the Zoom setup did something beneficial. Even though I was not physically in his face, the laptop was set up directly in front of the witness stand so I was “virtually” in his face for the entire cross. Whereas officers are typically trained to look at the jurors when responding, while this officer did it at first, after several questions, he was locked on my on the screen.

As for the jurors, although I could not see what they were doing, I could see what they were looking at on the monitor in the courtroom: me.

Every time I asked the officer a question, I could watch my demeanor, expressions, and delivery while also hearing my question through my computer speakers. This provided me with instant feedback and helped make me self-aware of what I was doing unlike any of the over 100 trials I had participated in prior to this.

As much as I hated not being able to see the jury, this atrocity was allowing me to focus on nothing else but what they were seeing.

Handling evidence also was much better. Instead of fumbling around with courtroom equipment or getting up to approach the witness stand, I simply had to hit the “Share Screen” button and, since I had all my exhibits set up in separate windows, I just selected what I needed to publish and then, boom, it was on that monitor in the courtroom for the jurors to see. I used Adobe Acrobat Pro to highlight items on exhibits that I needed to highlight. I could play a video on my computer, stop it, stop the screen share so that I was back on the monitor in the courtroom, and ask a question of the officer. Then, if I needed to jump back the video, a couple of clicks, and the jurors were back to watching the video on the monitor.

At the end of my cross, I had a satisfied feeling because I asked every question I wanted to ask and made every point that I wanted to make. But still, I had no way of knowing what the jury was thinking. I had no idea if they had understood what I was asking or where I was going. I had no idea if they were rolling their eyes or falling asleep.

It would be the same experience when I gave my closing argument. I had a couple PowerPoint slides that I opened with after opening with my client’s face being shown on the monitor. But then, it was just me, speaking to the jury but not seeing the jury.

After the jury went back to the jury room to begin deliberations, the judge stepped off the bench and it was just the prosecutors on Zoom. I asked them, “What were the jurors doing during the closing arguments?” Again, I had no idea how they responded.

While the jury deliberated, I started working on a motion to dismiss our petition for writ of mandamus to file in the court of appeals, leaving a blank where I stated what the jury’s decision was. Although I expected it would be summarily denied like all the others, I did not want to take the chance that it would create bad precedent.

Twenty minutes later, the jury came back with a verdict. Not Guilty.

It was vindication, not just for our client, but for everything we went through.

Afterthoughts about Trial by Zoom

Despite the outcome, everything we went through was an abomination. From not being able to exercise our conscience to comply with our ethical obligations, to the multiple violations of our client’s constitutional rights, to the mere fact that we were gathering in a public place when health officials were warning people in the community of a third spike in infections and more deaths made me ashamed of our entire system. Instead of working to seek justice in compliance with the law and respectful of the rights and safety of all involved, we were an unwilling participant in an authoritarian regime. A judicial body focused on one thing and one thing only: keeping the wheels of justices turning.

In my voir dire, I explained it this way. The judicial system is like a car. The judge is the driver. The parties are the two kids in the backseat fighting. The jurors are the unsuspecting group of people standing alongside the road who get pulled into the front passenger seat to listen and settle the fight. But the judge is driving the car. They have to follow the rules of the road, but they get to decide how fast or slow to go and when and where to go. However, when the COVID-19 pandemic struck, those were nails in the tires. While we pulled over to the side of the road to check it out, the judges decided to get back in the car and keep driving on the flattened tires. Why? Because they had to get where they needed to go. No one knows entirely where that was, but it did not matter. The wheels of justice had to keep turning. It did not matter if it was dangerous to others on the road. It did not matter if was dangerous to the passengers in the car. We are riding down a road with flattened tires.

Like we told the veniremembers, we begged the judge to pull over to the side of the road and wait for a tow truck to come tow us to a safe place where we can repair the tires and then get back on the road safely. The judge in our case, like many judges all over the state, however, said “No. We’re going to keep driving.”

This article is not meant to be interpreted as an endorsement of Zoom trials nor should it be. We, as attorneys, must continue to fight this effort to use Zoom on every level. All of the concerns set out by Jennifer Lapinski, Robert Hirschorn, and Lisa Blue in their article, “Zoom Trials: The Idea Exceeds the Technology” in the October Issue of Voice for the Defense were absolutely spot on and witnessed by us in our exercise in futility. We provide this account of our experience to help attorneys who, like us, find themselves with no other choice but to participate by Zoom. Hopefully, no one will ever have to go through what we went through. Hopefully, this pandemic will end and trials as we have always known them and experienced them will return to normal.

There is one positive takeaway from our experience, however. Using Zoom helped me be more self-aware of a lot of things that I normally do not get to see or experience in trial. For one, I got to see what I looked like giving opening and closing arguments. I was more aware of my facial expressions and seeing what the jury was seeing. A lot of people will practice their arguments in front of mirror. I would suggest you practice in front of a Zoom camera. Although hard to describe, it feels more effective when you can see yourself on a monitor as opposed to an identical size, mirror image.

With these things in mind, for anyone with an upcoming jury trial, I strongly recommend holding a mock trial by Zoom to help you prepare. I have done regular mock trials before and they are indeed helpful. But getting mock jurors together is a hassle and seeing them sitting there in person whether in a conference room or ball room at a hotel makes the process too “unreal.” Instead of trying to recreate the trial environment, use the Zoom environment to give you what it does best: instant feedback. Instead of looking at the jurors, you can focus on yourself, and when doing direct or cross examination, focus on the witness alone. Then, after the exercise, the jurors can provide you the feedback that you are looking for both on your case and your presentation of your case. You can also watch the recording of the Zoom session to see yourself and fix what you like and do not like.

Zoom undoubtedly has changed the way we practice law. There is a real benefit to being able to appear at non-trial court settings virtually instead of having to drive miles to a courthouse, find parking, go through metal detectors, and spending wasted time waiting to talk to a judge. We should embrace the technology for those aspects of our practice. But the jury trial is sacred. As Thomas Jefferson stated, “I consider trial by jury as the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution.”

HIPAA in the Age of COVID

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Most of us are familiar with the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. While digital discovery and electronic transfer of records is no new thing, COVID stomped on the accelerator pushing lawyers into technology and e-practice. A lot of us are stumbling into the digital realm, and safeguarding the Protected Health Information (PHI) we have in our possession probably isn’t the first thing on our to do list.  Unless you want to risk the potential of fines between $119 and $59,522 per violation, you’re going to want to pay attention. 

To understand if your practice falls under the regulations of HIPAA, you first need to look at the Texas Medical Records Privacy Act (TMRPA). The TMRPA’s definition of a covered entity is broader than the Federal Law. If you create, receive, store, or work for someone that creates, receives, or stores PHI, you fall under TMRPA. Texas Health and Safety Code §181.001(b)(2)(A-D). Essentially, if you come into contact with PHI, you’re a covered entity and will need to comply with the requirements protecting that information.

What is Protected Health Information (PHI)? PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual. 45 C.F.R. §160.103. This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.” Id. So, if it’s medical information that can be tied to a specific person, it’s probably PHI.

As attorneys, there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMPA. For example, Mental Health records we receive for a mitigation packet for a grand jury presentation, TDCJ records that include infirmary trips, SAFPF records that include counseling, UA results for a pre-trial check in, or discovery with EMT or blood draw records, the potentials are pretty limitless. Remember, too, that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations.   

What does it mean then that we are covered entities maintaining confidentiality of PHI? Obviously, secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. PHI is not our main focus, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release, and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements. 

Under what circumstances can a party re-disclose PHI that we have received? The first is to have a valid court release. A subpoena signed by the Judge, a Grand Jury subpoena, or Administrative Subpoena authorizes a covered entity to re-disclose PHI in their possession. That is not the most likely scenario for when we will re-disclose PHI. Usually those subpoenas are going to go to the people creating the PHI. We will need a valid release to re-disclose PHI.

A valid release is more than just a set of initials on your intake contract saying you can use a client’s medical records for anything we need. Texas Health and Safety Code 181.154(d) tasked the Attorney General with creating a standardized form to comply with signed releases to comply with TMRPA and HIPAA. The 2013 form has some specific requirements like designating who the documents are being released to (not just “anyone who wants them”), the purpose of the release, a description of the information to be used or disclosed, and a specific expiration date. Additionally, there must be a separate statement for release of mental health records, drug or alcohol information, or HIV records that are to be released. The Attorney General’s standardized form is available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumer-protection/hb300-Authorization-Disclose-Health-Info.pdf  Your releases are allowed to be in written or electronic format, or even orally given as long as properly documented. Tex. Health &Safety Code 181.154(b) Best practices though: Get it in writing.

What constitutes a valid signature? It’s easy enough when a client is in person with a State ID to verify who is signing your release. But gone are the days of ink and pen, and an electronic signature is acceptable as long as it is valid under applicable law. The touchstone is the ability to verify that the signature is valid, and the person signing has the authority to do so. Some programs – SIGNiX, eSignLive by Vasco, and Adobe Sign – have been found to comply with HIPAA requirements of verification. 

What about just safeguarding the records in our file? Is your USB drive encrypted? Can you use your Hotmail account to e-mail the records to another attorney or the Judge? How complex is your password? These are all things that HIPAA, and through it, the TMRPA expect you to have considered and made a plan for. The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004. HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306. It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why.  The goal is that if there ever is a breach, we can show we did everything we could to avoid it.  Here are some highlights of best practices:

Encryption. Encryption renders PHI unreadable and undecipherable. The data can only be read if a key or code is applied to decrypt the data. While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place. There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/best-encryption-software for some ideas. 

Passwords. Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPPA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember. So instead of using a complex sequence of numbers, letters, and symbols use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980”

Third Party Storage. Are you using another company to maintain your files? If so, you’re going to need a business associates agreement. 45 CFR §164.308(b). A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself. 

E-mail. Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: (1) end to end encryption; (2) a business associates agreement with your email provider; and (3) make sure to configure your e-mail correctly; (4)  have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant e-mails.

If you’re not a solo practitioner, you have to make sure that you’re training your associates, too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training.  Tex. Health &Safety Code 181.101(a) & (d). 

And why are we doing all of this? Because we want to avoid the enforcement arm of HIPAA and the TMRPA. The TMRPA in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. Texas Health and Safety Code §181.201. As noted above, The Department of Health and Human Services published a final rule increasing the civil penalties for 2020. For violations the covered entity did not know about fines can be between $119 and $59,522 per violation. If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation. 

These are not nebulous threats. In May 2017, HHS levied a $2.4 million civil penalty against Texas Health Systems after they released the name of a patient who had presented fraudulent identification and was subsequently arrested. Concentra Health Services in Addison, TX was fined $1.7 million after an unencrypted laptop was stolen from its facilities. The largest HIPAA fine to date has been against Anthem Health in 2019 for $16 million dollars for failing to protect patient data.

So, what do we take away from this? Remember that as we implement new technology and new ways of doing business into our practices, we ought to be aware of steps to make sure private client information stays private. A lot of us may be old hat to encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds.

Pandemic at the PDO

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I come into the office maybe twice a month. It’s so strange that it is something I can quantify in months. When I left in March, I thought that we might be gone for two weeks. I left yogurt in my secret, fire marshal-unapproved under-desk office fridge – that’s how confident I was I’d be back relatively soon.  The government machine that grinds men’s bones doesn’t usually trust work-from-home efforts, in my humble experience.

I ran into a coworker at the checkout line in the grocery store; both of us looking sheepishly down at our groaning shopping carts. He grinned, “This is wild, isn’t it? I mean, it’s terrible, but it’s kind of exciting.” It was exciting, navigating through the apocalyptic empty displays, outsmarting the other shoppers: no rice in the rice section, but if you looked in international foods, on the very bottom shelf, 10 lbs of basmati for a bargain price; no toilet paper, but plenty of baby wipes; judging that others are buying out all the raw flour but none of the cold medicine. A sense of mild superiority, of hunting and gathering to survive, of feathering one’s nest.

But now, here we are, some immeasurable amount of time later with a reliable supply chain, and I’m sitting on my back patio writing this instead of trying to figure out how to dim the ubiquitous florescent lights in my office enough to stop giving me a headache but not too much that I have to strain my eyes to see (oh, the decrepitude of advancing years!). I have abandoned my stuffy courtroom wear for the schadenfreude of “athleisure.” I revel in the solitude my secret loner soul has craved for all these years in tall buildings full of people. And yet…

Public Defenders’ offices, including my own, are going through sea-changes right now. At least, it feels that way to me from the inside. There’s not a lot of records kept that I could access, not a lot of numbers yet. But recent, rapid increases in funding for PDO’s across Texas are seemingly making for strange bedfellows with pandemic protocols. As my office stretches to find attorneys to fill new positions, young attorneys with little experience are often coming straight from nascent private practices into felony dockets.  Outside of Texas, this is pretty common, but within Texas, PDO jobs have historically been competitive and awarded to more experienced attorneys who don’t need as much supervision. This has created a gaping chasm in training and management of new lawyers, which is significantly worsened by COVID.

Private practice trial attorneys are often forced into bravado. Obtaining paying clients requires flash and confidence, which, at first, often comes in the form of over-confidence. I have these cringe-y memories of myself as a young attorney desperately trying to act like I knew what I was doing. I shudder when I realize that some people believed me. If it weren’t for the delicate, ego-sparing assistance of a few kind and brilliant mentors, I would have made some truly horrible mistakes in my brief time as a private lawyer. Moving into the larger and less-lonely world of public defender offices working shoulder-to-shoulder with much more experienced attorneys changed the way I do everything.

I see the same kind of bluster and ego that I had in a lot of the new attorneys my office has hired, but in the absence of gentle mentoring and accessible peer attorneys, in the weird vacuum of Zoom court, I worry that they are left teaching themselves how to do this work, which is unfair to both them and their clients. Stopping by someone’s office to chat about a case will always be less formal and more congenial than having to pick up the phone and make a call to solicit advice. COVID has eliminated that possibility.

