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First! COVID-19 Jury Selection

On Friday, March 13, 2020 I mailed out 85 letters to clients informing them that COVID-19 had forced a shutdown of the court system in Texas, and I did not know what that meant for their case other than it would most certainly affect any preexisting timeline.

On August 25, 2020 (Tuesday) I received an e-mail informing me that I was in the “Strike Zone” for a jury trial, and jury selection would begin on August 31, 2020 at nine a.m. 

On August 28, 2020 (Friday) the court called a jury docket in the 124th District Court room. Five of us defense counsel had gathered having been given the notice of being in the “Strike Zone.” 

  • The first attorney asked for continuance believing that there was some sort of discovery issue with foreign judgments from Mexico.  The case was passed.
  • The next attorney had recently suffered a family tragedy, and the court sua sponte passed those cases.
  • The third lawyer announced that their client would be waiving a jury, and the case was being set for an open guilty plea to the bench.
  • I argued my hastily thrown together Motion for Continuance that was based on the TCDLA Motion due to COVID-19. The motion was denied.
  • The last attorney on the list had his case passed due to witness issues.

August 29, 2020

  • TCDLA past president David Moore reached out to me offering trial strategy, put me in touch with Allison Clayton, the head of the TCDLA COVID-19 Taskforce, and encouraged me to find somebody to second chair at jury selection. 
  • J. Brandt Thorson agreed to help me second chair jury selection.

On Sunday, August 30, 2020 Allison and I started collaborating in earnest getting creative about filing a beefed-up Motion for Continuance with multiple Exhibits attached and a CCP 35.06 challenge to the array.

  • Exhibit A: May 27, 2020 Newspaper article about COVID-19 in the Gregg County jail 
  • Exhibit B: White Oak Independent School District press release that in person school was suspended due to COVID-19 from August 27, 2020 – September 9, 2020
  • Exhibit C: State Bar of Texas Presidential Task Force Interim Recommendations as of 8-26-2020
  • Exhibit D: August 31, 2020 trial docket for the 124th District Court
  • Exhibit E: August 27, 2020 Newspaper article that jury trials were to resume

Monday, August 31, 2020, voir dire at the Maude Cobb Convention Center, Longview, Texas.

  • Challenged the array per CCP 35.06. Denied
  • Argued the new Motion for Continuance with Exhibits A-E attached. Denied.
  • Selected what many have called “a good-looking jury.”

After voir dire it was pointed out to me that my case was not on the “approved jury trials” list as published by the Office of Court Administration. 

So, on Tuesday, September 1, 2020, I drafted and filed a Motion for Continuance based on the fact that my trial was not on the “OCA Approved List” with attached Exhibits.

  • Exhibit F: Emergency Orders Twenty-Two
  • Exhibit G: PDF of Approved Jury Trial list from the OCA website.
  • Argued Motion. Denied.
  • Gave Evidence to the Jury.

Wednesday, September 2, 2020, second day of trial

  • Gave the charge to the jury sometime in mid-morning.
  • Guilty verdict
  • Brief punishment phase
  • State asked for max (20 years). I told them that they knew what to do.
  • Gave punishment charge to jury.
  • Jury assessed 4 years TDC.

On Thursday, September 3, 2020 my Client waived appeal. I called and texted a few people to let them know that we would not be making good case law out of my trial.

Tuesday, September 8, 2020, I briefed the TCDLA Board for about an hour about my experience and provided the checklist at the end of this timeline for future reference.


Then, on Tuesday, September 15, 2020, I received another e-mail letting me know that I was again in the “Strike Zone” for another jury trial to be selected on September 21, 2020 at nine a.m.

Wednesday, September 16, 2020, I share my Motion for Continuance Due to Lack of OCA approval with J. Brandt Thorson.

Thursday, September 17, 2020, I file (multiple) Motions for Continuance with Exhibits attached.

Friday, September 18, 2020, went to trial docket and witnesses the following.

  • Lawyer #1 had his Continuance granted due to settings in Federal Court.
  • Lawyer #2 (me) had his Motions for Continuance denied.
  • Lawyer #3 Had his Continuance approved on Thursday, due to Evidence issues.
  • Lawyer #4 fled the State on vacation, leaving a letter on file with the Court.
  • Lawyer #5 Set their case for a Motion to Suppress.

