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EXTRANEOUS CRIMES, WRONGS, AND ACTS: What are they and how can they impact your case?

I. Evolution of the Meaning of Extraneous Offense

The definition of an extraneous offense has evolved in Texas jurisprudence. It was once defined as “one that is extra, beyond, or foreign to the offense for which the party is on trial.” Ridinger v. State, 174 S.W.2d 319, 320 (Tex. Crim. App. 1943). Later, several cases held that where the State offers evidence of more than one act of criminal conduct alleged in the indictment, the acts not relied upon by the State for conviction were extraneous offenses. O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988); Crawford v. State, 696 S.W.2d 901 (Tex. Crim. App. 1985); Yzaguirre v. State, 957 S.W.2d 38, 40 (Tex. Crim. App. 1997) (Myers, J., concurring). “An extraneous offense is an offense other than the offense charged.” Guidry v. State, 896 S.W.2d 381, 385 (Tex. App. – Texarkana 1995, pet. ref’d, reh. den.), citing Parks v. State, 746 S.W.2d 738 (Tex. Crim. App. 1987). The Court of Criminal Appeals said the following about the purpose of admission of extraneous offenses:

It is a fundamental tenet of our system of jurisprudence that an accused must only be tried for the offense for which he is charged and not for being a criminal in general. See, e.g., Templin v. State, 7y99 S.W.2d 30 (Tex. Crim. App. 1986); Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972). Because extraneous offense evidence carries with it the apparent risk that a defendant may be convicted because of his propensity for committing crimes generally—i.e., his bad character—rather than for the commission of the charged offense, courts have historically been reluctant to allow evidence of an individual’s prior bad acts or extraneous offenses. Under Tex. R. Crim. Evid. 404(b), extraneous offense evidence may be admissible only if it tends to prove a material fact in the State’s case, apart from its tendency to demonstrate an accused’s general propensity for committing criminal acts.

Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992, reh’g deneid). In Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996), the Court of Criminal Appeals again altered the definition of extraneous offenses without reference to the foregoing cases. The court defined an extraneous offense “as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” Id. at 741.

There was a special exception to the general admissibility of extraneous offenses for cases involving sexual abuse of a child by one standing in a parental relationship. Battles v. State, 140 S.W. 783 (1911). That exception permitted the State to introduce evidence of similar offenses committed by the accused against the same child for the purpose of showing, among other things, the broad context in which the charged offense occurred. This exception became subject to “persistent criticism over the years” until it was abandoned by the Court of Criminal Appeals in Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992), finding it to not “have any legal force independent of Rule 404(b).” Id. at 411. Thus, it became clear that the admissibility of extraneous crimes, wrongs, and acts in child abuse cases would be governed by Rule 404(b), Tex. R. Evid. Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990); Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992); Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992); Pavlacka v. State, 892 S.W.2d 8972 (Tex. Crim. App. 1994).

The prosecutors came to believe that Rule 404(b) was a substantial impediment to the State’s ability to secure convictions in child abuse cases because of a perceived reluctance of jurors to believe a child, when asked to make a decision about guilt or innocence on a single identified offense, and in having the child identify a particular act upon which the State relied for a conviction and distinguishing that act from extraneous conduct. The Court of Criminal Appeal’s interpretation of Rule 404(b) limited the introduction of extraneous offense evidence at trial in a way the prosecution believed made securing convictions more difficult.

II. Article 38.37, C.C.P.

A. Original Version

This difficulty remained the state of the law in Texas until September 1, 1995, when the Legislature passed Art. 38.37, C.C.P. It appears that the Legislature was attempting to reinstate the common law exception in child abuse cases for the admission of extraneous offenses. Under the statute, evidence would be admitted of other crimes, wrongs, or acts committed by the defendant against the child who was the victim of the alleged offense “for its bearing on relevant matters,” including the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child. Art. 38.37, C.C.P. The rule has been roundly criticized as allowing the State to prosecute a defendant for generally being a “child molester.” The belief by the critics has been that the limiting instructions to the jury did not really limit its consideration of the evidence to the particular purpose set forth in the statute, but instead the jury simply considered the evidence as showing propensity and character of the accused. The admission of extraneous offense evidence under Art. 38.37, in conjunction with the Court of Criminal Appeals’ change in the definition of extraneous offense in Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2001), changed the nature of trials of child abuse allegations to trials about the character of the accused, and not trials about whether the accused committed a particular offense. That the defendant was entitled to be indicted and tried for a particular single act of conduct had become a mere pretense. That pretense was finally dropped by amendments to Art. 38.37, C.C.P., that were effective September 1, 2013.The original version of Art. 38.37 applied to cases where the victim was a child under the age of 17 in prosecutions for offenses defined under Chapter 21 (sexual offenses); Chapter 22 (assaultive offense); Section 25.02 (prohibited sexual conduct); and where the victim was younger than18 years of age, in prosecutions under Section 43.25 (sexual performance of a child); Section 20A.02(7) or (8) (human trafficking); or Section 43.05 (compelling prostitution); and any attempt or conspiracy to commit one of the foregoing offenses. Prior Art. 38.37, Section 1, C.C.P.

B. Amendments Effective Sept. 1, 2013

The 2013 amendments to Art. 38.37 combined Sections 1 and 2 of the old statute into Section 1 of the new statute, without change, and added a new Section 2, which creates a second “tier” of offenses for which evidence of extraneous offenses may be admitted at trial, for a different purpose than for the offenses set forth in Section 1 of both of the prior and amended articles. New Section 2 of Art. 38.37 applies to a narrower group of offenses than does new Section 1. Section 2 applies only to the trial of a defendant for an offense under the following provisions of the Penal Code: (A) Section 20A.02, if punishable as a felony of the first degree under Section 20A.02(B)(1) (sex trafficking of a child); (B) Section 21.02 (continuous sexual abuse of a young child or children); (C) Section 21.11 (indecency with a child); (D) Section 22.011(a) (sexual assault of a child); (E) Sections 22.021(a)(1)(B) and (2) (aggravated sexual assault of a child); (F) Section 33.021 (online solicitation of a minor); (G) Section 43.25 (sexual performance by a child); or (H) Section 43.26 (possession or promotion of child pornography); or an attempt or conspiracy to commit an offense described in Section 2. See Aquillan v. State, 584 S.W.3d 701 (Tex. App.–Texarkana 2017), where a court of appeals found that evidence of the defendant having physically abused the complainant’s sisters was not an admissible extraneous offense because it was not similar to the indecency-with-a-child charge for which the defendant was being tried.   

C. Operation of Current Statute

Upon a trial of one of the offenses described in new Section 2(a)(1) and (2), evidence that the defendant “committed a separate offense described by Subsection (a)(1) or (2)” of Section 2 may be admitted “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” New Art. 38.37, Section 2(b), C.C.P.; Carmichael v. State, 505 S.W.3d 95, 102 (Tex. App.–San Antonio 2016, pet/ ref’d). Art. 38.37, § 2 creates an exception to the Rules of Evidence that otherwise make character evidence inadmissible. Manning v. State, 2015 WL 8473347, *2 (Tex. App. – Beaumont 2015, pet. ref’d).

The limitations upon the use of character evidence in Rules 404 and 405 do not apply regarding the admission of extraneous offenses upon the trial of the kind of cases listed in new Section 2 of Art. 38.37. Said another way, upon trial of a Section 2 offense, evidence of other sexual offenses committed by the defendant will be admitted as evidence of the defendant’s character and to show he acted in conformity with that character. Lara v. State, 513 S.W.3d 135 (Tex. App.–Houston [14th Dist.] 2016, no pet.); Carmichael v. State, 505 S.W.3d 95 (Tex. App.–San Antonio 2016, pet. ref’d). This appears to apply only to other offenses, not to wrongs or acts, as in new and prior Section 1; and applies to separate offenses against other victims and is not just limited to offenses against the complainant in the case being tried. Said another way, the Legislature has authorized the trial of a defendant for being a “child molester” generally, and as a practical matter has done away with the requirement that the State prove beyond a reasonable doubt that the defendant committed a particular act. See Moore v. State, 2015 WL 1317205, *2 (Tex. App. –Austin 2015, pet. ref’d) (sexual acts that were not considered sexual acts for purposes of §21.02, continuous sexual abuse statute, were admissible as circumstantial evidence that the defendant had engaged in other conduct that could form the basis of his conviction). However, evidence offered pursuant to Art. 38.37 is subject to the Rule 403 balancing test of whether its probative value is substantially outweighed by the danger of unfair prejudice. Carmichael v. State, 505 S.W.3d 95, 102 (Tex. App.–San Antonio 2016, pet. ref’d); Distefano v. State, 532 S.W.3d 25, 31 (Tex. App.–Houston [14th Dist.] 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.–Tyler 2015, no pet.).

Art. 38.37 requires the trial court to hold a hearing outside the presence of the jury to determine whether the evidence admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt. Art. 38.37, § 2–a. C.C.P.; Carmichael v. State, supra at 102; Agrillen v. State, 534 S.W.3d 701, 710 (Tex. App.–Texarkana 2017, no pet.). If the defendant does not request a hearing, or object to the failure to have the hearing, the right to the hearing is forfeited. Carmichael v. State, supra at 103.   Art. 38.37 does put limitations on the admissibility of such evidence. Section 2-a provides that before the extraneous conduct evidence may be introduced, the trial judge must: (1) determine that the evidence likely to be admitted at trial will be adequate to support a “finding by the jury that the defendant committed a separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for that purpose.”

Also, Section 3 of new Art. 38.37 requires that the State give the defendant notice of the State’s intent to introduce in its case in chief the evidence set forth in Section 1 or 2 of amended Art. 38.37 “not later than the 30th day before the date of the defendant’s trial.” This provision eliminates the need for a request for notice to be filed by the defense in order to trigger the State’s duty to provide notice of intent to offer extraneous offense evidence. This provision also does not include the “reasonable notice” provision of Rule 404(b) and does not require the State to give notice of the county in which the alleged extraneous acts took place, as required by Art. 37.03, Section 3, C.C.P. The purpose of the notice is to prevent surprise. In determining whether a defendant is harmed by failure to give notice of an extraneous offense, an appellate court will consider whether the defendant was surprised and how it affected his ability to mount an effective defense.

A trial court must also conduct a Rule 403 balancing test. Art.38.37, Section 2(b), C.C.P. The statute does not restrict a defendant’s right to have the State elect the incident for which it will seek conviction. Owings v. State, 541 S.W.3d 144 (Tex. Crim. App. 2017); McCombs v. State, 562 S.W.3d 748 (Tex. App.–Houston (14th Dist.] 2018, no pet.); Gauna v. State, 534 S.W.3d 7 (Tex. App.–San Antonio 2017).    

The change in Art. 38.37 applies to a criminal proceeding that commences on or after the effective date of Senate Bill 12, September 1, 2013. Section 2, SB12. This means that the change in the law applies to trials that commence on or after the effective date, whether the indictments were pending prior to the effective date of the amendment or the offense occurred prior to the effective date of the amendments to Art. 38.37. Fahrni v. State, 473 S.W.3d 486 (Tex. App.–Texarkana 2015, pet. ref’d); Bezarra v. State, 485 S.W.3d 133, 138-139 (Tex. App.–Amarillo 2016, pet. ref’d).

There is an argument to be made that application of amended Art. 38.37 to offenses that occurred prior to September 1, 2013, would violate the ex post facto prohibition of the United States Constitution. The Supreme Court has held there are four categories of ex post facto laws. The fourth category is a “law that alters the legal rules of evidence, and requires less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Carmell v. Texas, 529 U.S. 513, 522, 551 (2000). Amended Art. 38.37 certainly admits evidence different than did its predecessor. Some Texas courts have rejected claims that employment of Art. 38.37, in cases where the offense occurred before the effective date of Art. 38.37, violates ex post facto prohibitions. Baez v. State, 486 S.W.3d 592 (Tex. App.–San Antonio 2015, pet. ref’d). Courts have determined that Art. 38.37 does not violate a defendant’s right to due process of law nor lessen the presumption of innocence or the State’s burden of proof. Perez v. State, 562 S.W.3d 676 (Tex. App.–Ft. Worth 2018, pet. ref’d) (unique nature of sexual assault justified the admission of extraneous offense evidence, even though traditional notions of due process generally caution against admission of such evidence); Distefano v. State, 532 S.W.3d 25 (Tex. App.– Houston [14th Dist.] 2016, pet ref’d); Buxton v. State, 526 S.W.3d 666 (Tex. App.–Houston [1st Dist.] 2017, pet. ref’d); Ryder v. State, 519 S.W.3d 391 (Tex. App.–Amarillo 2017, pet. ref’d); Bezarra v. State, 485 S.W.3d 133 (Tex. App.–Amarillo 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840 (Tex. App. –Tyler 2015, no pet.); Robisheaux v. State, 483 S.W.3d 205 (Tex. App.–Austin 2016, pet. ref’d).  

The amendment of Art. 38.37 has probably rendered Rule 404(b) and Art. 37.07, Section 3, C.C.P., largely irrelevant in the trial of child abuse cases. Under new Art. 38.37, all extraneous offenses against any child (or perhaps adult) will be admissible under Art. 38.37, so there is no need for the State to bear the burden of showing their admissibility under Rule 404(b) and Art. 37.07, Section 3, C.C.P. However, these provisions do remain in effect and are available as a means to admit extraneous matters not covered by new Art. 38.37, or where the State does not comply with the requirements of Art. 38.37.

III. Rule 404(b), Tex. R. Evid.; Art. 37.07, Section 3, C.C.P.; and Rule 609(f), Tex. R. Evid.

A. Applicability

Rule 404(b) applies to the admission of evidence of extraneous crimes, wrongs, and bad acts during the guilt-innocence portion of a trial. Art. 37.07, Section 3 applies to the admission of extraneous crimes, wrongs and bad acts at the punishment phase of a trial but is not applicable to a pre-sentence investigation report. Hart v. State, 342 S.W.3d 659, 671(Tex. App.–Houston [14th Dist.] 2011, pet. ref’d); Fielder v. State, 2015 Tex. App. LEXIS 10554, *12, (Tex. App.–Amarillo). Rule 609(f) applies to the admission of records of prior convictions.

B. Notice Requirement

Each of these provisions have in common a notice provision which, upon request by the defendant, requires the State to give the defendant reasonable notice of the intent to introduce extraneous crimes, acts, or wrongs into evidence. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995) (en banc); Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (en banc). Art. 37.07, Section 3, explicitly states that notice of the intent to introduce extraneous conduct evidence under this article shall be given in the manner required by the Rule 404(b). Worthy v. State, 312 S.W.3d 34, 37 (Tex. Crim. App. 2010). The wording of the notice provision of Rule 609(f), Tex. R. Evid., is very similar to that of Rule 404(b). In cases not covered by Art. 38.37 the defendant should specifically request notice of the State’s intent to offer evidence of extraneous matters under Rules 404 and 609. The purpose of the notice provisions for admission of extraneous offenses is to avoid surprise and allow the defendant to mount an effective defense. Pena v. State, 554 S.W.3d 242 (Tex. App.–Houston (14th Dist.] 2018, pet. ref’d).         

Filing a request for notice under Art. 38.37 should not be necessary because that provision appears to be self-executing. In child abuse cases, due to the effect of new Art. 38.37, a request for notice of extraneous offenses pursuant to Rule 404(b) and Art. 37.07 Section 3 may not be necessary. On the other hand, Rules 404(b) and Art. 37.07, Section 3, do remain in effect for all kinds of cases, so some extraneous matters may be admissible pursuant to those provisions, even if not admissible under Art. 38.37. Early discovery of the State’s case and knowledge of your prosecutor and court may inform defense counsel as to what requests and motions should be filed. It is the safer choice to file the request for notice under Rules 404(b) and 609(f) and Art. 37.07, Section 3. That request should be filed with the court very soon after you begin representation. You may want to include Art. 38.37 in your request to bolster your contention that because the State did not give the 30-day notice required by Art. 38.37, the extraneous offenses are not admissible.

C. Triggering the Duty to Give Notice

The State’s duty under Rules 404(b) and 609(f) and Art. 37.07, Section 3, to give notice to the defendant of its intent to offer evidence of other crimes, wrongs, or bad acts, or prior convictions, is triggered by timely serving a REQUEST upon the attorney for the State. Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993, reh’g denied); Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Ford v. State, 106 S.W.3d 765, 766 (Tex. App.–Texarkana 2003, no pet.); Randon v. State, 107 S.W.3d 646, 651 (Tex. App.–Texarkana 2003, no pet.). A copy of such request should be filed with the Court. Espinosa v. State, supra at 38 n. 3. The REQUEST may be in some other format, such as a letter. If the State receives a request for notice of extraneous offenses and fails to give notice of its intent to use such evidence, the evidence should not be admitted. Davis v. State, 315 S.W.3d 908, 919-920 (Tex. App.–Houston [14th Dist.] 2010) (erroneous admission of defendant’s jail disciplinary record as punishment evidence was harmless), rev’d on other grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011). “Rule 404(b) literally conditions the admissibility of other crimes evidence on the State’s compliance with the notice provisions of Rule 404(b).” Hernandez v. State, 176 S.W.3d 821,824 (Tex.Crim. App. 2005).

A REQUEST for notice does not need to be acted upon by a trial court before the State is obligated to comply. The State’s duty to comply is invoked by the receipt of the request. Espinosa v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993). Making the request in the form of a discovery motion is insufficient to trigger the notice requirement unless the accused secures a ruling from the Court. Mitchell v. State, supra at 427; Simpson v. State, 991 S.W.2d 798 (Tex. Crim. App. 1998); Ford v. State, supra at 766-67;. Sanders v. State, 191 S.W.3d 272, 276 (Tex. App.– Waco 2006, pet. ref’d), cert. denied 127 S.Ct. 1141 (2007). The REQUEST should ask for notice under all the applicable provisions. A request for notice under one provision does not constitute a request for notice under another provision. McCarty v. State, 2014 WL 1572455, *2 (Tex.App.–Austin 2014); Hitt v. State, 53 S.W.3d 697, 705 (Tex.App.– Austin 2001, no pet.) (request for notice pursuant to Rule 404(b) does not entitle the defendant to prior notice under Art. 38.37).

D. What is “Reasonable”?

While each statute or rule requires that the State give the defense reasonable notice in response to a request, they do not define what constitutes “reasonable notice” and the appellate decisions determine reasonableness on a case -by-case basis. The State’s open-file policy does not satisfy that notice requirement. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995); Allen v. State, 202 S.W.3d 364, 367 (Tex. App.–Ft. Worth 2006, no pet.). Reasonable notice can be given by actions not constituting an explicit statement of intent. For example, where the State’s notice stated that certain witnesses would be called to testify and attached a copy of the witnesses statements, it was held that the trial court did not abuse its discretion in admitting the witnesses testimony about extraneous offenses where defense counsel had made a request for notice of extraneous offenses and did not contend that he did not receive actual notice of the State’s intent to offer the extraneous offenses into evidence. Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001).           