PDO’s breed a type of “no-snitching” culture where formal complaints or observations to superiors about the poor conduct or performance of other lawyers in the office is taboo. Compounding this is that middle-management staff are often ill-equipped to handle attorney discipline or training since they are largely promoted because of their tenure with the office and successes at trial. While these are admirable skills to warrant promotion, they are not skills that translate into management or mentorship abilities, and many great trial attorneys are poor supervisors who lack the ability to delegate authority. This is coupled with the difficulty inherent in managing people who are drawn to criminal defense practice, a notoriously anti-authoritarian and prideful group if ever there was one.

Related to the increases in budgets are increases in the number of cases appointed to PDO’s. As most criminal defense attorneys are all too aware, prosecutors seem unmotivated to move cases or even answer their phones in the midst of the pandemic, even when defendants are sitting in jail exposed to the virus or have languished on bond for years. Since there has been no risk of trial for several months, individual caseloads seem to have grown, apparently a result of the idea that if an attorney is not going to go to trial, they can handle more cases overall, which is true in the short-term. As trials start to resume, trial attorneys are finding themselves with heavy dockets of old cases on top of an expectation that they will continue to intake a higher number of new cases.

I don’t mean to be all criticism and darkness. I am also sweetness and light. There are good things, too. Forcing courts and old-school attorneys to adapt to technological advances has been largely beneficial. Off-docket resets and minimized appearances are definitely time-savers and prevent clients from having to cough up money for public transport or parking, stand in ridiculous lines, and miss work to go to court for nothing to happen.  It feels like a blessing not to have to sit in the gallery for an hour on the day you (of course) forgot to charge your phone, waiting for a late judge to come toddling in from a leisurely brunch to start his docket.  I think I fume a lot less.

Personally, I like the option of being able to work from home on days that I can’t have any distractions- when I don’t want to be rude to the coworkers dropping by to chat but I really need to get this thing done now so please stop talking about your freaking cat’s hysterectomy. And even though my commute isn’t terribly long, it’s amazing what a timesaver it is to avoid it and avoid the serpentine parking situation of the courthouse complex.

That said, I miss the camaraderie of my old office. I miss the collaboration and the chatter and the support, and I’ll admit, I even miss the drama. It was nice to know that in a contested hearing, half my office might show up in the courtroom to show support. It loses something on video conference.  I can’t imagine things returning to the way they were before all this. The days of standing next to a client during a plea with my hand on the back of his jail garb are gone. The idea of several colleagues ordering a pizza together, picking up pieces with our hands from the same box, eating together, laughing and spewing germs all over the conference room seems unthinkable now. The intimacy of having someone in my office sans mask chatting with the door closed feels almost indecent.

I believe in the model of the Public Defender’s Office with all my heart, life, and career. There is not a job I would rather do. I know that what I am witnessing is something our country is (hopefully) going through in a larger sense, too: the painful birth of a more progressive movement at a critical and bizarre time in history. I endeavor to be proud to say I was here now, was part of this hard thing and pushed through it into something better. I hope everyone in our office, at the end of their career, will be able to say that.

Requiem for a Titan

Scrappy. What a perfect name for a lawyer!  And it was so fitting.  But it wasn’t a moniker that he “chose” as many of our brethren and sisters now do to enhance their marketability. Scrappy was ascribed to Clifton L. Holmes, before he ever drew his first breath.  His aunt, upon seeing how active he was in his mother Edith’s belly started calling him Scrappy, and the name just stuck.  I don’t imagine that the aunt realized how prescient she was when she bestowed that nickname upon him.

Scrappy was born in the Piney Woods of East Texas in Kilgore on February 17, 1939.  His dad, Clyde, worked for six or seven decades in the oilfields – over fifty of those years with the same company.  And Clyde bestowed in Scrappy a work ethic which he carried all his life.  Scrappy certainly never forgot where he came from.  I will always remember him talking about his roots.  He would occasionally tell me about his Cherokee lineage and how when his grandmother died, she had to be buried outside of the community cemetery fence because she was an Indian, labeled a heathen.  When he would stand in front of juries and talk about not judging someone until you walked a mile in their shoes, Scrappy would tell it with a twist – talking to them about his little Cherokee grandmother and then telling the jury how she would always tell him not to judge people until he had walked a mile in their moccasins.  Might sound a little corny at first blush, but I knew he was talking from his heart. So did the jurors, and they ate it up.

Scrappy managed to get out of Kilgore, out of the oil patch, and while supporting his own fledgling family, he worked his way through both college and eventually law school, graduating cum laude from George Washington University National Law Center in 1966.  He then came home to Texas and started what would become a legendary career.

And what a career it was!  He was named the Texas Outstanding Criminal Defense Lawyer in 1992 and 1996 by the Criminal Justice Section of The Texas Bar.  He was officially designated a “Texas Hero” by a proclamation issued by the Texas Secretary of State in 1992.  Perennially tabbed as a Super Lawyer.  He was named by Texas Lawyer as one of the “Top Five Go-To Lawyers in Texas” in 2002 and 2007.  He was enshrined by TCDLA in the Texas Criminal Defense Lawyer Hall of Fame in 2007.

Absolutely one of the best lawyers I have ever seen communicate with the jury, one might argue about his place in the pantheon of Texas criminal lawyers, but there is no doubt that he belongs there.  And Lord knows that the best in the nation come from The Lone Star State.    Best of his generation?  Best ever?  I don’t know.  But I am certain that Scrappy deserves to be mentioned among them.  I am reminded of what Bum Phillips once said when he was asked if Earl Campbell was in a class by himself, Phillips responded “I don’t know if he’s in a class by himself, but I know when that class gets together, it sure doesn’t take long to call the roll.”  The same is true of Scrappy. 

But Scrappy’s calling wasn’t only about representing his clients, and he certainly wasn’t self-absorbed in seeking to polish his own star.  Perhaps his greatest legacy stems from his love of his fellow criminal defense lawyers which was exemplified by his dedication and constant efforts to help each of us become everything that was possible in our collective and individual pursuits of justice.

He was one of the early founding fathers of TCDLA, first serving on the Board of Directors from 1978 through 1984, and then as President in 1984 and 1985.  I remember him telling stories about them occasionally literally passing the hat around at board meetings in the early days to pay the bills. He was driven to find ways to help educate and train other lawyers.  To that end, he helped found the Criminal Defense Lawyer Project.  He was also instrumental in establishing the Trial College in Huntsville where thousands of young criminal lawyers have learned how to better represent the citizen accused. 

Perhaps as a result of how his grandmother was treated throughout her life, and her tragic experiences, Scrappy was a champion of racial and gender equality.  He loathed racism, misogyny, and bigotry.  Just ask Betty Blackwell, TCDLA’s first female president, how instrumental Scrappy was in encouraging her and helping her as she blazed a trail for our sisters in TCDLA.  Indeed, Scrappy was always at the forefront pushing us to become more inclusive and more diverse, to become a tent where everyone was welcome and equally valued.

His love for TCDLA was without measure, and his dedication to us was unceasing.  I could not begin to quantify for you the hours, days, and years that he enthusiastically gave to better our band of brothers and sisters.  The personal investment that he made in all of us is staggering.  I know this to be true, we have been blessed with a plethora of great leaders, but I don’t believe that anyone has ever done more for us, or more to promote the common good than Scrappy.  He was a Titan. 

Although you would never hear Scrappy complain about his lot in life, he certainly had personal hardships.  While their four children were still young, Scrappy lost his wife, the love of his life, Edwina.  Additionally, in the late 70s, he was riding in a car with fellow lawyers that was involved in a terrible accident where one of them was killed.  Scrappy was thrown from the vehicle and onto the pavement, physically broken, causing him to endure multiple future surgeries and encumbering him with pain for the rest of his life.  Then, within the past decade, he lost a beloved grandson in another car accident.  Scrappy knew devastating personal loss, and I think those experiences made him more empathetic to the plight of others. 

And oh, how he loved his family.  Loving son, husband, and father.  Doting grandfather.  In a day and age when grandparents seem to crave being referred to by the grandkids by whatever catchy or chic name of the times is, Scrappy absolutely reveled in his grandchildren calling him by that old-school southern familial name, Big Daddy.  He did everything within his power to let them know they were cherished, he provided for their educations, he endeavored to expand their horizons, and he encouraged them to find happiness and to become the best they could be.

Scrappy was compassionate toward others.  He was kind.  He was giving.  If you spent a modicum of time with him, you felt that you had known each other forever.  It didn’t matter if you were an old friend, a judge, a prosecutor, or a first-year lawyer – after two minutes with Scrappy, you would feel like he really cared about you.  And the truth is, he did.

He always treated people with respect, regardless of their station in life.  He was always courteous to his opponents in the courtroom, a trait that regrettably we seem to find in fewer and fewer lawyers these days. Scrappy was always perplexed by the erosion of civility and hoped that we would find a way to return to that as a norm.

And what a mind! His intellect was absolutely astounding. In many ways that made his battle with the cruel disease of dementia seem particularly unfair – to see the brilliance stripped away. I know that we do not get to choose the manner of our departure from this world, and I recognize that death comes to us in a variety of ways. The manner of our passing is unrelated to our character, and good people often have to sometimes fight long and protracted battles. But, I just can’t help but feel that Scrappy deserved better. Instead of that brilliant mind slipping into a state where he didn’t know who or where he was, or what he had been, it would have been so much more fitting for him to die in a courtroom at the end of one of his great closing arguments. He should have been carried from a courtroom on his shield.  

He was such a joy to be around.  His wit, his warmth. . . he was always the hub of the wheel in any setting.  Folks were drawn to him, and vice-versa.  He loved people, and we loved him.  Scrappy meant so much to so many of us.

As a result of that, he will endure.  Thomas Campbell once wrote, “To live in the hearts we leave behind is not to die.”  That certainly is true of Scrappy.

C.H. Spradlin said it another way, “A good character is the best tombstone.  Those who love you, and were helped by you, will remember you. So, carve your name on hearts, and not on marble.” 

I will miss Scrappy immensely and all the good times we had together.  His name is certainly carved on my heart, as it is with many of you.

I think of To Kill a Mockingbird (just about everyone’s favorite lawyer book/movie), and the scene where Atticus Finch is preparing to leave the courtroom after Tom Robinson’s conviction.  Atticus has done his best for Tom and in doing so exposed the racism surrounding the accusation and the trial.  Still, Tom is found guilty.  Atticus’s daughter, Jean Louise, better known as Scout, is sitting in the courtroom’s balcony with the blacks from the community, who were segregated and excluded from the main floor of the courtroom.  As Atticus began to leave, all of the African Americans silently rose to their feet in a show of respect for him.  Scout, still seated, doesn’t seem to understand what was happening until Reverend Sykes tells her “Miss Jean Louise?  Miss Jean Louise, stand up.  Your father is passin’”.

TCDLA?  TCDLA, stand up.  Scrappy’s passin’.

ABCs and 123s of Parole Law: An Introduction to Parole Law

Welcome to the world of parole law. It is an honor to be asked to write about my practice area for the TCDLA membership. It is also a privilege to be selected to be a board member for this wonderful organization. I am passionate about my work and love my career.

For those of you who don’t know me, I spent the first 12 years of my career as a public defender in Chicago (Cook County). I started in Traffic Court and worked my way up to the Felony Trial Division. The pace was frantic and the caseloads immense; there was always ongoing litigation.

I moved to Texas in 2015 and started my law firm focusing on a statewide parole practice. In the upcoming months, I will write a series of articles on parole law. The purpose of these articles will be to give clear, concise, and easy-to-apply principles of parole law for practitioners to use daily. Some of the topics will include general parole fundamentals, the parole review process, discretionary mandatory supervision, and parole revocation hearings. 

For starters, parole law can be confusing. That is mostly because there is no central repository for parole law. Most of the “rules” pertaining to parole issues come from many different sources including: Chapter 508 of the Government Code, Texas Administrative Code, Parole Board Policies and Directives, Parole Division Parole Operating Procedures, and case law.

One of the biggest differences between parole law and criminal defense law is the focus of the work. In criminal defense work, we are generally micro-focused on the case at hand. We are looking at the offense charged, the elements of the offense, the evidence, and any potential defenses. Due to time constraints, we rarely have time to focus much on mitigation until after the case is tried. And as we all know, very few cases are tried to verdict. So, the focus is usually centered on the alleged offense, but the full backstory is usually not covered.

Parole law on the other hand is macro-focused. The instant offense is just one small part of the overall picture. In fact, during my daylong long interviews with my clients (many lasting over six hours), we may only discuss the instant offense for 30 minutes or so. We spend the rest of the time discussing their childhood, adolescence, education, family, home environment, mental health, learning disabilities, medical issues, ties to the community, family support, job skills, employment history, prior offenses, and conduct in prison, just to name a few. 

You could say that parole law is holistic in nature; it looks at the whole person and not just the instant offense. In the following article and the ones to follow, I will present the most common questions and topics clients and attorneys ask regarding corrections and parole. Parole can be quite complicated, but this article and the ones to follow should be a great start for attorneys when advising clients who may be facing prison sentences. 

Who Are the Parties Involved in Parole Decisions?

The Texas Board of Pardons and Paroles (“Parole Board”) determines who shall be released on parole. The Texas Department of Criminal Justice (“TDCJ”) has no say in the release of offenders. Contrary to popular belief, the Parole Board and TDCJ are not the same entity. You can think of it this way: TDCJ houses and monitors offenders until and unless the Parole Board tells them otherwise. The Parole Board doesn’t tell TDCJ how to run their prisons, and TDCJ doesn’t tell the Parole Board whom to release.

The Parole Board is actually comprised of seven board offices: Amarillo, Angleton, Austin, Gatesville, Huntsville, Palestine, and San Antonio. Board Offices are assigned to vote on prison units in their general geographic region. For example, the Austin Board generally votes on cases in Central Texas and the San Antonio Board generally votes on cases in South Texas. Each board office has three voters (one Board Member and two Parole Commissioners).

What may be surprising is that votes are not done as a group. The first voter on a particular case (lead voter) typically votes on a case, and then the file is turned over to the next voter. Two of three votes are needed to either grant or deny parole.1 In a typical year, the Parole Board will vote on 80,000 cases. Last year the overall approval rate was 35 percent. There are many reasons for that number, but we will discuss that in the next article.

What Kinds of Votes Are There?