Monday, September 21, 2020, jury selection at Maude Cobb Convention Center, Longview, Texas.

  • Sung Kim sat second chair with me.
  • We picked what was considered another “good-looking jury.”

Tuesday, September 22, 2020, Trial

  • Sung Kim sat at counsel table as second chair.
  • Jury returned a Guilty Verdict by 2:30 PM.
  • Client waived Jury as to Punishment.
  • Punishment reset until November 13, 2020.


Then, on Friday, September 25, 2020, the third jury trial docket since COVID-19 was held, and I was not on it. 

  • Jeff Jackson found out he was going to trial.
  • I called Jeff to offer to sit second chair during voir dire.

Monday, September 28, 2020, voir dire, Maude Cobb Convention Center.

  • Many quizzical looks from Courthouse Security as to why I was there.
  • Mr. Gary Cristian, thanked us for what looked like “an amazing Jury.”

Wednesday, September 30, 2020, 3:00 PM.

  • Word got out, Not Guilty! 

COVID-19 Checklist

  1. Is your trial approved by the OCA?
  2. If your client is incarcerated:
    1. Has your client been tested?
    2. Has your client been in quarantine since testing?
    3. What are the number of active cases in the jail?
    4. How many inmates are in quarantine in the jail?
  3. Off-Site Voir Dire:
    1. Object that it is not the hallowed halls of justice.
    2. Object that it is not covenant to the populace.
    3. Ask Jurors if they can see you.
  4. Summons:
    1. Does the Jury Summons comport with the Code of Criminal Procedure?
    2. Are jurors excused without having been sworn per CCP 35.02.
  5. Are jail cases of COVID published on the Jail Commission website, or do you need to subpoena them from the sheriff?
  6. Courtroom:
    1. Have the judge on record describe where the jury, counsel, defendant, witnesses, gallery members, and other visitors will sit during the trial.
    2. Enter a drawn schematic of the courtroom into evidence.
    3. Ask if there will be cleaning protocols for the witness stand and trial exhibits.
    4. Will concessions be made so that the attorney and defendant can converse while maintaining good social distancing practices.
    5. Where will the Jury be sequestered to during breaks and during deliberation.
    6. Will the jury be ordered to wear clear plastic facemasks during the trial?
  7. Motions for Continuance; attach exhibits and verify under oath:
    1. OCA approved trial list;
    2. Reports of jail infection rate;
    3. Local newspaper articles about school closures;
    4. Published infection rates for the area;
    5. Press releases from local government and elected officials;
    6. Census records.
  8. Motion to challenge the array under CCP 35.06.
    1. Census records;
    2. In writing;
    3. Verified;
    4. Infection rates for disparaged classes of jurors.
  9. Never announce “Ready.”
  10. Ask for “Running Objection.”
  11. Ask witnesses if they can see all jurors from the witness stand.

A Primer on the Texas EOCA Statute

Many in law enforcement have started more aggressively using the Engaging in Organized Criminal Activity (“EOCA”) statute to prosecute cases where groups of individuals are alleged to have worked together in some way to commit criminal activity. Under the EOCA statute, people can be prosecuted as being part of a “combination” or as part of a “criminal street gang.” The purpose of this article is to outline and survey the law as it pertains to cases filed where the accused is charged as a member of a “combination.”

The EOCA statute, as codified in Chapter 71 of the Texas Penal Code, was created as Texas’ answer to the Federal Racketeer Influenced and Corrupt Organizations (“RICO”) statute. The legislative history suggests that the bill creating the EOCA statute was intended to make it less difficult for law enforcement officials and criminal justice agencies to obtain convictions for participation in organized crime.1 The EOCA statute allows for joinder of offenses and offenders in a single criminal case. It allows for prosecution in any county in which any activity occurred in furtherance of EOCA activities. Alleging that a person is part of a “combination” works similarly to a criminal conspiracy, except that it involves more people and they need not be as directly involved with one another.