Whether notice under Rules 404(b) and 609(f) and Art. 37.07 Section 3 is reasonable is determined by the facts and circumstances of each case, including when the request is made, the circumstances of the request, the nature of the response, the timeliness of the response, and any other relevant circumstances, Dix and Dawson, 42 Texas Practice §27:128, 3rd Ed.; Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App. 2001); Owens v. State, 119 S.W.3d 439, 443-444 (Tex. App.–Tyler 2003, no pet.). Again, the purpose of the Rule 404(b) notice requirement is to prevent the defendant from being surprised by extraneous offense evidence and ensure he has time to counter the evidence at trial. Hernandez v. State, 176 S.W.3d 821,824 (Tex. Crim. App. 2005).

What is considered to be a timely request is not clear, although a request made on the day of trial is not timely. Espinoza v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993) (en banc, reh’g denied). The length of time that a request for notice has been pending is a relevant consideration. The longer the pendency of the request before a late notice, the stronger the case for lack of reasonableness. Whether notice is given in sufficient time to prevent unfair surprise is the primary consideration. Dix and Schmolesky, 42 Texas Practice § 27.127, p. 635, 3rd Ed.   

Notice is not reasonable simply because the record shows that the defense was not surprised. An appellate court will “consider the notice that is to be expected or required under the particular circumstances of the case.” Webb v. State, 36 S.W.3d 164, 177 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (opinion on rehearing en banc). In Webb, the notice given on the Thursday before the Monday on which trial was scheduled to start was held unreasonable primarily because the defendant made his request for notice six months prior to trial. In addition, the timing gave the defense only one business day to prepare to cross-examine an important witness and to make any necessary adjustments in trial strategy. Webb v. State, supra at 178. See also, Hernandez v. State, 914 S.W.2d 226, 234 (Tex. App.–Waco 1996) (notice filed on Friday afternoon and apparently received by defense counsel on that day was held not reasonable where the request for notice was made ten months earlier); Sebalt v. State, 28 S.W.3d 819 (Tex. App. –Corpus Christi 2000, no pet.) (receipt of notice on the Friday before Monday trial date was reasonable); Owens v. State, supra at 444 (notice was reasonable, even though received by defendant three days before trial, as State gave notice one day after it received evidence, it was presented to jury 10 days after receipt, defendant had court appointed investigator to assist investigation of evidence and defendant had opportunity to cross-examine complainant about evidence). Waguespack v. State, 2015 WL 3822314 (Tex. App. – Waco 2015) (notice of evidence of extraneous sexual encounter provided on the day of jury selection that was admitted seven days later as punishment evidence was not harmful error because the record did not reveal the deficient notice was due to prosecutorial bad faith and did not impair defendant’s ability to prepare for the evidence and present a defense, so defendant’s substantial rights not affected). Oral notification may satisfy the notice requirement of Art. 37.07, Section 3(g), C.C.P. Jackson v. State, 2004 WL 837876 (Tex. App.–Dallas 2004, no pet.); Martin v. State, 176 S.W.3d 887 (Tex. App.–Ft. Worth 2005, no pet.) (notice seven days prior to trial was reasonable when information came from State’s file which had been open to defense counsel since indictment).

While it is error to admit extraneous offense evidence where notice has not been given, the error was not reversible where defendant did not claim he was surprised or that the lack of notice prejudiced his ability to prepare or present his defense. Hernandez v. State, 176 S.W.3d 821, 825 (Tex. Crim. App. 2005); Gonzalez v. State, 337 S.W.473 (Tex. App.–Houston [1st Dist.] 2011, pet. ref’d); Padilla v. State, 254 S.W.3d 585, 593 (Tex. App.–Eastland 2008, pet. ref’d); Sharp v. State, 210 S.W.3d 835, 839-40 (Tex. App. –Amarillo 2006, no pet.). The State’s notice under Art. 37.07, Section 3, is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred, and the name of the alleged victim. Johnson v. State, 2015 Tex. Crim. App. Unpub. LEXIS 9040, *96-98, No. AP-77,030 (11/18/15). If a notice is deficient, an appellate court must determine whether the deficiency had a substantial and injurious effect on the jury’s verdict when considering the totality of the circumstances. Id. In Johnson v. State, supra, although the notice did not include the day and month of the extraneous conduct, it included sufficient other details that rendered it sufficient. Id.         

Rule 404(b) applies to actual conduct. Evidence of a defendant’s thoughts about or feelings for a minor are not covered by Rule 404(b). Green v. State, 287 S.W.3d 277, 285 (Tex. App.– Eastland 2009, pet. ref’d). When a defendant raises a defensive theory that opens the door to extraneous offenses, the State is not required to give advance notice that it will use an extraneous offense to rebut a defensive theory. Shedden v. State, 268 S.W.3d 717, 739 (Tex. App.–Corpus Christ 2009, pet. ref’d); Jaubert v. State, 74 S.W.3d 1,2-4 (Tex. Crim. App. 2002) (notice provision of Rule 404(b) applies only to the State’s case-in-chief). Rule 404(b) does not apply to impeachment during the appellant’s case in chief. Westbrooks v. State, 2015 Tex. App. LEXIS 12759, *6 (Tex. App.–Houston [14th Dist.] 12/17/15). Notice of extraneous offenses is not required for same-transaction contextual evidence. Buchanan v. State, 911 S.W.2d 11,15 (Tex. Crim. App. 1995); McDonald v. State, 179 S.W.2d571,577 (Tex. Crim. App. 2005); Worthy v. State, 312 S.W.3d 34, 39-40 (Tex. Crim. App. 2010) (sentencing evidence pursuant to Art. 37.07, § 3(g), C.C.P.).

E. Admissibility of Extraneous Offenses Under Rule 404(b) and Article 37.07, Section 3

Evidence is relevant if it has “any tendency 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. All relevant evidence is admissible except as otherwise provided by constitutions, statutes, or rules. Tex. R. Evid. 402; Montgomery v. State, 810 S.W.2d 372, 376 n.3 (Tex. Crim. App. 1990). Tex. R. Evid. 404(b)(1) provides that “[e]vidence of a crime, wrong or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character.” It may “be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, . . . . . .” Tex. R. Evid. 404(b)(1). “The exceptions listed in Rule 404(b) are neither mutually exclusive nor collectively exhaustive.” De la Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Poindexter v. State, 942 S.W.2d 577, 583-584 (Tex. Crim. App. 1996, reh’g denied); Montgomery v. State, 810 S.W.2d 373, 387 (Tex. Crim. App. 1991) (opinion on reh’g). Rule 404(b) is considered to be a rule of inclusion rather than exclusion. De la Paz v. State, supra at 343. “The Rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad character.” Id.

The proponent of uncharged misconduct evidence “must be able to explain to the trial court, and to the opponent, the logical and legal rationales that support its admission on a basis other than ‘bad character’ or propensity purpose.” Id.; Gibbs v. State, 555 S.W.3d 718 Tex. App.–Houston (1st Dist.] 2018, no pet.).

In Montgomery, the Court of Criminal Appeals prescribed a procedure that should be followed when a party offers evidence of extraneous crimes, wrongs, or acts. 810 S.W.2d 372 (Tex. Crim. App. 1990) (opinion on reh’g). The opponent must timely object to the offer of the evidence as being inadmissible under Rule 404(b), as being an “extraneous offense” or “extraneous misconduct,” or that it is not relevant (preferably citing Rules 401 and 402, Tex. R. Evid.). Thereafter, the proponent of the evidence should state the purpose for which it is offered. Once the objection is made, the proponent of the evidence must satisfy the trial court that the “other crimes, wrongs, or act” is relevant apart of its tendency to prove the character of a person in order to show that he acted in conformity with that character. Id. at 387. At this point, if he has not done so, the opponent should request that the proponent articulate into the record the purpose for which the evidence is being offered by the proponent, and, if admitted by the trial court, seek articulation by the trial court of the basis for which the evidence was admitted. Id. This is important because upon timely further requests by the opponent, “the trial judge should instruct the jury that the evidence is limited to whatever purpose the proponent has persuaded him it serves.” Id., citing Tex. R. Cr. Evid. 105(a), now Rule 105(a), Tex. R. Evid. The opponent of the evidence should object to the failure of the proponent and the trial court to follow the foregoing procedure. Failure to follow the procedure should be error. Of course, then the question becomes whether it is reversible error.        

Once a trial court has ruled that evidence has relevance apart from character conformity, it has ruled on the full extent of the opponent’s Rule 404(b), or relevance objection. Thereafter, the opponent may, and should, further object that, under Rule 403, Tex. R. Evid., the probative value of the evidence is substantially outweighed by its unfair prejudice. Id., at 388-389. Once this objection is made, the trial court must weigh the probativeness of the evidence against its potential for unfair prejudice. The burden is on the opponent to levy the objection. Thereafter, Rule 403 imposes a duty on the trial court to conduct a balancing test. When Rule 403 provides that evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,” it simply means that trial courts should favor admission in close cases, in keeping with the presumption of admissibility of relevant evidence.” Montgomery v. State, supra at 389; Fowler v. State, 553 S.W.3d 576 (Tex. App.–Texarkana 2018) (trial court must balance between the probative value and danger of unfair prejudice, although that balance is slanted toward the admission of otherwise relevant evidence).        

Once the Rule 403 objection has been made, “it will not suffice for the trial court simply to determine that the evidence is relevant to some legitimate, non-character-related purpose such as one of those enumerated in Rule 404(b). ‘The determination must be made whether the danger of unfair prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 404(b).’ Advisory Committee’s Note to Fed. R. Evid. 404(b).” Montgomery, supra at 389. These factors include how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence—that is, its inherent probativeness; the strength of the proponent’s evidence to show the opponent in fact committed the extraneous conduct; the potential the ‘other crimes, wrongs, or acts’ have to impress the jury in some irrational but nevertheless indelible way (often the function of the nature of the misconduct); how much trial time does the proponent need to develop the evidence of the extraneous misconduct such that the attention of the fact finder will be diverted from the indicted offense; and how great is the proponent’s need for the extraneous transaction. Montgomery, supra at 389-390. “This last inquiry breaks down into three subparts: Does the proponent have other available evidence to establish the fact of consequence that the extraneous misconduct is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute? When the proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in a probative-versus-prejudicial balance.” Id. The opponent of the evidence should ask the court to engage in the probativeness-prejudice balancing exercise on the record, and if the trial court declines to do so, further object to that failure. 

F. Use by Defendants

Although most often employed by the State, there is nothing in Rule 404(b) that “would lead one to believe that it is a rule intended solely as a benefit for the State to be applied against the defendant . . . . . .” Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998); Torres v. State, 71 S.W.3d 758, 760-762 (Tex. Crim. App. 2002). While Rules 404(a) and 405(a) “specifically disallow particular acts of the victim to demonstrate character,” Tate v. State, supra at 193, evidence of specific acts may be admissible under Rule 404(b) to show intent, motive, knowledge, and to rebut contentions (analogous to defensive theories) of the State. “Rule 404(b) permits the defense, as well as the prosecution, to offer evidence of other acts of misconduct to establish a person’s motive for performing some act – such as making a false allegation against the defendant.” Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016).

IV. Extraneous-Offense Evidence Under Article 38.371

The legislature has also carved out a special exception for the admission of extraneous-offense evidence in family- violence cases. Article 38.371 of the Code of Criminal Procedure provides an avenue for the admissibility of “all relevant facts and circumstances” that would assist the trier of fact in determining whether a defendant committed certain family-violence-related offenses as follows:

(b) In the prosecution of an offense described by Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the action and the alleged victim.

(c) This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.

Areas of relevant and admissible extraneous-offense evidence that complies with Article 38.371 include evidence that: (1) explains why a victim of domestic violence is unwilling to cooperate with prosecution; (2) confirms the victim’s initial—and later recanted— statements to police; or (3) contextualizes the nature of the relationship between victim and assailant. Fernandez v. State, __ S.W.3d __, No. 08-17-00217 (Tex.App. – El Paso, 2020) (citing Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App. – Houston [14th Dist.] 2017, no pet.); Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214, at *3 (Tex.App. – Fort Worth 2019, no pet.) (mem. op., not designated for publication). Importantly, though, by the very terms of the statute, this type of extraneous-offense evidence is subject to the limitations of Rule 403.

V. Particular Applications

A. Remoteness

In Crocker v. State, 2009 WL 4725299 (Tex. App.– Dallas 2009, pet. ref’d) (not designated for publication), the defendant was a preacher who was charged with indecency with an 11-year-old boy by contact and by exposure. Admitted into evidence over the defendant’s objection were three incidents that had occurred nearly 20 years before where the appellant had gone skinny dipping in the presence of three 10-to-12-year-old boys; had gone swimming in the baptistry with one of the same boys; and had been naked while fishing on an overnight fishing trip with the same boy. Although the defendant had been nude in front of 10-to-12-year-old boys, there had been no sexual suggestion, sexual contact, or any physical contact at all. The Court of Appeals found that the three incidents of extraneous conduct were not relevant to any fact of consequence under Rules 401 or 402, because it was not sufficiently similar to the charged conduct, the extraneous conduct was too remote, and there was no intervening sexual misconduct of a similar nature. Id. at *5. In reaching this decision, the Court of Appeals relied on its own prior case of Harrison v. State, 2004 WL 1663982, *6 (Tex. App. –Dallas 2004) (there was no proximity in time between the extraneous conduct 16 years earlier and the charged conduct); and James v. State, 554 S.W. 2d 680, 682-83 (Tex. Crim. App. 1977) (extraneous offense occurring two years and nine months prior to offense being tried, with only certain similarities, and no intervening offenses, too remote in time to be admissible on issue of identity and alibi). The Crocker court held the extraneous conduct offenses were not sufficiently relevant under Rules 401 and 402 and found their admission was harmful.   

In Newton v. State, 301 S.W.3d 315 (Tex. App.–Waco 2009, pet. ref’d 2010), the defendant was charged with sexual abuse of his stepdaughter who was about 10 years of age. The State also introduced into evidence extraneous conduct evidence that the defendant had repeatedly sexually abused his older stepdaughter, L.D., about 25 years before the charged offenses. The court found the extraneous offense sufficiently similar to the charged offense as both victims were the defendant’s stepdaughters; both were about 10 when the defendant sexually assaulted them; both were similar in appearance; the defendant did not threaten either of them; and the defendant abused both of them for several years. The defendant even conceded on cross-examination that the extraneous offense evidence and the charged offense were “remarkably similar.” Id. at 318. The Court of Appeals found that the extraneous offense evidence regarding L. D. was sufficiently similar to the charged offenses to be admissible under Rule 404(b) to rebut the defendant’s fabrication defense. The court found that remoteness is not a consideration under Rule 404(b) and the trial court did not abuse its discretion by overruling the defendant’s Rule 404(b) objection. Id. at 318. The court found that remoteness was to be considered in ruling on a defendant’s Rule 403 objection. In analyzing the relevant Rule 403 factors, the Court of Appeals found that two factors weighed in favor of exclusion and two weighed in favor of admission. The Court found that Rule 403 required exclusion of evidence only when there is a clear disparity between the degree of prejudice of the extraneous evidence and its probative value. Id. at 321-322. As the court could not say there was a clear disparity between the danger of unfair prejudice posed by the extraneous offense evidence and its probative value, it found the trial court did not abuse its discretion by overruling the Rule 403 objection. Id. at 322.       

There is a lack of consistency as to how much remoteness is enough, and not enough, for prior conduct to be admitted as an extraneous offense. Remoteness and the passage of time should be factors in determining whether evidence of other offenses is admissible as same-transaction evidence, but remoteness must be considered with other factors. Yates v. State, 941 S.W.2d 357 (Tex. App.–Waco 1997, pet. ref’d). An unadjudicated extraneous offense of assault against a wife approximately 10 years earlier was so remote as to make it inadmissible in a prosecution for aggravated kidnaping of a former girlfriend and her employer. Lavarry v. State, 936 S.W.2d 690 (Tex. App.–Dallas 1996, pet. ref’d), habeas corpus dismissed 2001 WL 484426. Even ignoring a period of confinement of the defendant for prior sexual assault convictions up until three months before the primary conviction, convictions five and one-half years before the primary offense were not too remote, so as to be inadmissible. Stringer v. State, 845 S.W.2d 400 (Tex. App.–Houston [1st Dist.] 1992, pet. ref’d). In West v. State, 554 S.W.3d 234 (Tex. App.–Houston [14th Dist.] 2018), where prior convictions were similar to allegations in indictment, but were for conduct that was from 29 years before, the remoteness weighed in favor of excluding the evidence.   

B. Same-Transaction Contextual Evidence

One exception to the admission of extraneous offenses, wrongs, and acts, is same-transaction contextual evidence, which is admissible when the charged offense would make little or no sense without also bringing in the same-transaction contextual evidence. Such evidence is admissible only where such evidence is necessary to the jury’s understanding of the instant offense. Beltran v. State, 517 S.W.3d 243 (Tex. App.–San Antonio 2017, no pet.). In that case, evidence that the defendant was dealing drugs was admissible same-transaction evidence that placed charges on multiple accounts of sexual assault of a child in context, as the evidence was offered to show that the victim’s mother allowed the defendant to sexually assault the victim in exchange for cocaine, and thus was relevant to show how the defendant had access to the victim and why the victim would be at the defendant’s home without her mother. Extraneous offense evidence also may be admissible as same-transaction contextual evidence where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction. In that situation, the jury is entitled to know all of the relevant surrounding facts and circumstances of the charged offense, because the trial of an offense is not in a vacuum. Id. Evidence admitted under the “same-transaction” exception to the rule excluding evidence of extraneous offenses to prove conformity is considered general evidence to be used for all purposes and does not require a limiting instruction. Id.  

On the other hand, evidence of a defendant’s possession of pills at the time of his arrest for DWI was not admissible as same-transaction contextual evidence because the evidence did not confirm the identity of the pills as necessary to show whether the defendant was committing an offense by possessing them, and even if possession of the pills was a separate offense, the evidence related to the pills was not necessary to the jury’s understanding of the charged offense because there was no evidence that the defendant’s intoxication was caused from ingesting the pills. Burnett v. State, 488 S.W.3d 913 (Tex. App.– Eastland 2016, pet. granted 2016). 

C. Doctrine of Chances

Another basis for the admission of extraneous offenses is called the “doctrine of chances,” which indicates that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance. Hinojosa v. State, 554 S.W.3d 795 (Tex. App.–Waco 2018); Duntsch v. State, 2018 WL 6445369 (Tex. App.–Dallas 2018, pet. ref’d). There are no rigid rules that dictate what constitutes sufficient similarities between charged and extraneous offenses under the doctrine of chances. A very high degree of similarity is not required where intent, as opposed to identity, is the material issue. Id.