When an offender2 is reviewed for parole, it is not usually a “yes” or “no” vote. The Parole Board has many options when deciding to grant or deny parole. For parole approvals, the Board can order many types of votes, which are called FI votes. Among the more common votes: immediate release (FI-1 vote), substance abuse programs FI-5, FI-6, or FI-R vote), or sex offender programs (FI-4, FI-9, & FI-18 vote). In fact last year, of the offenders granted parole, approximately two-thirds of offenders were required to complete a program in prison prior to release.

Where Will Offender Go and How Soon Until They Leave?

Offenders generally stay in county jail no longer than 45 days after sentencing. This is referred to as “catching chain.” Offenders must first go to an intake unit. The intake units for men are the Byrd, Gurney, Holliday, and Garza West Units. Women generally go to the Plane State Jail and Woodman State Jail for intake.

What Happens at Intake Units?

Once an offender arrives at the intake unit, they are generally “off the radar” for three weeks. Be prepared to tell your clients that the first three weeks of prison are often the worst. Offenders are arriving at these units from all over the state. Some are there for two-year non-violent sentences and some are there serving life sentences for violent offenses. 

There are no visits allowed during this initial time, no phone calls, and no access to commissary. During this time, offenders will be photographed, fingerprinted, and assigned a TDCJ number. All tattoos will be documented and gang membership will be questioned. Offenders will also get medical screenings (physician, dentist, and psychologist). Usually an IQ test will be given, too. There will be little to no programming available. It is during this time that offenders are given their Line Class and Custody Classification. An offender’s parole eligibility date will be calculated as well. Within 48 hours of arriving at an intake unit, an offender will appear on the TDCJ website, which shows their unit of assignment and contact information.

Offenders can stay at an intake unit or state jail unit for the first two years of their sentence. This is generally frowned upon by offenders because these units generally have fewer options for work assignments, programs, and classes.

Good Time Credit and Custody Classification

Each offender is given a Line Class and Custody Classification. Line Class corresponds to Time Earning Status.3 For example, most offenders arrive at TDCJ as Line Class 1. With good behavior, they can be promoted to various Trustee Levels (SAT II-IV). If they misbehave, they will be reduced to Line Class 2 or 3.

Good Time Credit

Offenders entering TDCJ as a Line Class 1 will receive 20 days Good Time for each month served. Once assigned a job, offenders in Line Class 1 will receive and extra 15 days of Good Time on top of the 20 for each month in prison. If promoted to trustee, Good Time will increase up to a maximum of 45 days per month. Please note that Good Time is not awarded to offenders serving time for a 3G offense.4

Custody Classification

Each offender is also assigned a Custody Classification, which is also referred to as G Levels (G1-G5). This determines where an offender can live, how much supervision they will need, and what jobs they can be assigned. The factors used in determining Custody Classification are current and previous institutional behavior, current offense, and sentence length.

On the high end, G1 classification allows offenders the most freedom, and they are generally assigned to Trustee dorms with unarmed supervision. On the low end, G-5 custody classification is relegated to those offenders who are escape risks or have a history of assaultive behavior. Administrative (“Ad”) Segregation is actually the lowest custody classification. Those offenders are usually in single cells for 23 hours a day.

What About Credit for Time Spent in County Jail?

Offenders who are sentenced for non-3G offenses receive 20 days Good Time for each month in custody.5 Therefore, a client who spent one year in county jail before sentencing will receive eight months Good Time credit upon arriving at TDCJ.

What Kind of Job Will My Client Get?

Contrary to popular belief, TDCJ has many jobs and vocational classes for offenders to participate in. Everyone in TDCJ is assigned a job, everyone goes to work. For those offenders who are in ill-health or have severe medical problems, they can be declared “medially unassigned.” During intake, offenders should talk about their work experience, job skills, and certifications. Many offenders are assigned to field squad, laundry, or garment factory. In my experience, offenders who have marketable skills such as welders, electricians, and plumbers usually get the best assignments. For those who wish to learn new skills, TDCJ offers some unique training programs. I have had clients who trained security dogs used on manhunts and others who trained service dogs. I even had a client who obtained his CDL in prison and spent his time driving a truck back and forth between prison units. Once again, the availability of these jobs is dependent on the particular unit, their custody classification, and of course luck.

What Kind of Programs Are Available?

TDCJ offers a wide variety of programs for inmates. This is unit-specific, many units offer more programs than others. Many clients find that classes help them pass the time, learn something new, or just be there as a support system for other offenders. Some popular programs include: Quest for Authentic Manhood, Bridges to Life, Cognitive Intervention, and Voyager. Many of these programs are run in coordination with faith-based or community-based organizations. A few units offer college courses as well. Keep in mind that the most popular programs often have long waiting lists and entry is not guaranteed.

What Can I Do to Help My Client?

The single most important thing an attorney can do for a client who is going to prison is to SAVE THE CLIENT’S FILE. That means keeping the file, either paper form or scanned into your hard drive. This does not only include the discovery but also investigator reports, plea offers, and trial notes. I cannot stress enough how important that is. 

After being granted permission by the client, I always call the client’s prior attorney to discuss the case. You would be surprised how much information can be learned about the case from talking to the prior attorney.  For example, it is common for a deadly weapon finding to be removed in the plea process. However, if that deadly weapon finding were removed because the investigation revealed that no weapon actually existed, this can be a very helpful piece of information. Moreover, affirmative defenses raised at trial, even if not successful, can be mitigating factors when presenting cases to the Parole Board.

In the next article, I will discuss the parole process in more depth. Topics will include factors used in the parole voting process, Discretionary Mandatory Supervision, set-offs, ex post facto issues, and parole in absentia.

Absurd Results During COVID-19

During the pandemic, Texas resident Ace Cannon wanted liquid refreshments – beer, to be precise – but lacked the required monies to pay for his “need.” Undeterred, Mr. Cannon headed to the nearest Stop and Rob. Grabbing an ice-cold twelve pack of cans, Mr. Cannon quickly whisked past the checkout counter without stopping to make requisite payment. However, our “Hero” quickly fell into the hands of the local law enforcement, who arrested him for Theft of Aluminum, a state jail felony.1

The grand jury returned an indictment for that felony offense. The State then “enhanced” the SJF to a third degree offense because it was committed “in an area that was at the time of the offense subject to a declaration of a state of disaster made by the Governor.”2 Ace’s Class C theft,3 with an assist from the Great State of Texas, has Mr. Cannon facing a potential ten year pen trip.

I know what you are thinking. “They” can’t do that! Yes. Yes, “they” can.

If you have a client facing a COVID-19 “state of disaster” enhancement, all is not lost. Although the plain language of the applicable enhancement statute seemingly allows such “horse hockey,”4 a look back on the legislative history of this law shows otherwise. Time to dust off your knowledge of statutory construction and argue that the enhancement is ill-advised outside times of natural disasters – and offenses directly related to the occurrence of the natural disaster. In legal terms, to apply the enhancement for “an offense committed in a disaster area” in Mr. Cannon’s case would provide for “an absurd result.”

Not all disaster declarations are meant to trigger this enhancement.

The trip to the “absurd result” begins with the landfall of Hurricane Ike in Texas on September 13, 2008.5 Ike swept through Galveston Island and onto the Texas mainland.6 Pertinent to our Tale of Woe, police arrested eight persons in Galveston County for looting in the week following landfall.7 Over 100 arrests were made for “looting” in Harris County in the same time.8 Then State Senator (now Lieutenant Governor) Dan Patrick heard the siren’s call, and introduced legislation “to increase punishment in theft cases committed in certain evacuated or disaster areas.”9 It important to note that the initial bill was tied only to the Theft statute, but evolved into a general sentence enhancement. The chart below tracks the progression of all related bills through the Texas Legislature in 2009.

12/15/2008: Senate Bill 359 filed.10

S.J. of Tex., 254 81st Leg. R.S.

“Relating to punishment for the offense of theft committed in certain evacuated or disaster areas.”11

03/13/2009: HB 4101 is filed.12

03/27/2009: The Senate Research Center issues its “bill analysis.”

“This bill addresses punishment levels for the offense of theft committed in evacuated areas or disaster areas. After Hurricane Ike, local officials brought to light the problem of looting in abandoned or evacuated areas. Section 31.03(f) (relating to certain offenses committed by actors that qualify for the next higher category of offense) of the Penal Code lists several specific theft offenses for which penalties are increased to the next higher category of offense.

C.S.S.B. 359 adds Section 12.50 (Penalty If Offense Committed in Disaster Area or Evacuated Area) to Subchapter D (Exceptional Sentences), Chapter 12 (Punishments), Penal Code, to provide that the punishment for an offense is increased to the punishment prescribed for the next higher category of offense if it is shown on the trial of the offense that the offense was committed in an area that is considered to be a disaster by certain government officials.”13

03/30/2009: Senate Bill 359 is reported out of committee revised to punishment enhancement, instead of focusing on amending the theft statute.14

05/18/2009: The House Research Organization bill analysis is issued.

SB 359 would help deter potential criminal behavior during a hurricane or other disaster by increasing the punishment for certain crimes if they occurred within a declared disaster area. Curfews are not enough to deter burglary or theft after a hurricane, because many looters and burglars are discovered after set curfew times. Some residents do not evacuate during hurricanes out of fear that their homes or businesses will be broken into or looted. By enhancing criminal penalties for certain offenses, the bill would provide peace of mind to residents and business owners.15

05/18/2009: SB 359 is amended.

Amend SB 359 (house committee printing) in SECTION 1 of the bill as follows: (1) In proposed Section 12.50(a), Penal Code (page 1, line 12), strike “is” and substitute “was, at the time of the offense”. (2) In proposed Section 12.50(a)(1), Penal Code (page 1, line 13), strike “considered to be a disaster area by” and substitute “subject to a declaration of a state of disaster made by”.

(3) In proposed Section 12.50(a)(1)(B), Penal Code (page 1, line 18), immediately following the underlined semicolon, insert “or”. (4) Strike proposed Section 12.50(a)(1)(D), Penal Code (page 1, lines 22-23).16

06/19/2009: SB 359 was signed into law by Texas Governor Rick Perry.17

Currently, the statute provides for a listing of applicable offenses that can be enhanced under the statute.18 If a listed offense “is alleged to have been committed in an area subject to a state of disaster declaration made by the President of the United States, the Texas Governor or a presiding officer of a governing body under Texas Government Code section 418.108 or subject to an emergency evacuation order,” then the punishment is increased to that prescribed for the next higher category of offense.19

Here is where it gets legal

The legislative history shows a clear intent that the punishment enhancement was to be used in cases where there is a combination of a natural disaster and persons attempting to “profiteer” from the results. But the plain language of the statute provides no such limitation. So, in the words of The Stork, “what the hell are we supposed to do, ya moron?”20 Well, hold my beer. All that is necessary is to prove that jacking Ace into the Institutional Division is an “absurd result.”21

The start of this process is to use statutory construction. The objective of this process is to give effect to the Legislature’s intent.22 To do so, the first step is to examine the statutory text according to its plain meaning.23 If the meaning of the statutory text would have been plain to the legislators who voted on it, courts are to “give effect to that plain meaning.”24 However, where application of a statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, the plain language method is not used.25 A statute is ambiguous when it “may be understood by reasonably well-informed persons in two or more different senses.”26 Yeah, but how do you get to the absurd result? The absurd-results principle appears to be simple enough: “[i]interpretations of statutes which would produce absurd results are to be avoided.”27 There you go. Just tell the judge to avoid this issue.

How about another approach, one that might not draw the blank stare of indignation or incite judicial anger? One a bit more “legal?” Texas opinions finding “absurd results” are divisible into four general categories:

  • The “conditional” statement, i.e., one stating that an interpretation producing absurd results should not be adopted if an alternative construction is available;
  • The “normative” statement, i.e., one stating that courts should, may, must, or will not adopt a construction of a statute that leads to absurd results, without making the exception conditional on the existence of a reasonable alternative construction and without expressly declaring that the rule will control even over the literal meaning of statutory language;
  • The “presumptive” statement, i.e., one stating that courts will presume the legislature did not intend for a statute to produce absurd results; and,
  • The “deviatory” statement, i.e., one expressly stating that the court will deviate from the literal meaning of statutory language if an adoption of such meaning would produce absurd results.28

Luckily, it is necessary to examine only the “deviatory statement,” as it provides the best fit under existing Court of Criminal Appeals guidance. The deviatory statement theory includes those opinions that state the absurd-results principle in terms that are (1) not conditioned on the existence of an alternative reasonable construction, and (2) expressly stated to control even over the literal or plain meaning of the statutory language.29 This category is the most significant for purposes of Mr. Cannon’s defense – because it is the only version of the absurd-results principle that is, on its face, a true exception to the plain-meaning rule.30

Two Court of Criminal Appeals opinions demonstrate the “deviatory” statement theory. Begin with Mr. O. A. Bizzelle, who in 1938, was convicted of operating a modern school of beauty culture “without having it at all times under the direct supervision of a registered hairdresser or cosmetologist.”31 Mr. Bizzelle had left his school under the care of another, one Miss Cavanaugh.32 Miss Cavanaugh had absented herself from the cosmetology school for “several days” while visiting her sister.33 Obviously, under the plain meaning test, Mr. Bizzelle has committed an offense. However, the Court was called upon to determine the meaning of the language “at all times under the direct supervision of a registered hairdresser or cosmetologist.”34

The Court quickly found that enforcing the plain language of the statute would “lead to consequences which the Legislature could not have contemplated.” “When the literal enforcement of a statute would lead to consequences which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”35

A similar issue arose when the Court of Criminal Appeals was asked to determine the meaning of the statute which required “[i]f during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”36 In Johnson, while on the witness stand, the defendant “lapsed into a rambling narrative stating that he had been ‘under surveillance for five years’ by certain law enforcement officials; that certain documents and pieces of his private mail had been stolen from him… and also that there was a conspiracy among the trial officials, including the trial judge and his attorney, to send him to the penitentiary unjustly.37 Citing the plain language of the statute, the Court of Criminal Appeals found this outburst to be sufficient evidence to require the court to have a hearing concerning competency, and reversed the matter for a new trial.38

However, upon rehearing, the Court of Criminal Appeals reversed itself.39 Apparently having realized the import of what they had held in the original decision,40 the Court quickly backtracked. “In construing a statute, its subject matter, reason and effect must be looked to… when a literal enforcement would lead to consequences which the Legislature could not have contemplated, the Courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”41 The Court then declared “the plain meaning” of the statute could not stand, concluding that “the Legislature could not have contemplated the consequences attendant upon a literal interpretation.”42

“Nothing is over until we decide it is!”

Let’s return to our statute in question. Clearly, Lieutenant Dan did NOT intend for the State of Texas to use this enhancement as a weapon of mass destruction – however broadly it was written. It was to be pinpointed to areas that were affected by a natural disaster such as a hurricane or other weather events – and at those who attempt to profiteer from said disaster. To do so otherwise would certainly seem as absurd as fining the owner of a cosmetology school for not having 24/7 supervision of the participants or having a defendant create a need for a competency hearing when it is clear that it is a fake. In other words, a link to the “disaster” and the allegations of the crime is necessary.

Further, when attempting to limit this enhancement to a proper application, the Legislative history comes into play.43 Extra-textual factors that maybe considered include (1) the object sought to be attained by the Legislature; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and (7) the title or caption, preamble, and any emergency provision.44

So what did Lieutenant Dan tell us in the legislative history? The bill was to “deter potential criminal behavior during a hurricane or other disaster by increasing the punishment for certain crimes if they occurred within a declared disaster area. By enhancing criminal penalties for certain offenses, the bill would provide peace of mind to residents and business owners.”45 It is also known that this bill arose at the time when South Texas had been hit by Hurricane Ike – and that reports of looting and other criminal activity arising from those profiteering from the misery of others had been published. Last, the bill’s title was “Penalty If Offense Committed in Disaster Area or Evacuated Area.”

The plain language may allow use of the enhancement in Ace’s case, but the adoption of such a broad meaning would produce absurd results – or [in less legal terminology] would constitute a “really futile and stupid gesture.”46 As such, Mr. Cannon’s indiscretion should not be seized upon to create another resident of the Institutional Division of the Texas Department of Criminal Justice. Although the plain language of the statute provides the State with this potential, pointing out the irrationality of this application saves Ace an undeserved and unwarranted stay at TDCJ.47

Now, go do that voodoo that you do so well.48

Cross Examining the State’s Domestic Violence Experts: The Blind Lumpers

The Problem

A disturbing pattern is emerging. The blind lumpers are coming.

There is a growing pattern of the State designating and attempting to use advocates now in domestic violence (“DV”) cases to lump these cases into the same shape and size. They are frequently calling “blind” experts who either intentionally or unintentionally know nothing about the specific case – except for the fact the Defendant is guilty. Their job is to explain to the jury how every bit of evidence in the case (or lack of evidence) points to Defendant’s guilt.

For some time now, in child sex cases you can usually count on the State to parade one advocate after another to the witness stand to shore up the weak aspects of the State’s case under the guise of being an expert under rule 702. They often use their “training and experience” in their malleable discipline to show the jury they are human polygraph machines.

Now they’re doing it in domestic violence cases, too.

In DV cases these witnesses are armed with charts and anecdotal theories such as the Power and Control Wheel (“PCW”) and Cycle of Violence (“COV”). There are ways to combat this tactic by both effective cross examination and legal efforts to either prevent the witness from testifying and/or preserving the matter for appeal.

Overviews and Goals of the Article

DV analysis and interpretation is a soft science to be sure. It’s difficult to have any confidence in empirical sociological or scientific research done due to the inability to reliably have controlled studies in this field. The little research that has been done tends to be wildly inconsistent and point in all directions. Academic papers and researchers who attempt to harmonize these inconsistencies have a difficult time doing so. Other groups entering the ‘academic’ fray in the debate are also attacked as having a specific agenda.

Because the expertise in DV cases tend to be “clinical” in nature as compared to “academic,” the topic lends itself to being difficult to cross-examine. Practitioners in the field are coming to testify, and they are armed with mountains of anecdotal evidence and scientific principles they learned at weekend conferences from teachers whose name they forgot. Cross examining them can be like trying to nail Jell-O to the wall.

What the State is really doing is manipulating Rule 702 to substitute advocates for experts, and thus far, the Courts have let them get away with it.

This article examines and discusses current trends and techniques utilized by prosecutors with regards to their expert witness practices. It is designed to assist the reader to effectively identify, cross examine, and preserve error when confronting the State’s DV experts.

“Blind” Experts

A blind expert is an expert brought in to testify who was not involved with the case. This person has typically not reviewed any discovery, conducted any independent interviews, nor generated any reports. These experts are often affiliated with third-party advocacy groups such as battered women’s shelters and/or children’s advocacy centers. It is not uncommon for these witnesses to be designated in every case by the state, and it’s further not uncommon for these witnesses to hop from one courtroom to another to testify in similar cases for your particular county’s DV prosecution team.

“Lumping” vs. “Splitting”

Charles Darwin originally coined the phrases “lumpers” and “splitters” which have gained more wide-acceptance over time. Healthy academic communities and disciplines have both. The lumper is the academic who tries to put everything in broad ‘lumps’ or big groups. The splitter is the academic who does the opposite. The splitter attempts to isolate cases and show smaller or more unique distinctions within groups. The lumper v. splitter debate can be applied to attempting to decode COVID-19, study dinosaurs, or the stock market.

The distinction helps to understand the State’s experts in DV cases are typically “lumpers.” That is, they lump everything into their broad world view frequently with little or no empirical data or support.

As always – when attacking an expert witness, it is fundamental to attack (often baseless) assumptions. Knowing you are dealing with a ‘lumper’ helps and gives you a base set of cross examination points.

Common Topics of State’s DV Experts

The Duluth Model

The Duluth Model is the most common batterer intervention program used in the United States as of 2006 and was developed as a way to reduce domestic violence against women. It was named after Duluth, Minnesota – the city where it was developed. The founder of the program was Ellen Pence, an activist. It is the framework of the BIPP (Battering Intervention and Prevention Program) course many courts require as a term and condition of community supervision.

Some staples of the model include the “Cycle of Violence” (“COV”) and the “Power and Control Wheel” (“PCW”) developed as teaching tools for the ‘re-education’ of offenders to address typically male violence towards women from a socially reinforced sense of entitlement.

The Cycle of Violence

The COV was developed by Lenore Walker in 1979. Her research was based on 120 battered women. Ms. Walker developed three phases in the cycle of violence:

  • Tension Building Phase – where the abuser becomes more temperamental and critical of the victim. As the tension escalates, the victim feels as if she is “walking on eggshells.” The victim often placates the abuser.
  • Acute Explosive Phase – Abuser verbally or physically attacks the victim.
  • Honeymoon Phase – The batterer expresses remorse and promises to change.

Criticism and weaknesses of “The Cycle of Violence”

It Presumes Guilt

The COV comes with a flawed and fatal assumption if it’s being used as a method to prove guilt. It assumes Defendant is Guilty in the first place. For any of the supporting phases to be true – this base assumption also has to be true.

If you replace the very top assumption with its opposite – Defendant is innocent – then absolutely none of the other phases make logical sense. But this diagram shows how the echo-chamber logic is circular in the first place.

The COV doesn’t Account for Mental Illness or Substance Abuse

A major gap in the COV is it does not account for mental illness or substance abuse. Ms. Walker’s original theory had “power” and “control” as the main motivators for domestic abuse, yet those who practice criminal defense on a regular basis understand the roles of depression, anxiety, and other mental illnesses on these cases. Another unaddressed issue by the COV is substance abuse whether or not related to mental illness.1

The COV Converts Evidence of Innocence into Evidence of Guilt

Another criticism of the COV is it takes evidence of innocence and flips it into evidence of guilt with rhetoric alone. Is buying flowers for your spouse evidence of innocence or evidence of guilt? Is having a calm marriage where something both intimate partners agree was not domestic abuse in the first place evidence of a healthy relationship or is it ignoring an two-ton elephant?

The State’s blind lumper expert would argue buying flowers is evidence of guilt because it shows Defendant is trying to control and manipulate the ‘victim’ in the ‘honeymoon’ phase of the cycle of violence. Then again, some spouses are just nice to one another and have a perfectly healthy union.

COV was Developed and Based on Anecdotal Evidence

Lenore Walker has conceded the data set of women originally studied was a small set and were all involved in violent relationships. She further admitted the women were not randomly selected and they cannot be considered a legitimate data base from which to make specific generalizations.2

“Duluth Model Treatment” Fails to Stop Domestic Violence

While academic studies are ‘all over the map’ on DV, there are many studies which show the Duluth Model – despite being the most common treatment method – has little or no positive effect on violent behavior. Researchers found in 2011 “there is no solid empirical evidence for either the effectiveness or relative superiority of any of the current group interventions… the more rigorous the methodology of evaluation studies, the less encouraging their findings.”3

The Duluth Model Focuses Only on Men

Yet another criticism of the Duluth Model is it is focused on male perpetrators and insists male DV is due to patriarchy which condones violence. Critics claim the model is overly-confrontational rather than therapeutic and fails to deal with underlying psychological causes.

A leading critic of the Duluth Model is Donald Dutton, Psychology Professor at the University of British Columbia. He claims, “The Duluth Model was developed by people who didn’t understand anything about therapy.”4 He also argues lesbian battering is more prevalent than heterosexual battery by a 2 to 1 ratio.5 Additionally, author Phillip W. Cook points out male-dominance is absent in homosexual relationships so the Duluth Model blaming male patriarchy falls flat.6

The Power and Control Wheel

The “Power and Control Wheel” (“PCW”) is a diagram displaying a pattern whereby a batterer establishes and maintains control over his partner. While the COV addresses phases in the relationship, the PCW is supposed to demonstrate methods and motivations employed by an abuser. It includes subcategories such as “Male Privilege,” “Coercion and Threats” and “Minimizing, Denying and Blaming.”

Criticism of the PCW

Like the COV, the PCW is similarly not validated scientifically. Further, it suffers from the same fatal assumption the COV does – that is, for it to work, the entire ‘wheel’ must begin with the assumption Defendant is guilty in the first place.

The PCW actually compounds assumptions, though. It primarily assumes defendant is guilty. But then it goes on to further assume the motivations for his guilt. It assumes motivations for being a “batterer” are rooted in power and control. Even if the person is guilty in the manner they suggest – the PCW has a major ‘blind spot’ because the motivation may have nothing at all to do with power and control. It could be mental illness, addiction, or reciprocal domestic violence.

Countervailing Theories to the Duluth Model

Reciprocal Intimate Partner Violence

Reciprocal Intimate Partner Violence (“RIPV”) is also referred to as mutual violence and/or symmetrical violence. It is where both partners – in essence – take turns being the abused and the abuser. The thought that both intimate partners engage in domestic violence undermines both the COV and PCW because both of those assume the domestic violence, abuse, and manipulation to be unilateral.

Several studies place RIPV at anywhere between 42% and as high as 70% of the over-case count for domestic abuse occurrences. In a 2007 study published in the American Journal of Public Health, researchers found about half of the relationships which experienced DV – had violence characterized as reciprocal. In reciprocally violent relationships, it was women who were the aggressors 70% of the time although men inflicted more serious injuries on their partners.7

Dealing with Medical Testimony – Choking

Evidence of choking can be difficult to detect and evidence will not be present in all cases. One law enforcement report showed in 62% of strangulation cases the police officers saw no visible signs of the choking. In 22% of cases minor visible injuries such as redness or scratch marks were reported. Only 16% of cases had significant visible injuries such as bruises, red marks or rope burns. Voice changes occur in 50% of victims. Chin abrasions can be common too as the victim lowers their chin to instinctively protect their neck.8

Visible injuries may be fingernail scrapes, scratches, or lesions.9 Redness known as erythema may or may not darken to become a bruise. Some bruises may not appear for hours or days afterwards. Much bruising is caused by an assailant’s hand or thumb and can make a discernable pattern.10

Petechiae are small red spots in the eye which are evidence of ruptured capillaries (the smallest blood vessels in the body). They can sometimes be found underneath the eyelid. Petechiae can also be found around the eyes in the peri-orbital region or anywhere on the face or neck.11

How the State’s Blind Lumper Will Testify About Choking

If there is little or no physical proof of choking – The State’s blind lumper will likely testify your client is still guilty. It is no different than a SANE nurse brought in to a sexual assault trial with their sole purpose to turn evidence of innocence (a clean medical exam) into an evidentiary tie. For example, the State’s expert will say, “just because there’s no evidence of choking doesn’t mean he’s innocent.”

If there is physical evidence of choking – then it’s probably time to get a medical expert of your own involved – typically in forensic pathology.

Preserving Error

Consider analyzing error in reverse. Be cognizant of the Appellate Court’s standards of review when making the appropriate objection.

Under Texas Rules of Appellate Procedure the Court will either review an error as “Constitutional” or as “other error.”12 Constitutional error requires reversal “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”13 Non-Constitutional error or “other error” “…that does not affect substantial rights must be disregarded.”14

Translation – if it’s not Constitutional error, then it basically gets ignored on appeal.

Making All Objections Constitutional Error

Consider ‘Federalizing’ your objections to the State’s blind lumper expert. Possible objections could include objections based on the confrontation clause or to the Due Process Clause under the 5th and/or 14th Amendment.

The Confrontation Clause

Under the 6th Amendment to the US Constitution, a person has a right to confront accusers. The theory of Rule 702 further goes such an expert would have to concede both good and bad facts or scientific or technical nuances which may hurt the proffering party. The expert is an advocate for the science – not a particular party.

But the blind lumper expert is designed so they can’t be cross examined at all.

They don’t know any of the facts – so you can’t undermine their opinion there. They also frequently don’t rely on any specific authority such as treaties, empirical studies, or trade guidelines they will admit to – nor bring with them to Court.

Because the blind lumper is not tethered to any specific fact, circumstance, or academic principle – they are very difficult to cross-examine.

Due Process

If you really think about it – all objections rooted in the Texas Rules of Evidence can be characterized as “Due Process” objections, too. Again, if you are overruled on objections to ‘bolstering’ or on a Rule 702 objection the Court of Appeals will analyze any error as “other error” which simply won’t result in reversal. If the objection is couched as a Due Process objection – and the Court agrees it is error – then you stand a real chance at reversal.