VI. Evidence of Extraneous Conduct Properly Admitted

In a child sexual abuse case, particularly in an indecency -by-contact case, extraneous offenses commonly become admissible on the issue of intent. If the specific intent to arouse and gratify sexual desire cannot be inferred from the act itself, evidence of extraneous acts may be admitted to prove that intent. Morgan v. State, 692 S.W.2d 877 (Tex. Crim. App.1985). Extraneous offenses may also be admissible on the issue of knowledge, Prescott v. State, 123 S.W.3d 506 Tex. App. – San Antonio 2003, no pet.), and motive, Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000); Etheridge v. State, 903 S.W.2d 1 (Tex. Crim. App. 1994), cert denied 116 S.Ct. 314. Additionally, if there is any defensive testimony or evidence that the contact or exposure was accidental or innocent, the door is then opened to evidence of extraneous acts to show the intentional nature of the charged offense. Baldonado v. State, 745 S.W.2d 491 (Tex. App.–Corpus Christi 1988, pet ref’d). Extraneous act evidence may be admissible to rebut defensive theories of retaliation, Moses v. State, 105 S.W.3d 611 (Tex. Crim. App. 2001); and lack of opportunity, Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001), Rivera v. State, 269 S.W.3d 697 (Tex. App.–Beaumont 2008); Blackwell v. State, 193 S.W.3d 1 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d); Dennis v. State, 178 S.W.3d 172 (Tex. App.– Houston [1st Dist.] 2005, pet. ref’d).

In an attempt to give meaning to the prohibition of character conformity evidence, courts of appeal in Texas distinguished a frame-up defense from a fabrication defense. Case law defined a frame-up theory as where the defendant suggests that he is the victim of a conspiracy, while a fabrication defense is where a defendant contends that the allegations are entirely made up. Courts generally found that extraneous offenses were admissible to rebut a frame-up theory, but not admissible to rebut a fabrication defense. Bass v. State, 222 S.W.3d 571 (Tex. App.– Houston [14th District.] 2007, rev’d in Bass v. State, 270 S.W.3d 557). On petition for discretionary review, the Court of Criminal Appeals held that its case law makes no categorical distinctions between ‘fabrication’ defenses and ‘frame-up’ or ‘retaliation’ defenses. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). The issue does not necessarily turn on the type of defense presented, but on whether the extraneous-offense evidence has non-character conformity relevance by, for example, rebutting a defensive theory or making less probable defensive evidence that undermines an elemental fact. Id. at n.8. Since its decision in Bass, the Court of Criminal Appeals has reversed other courts of appeals’ decisions regarding the distinction between the frame-up and fabrication defenses, instructing the courts of appeals to reconsider their decisions in light of Bass. Galvez v. State, 2008 WL 5259226 (Tex. Crim. App. 2008); Newton v. State, 275 S.W.3d 490 (Tex. Crim. App. 2009). The Court of Criminal Appeals partially relied on Bass in reversing the 5th Court of Appeals in De La Paz v. State, 279 S.W.3d 336, 347 n.33 (Tex. Crim. App. 2009).

The Court’s decision in Bass was noteworthy in other respects. The Court clearly held that a defendant’s opening statement that suggested he did not have the character flaws which would cause him to sexually abuse a child opened the door to the admission of extraneous offense evidence to rebut the defensive theory presented in the defense’s opening statement. Bass v. State, supra at 563, citing Powell v. State, 63 S.W.3d 435, 438-440 (Tex. Crim. App. 2001) (defendant’s opening statement that he lacked opportunity to molest the complainant under the circumstances of the charged offense opened the door to admission of extraneous offense evidence that defendant molested others under almost identical circumstances to rebut defendant’s lack of opportunity theory); Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim. App. 2005) (defendant’s sweeping direct examination testimony disavowing any sexual misconduct with minors opened the door to admission of extraneous offense evidence of defendant’s sexual misconduct with another minor to rebut his sweeping testimony).

In Bass, the defense’s opening statement put the defendant’s character in issue, and also mentioned that there might be evidence of other allegations. The Court held that the opening statement opened the door to the admission of extraneous offense testimony, in the State’s case in chief, of two other girls who claimed that the defendant molested them. Further, the Court went on to agree with the State’s contention that if the State can show that a defendant has committed similar sexual assaults against unrelated and unconnected children, an affirmative defense allegation that the victim [of the charged offense] fabricated her claim is less likely to be true. By showing that the victim’s allegations are less likely to be fabricated, the evidence directly rebuts the defensive claims and has logical relevance aside from character conformity. Bass v. State, supra at 562-563.

In James v. State, 555 S.W.3d 254 (Tex. App.–Texarkana 2018, pet. dismissed as untimely filed), the trial court did not abuse its discretion in admitting evidence of extraneous offense that defendant evaded arrest 20 days prior to charged crime, as evidence of his modus operandi, and prosecution for evading arrest where the defendant placed his identity at issue during opening statement, which allowed the State to offer evidence of an extraneous offense to prove his identity where there were distinguishing characteristics common both to the extraneous offense and the offense for which he was on trial. The State presented evidence that, in each instance, the defendant led the police on a high-speed chase, took the same roads during the chase, abandoned the same vehicle at the same train crossing, and fled on foot.

In Struckman v. State, 2011 WL 4712236 (Tex. App.–Waco 2011, no pet.) (not designated for publication), the defendant was charged and convicted of continuous sexual abuse of a young child, indecency with a child, and aggravated sexual assault. The complainant was the daughter of the defendant. The conduct began at ages two to three. She was seven at the time of the trial. At trial testimony was admitted from a seven- and a nine-year-old girl of incidents of sexual abuse by the defendant. While the conduct was not the same, the court found it similar enough to be admissible to rebut a defensive theory as both of the victims were young girls, both had their privates rubbed by the defendant’s hand or finger, and both offenses occurred while the victims were in bed. Id. at *4.

In Cross v. State, 2012 WL 6643832 (Tex. App.–Beaumont, pet. ref’d 2013), the defendant was convicted of continuous abuse of a young child. At trial the State was allowed to introduce, over objection, evidence he forced an 18-year-old female to have intercourse with him, even though the criminal charge based on that allegation had been dismissed. The State offered the testimony to rebut defensive theories of fabrication and that the complainant’s claims were not humanly possible because the defendant was of average size. The victim of the extraneous offense was somewhat smaller in size than the complainant in the indictment. The appellate court held the testimony was admissible under Bass to rebut the defendant’s defensive theories, Id. at *2, and the trial court did not abuse its discretion in overruling the defendant’s Rule 403 objection. Id. at 3.

CAVEAT: In the past, extraneous offenses were often admitted in order to rebut a false impression left by a defendant or his witnesses that he is not the type of person to commit such an offense. Townsend v. State, 776 S.W.2d 316 (Tex. App.–Houston[1st Dist.] 1989, pet. ref’d). However, in Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002), the Court made it clear that false impression evidence may only be rebutted by cross-examination of the witness as to the extraneous offenses, not by introducing extrinsic evidence of them. Id., at 885. The Court, nonetheless found that the admission of extrinsic evidence was proper in Wheeler, to rebut the defendant’s frame-up evidence.

VII. Admission of Extraneous Conduct Evidence Was Error

Although there appears to be wide latitude in the admission of extraneous offenses, courts have found some evidence goes too far. In Pittman v.State,321S.W.3d 565 (Tex. App. –Houston [14th Dist.] 2010, no. pet.), the defendant was indicted, as part of the “Mineola Swingers” investigation, for one count of aggravated sexual assault in which he was alleged to have caused two minor children to engage in sexual conduct with one another. The trial court admitted extensive evidence pertaining to the other Swinger defendants and complainants on the theory that it showed the defendant’s plan to engage in a sexual exploitation/abuse scheme with several other defendants. However, the court of appeals held that the evidence of the many extraneous acts did not show a plan to sexually assault the two complainants for whom the defendant was indicted, but rather, was evidence of repeated occurrences of the same bad act, compounded by numerous additional bad ones. Id. at 573. The court found the evidence was inadmissible under Rule 404(b) because it was character conformity evidence, and under Rule 403.      

In Fox v. State, 283 S.W.3d 85 (Tex. App.–Houston [14th Dist.] 2009, pet. ref’d), the defendant was charged with indecency by contact with his former stepson. The defendant complained on appeal of the admission at trial, over objection, that he was a cross dresser, had a homosexual experience as a teenager, and was the victim of attempted sexual abuse by an adult male. The Court of Appeals found that the evidence of cross dressing was not relevant because it did not assist the jury in its determination of whether the defendant sexually assaulted the complaining witness.

In Atnipp v. State, 517 S.W.3d 379 (Tex. App.–Eastland, pet ref’d), a witness’ testimony that she heard gunshots, saw the defendant shoot chickens, and saw the defendant pile them on the road in front of his residence was not admissible in prosecution of the defendant for cruelty to a non-livestock animal, because this other act evidence did not logically relate to the impeachment of the testimony given by the defendant during his direct examination, namely that the dog, which was outside the house, acted aggressively toward the defendant and the defendant’s dog, and that the defendant was concerned for the safety of his dog, and this evidence was aimed to discredit the defendant by demonstrating that he had a bad character or that he had a propensity for committing bad acts.

VIII. Conclusion

The appellate courts have steadily widened the circumstances where extraneous offenses may be admitted. If evidence has relevance for a reason other than character conformity, the extraneous evidence will likely be found to be relevant, pursuant to Rules 401, 402 and 404(b), Tex. R. Evid. and Art. 37.07, Section 3, C.C.P. Defense counsel should be sure to follow any adverse relevancy ruling with a Rule 403 objection. As the relevancy window widens, the Rule 403 balancing exercise becomes even more important.

THE SAGA OF SLIPPERY SAM CATES, Crosby County’s Crafty Miscreant

Two shotgun blasts 100 years ago rocked Crosbyton, exposing the tiny Texas South Plains town as a seeming cauldron of sexual promiscuity, leading to death, scandal, and intrigue. Yet the compelling Roaring Twenties tale of Sam Cates, at the center of the drama, seems to have been forgotten. Until now…

Cates and Burton

Samuel Wavely Cates was born to Maggie and Samuel Absalom Cates in McKinney, Texas, in 1896.1 The fourth of 11 children, he completed eight years of school.2

Little is known of his childhood, but a family tragedy must have had a devastating effect on young Sam. In 1915, Sam’s father, Samuel, attended a Methodist Church ladies’ box supper at Jean, in north Central Texas. Following the meal, Samuel was shot three times and killed.3 He was 49 years old.

Two young men were arrested for the killing of Samuel but no-billed by the grand jury.4 Predictably, there was idle talk in the Young County community about the reason the men were not prosecuted.5 Samuel’s 47-year-old widow, Maggie, was left to care for her three youngest children on her own. She never remarried and died at age 82.6

Samuel’s son, Sam, was rather small, 5’8” tall and 135 pounds, with brown eyes, light hair, and gold crowns covered his two front teeth. He did not smoke or drink.7

His registration form for the 1918 World War I draft listed his occupation as “farmer,” and he listed his residence with his mother in Walters, Oklahoma.8 Perhaps Sam was attempting to dodge the draft, for he did not live in Oklahoma in 1918. Since 1917, he had lived in the tiny South Plains town of Crosbyton—population 800.9

Sometime prior to 1920, Sam was accused of homicide, though no details of the crime are known. Attorney J.W. Burton of Crosbyton was said to have helped him avoid the hoosegow.10

Joseph Warren Burton was born in Iowa in 1873. He and his wife, Metta, an Indiana native, were married in 1905. According to a newspaper account, he was the first man to settle the town of Crosbyton, yet no evidence backs the dubious claim.11 12 He was “a well-known practicing lawyer” on the South Plains and was called “Judge” Burton.13 There is no record of J.W. having served on the bench, but his father was once a district judge in Iowa.14

Despite the mysteries surrounding the relationship between J.W. and Sam, it is clear J.W. hired young Sam to work as a clerk in his law office and as a chauffeur for his wife, Metta.15 16 Sam also boarded at the Burton home.17

The Killing

On Monday, March 8, 1920, Sam drove to Lubbock to pick up Metta, who had been hospitalized for a “mental and nervous” condition.18 When Sam and Metta returned to their Crosbyton home at about 10 p.m., J.W. was waiting.19

Jealous accusations flew, as Metta accused her husband of having an affair with her young niece, Florence Carlton, a houseguest. Sam had informed Metta that, while she was away, J.W. and Flo had taken two excursions, one to Lubbock and one to “the canyon,” each time returning home after midnight.20

Sam told Metta, “They might have found an opportunity for the gratification of any mutual desire they might have had.”21 According to Sam, “Mrs. Burton had been taught from past bitter experiences that her husband was not immune from the lure of the opposite sex.”22

Then all hell broke loose.

Metta began “fighting and upbraiding” her husband, Sam said. J.W. accused Sam of spreading lies about Flo and the lawyer. He told Sam to leave the Burton home the following morning. As Sam described the scene, an enraged J.W.—over six feet tall—suddenly attacked the smaller Sam and then backed Metta against a wall, violently beating and choking his wife.23 24 25 

Sam settled the dispute. He grabbed a shotgun and fired two blasts, the first hitting the lawyer’s arm, a superficial wound. The second blast, to J.W.’s side, proved fatal.26

Sam placed a pillow beneath the head of the dying lawyer and apologized.  “Mr. Burton, I’m awful sorry this happened.” He heard J.W.’s reply, “Sam, I jumped on the wrong man, I jumped on two innocent kids.”27 J.W. clung to life and remained conscious for hours, whispering his last words early Tuesday morning. He was 46 years old.28

Metta’s Will

If J.W. Burton left a will, it was never probated.29

Immediately after J.W.’s death, Metta executed her will, leaving almost half of her estate to Sam Cates! Within a few weeks, the widow was dead. “Her constant refusal of nourishment in any form, together with the sorrow caused by the untimely death of her husband is conceded to have been the cause of her death,” according to her obituary.30 She was 45. Sam’s inheritance amounted to about $7,000, worth $90,000 in present-day dollars.31

The relationship between 23-year-old Sam and 45-year-old Metta must have generated much local gossip. Sam eventually admitted the couple was involved in a torrid two-year sexual affair.32

Another major beneficiary of Metta’s estate was her maid and cook, 22-year-old Mary Steffen. Mary, who had worked for the Burtons since age 16, was—like Sam—bestowed property valued at $90,000 in modern dollars.33

A smaller bequeath went to J.W.’s law partner, Parke N. Dalton, who may have also had a love affair with Metta.34 35 

Despite the shameful controversy, J.W. and Metta Burton were buried side-by-side in an Iowa cemetery.36

The First Trial

The district attorney and district judge arrived in Crosbyton and conducted a “preliminary trial,” probably an examining trial. Sam was immediately arrested and jailed.37

In May of 1920—only three months after the shooting—the Crosby County Courthouse was the setting for Sam’s trial. The indictment charged “murder with malice aforethought,” a capital crime. If convicted, Sam faced the prospect of execution by hanging.38 39

The prosecution alleged Metta and Sam conspired to murder J.W..40 There was speculation Sam would enter a plea of insanity, but instead Sam said he acted in self-defense and in defense of Metta.41 42

The jury was told of Metta’s generous bequest in favor of Sam. They also heard of Sam’s intense interest—from jail—of whether Metta had executed her will before her death.43

Sam testified, and denied having a sexual relationship with Metta.44 But in later court documents, he described their love affair in quaint prose.

Sam “had access to the person of Mrs. Burton almost as unlimited and free as that of the deceased himself,” court pleadings revealed. “Such relations were invited by Mrs. Burton and took place not only in distant parts of the country, but also in the home of the deceased.”45

Sam attempted to deflect the issue of his inheritance from Metta. He alleged one of the State’s witnesses, attorney Parke N. Dalton, had engaged in a love affair with Metta. Dalton was J.W.’s law partner and was left a small inheritance from the lawyer’s wife.46

An eyewitness to the shooting was 22-year-old Mary Steffen, the Burton’s maid and cook.47 She was expected to be the prosecution’s most important witness.48 Instead, Mary testified for the defense. She portrayed J.W. as the aggressor on the night of March 8, “jumping” on Sam and choking Metta.49

However, on cross-examination, Mary’s testimony did not help Sam.

The defense argued the prosecution used unreasonable pressure to persuade Mary to reveal evidence harmful to Sam’s defense. According to Sam’s lawyers, “She was not accustomed to quick thinking . . .  readily susceptible to psychological suggestion.”50

She described in explicit detail Sam’s love affair with Metta, including far-flung liaisons she witnessed in Texas, Iowa, and Illinois.51 Mary’s testimony may have sealed Sam’s fate. She said a defenseless J.W. was on the ground—and not choking his wife—when the fatal second shot was fired.52

Several State’s witnesses discredited Sam’s claim that J.W. choked Metta, offering testimony that there were no marks or bruises found on Mrs. Burton’s neck.53

The defense countered, “Mrs. Burton was wearing a high fur collar closely fastened about her neck . . .  of sufficient thickness to have prevented . . .  the leaving of marks upon the flesh of her neck.”54

The prosecution made a “herculean effort” to obtain the death penalty.55 Sam dodged the hangman’s noose but was convicted and sentenced to 99 years in prison.56 He appealed.57

The Texas Court of Criminal Appeals ruled in Sam’s favor: The evidence of his inheritance from J.W.’s wife Metta was inadmissible.58 The matter was returned to Crosby County for a new trial, but the case was so notorious, an impartial jury could not be found.59 Lubbock County was chosen for a change of venue.60

The Second Trial

Lubbock was four times larger than Crosbyton but was still a small town—population of 4,000. The city was just 40 miles west of Crosbyton, so the residents had been subjected to a fair amount of publicity on the Sam Cates case in the Lubbock Avalanche. But it was June of 1921, and the Burton killing was now a year in the past. Twelve male jurors were chosen in less than a day.61

Sam’s defense lawyer was the powerful W.H. Bledsoe of Lubbock, famous for winning an acquittal for his client in the first Lubbock County murder trial eight years earlier.62 In 1923, as state senator, Bledsoe would sponsor legislation that brought Texas Technological College to Lubbock.63 The establishment of the college was the defining moment in the educational, economic, and cultural history of Lubbock.

How Sam was able to afford such a prominent attorney is curious, as Sam’s inheritance from Metta never materialized. Her sister, Letta McCullough of Illinois, contested the will. Many witnesses testified Metta was of “unsound mind” when she executed the document.64 Affidavits were filed claiming she was “ranting and raving” much of the time following her husband’s death.65

Witnesses said Metta suffered from a variety of “mental and nervous diseases” for many months. After her husband’s death, she would talk about how much she loved “poor Jodie,” which was J.W.’s nickname. In the next breath, she would talk about her affection for “poor Sam,” and then she would rage against everyone in Crosbyton in the most “vile and obscene language.”66

The probate judge agreed the will was illegitimate.67 Both Sam and Mary Steffen lost their claims to Metta’s estate.68 Ironically, Bledsoe represented the successful will contestant, Letta McCullough.69

It seems the lawyer who convinced the court to deny Sam his inheritance would have a serious conflict of interest representing the same man in his murder trial, but that’s exactly what happened. Perhaps legal ethical rules of the day were not well understood or enforced. Or did Bledsoe feel guilty and offer to represent Sam pro bono? No records show Bledsoe was court-appointed, so the matter remains a mystery.70

The Crosbyton Review and the Lubbock Avalanche published dramatic accounts of the second trial in June 1921.