“Blind Experts” – a Texas Tradition

Rule 702 – And How it’s Increasingly Useless in Stopping the Blind Lumpers

Here is a quick refresher on Rule 702 and the rule’s application with regards to the blind lumper witness. There is a critical distinction between the State and Federal version of Rule 702 which makes the blind lumper witness far easier to proffer as a witness in Texas Courts:

Tex.R.Evid. 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

Federal Rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case. (Emphasis Added).

In Federal cases the witness must demonstrate a firm basis in the facts of the case. State Courts have some control measures similar to the federal rules – but they are supplied by case law, and they are far looser than the federal requirements. Texas Courts further break-down expert witnesses into different categories based on how subjective the discipline may be.

Challenges to the Experts’ Qualifications Generally Fail on Appeal

Courts have permitted the use of expert testimony on the COV and its dynamics of PCW to fortify a complaining witness’s delay, reluctance, and inconsistencies in reporting abuse as well as other behavior, including recanting a report of abuse.15 16 17 As recently as the week prior to this paper being written, the Dallas Court of Appeals again held a “blind expert” was permissible.

To make matters even more impossible on this line of attack for the Defense – the Dallas Court held because the “blind” expert was so general in nature, any error committed would be harmless anyway.18 The trial court even issued a limiting instruction because of how weak the testimony was. This holding allowing the testimony is illogical. To be relevant in the first place, the expert would need to be able to assist the jury with a fact of consequence in the first place. The Court by holding the evidence was so inconsequential conceded the expert was irrelevant.

Rule 702’s “Fit” Requirement

Some of the language which supports scrutiny towards the “blind lumper” expert witness is the “fit” requirement. Expert witness testimony must “fit” the facts of the specific case to be relevant under Tex.R.Evid. 702. Jordan v. State, 928 S.W.2d, 550, 552 (Tex.Crim.App. 1996). “When examining the Rule 702 issue, the trial court must determine whether the expert “makes an effort to tie pertinent facts of the case to scientific principles which are the subject of his testimony.19

And then there is Bolstering

Bolstering is “any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantially contributing ‘to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.’” Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993) (quoting former version of Tex.R.Evid. 401). Tex.R.Evid. 613(c) states, “Unless Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not admissible if offered solely to enhance the witness’s credibility.

Checklist for Cross-Examining the Blind Lumper

Start in Opening Statement

Attack the blind lumper expert in your opening statement if you know they are coming. Let the jury know what a blind lumper is, how they hop from courtroom to courtroom, and how the only thing they are sure of is Defendant is Guilty.

705 Hearing

Rule 705 allows you to have a hearing outside the presence of the jury examining the expert’s opinion and the underlying facts and data supporting the opinion. Always request a 705 hearing to learn beforehand what, if anything, the expert has reviewed prior to court – and when they reviewed it. Chances are if you argue about them being a blind lumper in opening statement, they make take a crash course on the facts of your case in the hallway waiting to testify.

i.Hit “Blindness”

If your expert is blind – cross examine them on it. If you’re calling your own experts, enhance your expert’s credibility by comparing and contrasting their preparation with your own expert’s preparation. Don’t simply let the ‘blind’ expert off with one or two questions about how they didn’t review the case – ask them as many questions on the ‘blindness’ as you can:

Q: You didn’t talk with the complaining witness?
Q: You don’t have any social background on the complaining witness?
Q: Didn’t talk with the detective?
Q: Didn’t read any offense reports?
Q: Didn’t look at any pictures?
Q: Watch any of the videos?
Q: Look at any academic studies for this case?
Q: Didn’t review any medical records?

Hit Assumptions and Weaknesses of COV and PCW

Discuss the weaknesses and assumptions listed above about both the COV and the PCW. Remember, they both presume guilt and not innocence. Further, if they are being discussed in punishment – remember they proscribe particular underlying motives which ignore mental illness, RIPV, and substance abuse.

Follow the Money Trail

If the State’s expert witness is from an advocacy center or perhaps hospital or other organization “supporting the cause” of ending domestic violence – explore the financial ties, if any, between that organization and the elected DA. Do they donate? Is the DA trying to curry favor with these groups or vice-versa? Is the battered-women’s shelter providing blind lumper experts something they all concocted in a board room when the DA was hoping to get a donation for re-election? Maybe there is nothing there – and maybe your blind lumper knows nothing about it. Then again, maybe there is something there a jury would find interesting.

Solving the Problem of the Blind Lumper

Blind lumper expert witnesses called by the State manipulate the rules and put Defendant in the difficult spot of cross-examining a Jell-O like witness who isn’t tethered to any facts, any data, or any empirical research. They twist, bend and ultimately ‘lump’ all of their opinions into “he’s guilty.” It’s a real challenge of your complete advocacy skills both in front of a jury, to the trial judge, and even the Court of Appeals to put a stop to their practice. Hopefully, this helps.

Expert Witnesses and Challenges to Expert Testimony Pt. 1

The admission of expert testimony is generally governed by one statute and four rules.  Discovery of expert witnesses prior to trial is governed by Article 39.14(b), C.C.P.  Texas Rule of Evidence 702 sets forth the standard that the proponent of the evidence must meet to have expert testimony admitted before the trier of fact. Texas Rule of Evidence 703 sets forth the kind of information that an expert may rely upon in giving opinion testimony. Texas Rule of Evidence 704 provides that an opinion is not objectionable just because it embraces an ultimate issue.  Texas Rule of Evidence 705 sets forth the rules that govern the testimony of an expert in trial.  Each of the foregoing is addressed herein. 

In part one of this two-part series, Article 39.14, C.C.P. and Texas Rule of Evidence 702 will be addressed. In part two of this series, Texas Rules of Evidence 703, 704, and 705 will be addressed.

I. Article 39.14(b), C.C.P.
Discovery Relating to Experts

(b)  On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.  Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin.  On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.

Discovery relating to experts in criminal trials is governed by Article 39.14(b), C.C.P. It is a unique statute because it is the only provision that requires the defense to provide discovery to the State in a criminal prosecution. Instead of using terms such as “State” or “defense,” the statute uses the terms “party’s request,” the “requesting party,” and the “disclosing party.” A distinction is not made as to whether the requesting or disclosing party is the State or the defense.

The process required by the statute begins when a party makes a request not later than the 30th day before the date the trial is scheduled to begin. While the statute does not say what the requesting party has to request, it provides that the party that receives the request “shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Tex. R. Evid.” Rule 39.14(b), C.C.P. Article 39.14(b) requires only the disclosure of the names and addresses of persons that the party “may use” at trial to present evidence under Rules 702, 703, and 705, Tex. R. Evid. In re Stormer, 2007 WL 1783853, *2 (Tex. Crim. App. 2007); Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006).

The Court of Criminal Appeals has recognized the distinction between a “consulting expert” and “testifying expert”, which is well established in civil law. Pope v. State, supra at 359-360. “Thus, once a party designates a particular person as an expert that he may use as a witness at trial, that person is no longer a “consulting” expert, he is a “testifying” expert, and the opposing party, whether the State or the defendant, may seek further information from or about him for use at trial.” Id. at 360. The best approach for defense counsel is to initially hire an expert as a “consulting” expert and then decide later whether the expert will testify. However, if the State makes the request for disclosure of the name and address of any expert the defense may use at trial, defense counsel must make the decision as to whether the expert is going to be a “testifying” expert, and if so, make the disclosure to the State, or he will not be allowed to testify over the State’s objection.

“In order to trigger the requirements of Article 39.14, a timely request that designates the items requested to be produced must be made to the State from the defendant.  Davy v. State, 525 S.W.3d 745, 750 (Tex. App.– Amarillo 2017, pet. ref’d); Glover v. State, 496 S.W.3d 812, 815 (Tex. App.–Houston [14th Dist.] 2016, pet. ref’d).  Absent such a request the State’s affirmative duty to disclose the evidence extends only to exculpatory information.”  Hinojosa v. State, 554 S.W.3d 795, 797 (Tex. App. –Waco 2018).  “Article 39.14(b) is not ‘self-executing.’ Tamez v. State, 205 S.W.3d 32, 39 (Tex. App.–Tyler 2006, no pet.); . . . . . .  Rather,  Article 39.14(b) ‘allows [a] trial court to [order] the State to list [its] expert witnesses upon a request,’ but, ‘[w]ithout such an order, [any] complaint [is] not . . . . preserved.’  Tamez v. State, 205 S.W.3d 39-40; . . . . . .”  Harris v. State, 287 S.W.3d 785, 792 (Tex. App.–Houston [1st Dist.] 2009). In Harris, the trial court overruled a defense objection to an expert witness that was not listed on the State’s notice, expressly noting that Article 39.14(b) requires a court’s ruling on a defendant’s motion to disclose expert witnesses and that the trial court had not ruled on the appellant’s motion.  In particular, the appellant in Harris complained he had not been given the 20 day notice required by Article 39.14.  The court held that “the simple fact remains that, because he never obtained an order on his motion, appellant was not entitled to the State’s disclosure of expert witnesses not later than the 20th day before the trial began pursuant to article 39.14.”  Harris v. State, supra at 793.  Accordingly, the court of appeals held that the trial court did not err in allowing the expert witness to testify.  Id.  The Harris case was tried several years prior to the passage of the current version of Article 39.14(b), which has since been amended to be more particular.

It is clear from the language of the statute that a party is not entitled to any discovery regarding experts unless the party has first made a request, and that request was made not later than the 30th day before the date the jury selection is scheduled to begin or the evidence is scheduled to begin in a trial without a jury. While the current statute only refers to requests and disclosures, the foregoing cases would indicate that the requesting party should also file a motion and get the trial court to order production of the name and address of potential expert witnesses by a date certain or risk a court finding that the party waived any complaint it may have about a party not providing the required information. See Kirksey v. State, 132 S.W.3d 49 (Tex. App.–Beaumont 2004).  Another reason to file a motion is because a court may order an earlier time at which the other party must make a disclosure to the requesting party.  Art. 39.14(b), C.C.P.

In Branum v. State, 535 S.W.3d 217 (Tex. App.–Ft. Worth 2017), the State added an expert witness to its witness disclosure less than 20 days before the trial began.  The defendant objected to the late designation before the witness testified, but the court overruled the objection and allowed the witness to testify.  In considering whether the trial court abused its discretion in allowing the expert to testify, the appellate court considered whether there was any showing of bad faith on the part of the prosecutor in the late designation and whether the defendant could reasonably have anticipated that the witness would testify although his name was not previously disclosed.  The court of appeals found there was no showing that the State failed to disclose the witness through bad faith, and instead found that the State notified the defense as soon as it found that the previously designated witness could not be present for trial, and identified its replacement witness. The court further found that the defendant could have reasonably anticipated that a representative from the medical examiner’s office would testify to the cause of death of the decedent. The court also noted that the defendant failed to request a continuance based on the late designation therefore rendering any error on the part of the trial court harmless.  Id. at 226-227. The court also found that the aforesaid factors caused them to conclude that the trial court did not abuse its discretion by allowing the late designated expert to testify over the defense’s objection.

In White v. State, 2003 WL 865351 (Tex. App.–Ft. Worth), the appellant contended the trial court abused its discretion in permitting a State’s expert witness to testify because the State did not give timely notice of its intent to call her even though such notice was timely requested by defense counsel. The defendant had filed a request to the State seeking written notice of its intention to use evidence and statements. Unfortunately, the defendant failed to secure an order pursuant to the version of Article 39.14(b) that was in effect at the time. The appellate court found that the trial court did not abuse its discretion in allowing the witness to testify considering that there was not a showing of bad faith on the part of the prosecutor in failing to disclose the witness’s name before trial, and that the defendant could reasonably have anticipated that the witness would testify even though his or her name was not included on the list, citing Nobles v. State, 843 S.W.2d 503, 514-515 (Tex. Crim. App. 1992).

In Strawn v. State, 2003 WL 21235537 (Tex. App.–Ft. Worth), prior to trial, the State filed a motion to compel the designation of any expert that appellant might call at trial. The trial court granted the motion.  During the punishment phase of the trial, appellant sought to introduce expert testimony. The State objected to the proposed testimony because appellant had not disclosed that the expert would testify at trial. The court granted the State’s motion and excluded the testimony of the expert.  Noting that no Texas court had, at that time, published an opinion applying Article 39.14(b) to a defendant’s failure to timely disclose the identity of a testifying expert, and because Article 39.14(b) does not specify what sanctions are required or permitted should a party fail to comply with the trial court’s discovery order, the court looked at cases discussing sanctions permitted to remedy the State’s failure to timely disclose expert witnesses for guidance.  Id. at *2.  The court noted that appellate review usually encompassed two factors: (1) whether the party’s action in failing to timely disclose the expert witness constituted bad faith; and (2) whether the opposing party (the State in this case) could have reasonably anticipated that the undisclosed witness would testify, again citing Nobles v. State, supra.  The appellate court found there was no evidence in the record demonstrating that appellant’s failure to disclose the expert was in bad faith. However, the court found that the State was not on notice that the defendant intended to call the expert to testify, especially in light of the fact that a specific order was in place requiring pretrial disclosure of experts. Id. at *3. The court of appeals also noted that the expert testimony would not have been helpful to the jury in determining the appropriate sentence in that case and so held that under the specific facts of this case the defendant should not be permitted to avoid the requirements of an order entered pursuant to Article 39.14(b) by stating the expert is a rebuttal expert without demonstrating in some manner that the expert testimony was relevant to issues at sentencing. The court held that the trial court did not err in granting the State’s objections to the expert testimony. 

In Medrano v. State, 2008 WL 5050076 (Tex. Crim. App. 2008), a death penalty case, the trial court ordered the State to provide the name, address and curriculum vitae of its intended expert witnesses to defense counsel no later than July 29, 2004. The State filed its notice of possible expert witnesses on July 27, 2005, which included the name and address of witness Alvarez. The State did not provide defense counsel with Alvarez’s curriculum vitae until August 19, 2005. The guilt phase of the trial had begun on August 15, 2005. On Tuesday, August 23, 2005, the trial court held a Rule 702 hearing outside the presence of the jury on the admissibility of the testimony of Alvarez.  Defense counsel objected at the hearing that the State did not timely provide the curriculum vitae and therefore was not in compliance with the trial court’s order to provide the information at least 30 days prior to trial. The prosecutor contended that he had given the defense copies of the curriculum vitae that he had, the week before. The State contended: “It may have been an oversight, your honor, but they were provided a copy of that.” Id. at *15.  Defense counsel argued he had been given the information about four days before, which did not give him the opportunity to investigate the particular individual. The prosecutor argued that the witness had testified in three prior trials in that county, two of those cases involving the same exact murder that was the subject of this trial. The State contended that transcripts of his testimony have been offered and have been available. Defense counsel argued that the court had ordered the State to provide the curriculum vitae to them 30 days prior to trial and the State did not comply. The witness had been on a list that was provided to the defense the previous week.  The court overruled defense counsel’s objection. On appeal, the Court of Criminal Appeals determined the State only partially complied with the trial court’s order in a timely fashion by supplying only the expert’s name. However, the Court of Criminal Appeals noted that the defense did not contend the State acted in bad faith and there was not an indication in the record of bad faith. The Court of Criminal Appeals found that appellant could reasonably have anticipated Alvarez’s testimony, given that his name appeared on the State’s notice of possible witnesses three weeks prior to trial and he had previously testified in the trials of two co-conspirators. The Court of Criminal Appeals held that the trial court did not abuse its discretion in permitting Alvarez to testify. Medrano v. State, supra at *15.

In Osbourn v. State, 59 S.W.3d 809 (Tex. App.–Austin 2001), appellant complained of the trial court allowing an officer to testify under Rule 701, that a substance was marijuana. The witness was not listed as an expert witness by the State even though the State had been ordered to list its expert witnesses. When reviewing the State’s failure to list the witness, the court found that “appellate review usually encompasses two factors: (1) whether the State’s action constituted bad faith, and (2) whether the defendant could have reasonably anticipated that the undisclosed witness would testify.” Id. at 816. The court of appeals found nothing in the record that suggested the State had acted in bad faith or willfully failed to respond to the court’s Article 39.14(b) order, that the State did not consider the witness to be an expert, appellant had not shown the State intended to deceive her and did not claim the State’s action left an inadequate time to prepare.  The court of appeals found that the offense report clearly indicated that the witness’s personal knowledge of the discovered substance was rationally based on her subjective perception and that appellant could have anticipated the witness’ testimony, most of which was included in the offense report. The court of appeals also found: “If appellant was caught off guard, she did not request the trial court to grant a recess, postponement or continuance to remedy the situation . . . . . .  Having found no bad faith and that appellant could have reasonably anticipated [the witness’s] testimony, we conclude that the trial court did not abuse its discretion even if the witness’ testimony as to the marijuana was admissible only under Rule 702.”  Id. at 816.

The lessons from the foregoing cases are: (1) to file the request and a motion; (2) get a ruling on the motion; (3) scrupulously comply with the court’s orders; (4) make sure that the testimony of the expert is relevant to an issue in your case; (5) and do not be surprised when the court does not enforce its orders against the State; but (6) be prepared to make a record that the State’s failure to disclose was done in bad faith and that the defense couldn’t have reasonably anticipated the undisclosed witness would testify.

II. Texas Rule of Evidence 702
Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

A. Predicate for Admission of Expert Testimony

While the admission of expert testimony is generally governed by Texas Rule of Evidence 702, it operates in conjunction with other evidentiary rules. “The Texas Rules of Evidence set out three separate conditions regarding admissibility of expert testimony. First, Rule 104(a) requires that ‘[p]reliminary questions concerning the qualification of a person to be a witness. . . .be determined by the court . . . . . .’” Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006). Second, Rule 702 provides that if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise. Third, Rules 401 and 402 render testimony admissible only if it “tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401 and 402. “These rules require a trial judge to make three separate inquiries, which must all be met before admitting expert testimony:

(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training or education;
(2) the subject matter of the testimony is an appropriate one for expert testimony; and
(3) admitting the expert testimony will actually assist the fact-finder in deciding the case.’

These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.”  Vela v. State, supra at 131; Harssema v. State, 2020 WL 831614, *12 (Tex. App.-Dallas, pet ref’d); Williams v. State, 606 S.W.3d 48 (Tex. App.-Houston [1st Dist.] 2020); Brantley v. State, 2020 WL 1680050, *5-6, (Tex. App.-Houston [1st Dist.]); Murray v. State, 597 S.W,3d 964, 970-71 (Tex. App.-Austin 2020, pet. ref’d)Tex R. Evid. 702. Expert testimony must aid, but not supplant the jury’s decision. Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Macias v. State, 539 S.W.3d 410, 416 (Tex. App.-Houston [1st Dist.] 2017, pet. ref’d 2018). “Expert testimony does not assist the jury if it constitutes ‘a direct opinion on the truthfulness’ of a child complainant’s allegations.” Schutz v. State supra at 59; Macias v. State, supra at 416 (“The Court of Criminal Appeals has further held that an expert who testifies that a class of persons to which the victim belongs, such as child sexual abuse complainants, is truthful is ‘essentially telling the jury that they can believe the victim in the instant case as well,’ and this is not testimony that will assist the trier of fact.”).

B. Qualifications of Expert

In Rodgers v. State, 205 S.W.3d 525, 527-528 (Tex. Crim. App. 2006), the Court of Criminal Appeals stated “that an appellate court should consider three criteria when determining whether a trial court abused its discretion in evaluating a witness’s qualifications as an expert: (1) ‘is the field of expertise complex?’; ‘how conclusive is the expert’s opinion?’; and (3) ‘how central is the area of expertise to the resolution of the loss?’.” The mere fact that a witness possesses knowledge and skill not possessed by people generally does not in and of itself mean that such expertise will assist the trier of fact regarding the issue before the court. A witness will not always qualify as an expert merely by virtue of a general background. Qualification is a two-step inquiry. First, a witness must have a sufficient background in a particular field, and second, a trial judge must then determine whether the background goes to the matter on which the witness is to give an opinion. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998) (“just as not every physician is qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified to testify as an expert in every products liability case”); Harssema v. State, 2020 WL 831614,*12 (Tex. App.-Dallas, pet ref’d). “An expert’s qualifications must be greater for more complex fields of expertise and for more conclusive and dispositive opinions.” Brantley v. State, 2020 WL 1680050, *6 (Tex. App.-Houston [1st Dist.]); Rodgers v. State, 205 S.W.3d 525, 528 (Tex.  Crim. App. 2006). However, “[n]either a particular college degree nor a particular license is required under Rule 702 for a witness to qualify as a witness.” Cura-Cruz v. Centerpoint Energy Houston Electric, LLC,552 S.W.3d 565, 573 (Tex. App.-Houston [1st Dist.] 2017, reh. en banc overruled).

In Broders, a medical malpractice case, the proponent of testimony from an emergency physician argued that merely because the witness was a medical doctor he was qualified to testify on all medical matters. Broders v. Heise, supra at 152. The Texas Supreme Court rejected that argument finding there was no validity to the notion that every licensed medical doctor should automatically be qualified to testify as an expert on every medical question. Id. The court held that “[i]f a medical degree carried automatic expert qualification in medical matters, a trial judge could no longer fulfill his gatekeeping duty and ‘ensur[e] that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Id. at 152-153; Vela v. State, supra at 132. Instead, a proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on the particular subject. Broders v. Heise, supra at 153; Vela v. State, supra at 132. “The focus, then, is on the ‘fit’ between the subject matter at issue and the expert’s familiarity therewith, and not on a comparison of the expert’s title or speciality with that of the defendant or a competing expert.” Broders v. Heise, supra at 153; Vela v. State, supra at 133. Thus, in order for an expert’s qualifications to “fit,” the expert’s background must be tailored to the specific area of expertise in which the expert desires to testify.  Vela v. State, supra at 133; Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996); Harssema v. State, supra at *12. The background that gives an expert special knowledge which qualifies him to testify and “give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things.”  Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995); Wolfe v. State, 509 S.W.3d 325, 337-338 (Tex. Crim. App. 2017) (physicians with training in pediatric medicine and experience as treating physicians are qualified to testify about the nature and cause of a child’s head trauma).

While an expert must be qualified to testify regarding the specific area of expertise involved in the case, there is no “best-expert rule.” An expert does not have to be highly qualified to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (internist who had knowledge of cardiac conditions and toxicology was qualified to give his opinion that a drug did not cause a pregnant patient’s cardiomyopathy; internist was not required to be board-certified in cardiology or toxicology to testify). The proper question in assessing a physician’s qualifications to submit an expert report “is not his area of practice, but his familiarity with the issues involved and the claim before the court.” Collini v. Pustejovsky, 280 S.W.3d 456, 464 (Tex. App. – Ft. Worth 2009, no pet.). In ExxonMobil Corp. v. Pagayon, 467 S.W.3d 36, 52-53 (Tex. App. – Houston [14th Dist.] 2015), rev’d on other grounds, 536 S.W.3d 499 (Tex. 2017), the court held that a physician from one specialty may testify about the negligence of a physician from a different specialty as long as the standard of care for the task at issue is the same across specialties. There, a physician who did not specialize in emergency-room medicine was qualified to testify about negligence of an emergency-room physician in reading a chest x-ray. “A physician does not need to be a practitioner in the same specialty as the defendant to qualify as an expert. The proper inquiry in assessing a doctor’s qualifications to submit an expert report is not his area of expertise, but his familiarity with the issues involved in the claim before the court.” Estorque v. Schafer, 302 S.W.3d 19, 25-26 (Tex. App. – Ft. Worth 2009, no pet.). In Burlington N.R. v. Harvey, 717 S.W.2d 371, 377-378 (Tex. App. – Houston [14th Dist.] 1986, writ ref’d n.r.e.), a trial court did not in err when it determined that an expert anesthesiologist had the skills and knowledge necessary to give expert testimony about urology. But see Harssema v. State, 2020 WL 831614, *12-13 (Tex. App.-Dallas, rehearing en banc ref’d, pet. ref’d), where the court of appeals affirmed the trial court’s exclusion of testimony from an anesthesiologist, who was the brother of the Defendant, about the Defendant’s neuro-degenerative disorder although the anesthesiologist’s training included diseases of the brain and brain function, he attended all of the Defendant’s medical appointments with a neurologist and had observed the Defendant on a daily basis as his caretaker, and the expert witness had researched the Defendant’s disorder. The court of appeals noted that the expert had testified on voir dire that he did not have the training and experience to discuss movement disorders in great detail and had not specified what his medical research or specialized entailed. Id., at *13.

C. Reliability and Relevance of Expert Testimony

Prior to the United States Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Texas Court of Criminal Appeals decided Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), whereby it announced and implemented a process very similar to that promulgated by the Supreme Court in Daubert. The Kelly case involved the admissibility of DNA “genetic fingerprinting” evidence. In that decision, the Court of Criminal Appeals explicitly rejected the long-standing test of “general” scientific acceptance that had been promulgated in Frye v. United States, 293 F.1013, 1014 (D.C. Cir. 1923). In rejecting the Frye test, the Kelly court stated as follows: “[f]irst, there is no textual basis in [Criminal] Rule 702 for a special admissibility standard for novel scientific evidence.  Second, it should be fairly obvious, scientific evidence may be shown reliable even though not generally accepted in the relevant scientific community.” Kelly v. State, supra at 572. Thus, the Court of Criminal Appeals held that the admissibility of novel scientific evidence was governed by Rules 702 and 403, Tex. R. Evid. However, to prevent the admission of “junk science,” the court adopted several procedural and substantive limitations. Under Kelly, a trial judge must first determine whether scientific evidence is sufficiently reliable and relevant so that it would help the jury in reaching an accurate result; and then must decide whether the probative value of the expert testimony is outweighed by one or more factors identified in Rule 403. Id. at 572.1

The Court of Criminal Appeals went on to address how the proponent of novel scientific evidence proves it to be reliable.

“As a matter of common sense, evidence derived from a scientific theory, to be considered reliable, must satisfy three criteria in any particular case: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. . . . . . .  Under Rule 104(a) and (c) and Rule 702, all three criteria must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted. Factors that could affect a trial court’s determination of reliability include, but are not limited to, the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential  rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question.” 

Kelly v. State, supra at 573. The Court of Criminal Appeals went on to hold that due to the difficulty lay persons have in evaluating the reliability of scientific testimony, the burden of persuasion is clear and convincing evidence rather than simply preponderance of the evidence. “In other words, before novel scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore, relevant.” Id. at 573; Jenkins v. State, 493 S.W.3d 583, 601-02 (Tex. Crim. App. 2016); Patterson v. State, 606 S.W.3d 3 (Tex. App.-Corpus Christi-Edinburg 2020) reh. and reh. en banc denied).

After the Court of Criminal Appeals’ decision in Kelly, the Texas Supreme Court, in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), adopted the same type of analysis as is set out in Daubert and Kelly and has declared that the test in Kelly and in Robinson are functionally the same. In re M.P.A., 364 S.W.3d 277, 286 n.10 (Tex. 2012). The Court of Criminal Appeals has since extended the Daubert/Kelly/Robinson reliability analysis and criteria to all scientific evidence, not merely “novel” or experimental scientific theories. Hartman v. State, 946 S.W.2d 60, 62-63 (Tex. Crim. App. 1997); Reynolds v. State, 204 S.W.3d 386, 389-390 (Tex. Crim. App. 2006); Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).

After the Daubert, Kelly, and Robinson decisions, Texas courts had to consider whether those criteria applied to all expert testimony or was limited merely to scientific evidence. The question was addressed in Nenno v. State, 970 S.W.2d 548 (Tex. Crim. App. 1998). The court held that “[t]he general principles announced in Kelly (and Daubert) apply, but the specific factors outlined in those cases may or may not apply depending upon the context. We do not attempt, here, to develop a rigid distinction between ‘hard’ science and ‘soft’ sciences or non-scientific testimony,” noting that “the distinction between the various types of testimony may often be blurred.” Nenno v. State, supra at 560-561. “When addressing fields of study aside from the hard sciences, such as social sciences or  fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a ‘theory’ or ‘technique’ in these fields may be roughly accurate but somewhat misleading. The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. These questions are merely an appropriately tailored translation of the Kelly test to areas outside of hard science. And, hard science methods of validation, such as accessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside of the hard sciences.” Nenno v. State, supra at 561; Taylor v. State, 555 S.W.3d 765, 778 (Tex. App.-Amarillo 2018, pet. ref’d 2019); Patterson v. State, 606 S.W.3d 3, 31, (Tex. App.-Corpus Christie-Edinburg 2020) (“Because a pathologist must interpret data and frequently cannot reach essential conclusions with mathematical precision, we hold that the admissibility standard from Nenno may apply to the expert testimony of a pathologist”, quoting Bess v. State, 2013 WL 827479, *26 (Tex. Crim. App.)).