The gathering of legal talent could have been called the West Texas “dream team” of the 1920s.

The defense was led by Bledsoe, assisted by Lloyd Wicks of Ralls and Lubbock lawyers W.C. Huffhines and Clark Mullican. Prosecutors were District Attorney Gordon McGuire of Lamesa, R.E. Underwood of Amarillo, Parke Dalton of Crosbyton, and John R. McGee, Lubbock county attorney.71 Judge W.R. Spencer, the first district judge to be based in Lubbock, presided.72

Many witnesses were “taken through a close examination, and when the State would draw out several points in their favor, the counsel of the defendant would tear down the evidence until so to speak, they would break about even.”73

Metta’s niece, Florence Carlton, a houseguest at the time of the shooting—and accused by the defense of having an affair with J.W.—testified she heard no threats from the lawyer.74 She saw Sam fire both shots and saw J.W. lying on the ground when the second shot was fired.75

Sam testified for five hours. “Answering in a very mild and polite tone of voice, and sometimes with a smile,” he swore J.W. attacked him and then attacked Metta.76

He said his first shot was not to kill, but to show he meant business. Sam said he accidentally wounded J.W. in the arm. The lawyer did not fall but continued to choke his wife. J.W. cried, “Kill me, damn you!” Sam then shot to kill.77

“I knew at this time my life was in danger,” Sam testified. “Judge Burton was in the habit of keeping a revolver in the house. I have known him carrying a revolver with him. He was looking for trouble all the time.”78

If J.W. was in the act of choking his wife when Sam fired the shotgun, it is remarkable Metta was not injured by the deadly blast.

The prosecution subpoenaed Mary Steffen to repeat her vivid description of Sam and Metta’s love affair, and to testify she saw a defenseless and wounded J.W. on the ground when Sam shot-gunned the lawyer to death.

However, in a bizarre but brilliant move, minutes before she was to take the witness stand, Mary and Sam were joined in holy matrimony in a civil ceremony at the courthouse! Mary’s testimony, harmful to Sam’s case, was never heard, barred by the marital privilege.79

The legal-stunt marriage probably saved Sam from a much longer prison term. After a week-long trial, the Lubbock jury convicted Sam and sentenced him to 14 years in the Texas penitentiary.80

The law of the era provided a successful appeal and retrial could result in no worse than the lenient 14-year sentence Sam received. So, with little downside to filing an appeal, Sam’s lawyers took his case to the Court of Criminal Appeals a second time.81

But this time his appeal did not get far, because Sam took an unauthorized leave of absence.

The Escape

In August of 1921, while housed at the Lubbock County Jail awaiting transfer to prison, Sam wrote a letter to Clyde Anderson of Dallas: “Listen, Clyde, we are in great need of some ‘hack saws.’ You get a half dozen, and pack them in a box of candy. You know how to pack them so ‘would-be Sheriff’ won’t find them. Do this as quick as possible. Address the candy to Hewlett Smith, your brother. Have it to return to a fake name, you will know how to do that old stuff.” A deputy intercepted the note, and no hack saws were delivered to the jail, averting a possible getaway.82

A month later, when Lubbock County Sheriff Charles A. Holcomb and his wife, Minnie, served lunch at the jail, Sam and two other prisoners attacked.83

The sheriff fought back, but the prisoners overpowered him, and Sam took the sheriff’s gun, commanding Holcomb: “Throw up your hands! Put ‘em up!”84

As Sam held the gun on the sheriff, the others attempted to gag his wife and “choked her severely.”85 Suddenly, Deputy Sheriff John McCulloch appeared and leveled his pistol on Sam.86

The sheriff shouted, “Shoot him, John!” The deputy fired, but the bullet passed under Cate’s arm. After the deputy’s miss, Sam sprang for the door. The sheriff took advantage of the chaos and tackled Sam, wrestling the gun away. All prisoners were subdued.87

When the dust settled, the inmates were locked away in the jail’s “dark cell,” which the sheriff thought was escape-proof.88 As Sheriff Holcomb busied himself investigating a major chicken theft involving 35 hens and seven fryers, he was confident the prisoners were secure in his dungeon.89

But the sheriff was wrong.

On September 30, 1921, Sam and his accomplice, Hewlett Smith, busted out of jail.90 Parts of their cots were strewn about the cell, and a small steel bar about the size of a pencil was also found.91 It was a mystery how the two broke out of the escape-proof dark cell.

Later, the sheriff gave the editor of the Crosbyton Review a tour of Sam’s escape route. The editor wrote, “It is a miracle how Cates and his companion effected their escape from the dark cell, but after going through the jail and having the situation fully explained, one is convinced that such a thing is possible, for the time lock on the cell is defective and a mastermind with nothing else to do but experiment with such things might do wonders.”92

Sam left what might be described as a sarcastically tender parting note to Sheriff Holcomb: “Dear Charlie and Family, I hope you all the best of luck all the rest of your days. Don’t think too hard of me for doing this. I too am very sorry for our other troubles so please forgive me. If you people don’t ever catch me, you can bet that I will always be a good boy. Give my best regards to my Mary. With love, always, Sam.”93

Sam and his accomplice, Smith, went their separate ways after the jailbreak.94 Three days later, traveling by foot at night, Sam reached Seminole. He caught a ride to Midland, sold his watch to his driver, and used the money to reach El Paso. He made his way to Mexico and eventually surfaced in the remote desert town of Indio, California. Using the name of John Lewis, he waited tables at a restaurant and made many friends in the small town of about 1,000 residents.95

The Recapture

Unfortunately for Sam, he made the mistake of telling a friend he was wanted by the law in Texas. The remark was passed along and reached the local sheriff’s office. In January of 1922, a deputy approached Sam from behind as he was cutting bread in the restaurant. He pressed the barrel of a revolver against Sam’s back and ordered him to put his hands in the air, but the outlaw kept the knife in his hands until forced to drop it. Sam was handcuffed and initially feigned ignorance of his Texas arrest warrants, but he soon admitted his identity.96

Upon his recapture in California, Sam had $250 in the bank ($3,000 in current dollars), fine clothes, and other valuable possessions. A letter signed by Indio’s most prominent citizens attested to his excellent character.97 He had been in Indio less than four months.

His employer said, “He was very faithful and honest with me,” and asked authorities to keep him informed of Sam’s fate.98 He seemed always to be “a good boy” in Indio.

Sheriff Holcomb hurried to California to retrieve Sam, the man who had held a gun on the sheriff and choked his wife during a failed escape attempt. He was naturally curious how Sam had broken out of the sheriff’s not-so-inescapable “dark cell.”99

Sam was happy to brag on his intricate and complicated jailbreak. The Avalanche reported, “He and Smith worked out a plan for turning the combination on the jail with a belt made of strips of their cot, opening the other doors and locks with a mechanical device constructed of the lumber in the cot, using as a guide to direct their work on one of the taps they had to take off a small looking glass which was fastened to a long cot rail. The wrench they constructed of two pieces of the cot, making a V shape instrument out of it, pounding the tap off after several tedious attempts and when they finally reached the top of the jail and the open windows, made a ladder of what sheeting and other cloth they had in their cell and swung to the ground.”100

Meanwhile, the Court of Criminal Appeals refused to hear Sam’s appeal of his 14-year Lubbock County murder sentence, deciding “the jurisdiction of the appellate court does not attach because of the escape pending appeal.”101

The Penitentiary

Soon transported back to Lubbock for court, Sam had two years added to his penitentiary term for his assault of Sheriff Holcomb during his failed jailbreak in 1921.102 In addition, Sam was sentenced to four years in prison for a Crosby County forgery, with the sentence to run concurrently with his other convictions.103 The assault sentence was stacked atop the 14-year murder judgment, so he was to be imprisoned for a total of 16 years.

His prison release date was calculated: February 25, 1938, when Sam would be 42 years old.104  Sam set about to rearrange his release date. 

Soon after arriving at an East Texas penitentiary in March of 1922, Sam appeared to assume the demeanor of a model prisoner. He wrote to the Avalanche, reporting the prison library had burned all its books. Sam politely requested donations for the new library, and the newspaper promised to send a carload of books and magazines.105

But Sam had no plans for casual reading.

Within a year of writing the letter, Sam sawed through the bars of his cell window, stole a car, and escaped.106 When recaptured, “20 lashes” were ordered, but somehow the “punishment [was] set aside and lost [good] time restored,” according to his prison conduct record.107

In 1926, after having served less than four years of his 16-year sentence, Sam was granted a full pardon by Texas Governor Miriam “Ma” Ferguson, and he was released from prison.108

Governor Ferguson—who granted more than 4,000 pardons during a four-year period—was rumored to have granted many reprieves in exchange for cash payments.109 Most of Ferguson’s pardons were for those convicted of liquor-related crimes during the Prohibition era.110 As Sam was not a bootlegger and apparently had little money, it is a mystery why he was favored by the governor’s pardon.

The Aftermath

In 1940, census records show Sam was living in Harris County and was employed as a cook at a downtown restaurant. He was divorced, and there is no record he ever fathered children.111

Mary—the girl Sam wed just before she was to testify against him—seems to have disappeared after her name appeared in the 1920 census as a “servant” in the Burton home.112 Records indicate she may have been buried in Wisconsin in 1966 at age 66 or 67.113

When he registered for the 1942 World War II draft, Sam was 45 years old. In 1918, he had registered for the draft during World War I, but never served in the military during either World War.114

In his 1942 draft registration documents, Sam described himself as self-employed and gave the same address he gave as his place of employment in the 1940 census. Perhaps by 1942 he was the proprietor of the downtown Houston restaurant.115

Nothing more is known of Sam’s life after 1942. He died in 1984 at age 87 and is buried in Parker County, Texas.116

It seems Sam Cates, Crosby County’s crafty miscreant, was “always a good boy” after his pardon by Governor Ferguson. He had no more troubles with the law and made no more daring escapes.

It remains a mystery how Slippery Sam—mostly—got away with it all.

A RACE HE COULD NOT WIN: The Case of All-American Swimmer Ryan Harty

Justice is not color blind. Somewhat paradoxically, it is to a large degree black and white, with blacks getting the short end of “equal treatment under the law.” The late African-American comedian Richard Pryor (1940-2005) pretty much nailed it when he said, “If you’re going downtown looking for justice, that’s just what you’ll find—just us.” Pryor, like comic and civil-rights activist Lenny Bruce before him, freely used obscenities to destigmatize those pejorative words and inappropriate stereotypes. They no doubt helped open some eyes to prejudice that demeaned and denigrated others. Still, in spite of the progress to eliminate race as a factor in the treatment of the alleged offender, it saddens me to say that no one reading this may live to see those problems fully resolved. As an eternal optimist, I hope that I am wrong. But I fear that these matters will not be fully resolved in our lifetimes.

As a lifer in the criminal-justice system, with three years as a state’s assistant attorney general and prosecutor, and the remainder as a criminal defense attorney, I have spent four decades on the frontlines of this uneven landscape. I abhor injustice in all its ugly forms, particularly when it is based on the ethnic or racial origin of the accused. With that as background, I will recount a recent example of how race worked against one of my clients.

I recently represented University of Texas swimmer Ryan Harty in three class-A misdemeanor cases in Travis County, Texas. On August 6, 2017, he was arrested on two counts of criminal trespass of a habitation and one charge of evading arrest. The facts were sufficient for a finding of guilt on all three matters. On July 29, 2019, the resolution of Harty’s legal problems was the lead news story of the 10 p.m. broadcast on KVUE TV, Austin’s ABC-affiliate station. Both news reporters on the story and one of the two victimized homeowners questioned whether the defendant received “privileged” status and therefore special treatment because he was a decorated and accomplished University of Texas athlete. On more than one occasion, the aforementioned victim expressed her belief that Ryan received preferential consideration because he is a white male. She is a middle-aged African-American woman.

As is axiomatic and noted in the KVUE piece, justice is in the eye of the beholder. Ultimately, two of the three cases were dismissed, and on April 3, 2019, Harty was placed on deferred adjudication on the remaining criminal trespass case. Deferred adjudication means that if Harty successfully completes his 14-month probationary period and terms, which include counseling, community service, and random drug testing, there will be no finding of guilt on his record. Further, he will be able to file a motion to have his record “sealed” from public view (a petition for a nondisclosure) two years after being discharged from his probation. The maximum punishment for the offense (§ 30.05 (a) of the Texas Penal Code) is one year in our county lock-up and up to a $4,000 fine. However, for reasons I will discuss below, I preferred a different and better result for my client.

In my negotiations with the Travis County Attorney’s Office, I advocated to have Ryan placed on a track that would result in a dismissal on all counts by his participating in one of the County’s available diversion programs. The prosecutor’s office agreed with my proposal and agreed that we would attempt to work out the cases under the auspices of the Restorative Justice Program (RJP). With victim(s) approval, the certified professional counselors who run the RJP bring the parties together to address the transgressions, events, related reactions, and needs of each participant. Understanding the background and circumstances of the violation, as well as the character of the offender, ideally should help the victim(s) advance their healing and move toward closure (a term I find overused, as many of us carry parts of our past traumas for our entire lives).

Not everyone is given the opportunity to be accepted into the program. The first step in that process is to convince the county attorney that the arrested party is worthy of such consideration. Factors to be considered are based upon the specifics of the case, the criminal record, and résumé of the accused, as well as his or her contrition.

This past May, Ryan graduated from the University of Texas with honors (3.48 GPA), receiving a Bachelor of Arts degree in economics. He is currently working on his Master of Science degree in business analytics at UT’s McCombs School of Business. Ryan is a hemophiliac. He has served as a student-athlete ambassador to the Hemophilia Federation of America. In that role, he appears as a guest speaker and participates on panel discussions, serves as an advocate, and also mentors and educates children and teens diagnosed with the disease. In addition, he volunteers and instructs young swimmers with the Gus Garcia Leadership Academy.

And yes, fortunately, Ryan is competing now as a fifth-year senior on the winning-est athletic team in UT’s history (14 national championships and counting). He is an NCAA All-American. Ryan set a Big-12 record this year in the 100-yard backstroke (45.19 sec.) and soon thereafter placed fifth in the NCAA Championship (45.05 sec.). Moreover, he is an Academic All-American and was given the Team Spirit Award in 2017.

Ryan appeared to be the perfect candidate for the “privilege” of the RJP, not because he is an outstanding athlete on the university’s swim team, nor because of his race. The justice system, like most of our institutions, is to some extent a meritocracy. Benefits are primarily earned, not conferred or bought. With regards to Ryan’s case, the prosecutor agreed to go forward with the recommendation to the RJP after carefully reviewing all the relevant facts and supporting documentation I provided.

Notwithstanding the prosecutor’s decision, the victim who characterized Ryan as privileged rejected the opportunity to participate in the restorative process. I was disappointed for Ryan’s sake and also curious as to why this victim declined participation. I believe I have garnered sufficient information to evaluate and comment on the victim’s decision-making process in turning down that option. Her positions were made clear by her court appearance, her subsequent television interview, and by discussions I had with others who communicated with her throughout this procedure.

Pertinent facts about the cases, as well as the possibility of going through the RJP, were left out of the July 29 TV news broadcast. Instead, what the news story focused on was predominantly the victim’s experience: her reliving the event, her justified fear in reaction thereto, her involvement with the case, her continuing fear, and her and her family’s communication with the athletic department at UT to obtain what she felt would be appropriate and severe sanctions. I do not question her right to each of those responses. The remainder of the six-and-a-half-minute piece (following a brief interview with me at the outset) concentrated on the victim’s perception that Harty received privileged treatment because he is a prized athlete and also because of the color of his skin.

The facts of these cases were not pretty for the then 21-year-old Mr. Harty. However, the “facts” are not what they appeared to be, nor as presented in the KVUE segment. The report mentioned that Ryan was under the influence of a hallucinogenic. That is true. Ryan said this was his first experience with a psychotropic substance, which he was told was LSD. It was off-season, and he was with two friends, one a competitive swimmer from another program. He gave in to temptation, weakness, curiosity, and youthful indiscretion. Those factors do not diminish his legal culpability. Ryan, like anyone, is legally responsible for his actions when voluntarily under the influence of a controlled substance. His “high” is offered only to place in context the how and why this criminal episode unfolded.

In his well-written letter of apology and explanation to the victim, Ryan stated that in his drug-induced paranoid haze, he feared his companions were going to harm him. He jumped out of the car in which they were all riding, took off his shirt and shoes, and started running. The two others gave chase, but Ryan lost them. In broad daylight, he then entered the victim’s West Austin home through the unlocked front door, believing he was expected and belonged there as he was going to “transcend” to a different reality. Upon coming face-to-face with the lone person in the residence, whom he thought would guide him on his journey, he said, “You know why I’m here.” The victim did not and could not know why he was there and was understandably distressed.

Other than his illegal and bizarre criminal trespass, Ryan Harty did not commit a crime while in the victim’s residence. Shirtless and barefoot, he uttered what could only be construed as a threatening statement (as the victim could not know what was really on Ryan’s mind). However, there was nothing else even remotely lewd or suggestive about his actions or deeds. Had there been a scintilla of evidence that Mr. Harty had intent to commit an indecent act upon confronting the victim, he would have been arrested for and faced felony charges for burglary of a habitation with the intent to commit sexual assault.

Ryan immediately fled when the victim did and ran in the opposite direction from her hasty retreat. Realizing he was in the wrong place, he entered another neighbor’s home, looking for his place of “transfer.” Finding no one there but the owner’s dog, he quickly left that residence. When he saw the police, he attempted to evade them. Harty was apprehended in short order. Fortunately for Ryan, the owner of the second home agreed to cooperate with the prosecutor (and the defense) to work that criminal trespass case to a dismissal.

Ryan does not remember all the details from that day, but his memory is completely clear in regard to what he thought and how he was feeling. Some may say his version of these events sounds like a good “story,” made up after the fact. On the contrary, many of the specifics were corroborated by various parties, including Ryan’s friends, who were on the scene looking for him prior to his arrest. The police report states that Ryan was speaking incoherently and that both friends told the responding officer of Ryan’s ingesting a mind-altering substance. Upon arrest Ryan was taken directly to the hospital for observation and evaluation. Soon thereafter he was taken to jail.

This case was pending from August 6, 2017, until April 3, 2019. A major portion of that time involved the Restorative Justice team’s reaching out and attempting to work with the victim to ascertain her willingness to participate in the program. In that time period, I met with Ryan on numerous occasions at my office. He knew he had a lot at stake. In addition to his clean record, pride, and reputation, Ryan’s athletic scholarship and his participation on the UT swim team were in jeopardy.