D. Application of the Rules to Particular Cases

  1. Application of Nenno Standard

The Nenno standard is applicable to expert evidence in the “soft sciences” as well as non-scientific expertise.  Morris v. State, 361 S.W.3d 649, 654 (Tex. Crim. App. 2011) (“[e]xpert testimony does not have to be based upon science at all: by its terms, Rule 702, by applying to ‘technical or other specialized knowledge,’ permits even non-scientific testimony.” Police officers’ testimony on “grooming” behavior by people who sexually victimize children was admissible under Nenno as a subject matter within a legitimate field of expertise); Davis v. State, 329 S.W.3d 798, 815 (Tex. Crim. App. 2010) (trial court did not abuse its discretion in admitting expert testimony under Nenno about Satanism; expert “had conferred with other experts on the subject in various cases, and had spent years teaching the subject to college students and law-enforcement personnel,” was considered an expert by others, and had read numerous books and articles on the subject); Gallo v. State, 239 S.W.3d 757, 765-767 (Tex. Crim. App. 2007) (trial court properly analyzed and rejected expert testimony under Nenno standards because witness testified that research and the study of filicide–parents killing their children–was not extensive enough); Weatherred v. State, 975 S.W.2d 323, 323-324 (Tex. Crim. App. 1998) (admissibility of expert testimony on eyewitness identification was determined under Nenno standards for “soft sciences”); Taylor v. State, 555 S.W.3d 765, 778 (Tex. App.-Amarillo 2018, pet. ref’d 2019) (psychology is considered a soft science); Rhomer v. State, 522 S.W.3d 13, 21-22 (Tex. App.–San Antonio 2017) (police officer’s testimony on point of impact in vehicle collision was evaluated using Nenno factors because accident reconstruction was based on officer’s experience and training rather than scientific inquiry); In re J.R., 501 S.W.3d 738, 747-749 (Tex. App.–Waco 2016, pet. denied) (in case terminating parental rights, court applied Nenno factors and determined that psychologist’s testimony on parental psychological assessments were admissible); Washington v. State, 485 S.W.3d 633, 639 (Tex. App.–Houston [1st Dist.] 2016, no pet.) (gang membership is legitimate field of expertise, police officer’s testimony that defendant was current or former gang member was in scope of that field, and testimony relied on self-admission and gang tattoos which are factors frequently relied on by law enforcement to identify gang members); Brewer v. State, 370 S.W.3d 471, 474 (Tex. App.–Amarillo 2012, no pet.) (in aggravated-assault case, expert could testify about “psycho-violence” to assist jury in understanding a victim’s delay in calling police; trial court properly asked expert in voir dire whether her testimony would be “standard in the industry”); Hammal v. State, 352 S.W.3d 835, 841-843 (Tex. App.–Ft. Worth 2011) (police officer’s testimony on handling drug-detection dog was reliable under Nenno), rev’d  on other grounds, 390 S.W.3d 302 (Tex. Crim. App. 2012); State v. Smith, 335 S.W.3d 706, 712 (Tex. App.–Houston [14th Dist.] 2011, pet. ref’d) (proponent of expert testimony on dog-scent lineup did not show that expert’s opinion was reliable; expert’s testimony that his dogs were reliable and accurate in identifying scents, without any evidence to support those claims, was not sufficient to show reliability); Salazar  v. State, 127 S.W.3d 355, 359-360 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d) (upholding exclusion under Nenno of defense expert’s testimony on “content-based criteria analysis” to evaluate interviewing techniques used with sexually abused children; method was not generally accepted, study of technique was still ongoing, and potential for error was great); Roise v. State, 7 S.W.3d 225, 236-237 (Tex. App.–Austin 1999, pet. ref’d) (testimony of psychologist that photographs would promote sexual impulses and sexual fantasies and that children in photographs would have been developmentally harmed was not relevant or reliable under Nenno standards for “soft sciences”); Chavarria v. State, 307 S.W.3d 386, 391 (Tex. App.–San Antonio 2009, no pet.) (the appropriate standard for assessing the reliability of a psychology expert’s testimony relating to his examination of a child sexual abuse victim is the Nenno soft-science standard, rather than the Kelly hard-science standard).

In In The Interest of K.L.R., 162 S.W.3d 291, 302-304 (Tex. App.–Tyler 2005, no pet.), the trial court erred in allowing a licensed counselor to testify because she did not state that counseling is a legitimate field; did not state that her testimony was within the scope of her field; and did not state that she relied on principles involved in her field. Id. In In re J.B., 93 S.W.3d 609 (Tex. App.–Waco 2002, pet. denied), DFPS offered the testimony of a psychologist who had conducted a parenting assessment of the mother whose rights they sought to terminate. The court of appeals, employing the factors set out in the E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), found that the trial court abused its discretion by admitting the evidence because the proponent of the evidence had proffered only the psychologist’s testimony to establish the reliability of his methodology, but offered no specific, independent sources to support its reliability. In American West Airlines, Inc. v. Toupe, 935 S.W.2d 908 (Tex. App.–El Paso 1996, no writ), the court ruled that the trial court did not abuse its discretion by excluding testimony from the plaintiff’s treating mental health worker, as the expert’s testimony was subjective, the peer review of the expert’s method was limited, the expert offered no examples of publication of her work, and the potential rate of error for her diagnosis was unexplored. The Court held that these factors outweighed the evidence that the expert’s techniques were accepted as valid by the psychological community and that the techniques were generally used for therapy.

  1. Reliability of the Evidence

Even where it is determined that the expert testimony is relevant to an issue in the case, the proponent of the scientific evidence still must show by clear and convincing evidence it is reliable; that is, the scientific theories underlying the expert opinion are valid and the techniques used to apply the theories are valid. State v. Jordan, 950 S.W.2d 210, 212 (Tex. App.–Ft. Worth 1997, pet. ref’d); Weatherred v. State, supra. Jordan was remanded back to the court of appeals from the Court of Criminal Appeals after it was determined that the testimony as to eyewitness reliability was relevant because it might be helpful to the jury. However, on the issue of reliability, the court of appeals found that the proponent of the evidence failed to present sufficient evidence of the validity of the scientific theories underlying the expert’s opinion or the validity of the techniques used to apply the theories. The Court criticized the proffer of the expert’s testimony as follows:

While Dr. Finn constantly referred to support for the validity of the theories in vague generalities such as “research of others,”  “some research,”  “a number of studies,” and even “one specific test”; he failed to mention by name any other person who purports to be an expert in the field or produce or name the studies he relied on to research his opinions. Dr. Finn also admitted he had never been subjected to peer review or conducted scientific research to test the validity of these theories himself. Finally, there is not evidence of error rate in applying Dr. Finn’s method of reaching his conclusions under the theories he discussed.  Based on the record before us, we cannot say that the trial court abused its discretion in excluding his testimony.

State v. Jordan, 950 S.W.2d at 212. In Weatherred v. State, 515 S.W.3d 540 (Tex. Crim. App. 2000), the Court of Criminal Appeals found the proffer of expert testimony to be lacking, noting specifically that the defendant had offered the expert’s testimony but nothing more. Although the expert had claimed that he and others had carried out extensive research on the reliability of eyewitness identification and he had written much on the subject, he failed to produce or even name any of the studies, researchers, or writings, in question. The Court of Criminal Appeals found that the trial court had not abused its discretion in excluding the expert testimony.

When the alleged crime is a child sexual abuse offense expert witness testimony may be proffered to describe the “syndrome” experienced by victims of the offense. Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993). From the prosecution’s standpoint, the purpose of offering this evidence is to assist the jury in concluding that the victim, who exhibits the described characteristics of the syndrome, was in fact the victim of a sex offense. Thus, it is the type of evidence that the offering party hopes to have considered as direct evidence of the charged act.  From the defense standpoint, the dangers inherent in syndrome evidence are not insignificant.  First, it appears to be establishing the “truth” of the allegation. Second, even if the syndrome evidence tends to explain that the victim has been the victim of a sex offense, it does not answer the question of identity of the perpetrator. To the extent that syndrome evidence is scientific theory it should be subjected to all the rigors encountered for any type of expert testimony.

Expert testimony on a topic may be admitted even though there is not universal agreement as to the validity of the expert’s opinion. In Wolfe v. State, 509 S.W.3d 325 (Tex. Crim. App. 2017), the State offered expert testimony from three separate witnesses regarding the cause of abusive head trauma to a child complainant. The State’s witnesses’ testimony was based upon a triad of symptoms – subdural hematoma, retinal hemorrhaging and brain swelling – and through a process of differential diagnosis that was an “all – encompassing process – of – elimination consideration of every possible cause” based on the patient’s particular history and presentation. The State contended that the abusive head trauma diagnosis is widely accepted among esteemed national and international medical organizations as a valid diagnosis and has been the subject of extensive research. On the other hand, the defendant’s expert testified that there was significant disagreement within various segments of the medical and biomechanical communities regarding the validity of the diagnosis based on the triad of symptoms. The court held that the lack of universal agreement in the medical profession did not render the State’s evidence “junk science,” due to other indications of reliability from the evidence. The Court of Criminal Appeals held that “even accepting that appellant’s expert and the State’s experts were all qualified, their disagreement about their methods and conclusions would not necessarily render one side’s testimony unreliable.” Wolfe v. State, supra at 341. The court noted that just because two qualified experts may reach directly opposite conclusions using similar, if not the same, databases, or disagree over which data to use or the manner in which the data should be evaluated, does not necessarily mean that one opinion is per se unreliable. “That some scientists in a field disagree with an expert’s theories or conclusions does not render those theories or conclusions unreliable.” Id. That there is disagreement in a scientific community does not render testimony from either side of the disagreement unreliable, and therefore not admissible. Id.

  1. Credibility of the Child Witness

Probably the most significant case relating to the admission of expert testimony in child sexual abuse prosecutions (and, to a lesser degree, relating to the impeachment of credibility in child sexual abuse cases) is Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). In Schutz, the Court of Criminal Appeals addressed the admissibility of five categories of evidence that touch on issues of credibility:

(1) substantive evidence of guilt which incidentally impacts on credibility; i.e., symptoms exhibited by child abuse victims and whether or not the complainant exhibited those symptoms; physical evidence and whether such evidence is consistent or inconsistent with the complainant’s allegations – admissible in case-in-chief or on cross- examination;

(2) general testimony relating to impaired witnesses or declarants; i.e., general testimony about the ability of a class of persons recognized by society as being impaired, such as young children or the mentally retarded, to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events that are at issue in the given case – admissible in case-in-chief or on cross-examination if an impaired person is the victim or an expected witness (an impaired person could be a young child);

(3) general testimony that directly attacks credibility, i.e., testimony that the child has  general character for making untruthful or dishonest statements, or fantasizing, or is the kind of child who is susceptible to manipulation, or has difficulty distinguishing between fantasy and reality;  or testimony as to the common symptoms or traits of a child who is fantasizing or being manipulated, coupled with testimony that the victim does exhibit those symptoms or traits;  or testimony that the child suffers some mental or physical handicap, disorder, or impairment, coupled with testimony about the adverse effects that would have on perception and/or memory; or testimony that third parties committed acts designed to manipulate the child into making allegations – admissible in case-in-chief or on cross-examination to attack credibility of witness or declarant  (generally falls under Texas Rule of Evidence 608(a));

(4) general testimony that directly supports credibility; i.e., that the child has a general character for making truthful or honest statements; that the child does not have a general character for fantasizing; that the child is not the type who is susceptible to manipulation; that the child does not have difficulty distinguishing between fantasy and reality – admissible in rebuttal to attacks on credibility, so long as there is a loose fit between the rebuttal and the attacks on credibility;

(5) specific testimony attacking or supporting credibility; i.e., specific instances in which the child has lied, fantasized, been manipulated, told the truth, accurately perceived reality, or resisted manipulation;  child’s allegations relating to the offense were the result of manipulation or fantasy, or were lies, or testimony that they were not; child did not, in fact, accurately perceive or remember events due to physical or mental impairment- admissible only to rebut other specific testimony attacking or supporting credibility and only if there is a tight fit between the rebuttal testimony and the previous testimony supporting or attacking credibility. Id. at 75. (See Appendix to case – chart explaining admissibility of various kinds of testimony). Expert testimony is generally not permitted to rebut lay testimony. Id. at 72, 74.  

An example of the proper admission of expert testimony about the behavioral characteristics of abused children can be found in Perez v. State, 113 S.W.3d 819 (Tex. App.– Austin 2003, pet. ref’d). The appellate court recognized the long-standing Texas rule that expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been abused is relevant and admissible under Rule 702. In a lengthy opinion, the Austin Court of Appeals discussed expert testimony and the “soft” sciences in terms of the Daubert test as interpreted by the Court of Criminal Appeals in Nenno. The Perez court concluded that: (1) the expert’s field is a legitimate one; (2) due to the witness’s “superior knowledge and experience”, the common characteristics and dynamics of children who have suffered sexual abuse were within the scope of his expertise; and (3) the witness’s unimpeached testimony supports a conclusion that his opinions and writings on sexual abuse of children were accepted by the relevant scientific community of psychologists.

On the other hand, it is error for a trial court to allow an expert to testify, over objection, that the testimony of the child is “consistent with child abuse” or there was grooming in the case on trial. The expert may testify to what constitutes grooming or answer a hypothetical as to whether a certain type of conduct is grooming but may not opine that the child in question was groomed. Kelly v. State, 321 S.W.3d 583 (Tex. App.–Houston [14th Dist.] 2010, no pet.)

Expert testimony about the truth or falsity of the allegations or the truthfulness of the complainant is prohibited. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993); Lane v. State, 257 S.W.3d 22, 27 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d); Kelly v. State, supra at 602, (expert should not have been allowed to imply children were telling the truth by claiming she would not have agreed to be a witness in the case if she saw evidence of deception).