Other than his legal problem, which precipitated his coming to see me, I was immediately impressed by Ryan. He is bright and personable. He is also exceedingly polite and well-mannered. While confident, straightforward, and well-spoken, there is nothing cocky or manipulative about him. What you see is what you get. That is why I believe his version of these events. I am not alone in having a favorable opinion of young Mr. Harty. As part of his defense portfolio, Ryan received ringing and detailed personal letters of endorsement from a former Texas Supreme Court justice, as well as from a UT academic coordinator, both characterizing him as a special young man.

It is unfortunate that the victim in this case did not choose to avail herself of the opportunity to meet Ryan through the RJP. Yes, that could have helped Ryan resolve the case more favorably, but it also could have assisted the victim in the challenging process of easing her continuing trauma. I submit that she would have gotten a better sense of Ryan and what had happened that day, placing the matter in a more favorable and forgiving light. Everyone else who had significant contact with Ryan’s cases believed the collaborative effort of restoration would have been just and appropriate under these circumstances. If the victim had met with the staff of the RJP and Mr. Harty and afterwards was not fully agreeable to resolving the case with the dismissal sought, she would not have been bound to that outcome. In other words, had the victim ventured into the restorative process, she would have been under no obligation to agree to any result with which she did not feel comfortable. Instead, the victim would only agree to the outcome described here, which will no doubt follow Ryan for the rest of his life, despite the case resolution being deemed a deferred adjudication. Both Ryan and I are thankful that she at least agreed to that. It could have been worse.

The victim and about 20 of her supporters appeared in Travis County Court at Law Number 3 on April 3, 2019, to witness Ryan’s plea and sentencing. She was there to see the case to its end and to offer an “allocution.” That portion of the sentencing procedure is where the aggrieved party takes the witness stand and speaks directly to the offending party to inform him of the fear, harm, insult, expense, and/or indignation caused by his actions. I have no doubt the victim was in abject fear at the time of Ryan’s uninvited intrusion, nor do I doubt that she carries some of that fear forward to this day and will for some time. I wish her well in again feeling secure in her home.

A significant part of the victim’s nearly 10-minute courtroom narrative was her concern that Mr. Harty was being given a “privilege” in his sentencing because of his athletic prowess and because he is a white male. She posited the following question in court: Had her African-American son been in Ryan’s place, would he be getting off so “easy?” In the victim’s television interview, she queried whether the punishment would be the same “if the defendant had been an African-American athlete at the University of Texas and had gone into the home of an Anglo female living in West Austin.”

As I sat next to Ryan at the counsel table during the declamation made in court, the answer inside of my head to both of the victim’s questions was a resounding, “Yes.” If her son, or a black athlete at UT, had the equivalent résumé as Ryan’s and was in the hands of a competent defense attorney, the result should have been no worse than Ryan received, and possibly better.

I add “better” because the only reason Ryan did not receive a more favorable result was the victim would not participate in the justice program that seemed tailor-made for this situation. Again, I recognize that the victim was under no compulsion to do so, and I have no doubt about her trauma, haunting memories, and vulnerabilities as a result of what happened. The problem here is that her thought process clearly appears to be based on and influenced by the race of the offender. I find her decision to be some combination of irony, hypocrisy, and overt discrimination.

I commend the Travis County Attorney’s Office for working with me. Within limits, the state rarely crosses the desires and requests of a victim when offering plea bargains. Here, they followed suit when the victim rejected the RJP option and any other track that would have resulted in dismissing the case against Ryan of criminal trespass of her residence.

Recently, I read a column by Leonard Pitts, the nationally syndicated Pulitzer Prize-winning journalist, where he stated, “To be an African-American is to be perpetually exhausted by race. It is to be worn, wasted, spent, and drained from the daily need to prove and defend your own humanity.” I can understand why someone carrying the burden of systemic discrimination might see things the same way this victim did. That does not at all make it right; it only helps explain it. We cannot make substantial progress overcoming racial inequality, institutional or otherwise, until we have open and honest discussions about the complexities of black-and-white bias and prejudice.

The unfortunate reality is that our justice system is disproportionately harsh on African-Americans and Latinos. It is but one of a number of systems that have racist elements. The remedies appear easy on paper but have proven to be nearly impossible to implement in practice. It is clear that part of the solution is not the lowest common denominator of more and uniform punishment for non-minorities, but should be instead to elevate everyone so that each is dealt with on equal footing “with liberty and justice for all.”

Sadly, it looks and feels like our country is becoming increasingly divisive in multiple ways. For that reason and others, it is more important than ever that those who reject racism and embrace diversity speak out and be heard. To move beyond our country’s “original sin,” it is important that minorities who are most affected by “haters” reach back and form a bridge with those who want to live in harmony. William Faulkner wrote, “The past is never dead. It’s not even past.” That does not have to be true. Other than hate crimes where people are targeted for their race, religion, national origin, immigration status, sexual orientation, etc., those classifications should never be a component in the resolution or outcome of a criminal charge.

It is difficult and maybe somewhat unseemly to point a finger at someone who is clearly a blameless victim, particularly if that person is also a member of a minority class that has suffered from historically overt discrimination. Still, I feel compelled to add my perceptions of what I feel are unjust and biased reasons for the victim’s response to this unfortunate-for-all incident. In my experience, the majority of people I have encountered in protected classes rise above the understandable negative reactions to their oppression and do extend a hand in an attempt to mend the chasm. Clearly, some do not. We all need to work toward equality. None of us can close our eyes to injustice. Ever!

To Ryan’s credit, he never said a word, harsh or otherwise, about this victim’s attempt to curtail his swimming career or his scholarship status. Nor did he ever point a finger or ask why his race was being made part of the equation. Ryan truly felt bad and remorseful for what he had done, and he hoped he would have the opportunity to apologize in person to this victim.

Ryan’s race played too large a part in how he was perceived by the aggrieved victim. The relevance of race is an often-delicate matter to discuss and especially so under these facts. I am not attempting to defend Ryan on the question of his guilt. My job as his lawyer was, and is, to place his illegal acts in the proper context and to defend his otherwise stellar character. In this instance, unlike stories of blatant discrimination against African-Americans we too often read and hear about in the justice system, it is a white male who was judged by the color of his skin, not by the content of his character (see MLK Jr’s I Have A Dream speech). Ryan Harty’s race should never have been an element in the ultimate outcome of this matter. Clearly it was.

Disclaimer: Ryan Harty consented to have this article written, as he wants his story to be told.

Protecting Your Client’s Conduct While Admitting the Accuser’s: Texas Rules of Evidence 403, 404, 412, and 609

In sexual offense cases—particularly those involving an alleged crime against a child—the defense is almost always playing on an uneven field. Special rules of admissibility of evidence favor the prosecution. At trial, the defense often faces a critical challenge of trying to keep out evidence of a client’s extraneous conduct. In some cases, the defense may battle to admit evidence of an accuser’s own sexual acts. The slanted rules of admissibility and procedure make these contests difficult to win, but not always impossible. This article addresses how to resist a prosecutor’s effort to admit into evidence your client’s alleged extraneous conduct, while fighting for admissibility of an accuser’s own relevant sexual acts.

Law of Admissibility in Child Sex Offenses

The primary tool that prosecutors use to offer into evidence a defendant’s extraneous, sexual conduct is Tex. Code Crim. Pro. Art. 38.37 (the “Article”). As discussed below, the Article, entitled “Evidence of Extraneous Offenses or Acts,” is essentially a two-pronged statute. The first prong applies to any prosecution for commission, attempt, or conspiracy to commit the following types of Texas Penal Code cases, if perpetrated against a childunder 17 years of age at the time of the alleged offense or act: Chapter 21 (Sexual Offenses),1 Chapter 22 (Assaultive Offenses), and Section 25.02 (Prohibited Sexual Conduct). Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (a) (1). The first prong also applies to prosecutions for commission, attempt, or conspiracy to commit any of the following types of types of Penal Code offenses, if committed against a person younger than 18 years of age at the time of the alleged offense or act: Section 43.25 (Sexual Performance by a Child), Section 20A.02 (a) (7) or (8) (relating to Child Trafficking), or Section 43.05 (a) (2) (Compelling Prostitution). Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (a) (2).

The first prong of the Article mandates: “Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs or acts committed by the defendant against the child who is the victim of the alleged offense [for which the defendant is on trial] . . . shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.” Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (b) (emphasis added). Because of the broad and nearly unrestricted language relating to admissibility of a defendant’s extraneous conduct committed against the same child who is the alleged victim of the charged offense(s), for which the defendant is on trial, coupled with the lack of a statutorily required gatekeeping hearing, it is extremely difficult to keep out evidence of your client’s extraneous sexual conduct. Although the defense can and should object on federal and Texas constitutional grounds,2 as well as Tex. R. Evid. 403, the best chance for excluding a defendant’s extraneous sexual conduct in this instance may be to argue improper notice. Article 38.37, Sec. 3 provides: “The state shall give the defendant notice of the state’s intent to introduce in the case in chief evidence described by Section 1 or 2 [i.e., the first two sections of the Article] not later than the 30th day before the date of the defendant’s trial [in the same manner as the state is required to give notice under Rule 404 (b), Texas Rules of Evidence].” Tex. Code Crim. Pro. Art. 38.37, Sec. 3.

In order to argue improper notice, the defense must first request notice under the statute. The easiest way to do this is to send the prosecutor or district attorney’s office handling the case something in writing (such as a letter) requesting “notice” (or “notice of evidence of extraneous offenses or acts”) under Article 38.37 of the Texas Code of Criminal Procedure. If you send your request by fax, make sure you keep a copy of the fax transmission receipt. If you send by email, ask for a reply acknowledging receipt of your email. For good measure, you may wish to file the request and the receipt or acknowledgment with the District Clerk, so that your judge will have convenient access to the proof that you need to show you made a proper request and the state received it.

Next, you may need to cite relevant case authority. In Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995), the Court of Criminal Appeals ruled that a state’s open file policy (i.e., that the defendant knew or should have known of the existence of the alleged extraneous conduct) did not satisfy the requirement that the state provide notice in advance of its intent to use in its case in chief evidence of other crimes, wrongs, or acts under Tex. R. Evid. 404 (b). Specifically, the Court held that “[t]he mere presence of an offense report indicating the State’s awareness of the existence of such evidence does not indicate an ‘intent to introduce’ such evidence in its case in chief.” Buchanan, 911 S.W.2d at 15; cf. Lara v. State, 513 S.W.3d 135, 140–43 (Tex. App.—Houston [14th Dist] 2016, no pet.) (Erroneous admission of Article 38.37 extraneous conduct evidence, due to state’s lack of proper notice to the defense, was non-constitutional error. Additionally, the error (if any) was harmless, because Defendant only complained of surprise that the state planned to introduce evidence of extraneous conduct in guilt-innocence (not surprise of the existence of extraneous conduct evidence); did not ask for a continuance; and did not establish harm—i.e., explain to the trial court how defendant’s trial strategy would have differed had he known of state’s intent to introduce extraneous conduct.).

To give yourself the best chance of succeeding on an improper or insufficient notice argument, and to ensure that your objection is preserved for appeal, you should object to admission of Article 38.37 extraneous conduct evidence and do the following, in sequence: (1) request that the evidence be suppressed; (2) if suppression request is overruled, consider requesting a mistrial; (3) if you don’t request a mistrial or your request is overruled, ask for a continuance in order to allow you to investigate the extraneous conduct allegations and incorporate your findings into your defense strategy (be prepared to state how long you will need and, if the judge overrules your request for a continuance, try to get the judge to state on the record that he or she will not grant a continuance of any length of time); and (4) clearly state on the record how your client will be harmed if the Article 38.37 evidence is admitted. Explain how your defense might have changed and how, for example, you would have conducted voir dire differently had you known the Article 38.37 extraneous conduct evidence would have been admitted. To be doubly safe, ask for continuing or “running” objections on all the grounds you have asserted.

The second prong of Article 38.37 may offer a slightly better chance of excluding your client’s alleged extraneous conduct in a child sex crime case, if only because the second prong requires the trial court judge to examine the strength of the evidence, in a hearing outside the presence of the jury, before the evidence may be admitted. See Tex. Code Crim. Pro. Art. 38.37, Sec. 2-a (1) & (2).

Article 38.37, Section 2, applies only to the trial of a defendant for: “(1) an offense under any of the following provisions of the Penal Code: (A) Section 20A.02, if punishable as a felony of the first degree under Section 10A.02(b)(1) (Sex Trafficking of a Child), (B) Section 21.02 (Continuous Sexual Abuse of Young Child or Children), (C) Section 21.11 (Indecency With a Child), (D) Section 22.011(a)(2) (Sexual Assault of a Child), (E) Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a Child), (F) Section 33.021 (Online Solicitation of a Minor), (G) Section 43.25 (Sexual Performance by a Child), or (H) Section 43.26 (Possession or Promotion of Child Pornography), Penal Code; or (2) an attempt or conspiracy to commit an offense described by Subdivision (1).” Tex. Code Crim. Pro. Art. 38.37, Sec. 2.

Strength of Evidence Test and Rule 403

One apparent difference between Sections 1 and 2 of Article 38.37 (the two prongs) is that they appear to cover different offenses. However, a close look at the statute reveals some overlap between the two sections. It would be more accurate to say that Section 1 is broader than Section 2, covering virtually all of the serious sexual conduct listed in Section 2, as well as some less serious and even some non-sexual conduct. Another difference, as previously mentioned, is that Section 2’s extraneous conduct may only be admitted into evidence after the trial judge “(1) determine[s] that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt, and (2) conduct[s] a hearing out of the presence of the jury for that purpose.” Tex. Code Crim. Pro. Art. 38.37, Sec. 2-a (1) & (2). Finally, an important distinction between Sections 1 and 2 is that Section 1 applies to extraneous conduct with the same child, the complainant in the charged case(s). Tex. Code Crim. Pro. Art. 38.37, Sec. 1 (b) (“committed by the defendant against the child who is the victim of the alleged offense”) (emphasis added). Section 2 applies to extraneous conduct with a different child. Tex. Code Crim. Pro. Art. 38.37, Sec. 2 (b) (“evidence that the defendant has committed a separate offense”) (double emphasis added).

So, putting aside any potential issues relating to a constitutional challenge (which will likely fail)3 and improper notice (which can be argued during trial, at the time the evidence is offered), the defense may have a chance to keep out Section 2 extraneous conduct (involving a different child) by requesting the trial court to conduct a “strength of evidence” analysis outside the presence of the jury.4 Additionally, assuming the trial court determines during this gatekeeping hearing that the evidence “will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt,”5 the defense should use the hearing as an opportunity to advance a Rule 403 argument. The relevant factors for a trial court in determining whether the prejudice of alleged extraneous conduct in a child sex abuse case substantially outweighs its probative value include: “(1) how compellingly the extraneous-offense evidence serves to make a fact of consequence more or less probable—a factor that is related to the strength of the evidence presented by the [state] to show the defendant in fact committed the extraneous offense; (2) the potential the other offense has to impress the jury ‘in some irrational but nevertheless indelible way’; (3) the time the [state] will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., whether the proponent has other probative evidence available to him to help establish this fact, and whether this fact is related to an issue in dispute.” Burke v. State, 371 S.W.3d 252, 258 (Tex. App.—Houston [1st. Dist.] 2011, pet. ref’d, untimely filed) (citing Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999)).

Adult Sex Crime Cases

Article 38.37 of the Texas Code of Criminal Procedure does not apply to adult sex crime cases. Therefore, the defense is free to argue anything and everything: Constitutional challenges to the evidence, improper notice, plus violations of Texas Rules of Evidence, including 402 (relevance); 403 (unfair prejudice); and 404 (other crimes, wrongs, acts). If the alleged extraneous conduct is in the form of a prior conviction, look to Texas Rule of Evidence 609 to determine whether the prosecution can establish admissibility, in the event your client elects to testify. See Theus v. State, 845 S.W.2d 874 (Evidence of prior felony arson conviction was not admissible to impeach defendant charged with possessing drugs.).

Texas Rape Shield Law

In Texas, as in other states, evidence of a complainant’s previous sexual conduct is generally inadmissible in a criminal prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual or aggravated sexual assault. Tex. R. Evid. 412. Specifically, the trial court may not admit “reputation or opinion evidence of a [complainant’s] past sexual behavior; or specific instances of a [complainant’s] past sexual behavior.” Id. at (a). There are, however, exceptions to this rule. “Evidence of specific instances of a [complainant’s] past sexual behavior is admissible if: (1) the court admits the evidence in accordance [with procedures relating to proffering the evidence outside the presence of the jury and sealing the record] and . . . (2) the evidence: (A) is necessary to rebut or explain scientific or medical evidence offered by the prosecutor,6 (B) concerns past sexual behavior with the defendant and is offered by the defendant to prove consent, (C) relates to the [complainant’s] motive or bias, (D) is admissible under [Texas Evidence] Rule 609, or (E) is constitutionally required to be admitted; and (3) the probative value of the evidence outweighs the danger of unfair prejudice.7 Id. at (b) (emphasis added).

In Hammer v. State, the Texas Court of Criminal Appeals (CCA) held that evidence related to a child complainant’s anger toward the defendant (her father), after he took her to a hospital for a sexual-assault examination after she ran away from home was admissible to show the complainant’s motive to falsely accuse the defendant of sexual molestation. See Hammer v. State, 296 S.W.3d 555, 567–69 (Tex. Crim. App. 2009). Evidence of the complainant’s previous sexual behavior was contained in medical records of a sexual-assault examination. Id. The CCA ruled that the probative value of the medical records, as well as the complainant’s statements to a witness that her sexual activities when she ran away from home were consensual and not assaultive (as she had falsely reported to a nurse), was not substantially outweighed by the danger of unfair prejudice. Id. at 568–569. Additionally, the CCA held that the trial court abused its discretion by preventing defendant’s attorney from cross-examining the complainant about her allegations that “all of her mother’s boyfriends had sexually molested her,” an incident about being held at knife point by five men, and the complainant’s statements concerning a purported sexual assault by a third party. Id. at 570. The CCA specifically noted that evidence of the child complainant’s statements to others that she had been sexually molested by her mother’s boyfriends, and that she lied to her grandmother about being held at knife point by five men who threatened to rape her, was admissible under the “Doctrine of Chances.” Id. at 565–570.8 Citing “Wigmore’s doctrine of chances,” the CCA observed that it was “highly unlikely that [the complainant] was molested by all of her mother’s boyfriends.” Id. at 569. “A rational factfinder might . . . reasonably conclude that at least some of these accusations, if not all, were false.” Id.

In addition to any applicable exceptions set forth in Tex. R. Evid. 412, which exceptions allow for admission into evidence of the complainant’s previous sexual behavior, the defense should argue “Doctrine of Chances” whenever a complainant’s specific instances of conduct (such as an unfounded or false allegation of sexual abuse against a third party) is similar to the complainant’s allegations in the case for which your client is on trial.

Offering Rule 412 Evidence

There are several things to keep in mind when offering Rape Shield Law (Tex. R. Evid. 412) evidence. First, the statute only applies to cases involving prosecutions for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault. Tex. R. Evid. 412 (a). This does not mean that evidence of a complainant’s sexual reputation, or opinion evidence regarding a complainant’s sexual reputation or past sexual behavior, or specific instances of the complainant’s past sexual conduct, is automatically admissible. It only means you do not have to follow the Rule 412 admissibility and procedure guidelines for offering evidence of a complainant’s past sexual conduct. Be prepared to argue why the proffered evidence is relevant and admissible under other Rules of Evidence.

Second, be aware that “before offering any evidence of [a complainant’s] past sexual behavior, [the defense attorney] must inform the court outside the jury’s presence.” Tex. R. Evid. 49 (c). “The court must then conduct an in camera hearing, recorded by a court reporter, and determine whether the proposed evidence is admissible.” Id. “The defendant may not refer to any evidence ruled inadmissible without first requesting and gaining the court’s approval outside the jury’s presence.” Id. Finally, know that the “court must preserve the record of the in camera hearing, under seal, as part of the record.”10Id. at (d).

Conclusion

One of the biggest mistakes a defense lawyer can make when arguing to keep out evidence of a client’s alleged extraneous conduct, or when fighting to admit into evidence a complainant’s past sexual conduct, is to assume that the slanted rules of evidence and procedure have rendered the situation hopeless. It is true that you will not always win your arguments and you may not always prevail at trial. However, a working knowledge of the rules, combined with a persistent and tenacious approach in applying them, will give you the best chance for success at trial or (if necessary) beyond.

A Practical Guide for Reviewing Evidence in DWI/DUI Cases

When evaluating drug testing evidence in any case, there are two important questions for the judge and jury to address. The first question is, “Was the drug test does correctly? Is it valid?” The second question is, “Is the drug test relevant?” In the State of Texas, DUID laws require that a per se opinion of intoxication must be supported by a scientific opinion.

It is important to understand that not all laboratories across the state have the same procedures or qualified staff. Many laboratories have technicians who are trained in chemistry but may not have any knowledge of pharmacology or toxicology. Thus, just because the state has evidence of a “positive” test does not necessarily mean there is proof that someone was intoxicated.

It is thus important to request a detailed list of documents from the laboratory in the discovery request; the request should contain the following:

  • Chain of custody documentation
  • Any video of the arrest or biological sample draw or collection
  • All data printouts from the laboratory test
  • All standard operating procedures
  • All calibration records

In my experience reviewing cases over the last 15 years, chain of custody is the most common area where I have found gaps. Often, there is poor documentation from the officer or health care professional who draws and collects a sample to the transportation of that sample to the laboratory. Samples are often in storage for weeks, or even months, before they are tested. Proper chain of custody documents support that a sample has been properly handled and managed during the time it was in custody. Any gap in documentation creates a foundational question of whether, beyond a reasonable doubt, the evidence is valid. There should be clear documentation that connects the laboratory’s report from the technician that ran the initial test to the supervisor or lab director that signs off on the final report or decision. In labs handling large volumes, these are often different people.

Focus on Marijuana and THC Evidence – Checklist for a Case Involving THC

With several counties and the State of Texas effectively decriminalizing small amounts of marijuana, the prevalence of THC use in cannabis or electronic vaporizing devices continues to grow. It is challenging to set policy for a specific level of intoxication for marijuana intoxication for several reasons. One reason is that we have natural cannabidiol signaling in our bodies, with cannabidiol receptors, that are linked to the muscular, skeletal, and nervous systems. This is one of the reasons why CBD products are popular; people use them for relief of chronic ailments. Another reason is that the body can adjust to responses from THC use. An occasional user of THC may likely respond differently to THC than a habitual user. Several states have attempted to create levels of per se intoxication for THC, ranging from 1 ng, 2 ng, or 5 ng. Texas currently has no specific number.

If you have a case involving THC evidence, make use of the checklist below for your file in order to help you better understand the issues in the case. Organizing this evidence will assist you in evaluating the strengths and weaknesses of the case being made by the State.

Back to Basics: Attack SFSTs, Not the Officer

In the heat of trial, all trial attorneys fight vigorously for their DWI clients. In that fight, it’s understandable that you want to destroy the officer, destroy the Standard Field Sobriety Tests (SFSTs), and vindicate your client. Oftentimes, however, juries end up feeling sorry for the bumbling police officer and will hold it against the client if the attorney berates or embarrasses the officer. This article will explore a trial-tested, proven method that educates a jury on the complexities and meticulous grading system of the SFSTs rather than attacking the officer. Attack the system, not the officer. In the end, if done properly, the jury will empathize with the client. This empathy will assist the jury in finding the client not guilty—without leaving jurors feeling guilty for voting against law enforcement.

The Officer Is a Human Being

We can all agree there are good and bad officers. Just like attorneys. And contrary to popular belief, even “bad” officers are people too. Just because officers may be “bad” or incompetent at their jobs doesn’t mean they are evil. Somewhere, to someone, they are human with all the emotions, positive attributes, negative attributes, good days, bad days, highs and lows that we all enjoy and suffer. Someone out there loves them. They are someone’s family member. Once upon a time, they took an oath to protect and serve the community we live in. Most of the time, they may still be trying to do their best, but their best is sub-par. Remember this—seriously.

You must think like an average juror. How many clients are shocked that the officer “is bold-faced lying” on the stand? We can’t let our daily experiences jade and warp us. Put yourself in the shoes of your family or friends who have minimal police contact. Most respect police and admire their sacrifice. Growing up we were all probably taught to respect and trust the police. And honestly, most of us still do, for the most part. Hell, even criminal defense lawyers introduce their kids to their police friends and teach their kids to respect and honor the police. Most of our jurors were raised the same and probably raise their own kids this way.

Only in roughly the last seven years did police misconduct and abuse of power really start making the news. In the past couple years, the pendulum has swung—giving jurors cause to be wary or even scared of the police in certain situations. The world is slowly recognizing the magnitude of the problem and the catastrophic consequences when police lie, hide or destroy evidence, collude, or make “honest” mistakes.

To conclude this paean to the humanity of police officers, just try your best to remember the jury starts out thinking they are good cops. Being one of the biggest offenders of the scorched-earth cross-examination, we understand the eye rolls. But it’s not about what we know, it’s how we convey it to the jury. In the famous words of Dalton from “Road House”: “Be nice. I want you to be nice, until it’s time not to be nice.”

Standard Field Sobriety Test Hard Truths

The Standard Field Sobriety tests were developed around 1975 when National Highway Traffic and Safety Administration (NHTSA) performed research with South California Research Institute (SCRI) to determine which roadside field sobriety tests were the most accurate.1 SCRI published three reports:

  1. California 1977 (Lab);
  2. California 1981 (Lab and Field); and
  3. Maryland, D.C., V.A., N.C. 1983 (Field).

SCRI originally travelled around the United States with six tests, but narrowed it to the three tests we know today: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS).

Twenty years later, three validation tests were undertaken between 1995 and 1998:

  1. Colorado 1995;
  2. Florida 1997;
  3. San Diego 1998.2

Many other articles examine the pitfalls and biases of these validation studies. Concocted in the ’70s and validated in the ’90s, these tests are now 40+ years old and haven’t been revalidated in the last 20 years. SFSTs are not a law of physics or science—meaning they are not indisputable. These are simply coordination exercises created by police and “scientists” in the ’70s.3

How the Officer Is Trained to Administer the SFSTs

Before we dive into the actual SFSTs, it’s important to educate the jury on just how this officer was trained and who trained them. Set the stage to illustrate the difference between how they were graded on their SFST proficiency test and how they now grade people on the SFSTs. “Before we get into the tests, can we just explore how you learned to give these tests?” Officers are usually happy to boast about their training. Start by establishing when the officer was first certified to administer the tests. It’s usually in the academy.4

  • And how long was your course (usually 24–40 hours, around a week)?
  • Who trained you (other officers)?
  • When you were trained, did your teacher tell you how to administer the tests and then just grade you on administering them?
  • No, you were provided a textbook— the SFST manual? You still have it? Did you bring it today?

At this point, if not done prior, establish that the NHTSA student SFST manual is a learned treatise under Texas Rules of Evidence 803(18). Rule 803(18) clearly states that a learned treatise may be read into evidence, but not received as an exhibit.

Be ready for the State’s objections when you begin reading from the manual. Many untrained prosecutors will try to prohibit you from reading a document not in evidence or try to admit the manual. “Your honor, I would love to admit this manual, but unfortunately under TRE 803(18) it’s specifically prohibited.” The prosecutor may also object to defense counsel reading it into evidence and not the officer. Nowhere in 803(18) does it say who is allowed to read the learned treatise. And who do you think puts more inflection and importance in reading the necessary language? The defense attorney should read it and is absolutely allowed to—once it’s established as a learned treatise.

  • Officer, you were trained according to the NHTSA student manual? And you agree it’s authoritative on how to administer these tests? BAM! 803(18)

If the officer gets shifty with what year manual, all of the manuals can be found online and you can find most on the TCDLA app. Prior to trial, it helps to establish either with the State or the officer on which edition of the manual they were trained and on whether they accept that it is authoritative. If the officer is really difficult and wants to use his manual, ask for a continuance so the officer can go get his manual—or send the officer a subpoena duces tecum to bring their SFST manual prior to trial. Most judges are very familiar with the NHTSA SFST manual and will not tolerate the officer’s games.

Back to examining their training:

  • When you were trained, you got to practice administering these tests?
  • You were allowed to study the entire week? You were allowed to practice the entire week?
  • You knew at the end of the week you would be tested?
  • You knew that you would be tested on the clues, the definitions, and administration?
  • And you had to get a 70, 75, 80% grade to pass? (Most don’t know the actual passing percentage.)
  • Now when graded, you got credit for the answers you got right?
  • Just like in school and every test you’ve ever taken?
  • On a 100-question multiple-choice test, you miss 6, what’s your grade (94)?
  • That’s because you get credit for every answer you got right?
  • If your kid came home from school, missed six, and had an F written next to that 94, what would you do? (Most say march down to that school. Agree. And welcome the sidebar objection.)

“Officer, I’m Not Here to Bust Your Chops”

Say it 10 times during your cross. Do not attack the officer—attack the tests. “Officer, I know these aren’t your tests. You didn’t design them. You are just following what you were trained to do. So, I’m not busting your chops.” Repeat this over and over. Let the jury know we are not attacking this officer. We are not complaining about the officer. We don’t hate the player; we hate the game.

“But, Officer, if someone admits to drinking or you think they might be intoxicated, you are going to give them these tests in this same standard way.” Start putting the jurors’ minds in the shoes of the client. Many times, I’ve even gestured around the entire courtroom and stated: “So everyone in this entire courtroom, as long as they are not intoxicated, should be able to pass these tests? Judge, reporter, bailiffs, people in the gallery, everyone in this whole courtroom?”

Purposefully leave out the jurors to avoid any potential objection. Some officers may pause because they know there are certain limitations on the SFSTs. “Well, I mean there are certain people that may have difficulty with these tests naturally, right? Those over 65 years old, 50 pounds or more overweight, leg, back, or neck injuries, head injuries or trauma, and lots of other ailments?”

Remind the jury the officer has no medical training and wasn’t trained by any doctors or nurses. Most officers were told to just take the client’s age, weight, or injuries “into consideration” when determining intoxication. Yeah, right! “But again, officer, I’m not here to bust your chops. Let’s examine these tests so that if anyone wanted to try them out, they could know what to look for and how to grade them.” What’s the officer going to say?

Before examining the SFSTs, it’s helpful for the jury to visually understand the tests and clues. Whether you bring an easel and butcher paper, your tablet on the screen, or even a dry-erase board, make sure it’s a large and colorful demonstration. Imagine a CLE with no PowerPoint versus one with colorful displays. Like us, jurors appreciate, learn better from, and remember colorful presentations.

Horizontal Gaze Nystagmus (HGN)

Most jurors have seen some sort of advertisement or illustration of an officer waiving a pen in front of the eyes. Before getting into the HGN, dive a little deeper into their training. Explore their range of knowledge. “Officer, you know there are many different types of nystagmus—88 actually?” It’s unimportant how many types of nystagmus the officer knows, but he will always agree there are many. Only a few are listed in the NHTSA student manual. Most officers have only read about these other types, or maybe seen them on video. Very few have actually seen them in person or done testing and seen these. It’s important to educate the jury that there are so many different ways the eyes can jerk and for a variety of medical, environmental, or natural conditions. Additionally, the jury needs to know who trained the police officer to distinguish the minute jerks of the eye.

  • Now, officer, I’m not busting your chops, but were you trained by an ophthalmologist?
  • Optometrist?
  • Nurse?
  • Person who worked for Lens Crafters?
  • Anyone wearing a white lab coat?
  • The police officer that trained you, he didn’t show you the other types?
  • Have you ever heard of Bruns, latent, pendular, vestibulo ocular, spasmus, or rebound nystagmus?
  • Has anyone showed you the difference between those and horizontal gaze nystagmus?
  • In your manual, you have optokinetic, rotational, post rotational, caloric, and positional alcohol?
  • Have you ever even seen those?
  • And those look just like horizontal gaze, but for non-intoxicated reasons?

Now start demonstrating the HGN main points for the jury to see. Write HGN in black on the top of the pad on your easel. “How far do the eyes have to jerk in order to be counted as a jerk?” Most officers get confused and hesitate. “If we wanted to put a ruler underneath the human eye, the jerk of the eye is millimeters, right? Maybe a centimeter? Maybe 1/32 of an inch? So how far does the NHTSA manual say the eye must jerk in order to be counted as a jerk? How many millimeters?” If the officer continues to hesitate, rescue him: “Sorry, Officer, I’m not busting your chops. There is no definition, right?” Write: No Def. of How Far Jerk (mm).

“How many times does the NHTSA manual say the eye must jerk in order to be counted as a clue of intoxication?” Write: No Def # of Jerks. Some officers may get cheeky and say it just has to be distinct and sustained. Break it down for the officer, gently. “Distinct means you clearly see it. And sustained means it must be continual. And that’s just for the second pass when you are holding it out for at least four seconds. What about in the first clue—lack of smooth pursuit? How many times does it have to jerk when you are just going side to side? And then in the third clue—onset prior to 45 degrees—how many times does it have to jerk before 45 degrees for you to stop your pen before you get to their shoulder?” Most officers will state just once. If they are still being evasive, refer back to the learned treatise NHTSA manual. “Show me in this manual where it says once, twice, three times a lady that it had to jerk?” Even writing this type of evasive answering makes me want to destroy this officer. Repeat to yourself: This officer is human, he is loved by someone, somewhere. Get back to your center. “Officer, I’m not trying to bust your chops, this is not your test, you did not design these tests. Nowhere in this manual did anyone ever state how far or how many times the eyes had to jerk?”

Most prosecutors have already bored the judge and jury to death with the timing of the HGN. Usually the officer has been properly woodshedded by the state and knows the HGN timing. If he doesn’t, or did it grossly wrong on the video, you may want to show the jury the difference between NHTSA standards and how the officer administered it.

But this article suggests a different tactic in attacking the HGN, one that is not based on breaking down the timing. The HGN is not a divided-attention test like the Walk and Turn (WAT) or the One Leg Stand (OLS). The officer will agree. If not, the NHTSA manual defines the WAT and OLS as divided-attention tests. The manual defines HGN as an involuntary jerking of the eyes as they gaze toward the side. Nothing about HGN or Nystagmus says divided attention. Remember to be careful with your words here: “Nystagmus does not measure mental or physical faculties?” No, it doesn’t. Inexperienced officers will try to argue that it does. To combat this, simply illustrate that nystagmus is an “involuntary” jerking and cannot be controlled by our eye muscles, as much as we may want to. And we cannot make our brains, through the neurons, control this involuntary jerking, as much as we want to. Some persistent officers will continue to argue, at which point you may need to distinguish where the loss of mental or physical faculties comes into the WAT and OLS, and how that’s not possible in the HGN. Nowhere in the NHTSA manual does it say loss of mental or physical faculties for HGN. Depending on the remarks in the video, if the officer just will not agree nystagmus doesn’t measure mental or physical, ask them about the client’s performance, like this:

  • He had no problem following your stimulus?
  • You never had to tell him not to move his head?
  • So, he displayed good mental faculties in following your instructions?
  • He displayed good physical faculties in watching your stimulus and not moving his head?

The jury will be turned off and the officer will damage credibility by continuing to argue.

Under your HGN heading, write: Does Not Measure Mental or Physical Faculties. After this amount of cross, the officer has already established a reputation with the jury. Discuss the findings on the HGN. “You found six out of six clues on my client? That’s all of them, maxed out?” Write: 6/6 on the board in the top left in red. We will come back to this at the end of all the SFSTs.5

“There is no way that I can prove you didn’t see those little jerks? Stimulus is 12–15 inches from their face, your face is about another 12–15 inches from your hand. That’s 24–30 inches from his eye, at night, looking for millimeters of jerks.” The jury gets it.

“You never stated out loud when you saw these clues on camera? You never said lack of smooth pursuit, maximum, onset into your mic while you were doing them? In fact, you wrote down how many clues you saw when writing you report? You wrote your report after you had determined he was intoxicated? After you had arrested him? After you towed his car?”

Some officers may say they are prohibited from stating the clues on the video by law, which is correct under Fischer. “Well you could have said them and then we just would have muted it. But it could serve to remind you which clues you actually saw? But you remembered later, you saw all of them? We just have to trust you?” Write: Trust Me in big red letters on the top right of the board.

“You didn’t arrest him after the HGN test, did you? Even though you got all six out of six clues? The next test you administered was the Walk and Turn?”6

The Walk and Turn (WAT)

The WAT is a divided-attention test meaning that it is supposed to measure your mental and physical faculties. In plain English, they want to see how well you can listen to instructions (mental) and then perform what you just heard (physical). The WAT is a test where the video will actually show us the client’s performance. There is no “trust me” in the WAT. The overall intent in dissecting this test is honestly for the jury to go home, try it, and realize how absolutely ridiculous this test is and how strictly it’s graded. Slowly break down this test to the jury using the officer and the NHTSA manual.

Turn to a new page on your easel and write WAT in big black letters at the top of your display. Then lay out the eight clues of intoxication NHTSA established. Know them by heart; it’s your profession. Start writing them down on the board as you recite them. “The first two clues come in the Instruction Phase, meaning they have to stand like this while you give the instructions and demonstrate. 1. Can’t Maintain Balance; 2. Starts Too Soon. The next six come during the Walking Phase. 3. Steps Off Line. 4. Misses Heel to Toe. 5. Raises Arms. 6. Stops While Walking. 7. Incorrect Number of Steps. 8. Improper Turn.” Now the jury can clearly see what the test is graded on.7

Next, show the jury how the test is really administered. Ask the judge to stand up and demonstrate portions.