In Wilson v. State, 90 S.W.3d 391 (Tex. App.–Dallas 2002, no pet.), over objection, an employee of the children’s advocacy center was allowed to provide expert testimony that 2%  to 8% of children who make outcries of sexual abuse make false reports and the majority of those arise in custody cases.  Id. at 393.  The court of appeals held that it was error to allow this testimony because it “did not aid, but supplanted, the jury in its decision on whether the child complainant’s testimony was credible.”  Id. at 393. However, upon considering all the evidence in the case the error was found to be harmless. For the next ten years, at least in Dallas County, the prosecution continued to offer, and the courts continued to admit, such evidence.

Then, in Wiseman v. State, 394 S.W.3d 582 (Tex. App.–Dallas 2012), the successor to the expert witness in Wilson was allowed to testify, over objection, that only 2% of children who make allegations of sexual abuse are making false accusation, and that 77% of those are involved in custody or divorce-related issues. Citing Yount and its decision in Wilson, the court of appeals again found the trial court erred by admitting the testimony as to the percentage of children who lie about being sexually abused. Wiseman v. State, supra at 587. The court also rejected the State’s contention that the defendant opened the door to such testimony by eliciting testimony that some teenagers lie. The court reversed, finding that the expert testimony violated the defendant’s substantial rights because the case turned solely on the credibility of the witnesses and the testimony of the witness went directly to that issue. Id. at 588. The same result was reached regarding the same evidence in another case, Quan An Tran v. State, 2012 WL 1199102 (Tex. App.–Dallas). In Wiseman and Tran, the court of appeals found the testimony to be harmful, leading to the reversals.  The Dallas District Attorneys office quit offering this evidence after the decisions in Wiseman and Tran.

An expert’s testimony must be accurate. In In the Matter of M.P.A., 364 S.W.3d 277 (Tex. 2012), at a juvenile disposition hearing an expert testified that an Abel Assessment of the respondent juvenile showed he was a pedophile who had a significant interest children of both sexes. The expert testified that Abel testing was 85% accurate and had been validated by studies at Brigham Young University. The respondent was sentenced to 20 years.  On a writ application it was proved that this testimony was false. It was shown that according to Abel and his colleagues that the testing was only 65% accurate for classifying people with a significant interest in children under 14 years of age; and that the BYU studies failed to establish the Abel Assessment was reliable as applied to adults and it was unreliable as applied to adolescents. Id. at 286-287. The Texas Supreme Court found that if the trial court had heard accurate testimony the Abel Assessment would not have been admitted into evidence and that the false testimony contributed to the respondent’s sentence entitling him to a new disposition hearing.  Id. at 292.

In Kelly v. State, 321 S.W.3d 583 (Tex. App.–Houston [14th Dist.] 2010), the defendant was accused of engaging in organized criminal activity based on a predicate offense of aggravated sexual assault of a child. The court ruled that although the State’s expert witness could answer a hypothetical question as to whether showing the child complainant masturbation techniques with dolls was a type of “grooming,” the prosecutor could not testify and argue in his hypothetical by asking the expert whether she would expect to see grooming in a hypothetical case where children were forced to engage in sexual intercourse with another, and where multiple children were forced to strip down, dance naked, and act out in sexual plays and fantasies. The appellate court also held that the State was improperly allowed to ask its expert witness whether the child’s testimony was consistent with child abuse, and whether “there was grooming in this case,” because both questions ask the expert to give her opinion as to whether or not the testimony of the children was true.

Even when the expert’s testimony can only be viewed as an attempt to directly bolster the complainant’s credibility and as a direct comment on the complainant’s truthfulness, the abuse of discretion in admitting that evidence may not be reversible error. In Salinas v. State, 166 S.W.3d 368 (Tex. App.–Ft. Worth, 2005, pet. ref’d), the child complainant was taken to the hospital for a sexual assault examination four and a half months after her outcry statement to her mother. The examining doctor found no physical evidence of sexual assault. At trial the doctor was allowed to testify over objection that she diagnosed sexual abuse by digital penetration of the anus based solely upon the history provided by the child, and “she had an exam which was consistent with that history [no physical evidence of abuse].” Admitting that testimony was error but after reviewing the entire record, the appellate court concluded it did not have a substantial and injurious effect or influence on the jury’s verdict, that is, it was harmless.

  1. Admissibility of Testimony on Other Issues

In In re E.C.L., 278 S.W.3d 510 (Tex. App.–Houston [14th Dist.] 2009) it was reversible error to exclude expert testimony on “battered child syndrome” because lay people who have not experienced abuse for most of their lives do not have a frame of reference to understand why a child might have thought deadly force was immediately necessary to protect himself and/or his brother.

In Reyes v. State, 274 S.W.3d 724 (Tex. App.–San Antonio 2008), an examining physician’s testimony was proper where she did not testify that the child was abused or was telling the truth, but did testify that, although not definitive, the child’s physical condition was consistent with the abuse that she described. Additionally, it was proper for the doctor to testify regarding the fact that child abuse victims also delay making an outcry and initially deny the abuse as the behavioral characteristics common among abused children is an appropriate area for the physician’s testimony.

In Bryant v. State, 340 S.W.3d 1 (Tex. App.–Houston [1st Dist.] 2010), the court found that opinion testimony of a police officer that he came to the conclusion a sexual assault had occurred and that was why he prepared an affidavit to obtain an arrest warrant was admissible in a child sexual assault prosecution. The officer testified about what he relied on to determine whether he should swear out an affidavit to obtain a warrant for the defendant’s arrest not whether the child witness was telling the truth.

In Zuniga v. State, 811 S.W.2d 177 (Tex. App.–San Antonio 1991), testimony of a physician, based on his own exam of a nine year old complainant, that history and physical examination was consistent with sexual assault, was permissible expert testimony as aiding the jury from a medical standpoint on the nature and extent of sexual assault, and did not impermissibly invade the province of the jury even though whether sexual assault had occurred was one of the ultimate issues at trial.

“Psychologists and counselors have been found to provide reliable, relevant testimony in child abuse cases, specifically regarding PTSD.”  Moreno v. State, 2020 WL 908024, *5 (Tex. App.–San Antonio), citing Johnson v. State, 432 S.W.3d 552, 557 (Tex. App.–Texarkana 2014, pet. ref’d); Zinger v. State, 899 S.W.2d 423, 432 (Tex. App.–Austin 1995, rev’d on other grounds, 932 SW2d 511 (Tex. Crim. App. 1996). However, in Lane v. State, 257 S.W.3d 22 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d), the court of appeals disapproved testimony by a social worker that the victim suffered from PTSD due to sexual abuse. Courts have found that mental health professionals are in a unique position to explain victim behavior as it pertains to a disorder, such as PTSD, that is not commonly understood by lay persons.  Moreno v. State, supra; Zinger v. State, 899 S.W.2d at 432, citing Duckett v. State, 797 S.W.2d 906, 917 (Tex. Crim. App. 1990), disapproved on other grounds by Cohn v. State, 849 S.W.2d 817, 818 (Tex. Crim. App. 1993). 

In Moreno v. State, supra, the State offered testimony from a licensed professional counselor with 14 years of experience with abused children, to testify on behaviors of sexually abused children, symptoms of PTSD, and her experience working with the complainant in that case.  The witness was, at the time of her testimony, the clinical director of a children’s advocacy center.  She testified that to be qualified to do her work she was required to have a master’s degree in psychology or counseling-related area plus 3,000 hours of supervised training.  She also testified that it was not her practice to diagnose clients with PTSD but that she could describe symptoms of the disorder in them. The trial court allowed her to testify as an expert if she did not comment on the complainant’s truthfulness. On appeal, the appellant challenged the witness’s ability to diagnose PTSD on the grounds that she was not qualified and that her testimony on PTSD would inappropriately bolster the complaint’s testimony. The trial court found the witness’ proffered testimony to be analogous to expert testimony on behaviors or symptoms consistent with child abuse.  The court of appeals concluded “that it was up to the jury to decide if the symptoms that [the witness] described really did help them understand the victim’s testimony and demeanor and whether these apparent symptoms actually reflected prior trauma caused by Moreno.” Moreno v. State, supra at *6. The court of appeals found that the trial court’s decision to admit the expert testimony on PTSD was within the zone of reasonable disagreement.

In Brantley v. State, 2020 WL 1680050 (Tex. App.–Houston [1st Dist.]), a vehicular crimes police officer was found to be qualified to testify as an expert as to the basic functioning of a crash data recorder (CDR) and the data retrieved from it.  The court of appeals found that the witness’s field of expertise – downloading black box data – was not particularly complex. The court found that the vehicular crimes officer’s field of expertise in accident reconstruction was legitimate; that he testified within the scope of his expertise in accident reconstruction; and he properly relied on and utilized principles involved in the field of accident reconstruction. The court further found that the officer’s lack of knowledge of the manufacturing process of CDR and its accelerometer, or the black box’s rate of error, did not affect the reliability of his expert testimony.

In William v. State, 606 S.W.3d 48 (Tex. App.–Houston [1st Dist.] 2020), the State called an analyst with the Texas Department of Public Safety’s Telephone Records and Analysis Center (TRAC) as an expert to testify on the approximate location of a cell phone, based on historical phone records and a list of the coordinates of Houston’s cell phone towers, provided by carriers to law enforcement. The witness testified that she was trained in cell phone mapping, employed the techniques daily, and had three years of experience doing so. The court of appeals found that the plotting software’s error rate did not impact the reliability of her opinions; the cell phone records showed the exact tower to  which the phone connected; and the witness testified that she checked the records for accuracy. The court of appeals concluded that the trial court did not abuse its discretion when it determined that the witness’s opinion on the general location of the defendant’s and the victim’s cell phones was reliable.

Some intermediate courts are giving great deference to trial court decisions regarding expert witnesses. Malone v. State, 163 S.W.3d 785 (Tex. App.–Texarkana, 2005, pet. ref’d) (social worker with undergraduate degree permitted to testify to incest offender profiles based on articles she reviewed on the internet); Longoria v. State, 148 S.W.3d 657 (Tex. App. – Houston [14th Dist] 2004, pet. ref’d) (victim–impact testimony from expert witnesses about the physical and psychological impact of child sexual abuse was admissible at guilt-innocence because of its tendency to make more or less probable whether the defendant committed sexual assault on his two stepdaughters).

Other courts of appeal seem to be holding trial courts to a higher standard. In Kelly v. State, supra at 601, the trial court erred by allowing a DFPS worker, with an associate’s degree and without medical training, to testify to the sexual development and response of children as a predicate to her testimony about grooming. The lack of consistency in the appellate courts sometimes creates a guessing game for defense lawyers, prosecutors, and judges as to who may be qualified as an expert and what “scientific” evidence  may be found to be relevant and reliable.

Report from the Reapportionment/Redistricting Committee

Friends, as you may know, TCDLA has a Reapportionment/Redistricting Committee chaired by Carmen Roe and myself. President Kerri Donica created the Committee and her successor Grant M. Scheiner kept it in business. We have been working and want to report our progress to the full membership.

Our mission was to determine if, after 50 years, TCDLA districts could benefit from rearranging. Of course, the first thing we did was to consult the bylaws. As it turns out, there is no mention of districts. In fact, they aren’t even called “districts”; they are “membership areas” (MA). See Article III, Sec. 11.  So, while we tend to refer to “districts,” formally there is no such thing.

As we thought through how to proceed, we came to the realization that TCDLA was NOT set up like a House of Representatives or like a Senate. Instead, it originated as a hybrid of both and for good reason. Texas is so vast with large areas sparsely populated, and at the same time, some population centers hold large concentrations of lawyers. Thus, a true House or a true Senate just would not make sense.  We concluded that the House of Representatives model worked well east of and in the neighborhood of I-35, while a Senate model worked well in the more rural and spread out parts of the state.  For that reason, trying to equal the number of TCDLA members in each MA was deemed impractical. 

From the beginning, we had the feeling that some members thought their county was assigned to the wrong MA in 1971 and that they would prefer to be moved. Even if “wrong” is not the correct characterization, have circumstances changed with the passage of almost 50 years was the question we asked ourselves.  The Abilene area and the Valley were our initial focus. We decided to test the Abilene area first. We did an informal survey and followed it up with a formal one. With Melissa’s help, we asked the TCDLA members in Taylor, Fisher, and Nolan counties if they would prefer to be in MA 2 – San Angelo/Midland/Odessa rather than MA 4 – Denton (where they are currently assigned). The answer was 94 percent yes to move to MA 2.  An important aside is that those members have nothing against the fine folks in the Denton area. They just never appear in court there, are far away, and do not know the lawyers there well,  while they are constantly in court in San Angelo/Midland/Odessa. The respondents also felt more attached to West Texas.

So, what is the goal, and what is best to do? We recommended moving those three counties.  Our hope was that members will feel they know their local representatives better, that they will be happier, and that membership in, and satisfaction with, TCDLA will increase as a result. We were of the opinion that a bylaws change is not necessary. We consulted Adam Kobs, Bylaws Chair, who agreed. No counties are listed by name in the bylaws as being in a particular MA. Perhaps a Charter Member can remember how the 254 counties were assigned to the MA’s. Most likely, a few of them sat at a table, pulled out a map and a magic marker, and just drew lines. This is step one, for we have not yet tackled the Valley or other areas of the state. We ask you for suggestions if you see a possible change for the better in your MA.

Based on the above, the Reapportionment/Redistricting Committee made a motion to the Board as follows: that Taylor, Fisher, and Nolan counties be reassigned to Membership Area 2 known in the bylaws as Permian Basin. The board approved the move on 26 Sept. 2020.   This rearrangement should have no adverse impact on MA4/Denton. MA 4 has hundreds more TCDLA members than MA 2, and only about 70 members are “on the move.”

We on the Committee appreciate the help we received from TCDLA staff and the confidence the board placed in us. The Valley is our likely next focus, so more to follow!  As we mentioned earlier, if you feel other similar changes can improve the way we deliver services to you, please contact any member of our committee. In addition to Carmen and myself, the members are: David Hardaway, Donald L. Wilson, and Adam Kobs.

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