  • “Officer, this test has 18 unique instructions? Don’t worry, I’m not quizzing you. Let’s go through them together (count these out on your fingers as you go so that the jury can follow along):
      1. Place your feet on a line
      2. In a heel-to-toe manner
      3. Left foot behind right foot
      4. With arms at sides and give a demonstration, tell subject
      5. Not to begin until instructed to so do and ask if subject understands. Tell subject to take
      6. Nine
      7. Heel-to-toe steps
      8. On the line and demonstrates. Explain and demonstrate the turning procedure:
      9. Lead foot planted
      10. Take a series of small steps
      11. To the left direction. Tell the subject to
      12. Return on the line
      13. Taking nine
      14. Heel-to-toe steps
      15. Count out loud
      16. Look at feet while walking
      17. Don’t raise arms from sides. And
      18. Do not stop once they have started. Do they understand?8

Write: 18 Instructions on the board top left in red. “How many times did you demonstrate the test?” Write: 1x Demo or whatever they say. “How many times did you allow him to practice this test before grading him?” Write: 0 Practice. “Did you tell him the clues you would be grading him on?” Write: 0 Clues Given. “Did you give him credit for all the good stuff he did right?” Some may argue or be confused. Circle back to their training and their testing and how they were given credit for all the answers they got right. Hell, every test anyone has ever taken they got credit for the stuff done right! “You agree age, weight, leg, back, or neck injuries may affect an individual’s performance on this test?” Write: [whatever issue your client has]. “Now tell the jury how many clues equals failure or the decision point?” Write: 2 = Intox.

Next show the jury how meticulous the test is scored. Go through each of the clues and define them. When you get to heel-to-toe, ask the officer to show the jury with his fingers just how far someone has to miss heel-to-toe in order to be counted as a clue of intoxication. And make sure to ask if that half inch is between his fingernails or finger beds, on just one step. Write: the measurements of ½ inch and >6 inches next to heel-to-toe and raises arms. Be sure to put green check marks next to all the clues your client didn’t exhibit. When you get to improper turn, you should slow down and explain to the jury that there are three ways you can get that clue: series of small steps, leave the lead foot planted, and turn to the left. Let the jury see all of the ways there are to get a clue of intoxication.9

Bring it home for the jury. Ask the officer how many clues your client exhibited. Write 4/8 or whatever it was. “So, you’re telling me that every single sober person in here has to get a zero or one on this test? Because two equals intoxication?” Look at the jury after the officer admits this. Share that common ground with them. “So you’re telling me, if someone were to go home and try this test, not that anyone would, but now knowing all of the clues and how it’s graded [optional sidebar: which is something my client didn’t know], they should be able to get a zero or a one on it?” You have to love the zealous officer who will not only agree but add that the tests are easy, or that he sees plenty of people pass them.

Finish off the cross with a final blow. “Officer, is this a normal or abnormal way to walk?” Most officers will never admit it’s “abnormal.” Ask them: “Who else walks like that?” Most either can’t think of it or don’t want to say it—gymnasts on a balance beam (but they get to balance with their arms to the side) and tight rope walkers (but they get that long bar). Write: Abnormal in the top left in red. “Now, I’m not busting your chops, these aren’t your tests, but you’re supposed to judge whether someone has lost the normal use of their mental and physical faculties on an abnormal test? And you still didn’t arrest my client after this test?”

The One Leg Stand (OLS)

Very similar to the WAT, lay out the OLS. Start with the clues: 1. Sways; 2. Hops; 3. Drops; and 4. Raises Arms. Count out the instructions: 1. Stand straight; 2. Place feet together; 3. Hold arms at sides; 4. Tell subject not to begin until instructed to do so and ask if they understand; 5. Raise one leg, either leg; 6. Approximately 6 inches off the ground; 7. Keeping the raised foot parallel to the ground (and give a demonstration), tell subject: 8. Keep both legs straight; and 9. Look at the elevated foot; 10. Count out loud, in the following manner: 11. One thousand and one, one thousand and two, one thousand and three 12. Until told to stop. And give demonstration.

Follow the pattern in the WAT and write: 12 instructions, 1x demo, 0 practice, 0 clues given, 0 credit given, age, weight, back, leg, or neck injuries may affect, 2 = intoxicated.

When examining each clue, be sure to establish there is no distance for sway as defined by NHTSA.10 No definition of how many inches or how long someone must sway. Write: ? You don’t need to save the abnormal surprise; the jury gets it. “Is this a normal or abnormal way to stand? Even the Karate Kid got to raise his arms for balance.” And then bring it home: “So everyone in this room better be able to get a zero or one on this test? And all humans have a natural sway when standing on one leg? So that’s one clue already with no definition of how far or how long one must sway? That means everyone should be able to stand on one leg for 30 seconds without dropping it, and not raise their arms or hop the entire time? Not that anyone would ever try that at home.”

Before you wrap up your cross, come back around to the HGN. “My client got 4/8 on the WAT and 2/4 on the OLS, right? Never maxed out any of these tests as we can clearly see on video. But after you arrested him, towed his car, and got to write your report, you wrote 6/6 on the HGN?” The jury sees where you are going. The officer sees where you are going. It’s a rhetorical question. Let the jury ask and answer it in their heads. “So, we just have to trust you that he failed that miserably, but on the video, he looked good (we probably are not in trial if he doesn’t look good)?”

Lastly, bring the fear home. “Not to bust your chops officer, because these aren’t your tests, but if someone is pulled over on the way home from dinner and smells like alcohol or admits to drinking at dinner, they could have to do these tests? And then if they do these tests, you will have to administer it in the standardized manner only and grade it just like we saw? Zero or one to go home?”

This will resonate with everyone. As you can tell from breaking down these tests, they are next-to impossible. We as defense lawyers know these tests, and on any given day with the weather, nerves, and our conditioning, we couldn’t pass these. To assume regular, everyday people who don’t know these tests are capable of passing . . . Let’s be honest: It’s whether the officer wants to arrest you or not. They are purely subjective.

Conclusion

This article is not suggesting that no tests should be given to suspected drunk drivers. Rather, it breaks down the simple reality of how stringently and subjectively these tests are graded. Unfortunately, many people who “fail” these tests will not have the ability to fight these tests—be it for financial reasons, time constraints, or by hiring an attorney who doesn’t want or care to fight it.

We as trial lawyers must know these tests better than the officers. Only once you truly understand these tests can you simplify their basic elements and effectively communicate their unfairness to a jury. Many times, at the end of a trial, jurors will remark how they are never drinking and driving again because there is no way they can pass these tests. These are normal people, just like our clients. And it’s not about the officer; don’t bust his chops. It’s an unfair testing system. Jurors can feel confident in a not-guilty verdict for standing up for natural human error in coordination exercises. Break the SFSTs down to the basics—make it about the tests, not the officer. Jurors can still respect law enforcement while finding the client not guilty, even after “failing” these unfair “tests.”

Coercive Interrogation and the Vulnerable Population

[A] system of criminal law enforcement which comes to depend on the “confession” will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964).

“[F]alse confessions are [a] leading cause of wrongful convictions[.]” State v. Lawrence, 920 A.2d 236, 266–67 (2007)(Katz, J., dissenting)(citing R. Leo, S. Drizin & P. Neufeld et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis.L.Rev. 512 (2006). “False confessions are most common among the most vulnerable groups of defendants—juveniles and people with mental disabilities. Id. “Individuals who are deaf are especially susceptible to offering false confessions. When they fail to understand what is asked of them, they often accede to what they do not understand, especially when confronted by a person in authority.” “Individuals with Disabilities and the Issue of False Confessions,” 26 Champion 34, 38 (July 2012).

Coercive Interrogation

“Just Want to Get Your Side of the Story”

“[C]ontemporary interrogation strategies . . . are based on the manipulation and betrayal of trust.” Richard A. Leo, Miranda’s Revenge: Police Interrogation as a Confidence Game, 30 L. & Soc’y Rev. 259, 259–60 (1996)(studying five hundred hours of police interrogations). “The purpose of interrogation is therefore not to discern the truth, determine if the suspect committed the crime, or evaluate his or her denials . . . [T]he single-minded purpose of interrogation is to elicit incriminating statements, admissions, and perhaps a full confession in an effort to secure the conviction of offenders.” Fred E. Inbau et. al., Criminal Interrogation and Confessions 8 (4th ed. 2001). This reality is at least recognized, if not enforced, by the Supreme Court of the United States. Miranda v. Arizona, 384 U.S. 436, 449–55 (1966)(police “persuade, trick, or cajole him out of exercising his constitutional rights”). Welcome to the accepted Texas method of interrogation commonly referred to as the “Reid Technique.”

If you are the police, it is easy to exercise. First isolate the person, then assert with certainty his guilt (“we already know, we’ve got witnesses, we’ve got the crime scene evidence, we’ve got the DNA”). Next, make a sympathetic offer of blame-shifting (“I believe you. I really do. So, he was doing most of it?”) or minimization (“You hardly had anything to do with the offense. She did it to you. I feel for you”). When the person still protests his innocence, reject them with confidence and finality (“Hey, we’re past that. You’ve already admitted. We both agree we’ve got the evidence. You’re guilty. Sorry, but under the law, you just are—wish I could change it. It’s no longer open for debate”). After psychological domination is complete, have the person endorse the narrative with his own signature or affirmation. The technique is so effective that ordinary people, even those who know the technique is being employed against them, will endorse false confessions. But some people are more vulnerable than others.

Supreme Court Recognition

This reality is no revelation at this late date, as the Supreme Court long ago reviewed:

The officers are told by the manuals that the “principal psychological factor contributing successful interrogation is privacy—being alone with the person under interrogation.” The efficacy of this tactic has been explained as follows:

 “If at all practicable, the interrogation should take place in the investigator’s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover, his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.”

        To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged.

The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes the efficacy of these characteristics in this manner:

In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject’s necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable.

The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:

“Joe, you probably didn’t go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that’s why you carried a gun—for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that’s when you had to act to save your own life. That’s about it, isn’t it, Joe?”

Before the Mutt-Jeff routine, the Supreme Court noted the effectiveness of developing “inconsistencies” which “serve to deprive” the defendant of a defense. As any practitioner knows, this technique is employed in most roadside investigations, whatever the pretense of enforcement of Transportation Code infractions. Miranda v. Arizona, 384 U.S. 436, 449–63 (1966).

Involuntary Confessions

A confession is deemed voluntary if it is “the product of an essentially free and unconstrained choice,” but “if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973). See also Culombe v. Connecticut, 367 U.S. 568, 602 (1961)(confession must be “product of an essentially free and unconstrained choice” to be voluntary); Rogers v. Richmond, 365 U.S. 534, 544 (1961)(decision to confess must be “freely self-determined”); Blackburn v. Alabama, 361 U.S. 199, 208 (1960)(“product of a rational intellect and a free will”). “[C]oercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, supra at 206. See also Reck v. Pate, 367 U.S. 433, 440–441 (1961); Watts v. Indiana, 338 U.S. 49, 52 (1949).

When the issue is raised, the State bears the burden of proving a statement deemed incriminating was voluntarily given. See Alabama v. Beecher, 389 U.S. 35 (1967); Clewis v. Texas, 386 U.S. 707 (1967); Blackburn v. Alabama, supra. “The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Lisenba v. California, 314 U.S. 219, 236 (1941).

Vulnerable Populations

The Need for Defense Counsel Alertness and Protection

People are more vulnerable than ever before, due to the weakening of constitutional protections against coerced confessions. In 2010, the Supreme Court of the United States held that it is not enough for a person to remain silent after having been informed of his Miranda right to do so. He must affirmatively invoke his right to silence. Otherwise the police are free to interrogate. Berghuis v. Thompkins, 560 U.S. 370 (2010). The same year, the Court created a 14-day period for police to have another go at a defendant who has previously invoked his right to silence to do so again. Maryland v. Shatzer, 559 U.S. 98 (2010).

People with disabilities are even more vulnerable than the general population, as studies have shown.

In the group of sixty-six false confessions, twenty-three were juveniles, and at least twenty-two had an intellectual disability or were mentally ill . . . This tracks the pattern among the first forty such false confessions, in which fourteen had an intellectual disability, three were mentally ill, and thirteen were juveniles . . . Still others among these exonerees, while not diagnosed with such a disability at the time of trial, may have been quite suggestible or may have not been diagnosed because the defense did not retain experts.

Brandon L. Garrett, Contaminated Confessions Revisited, 101 Va. L. Rev. 395, 399–400 and n.18 (2015). In another study of 125 confessions later proven false, almost 30% came from a person with at least one mental disability. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 970–73 (2004). In another, 43% of people exonerated by DNA and who gave false confessions had some form of disabilities. Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1095 (2010).

Deaf Persons

The consensus of those who serve the deaf community appears to be that the mean reading level of deaf persons in the United States is approximately fourth grade[.] Having a high-school diploma may or may not indicate an adequate ability to read and understand written documents, nor may possession of a driver’s license so indicate, as the licensing test may have been interpreted for the deaf person.

Linton v. State, 275 S.W.3d 493, 510 n.2
(Tex.Crim.App. 2009)(Johnson, J., concurring).

If the accused is a deaf person, the accused’s statement under Section 2 or Section 3(a) of this article is not admissible against the accused unless the warning in Section 2 of this article is interpreted to the deaf person by an interpreter who is qualified and sworn as provided in Article 38.31 of this code.

Tex. Code Crim. Pro. art. 38.22, Sec. 3(d).

Constitutional Right to an Interpreter

The right to an interpreter is based in part on the Sixth Amendment’s Confrontation Clause. Garcia v. State, 149 S.W.3d 135, 142 (Tex.Crim.App. 2004)(reversing conviction of defendant who did not understand English and had no translator on basis of Sixth Amendment). But the right is also based on the Fourteenth Amendment’s Due Process Clause as well. “Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial[.]” United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2nd Cir. 1970). Prince v. Beto, 426 F.2d 875, 875 (5th Cir. 1970)(appointment of husband of deaf wife as interpreter violated the Due Process Clause).

Interpreter Qualifications: Licenses and Certifications

Section 57.002 of the Government Code and article 38.30 of the Code of Criminal Procedure govern the appointment of interpreters. Article 38.31 specifically governs deaf interpreters.

The interpreter must be licensed by the Department of Assistive and Rehabilitative Services. A deaf interpreter must be certified by the Department of Assistive and Rehabilitative Services. An interpreter for the deaf is qualified if she holds a current legal certificate issued by the National Registry of Interpreters for the Deaf or a current court-interpreter certificate issued by the Board for Evaluation of Interpreters at the Department of Assistive and Rehabilitative Services.

The court in small counties (less than 50,000) or counties that border Mexico may appoint an unlicensed or uncertified spoken-language court interpreter if the language is other than Spanish and there is no licensed court interpreter within 75 miles. Under these circumstances, the interpreter must be at least 18 years old, not a party, and must be qualified by the court as an expert under the Texas Rules of Evidence.

The Health and Human Services Commission creates the rules for the qualifications, training/education, certification, and compensation of certified court interpreters. A violation of the Commission’s rules is a Class A misdemeanor.

No proceeding involving a deaf person may commence “until the appointed interpreter is in a position not exceeding ten feet from and in full view of the deaf person.” Tex. Code Crim. Pro. art. 38.31(d).

“The interpreter may not disclose a communication between the defendant and defense counsel or a fact that came to the attention of the interpreter while interpreting those communications if defense counsel may not disclose that communication or fact.” Tex. Code Crim. Pro. art. 38.31(d).

Competency of Interpreters

The competency of an individual to act as an interpreter is a question for the trial court, and the trial court’s determination of the individual’s competency is reviewed on appeal under an abuse of discretion standard. Martins v. State, 52 S.W.3d 459, 470 (Tex. App.—Corpus Christi 2001, no pet.); Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref’d). The accuracy of an interpreter’s translation is a question of fact for the factfinder and not reviewable by an appellate court. Kan, 4 S.W.3d at 43. An unqualified interpreter can result in reversible error. Watson v. State, 596 S.W.2d 867 (Tex.Crim.App. 1980).

Trial Court and Defense Duties Regarding Interpreters

A judge who knows a witness cannot understand English must appoint an interpreter unless the defendant affirmatively waives the appointment. Garcia v. State, 429 S.W.3d 604, 606–07 (Tex.Crim.App. 2014). Similarly, if a motion for appointment of an interpreter is filed by the State or defendant or requested by a witness, the trial court must appoint an interpreter. Consequently, the defendant does not need to do anything else to preserve the issue for appeal. Id.  “Courts have found the absence of an interpreter violated due process where the defendant’s inability to understand the proceeding or an element of the proceeding resulted in the denial of a fundamental right.” State v. Calderon, 13 P.3d 871, 876 (Kan. 2000).

The defense must make an objection regarding a complaint regarding the competency of an interpreter appointed by the trial court or the issue is waived. Montoya v. State, 811 S.W.2d 671, 673 (Tex.App—Corpus Christi 1991, no pet.).

Questions for Interpreters

  • Are you licensed or certified?
  • What agency licensed or certified you?
  • When was the last time you were certified?
  • How many times have you been certified?
  • Has your license ever been suspended?

Juveniles

Juveniles are recognized as a group that requires specific safeguards against the perils of custodial interrogation. Tex.Family Code Ann. § 151.003 and § 262.104; Juvenile Justice Code, § 54.03 and § 51.09. In one study, over 30% of 103 juveniles proven innocent through DNA had falsely confessed, and over half of the eleven- to fourteen-year-old group had confessed falsely. Joshua A. Tepfer, Laura H. Nirider & Lynda M. Tricarico, Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904–05 (2010).

The Court of Criminal Appeals has said:

In deciding whether a particular interrogation was custodial, courts must consider numerous factors[.] . . . The subjective intent of the police officer is one such factor, but courts will disregard an officer’s testimony that a defendant was not a suspect and not in custody if the testimony is belied by the facts of the case. . . . “The courts cannot be expected to decide cases solely on the basis of self-serving statements by the defendant or the interrogating officer.” .Ê.Ê. Among the other factors which may be considered, one which “has consistently impressed our court [is] whether or not the focus of the investigation has finally centered on the defendant.” . . . Another factor which may be considered is whether there was probable cause to arrest.

Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App. 1979)(internal citations omitted). The Court of Criminal Appeals outlined at least four general situations which constitute custody:

(1) when the suspect is significantly deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to go.

Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996).

Some courts have found it appropriate to “apply a wider definition of custody for Miranda purposes” where juveniles are concerned. See, e.g., In re Joshua David C., 116 Md. App. 580, 698 A.2d 1155 (Md.App. 1997). The voluntariness of juvenile confessions is gauged according to the totality of circumstances. Fare v. Michael C., 442 U.S. 707, 725 (1979). Accordingly, a defendant’s age should be included in any legal analysis of whether she was in custody for purposes of her entitlement to constitutional and statutory protections against coerced statements.

[W]hen . . . a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used.

***

        He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a [child] in his early teens. This is the period of instability which the crisis of adolescence produces. A 15-year-old . . . is a ready victim of the inquisition. Mature men might possibly withstand the ordeal. . . . But we cannot believe that a [child] of tender years is a match for police in such a contest.

Haley v. Ohio, 332 U.S. 596, 599–600 (1948)(reviewing confession of a 15-year-old interrogated for 15 hours by police relay teams). Due process accordingly requires that “the greatest care must be taken to assure that the admission was voluntary, on the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of right or of adolescent fantasy.” Matter of Gault, 387 U.S. 1 (1967). See also Gallegos v. Colorado, 370 U.S. 49, 53–55 (1962)(five days of isolating 14-year-old from mother or other adult, deemed coercive).

Intellectually Disabled

“[W]e cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit.” Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002)(citations omitted).

Previously identified with the stigmatizing term “mentally retarded,” the preferred term used today is “intellectually disabled” or “intellectual developmental disorder.” The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), defines the terms as a disorder with onset during person’s developmental period that features “intellectual functioning deficits” (i.e., difficulties in school and learning from experience, reasoning and problem solving, abstract thinking, and judgment) and “adaptive functioning deficits” (i.e., “failure to meet developmental and sociocultural standards for personal independence and social responsibility”).

There are four levels of intellectual disability severity: profound, severe, moderate and mild. Three of these categories—profound, severe, and moderate—are so bad, the people in them are the least likely to ever have contact with the criminal justice system. If these people are ever arrested and accused, there are issues of incompetency to stand trial, among others, that result in a treatment not easily traceable. They are the minority of people who are so disabled.

People with a profound intellectual disability (1–2%) fall below an IQ of 20–25. It hardly takes an expert to perceive this level of disability, as they can hardly express themselves verbally, among other very extreme deficits. People at the “severe” level (3–4%) have a slightly higher IQ range (between 20 and 40) than the “profound.” Like their even more disabled counterparts, they don’t understand numbers, can’t tell time or count money. They have limited language and must be helped with bathing, eating, and dressing themselves. A greater number (10%) fall within the “moderate” range with IQs at 35–55. Those in the moderate range can actually become independent on basic household chores and with personal care. With great support from family coworkers and other helpers, they can even work and manage money.

But the vast majority—about 85%—fall within the “mild” range (50–70). These are exactly the people who will be crushed by the criminal justice system because they don’t look like the character “Lennie’ from John Steinbeck’s Of Mice and Men. It is easy to believe the person is “just playing dumb.” Police and prosecutors who believe it have little difficulty convincing juries. As the “Making a Murderer” shows, it convinces judges as well.

“Making a Murderer”—Interrogation of Brendan Dassey

The Netflix documentary showed the repeated interrogation of a 16-year-old special education student, Brendan Dassey, with an IQ between 74 and 81 and described as “highly suggestible, docile, withdrawn, with extreme social anxiety and social avoidant characteristics, and more suggestible than 95% of the population.” Dassey v. Dittmann, 860 F.3d 933, 938–39 (7th Cir.), reversed, 877 F.3d 297 (7th Cir. 2017)(en banc). It is better observed on the videotape.

[Police Interrogators]: What else did he do to her? We know something else was done. Tell us, and what else did you do? Come on. Something with the head. Brendan?
Brendan: Huh? . . .
[Police Interrogators]: What else did you guys do, come on. . . .
[Police Interrogators]: We have the evidence, Brendan, we just need you ta, ta be honest with us.
Brendan: That he cut off her hair.
[Police Interrogators]: He cut off her hair? In the house?
Brendan: mm-huh. . . .
[Police Interrogators]: OK, what else?
[Police Interrogators]: What else was done to her head?
Brendan: That he punched her.
[Police Interrogators]: What else? [pause] What else? . . .
[Police Interrogators]: What did he make you do, Brendan? It’s okay. What did he make you do?
Brendan: Cut her.
[Police Interrogators]: Cut her where?
Brendan: On her throat. . . .
[Police Interrogators]:: What else happens to her in her head? . . .
[Police Interrogators]: Come on, Brendan, what else?
[pause] [Police Interrogators]: We know, we just need you to tell us.
Brendan: That’s all I can remember.
[Police Interrogators]: All right, I’m just gonna come out and ask you. Who shot her in the head?
Brendan: He did.
[Police Interrogators]: Then why didn’t you tell us that?
Brendan: Cuz I couldn’t think of it.
[Police Interrogators]:: Now you remember it? [Brendan nods “yes”]. Tell us about that then.

Interrogated with Intellectual Disabilities: The Risks of False Confession, 70 Stan. L. Rev. 643, 669–680 (2018).

Memories of a Christmas in Vietnam

After 44 months as a Marine and 158 weeks as a prosecutor for Smith County, I became a Texas criminal defense lawyer on September 15, 1970, at the age of 32. Three months later, Christmas was approaching and the Vietnam war was escalating. By the end of the year, there would be 184,314 American troops in country and 1,928 Americans would have died there. Memories of the Christmas Day that I spent in Vietnam in 1965 were still fresh in my mind—as they are even today.

We lawyers had our living tents, office tents, and a courtroom tent on the side of Hill 323 near Danang. The monsoon season was almost over, but the mud and dampness were always with us. Christmas morning was dreary, and that matched my mood. Two of my best friends had just rotated back to the Land of the Big PX, and I missed their camaraderie. Most importantly, though, was that I missed my wife, Robyn, and my parents. This was the first time that I had been away from family on a Christmas Day, and I learned what loneliness during the holiday season was all about.

And so it was that I began a tradition in 1970 that has continued. Each Christmas Day, I go to the jails here in Tyler and visit with all of my clients—33 is the record. Some of them will have other visitors; some will not. Most, if not all, will be surprised to see me. I spend enough time with each client for them to know that I understand what it is to be away from family and friends on Christmas Day, and that I am concerned about each of them. Some will become serious and reflect on the changes they intend to make in their lives to avoid being in confinement next year. For others, there will be a quiet resignation that this is yet another Christmas to be locked up. Often, I listen more than I talk.

Over the years, I’ve had former clients tell me how pleased they were to see me on a Christmas Day and conversations with parents who expressed their appreciation for my visits with their sons or daughters. I know that most of us will be celebrating Christmas or Hanukkah or just relaxing with our families on December 25th this year and may not be enthusiastic about having a visitation with clients as I am suggesting. If you give it a try, though, you’ll understand why it has been so rewarding for me for 50 Christmases.

Buck Files joined the 3rd Battalion, 4th Marine Regiment at Phu Bai, Vietnam, in June 1965, and was one of the first Marine lawyers in country. In August, he prosecuted the first general court-martial convened by the Marine Corps in Vietnam at the old French compound in Danang and spent another eight months trying cases and providing legal assistance for the Marines of the 1st and 3rd Marine Divisions, FMF.

Small-Town Advice for the Big-City Lawyer

As a solo practitioner in Nacogdoches, I always enjoy seeing fellow criminal defense lawyers from out of town travel to the courthouse and defend the innocent accused (and occasionally a few guilty ones). It can also be quite entertaining to see how they handle practicing in a small town. In the twenty-odd years I’ve been practicing here, I’ve noticed that many make the same mistakes over and over, which although entertaining to us locals, do not serve their clients well. With that in mind, I wanted to share with you six common mistakes I see when city attorneys come to smaller towns.

Mistake #1: They overdress. While it’s good to dress for success, I often see attorneys from big cities wearing custom-made suits, matching socks, handkerchief, and tie, Rolexes, fancy briefcases, etc. The local prosecutor understands you are successful because your client must be paying a big fee to have you come up here. But looking dressed to the nines will often be counterproductive, as I’ve seen what are normally reasonable prosecutors dig in their heels against someone they think is trying to visually intimidate them.

Mistake #2: Don’t talk down to prosecutors. This is very common. An out-of-town lawyer treating a small-town prosecutor like an idiot will not get the desired result. A case that might ordinarily be dismissed because of a bad stop may need a few more settings so that the local prosecutor can casually “look up” all that complicated law so haughtily thrust upon them. They live here, but you have to drive here. Sometimes, over and over again . . . You don’t need to be a kiss-ass; just don’t be a smart ass.

Mistake #3: Don’t threaten prosecutors. This is closely associated with Mistake #2—especially when combined with Mistake #1. Threatening to file a suppression hearing, threatening to go to trial after the first setting, etc., will probably result in you coming back up here many more times than if you’d just acted like a rational human being. When threatening a prosecutor, you will just motivate them to figure out how to hammer you and your client. If you have a good case and the state has a bad one, great. Point it out in a non-threatening way and see what happens. Your result will usually be better than aggressively firing an opening legal salvo right off the bat.

Mistake #4: Don’t aggravate the court staff. If you tick off the prosecutor, that’s bad enough. But you really don’t want to make the court staff mad. They live nearby and go to that courthouse daily. You may have made your point that you want a jury trial, but you could be at the bottom of the list for many dates down the road. And, you may find yourself angrily driving back and forth indefinitely if you make the wrong court coordinator mad.

Mistake #5: Don’t pick a jury without consulting local counsel. This one may be obvious, but it’s worth noting. The smaller the jurisdiction, the more likely local counsel is going to know a lot about the folks on the jury panel. They may have kids that go to school with jurors’ kids or may have gotten one of their family members out of trouble. If you don’t have the resources to hire local counsel as a jury consultant, at least ask a fellow TCDLA member to give a once-over on the jury list.

Mistake #6: Don’t go to the judge for important issues without consulting local counsel. Every judge is different, and some judges are good with probation and some generally are not. Local counsel is going to know which ones are good about that, as well as suppression hearings, continuances, etc. They will probably have some entertaining war stories to punctuate their opinion.

I hope this will help you the next time you practice in smaller towns. You can always consult the TCDLA directory and find fellow members to help you fill in the gaps if you find yourself in over your head. Good luck and have fun!

Voir Dire: Method Follows Model

Imagine you are repairing a car. How you perform the task depends on your understanding of how the car works. If you think internal combustion is powered by magic hamsters, you’re going to do the job differently than if you understand the suck-squeeze-bang-blow of a four-stroke engine. And, because there are no hamsters, feeding the hamsters is not going to work as well as making sure that the fuel, air, compression, spark, combustion, and exhaust necessary to make an internal-combustion engine work are all present.

Or imagine you are writing a song. If you understand music theory, you’re going to write a better song than if you think dissonance is more pleasant to the ear than consonance and make up your own scales.

You may be a natural-born mechanic or songwriter, with an intuitive or even subconscious understanding of your subject, but most people don’t have that sort of talent. Most mechanics and songwriters study their subject matter, and do their work according to their understanding—their model—of how it works. Method follows model.

Because method follows model, a better—closer to the truth—model leads to better—more successful—methods. You don’t have to understand music theory perfectly, but the better you understand it the better your songs might be.

This is no less true of trying cases than of tuning V8s. Trying a case to a jury is about getting jurors to adopt the beliefs that you want them to adopt. Unless we are naturally talented (and almost none of us are), we need to form a model of how people adopt beliefs and develop our trial skills to work with this model.

How jurors decide cases determines how you try cases. If your model of how jurors decide cases is more accurate, your method will be better. If your understanding is closer to the truth, your results are going to be better.

Voir dire1 is our first contact with the jury. I contend, for reasons that I’ll lay out below, that it is our most important contact with the jury. To have a method of voir dire, we first have to have a model of how jurors decide cases—that is, of how people adopt beliefs. The less accurate the model of how people adopt beliefs—the less it reflects reality—the less effective your voir dire will be.

So. We want a good method for causing people to adopt beliefs that are helpful to our clients. We need a good model. How do people adopt beliefs?

Our jury trial system is based on one model we can read in the instructions given to the jury by the court: Jurors are instructed to wait until they have heard all the evidence to begin deliberating, and then to decide the case based only on the evidence and not on emotion or sympathy. In this model, people withhold judgment until the facts are in, then adopt beliefs by weighing those facts and rationally deciding what is most likely correct.

This is a nice way to look at the decision-making process. It gives people a lot of credit for rationality and gives comfort that the world can be a safe and predictable place. Its only shortcoming is that it is laughably wrong.2

As evidence of its wrongness, I offer cognitive biases. Cognitive biases are unconscious mental processes, ingrained systems to save our brain’s decision-making work. The cognitive bias of confirmation bias, which is our tendency to filter information in a way that confirms our preexisting beliefs, is one such example. Due to confirmation bias, we seek out information that confirms our beliefs, and we discard information that refutes them.

Or consider the cognitive bias of fundamental attribution error, which causes us to attribute others’ failings (as we see them) to their character and choices and our own failings to external factors.

Another cognitive bias is affinity bias, which is our tendency to be biased toward people who we perceive to be like us.3

We are not aware of these cognitive biases in our day-to-day decision-making. What their existence tells us is that we aren’t the rational decision-making machines that we imagine ourselves to be.4

And neither are jurors.

So how do we—and jurors—adopt beliefs? If the classic rational-decision-making model is less than perfectly accurate, what model can we adopt that is more accurate and so will guide us to a better way to try cases?

The existence of cognitive biases suggests that we adopt beliefs irrationally, based on things like affinity, and then resist changing them and rationalize—find plausible rational justifications for—them. This model better reflects real-world observation and predicts real-world behavior than the classic model.5 It is, in other words, a better model.

The better model will lead us to better methods. And as long as we have a better model, we don’t need a perfect model. If we have a better model and therefore better methods than our adversary, we are at an advantage.6

Our next step in developing those better methods is to apply this better model, which is very general (“how people adopt beliefs”), specifically to trial (“how jurors, in trial, adopt beliefs”).

Consider the life of a juror. Pulled out of her usual routine, she comes to an unfamiliar environment—the courthouse—where she sits on an uncomfortable pew, and people talk at her about things she doesn’t understand. Worse, they try to make her talk. There’s a judge and there’s a prosecutor—she’s watched “Law and Order,” so she knows that’s the good guy—and a defense lawyer (bad guy!) with the defendant, who’s probably guilty.

Given the better model, at what point does this juror reach a belief about whether our client is guilty?7 The answer is disheartening: She has reached a belief before anyone starts talking. But there’s nothing we can do about that since that’s the first time we even see her, so let’s concentrate on what we can do something about. At what point does a juror reach a belief about whether our client is guilty that we can do something about?

So that we don’t lose heart—and we needn’t lose heart, because our method is better than our adversary’s—let’s treat the beliefs that the juror reaches before we get up to talk as tentative beliefs. Assume that we can change them and instill our own beliefs. Our first opportunity to do so is when we begin our voir dire. Our second opportunity is when we give our opening statement.

By tradition—this is not a written rule—we cannot talk about the facts of the case in voir dire. This unwritten rule probably arises from the proscription against improper commitment questions: If we tell the jurors what the facts of our case are, we are close to committing them to acting on those facts.

But if we can’t talk about the facts, then the prosecutor hasn’t talked about the facts. The jurors’ tentative beliefs, when we begin our voir dire, are based on the prosecutor’s framing of the issue and the prosecutor’s credibility. In our voir dire, our objectives (aside from and superior to the mechanics of eliminating unfavorable jurors) are to reframe the issue and to build credibility with the jury.

We reframe the issue with hypotheticals. Ideally, we will come up with a hypothetical that will allow the jurors to come up with our theory of the case on their own. If the jurors feel that our theory of the case is their idea, they are invested in it and will more readily accept it than if we have to tell them what it is. If the jurors can’t come up with our theory of the case on their own, it’s probably not a good defense.8

Our theory of the case might be “she never intended to meet for sex but was only offering to introduce him to someone his own age,” or “she cried rape when he said he wouldn’t marry her,” or “when his wife found the money missing, he had to claim that it was stolen so that she wouldn’t find out about the affair.”

A hypothetical might be the following: “I’m a criminal-defense lawyer. If I told you, ‘text me if you need a family lawyer,’ what might I mean?” Or: “Why would a woman cry rape after consensual sex?” Or: “If a man gave a woman money, why might he claim that she had stolen it?”9 This will certainly be a different frame than the State has put on the case. Jurors will give several answers; record them all, and don’t commit to any of them yet.10

Before coming in to the courtroom, the jury has started forming a group, and the lawyers are not part of it. An important thing for you to know about groups is that a group feels things that happen to one member as happening to all members.11 Here, if one member of the group comes up with your theory of the case, the rest of the group will treat it as the group’s idea.

The State had the advantage of primacy in its framing, but we have the advantage of recency. We also have the advantage of having trusted the jury to come up with our theory of the case. Not only will they be more committed to the theory for having come up with it themselves, but they will reciprocate the trust we put in them with trust for us.

That—trust—brings us to our other primary voir dire task (other than framing) which is to build credibility with the jury. Other descriptions of what we’re building include:

  • Trust;
  • Liking;
  • Attraction; and
  • Rapport.

Generally: If we like someone, we trust them. If we trust them and like them, we are attracted to them—we are willing to spend time with them and hear what they have to say.12 If we trust and like someone and they trust and like us, we have rapport.

What is more, if we trust someone they are more likely to trust us. If we like someone they are more likely to like us. If we are attracted to someone they are more likely to be attracted to us. These are feedback loops, which you will start noticing everywhere in human relationships.

Most two-way interpersonal communications involve feedback loops. If I smile warmly and sincerely at you, you may feel good and smile warmly and sincerely at me, and I will feel good: a feedback loop. If you scowl at me, I may feel bad and scowl at you, and you will feel bad: also a feedback loop.13

The personal traits that make other people trust, like, be attracted to, and feel rapport with you are charisma. Charisma is in part about opening feedback loops with people that make them feel good. If you make people feel good, they will want to spend time with you and hear what you have to say.

Charisma in jury selection is also about another kind of loop: the Zeigarnik Effect loop. The Zeigarnik Effect is the tendency of our brains to pay attention to unresolved things. If we hear “Once upon a time . . .” our brains pay attention until “. . . happily ever after.” If our audience is curious, they will want to spend time with us and hear what we have to say.

There is a common misconception that charisma is something that we just have or don’t have, and can’t do anything about. Nothing could be further from the truth. We can take concrete actions to increase our charisma. Paying attention to positive feedback loops and Zeigarnik Effect loops is a good start. Beyond that, there are various descriptions of the components of charisma. For example:

  • Power + presence + warmth;14
  • Affability + influence;15 or
  • Makes people feel comfortable, smiles at people often, can get along with anyone, has a presence in a room, has the ability to influence people, knows how to lead a group.16

One researcher has dissected charisma as “both verbal and nonverbal”:

Verbal aspects involve use of metaphor, story, and emotionally appealing language to communicate an inspiring vision and increase self-efficacy. Nonverbal components include paralinguistics (aspects of speech such as variability in volume, rate, pitch, articulation, fluency, and emphasis), kinesics (body involvement such as posture shifts or head movements), gestural fluency, facial expressivity, and eye contact.17

Here, I count fourteen separate competencies—use of story, variability in rate of speech, gestural fluency, and so on—any one of which you could work on to increase your charisma.

By increasing your charisma, you make yourself more credible to the jury. By making yourself more credible to the jury, you improve the chances that they will adopt and act upon your story. And by improving the chances that they will adopt your story, you give your client a fighting chance in a system that is rigged against him. This is all because you were willing to consider that the classic model of how jurors make decisions might be improved upon—that what you learned in law school, and in your practice so far, might be based on assumptions that are simply wrong.

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