Tex. Pen. Code §71.02(a) says that “[a] person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit” one of the predicate offenses. The laundry list of offenses is too numerous to list here but it can be found in the statute and includes offenses as diverse as murder, aggravated robbery, various sex offenses, various fraud offenses, certain gambling offenses, money laundering, and many others.2 Texas Penal Code § 71.01(a) defines the term “combination” as “three or more persons who collaborate in carrying on criminal activities, although: (1) participants may not know each other’s identity; (2) membership in the combination may change from time to time, and (3) participants may stand in a wholesaler-retailer or other arm’s length relationship in illicit distribution operations.”

It is important to remember that not all offenses are predicate offenses for an EOCA charge. Therefore, a practitioner should start by referring to the statute and ask the most basic question – does the indictment allege that the defendant committed one of the predicate offenses listed in the statute? If the predicate crime is not one that is listed in the EOCA statute, then it is not a proper EOCA charge.


There are two overarching elements that are necessary to establish guilt in an EOCA charge: (1) that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination3; and (2) that the defendant committed or conspired to commit one of the enumerated predicate offenses found in Tex.Pen.Code § 71.02(a), which also needs to be listed in the indictment.4 Simply put, the defendant must both agree to participate in the “combination” and “must himself perform an overt act in pursuance of that agreement.”5 The EOCA statute does not treat each predicate offense as an element for purposes of jury unanimity, regardless of whether the state alleges alternate predicate offenses with different degrees.6


There are two parts to the mental state required for an EOCA charge. First, the defendant must have the mental state that is required for the predicate crime.7 For example, if the defendant is charged with EOCA with theft as the predicate offense, the state must prove that the defendant intended to deprive the complainant of the property. Second, the state must prove that the defendant intended to establish, participate in, or participate in the profits of a combination.8 In other words, the defendant must possess more than just the intent to commit the enumerated predicate offense; he must also intend to commit the predicate offense as part of the combination. Also, the proof must consist of more than evidence that a combination existed and that the defendant committed one of the enumerated offenses.9 Thus, in our theft example, not only does the prosecutor have to prove that the defendant intended to steal, but also that he intended to steal as part of this crime ring, which is known as the “combination.” A jury may infer from any facts which tend to prove the combination’s existence, including the acts, words, conduct of the defendant, method of committing the crime, etc.10

To prove that the defendant intended to participate in the combination, the state must prove that the defendant intended to establish, maintain, or participate in a group of three or more in which the members work together in a continuing course of criminal activities.11 The defendant falls into the category of being part of the combination if the defendant, or one of his or her accomplices, engaged in ongoing criminal activities, and the defendant agrees to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities.12

In O’Brien v. State, the Texas Court of Criminal Appeals explained that for an adequate showing of “intent to establish, maintain, or participate in a combination or the profits of a combination,” the “State must show that the predicate offense was committed as part of a collaboration of three or more people working together in a continuing course of criminal activities.13


“Conspiracy” as used in the EOCA statute differs from criminal conspiracy under Tex. Pen. Code § 15.02. A person “conspires to commit” for purposes of the EOCA statute when that “person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement.”14 Criminal conspiracy, on the other hand, requires the prosecutor to prove that the defendant intended to commit a felony, agreed with one or more people to commit that felony, and that one of the people who formed this agreement committed an overt act in furtherance of that agreement. Criminal conspiracy does not require the defendant to have committed the overt act himself.15 EOCA “conspiracy” requires that the actor himself must commit an overt act in furtherance of the combination.16

A person may be guilty of criminal conspiracy by doing nothing more than agreeing to participate in the conspiracy, as long as another conspirator commits some overt act in furtherance of the conspiracy.17 For criminal conspiracy, if two people are charged and one is acquitted, the other must also be acquitted.18

EOCA conspiracy operates differently. To be guilty of conspiring to commit an offense as a member of a combination, a defendant (1) must agree to participate in the combination, and (2) must himself perform some overt act in furtherance of that agreement.19 That “overt act” need not in itself be criminal.20 A key difference between EOCA conspiracy and traditional criminal conspiracy is that when multiple people are charged in the combination, the acquittal of one of those people does not mean that a conviction on other defendants cannot stand.21


EOCA by “commission requires a showing of a collaboration in carrying on criminal activities in addition to the commission of one or more predicate offenses. [EOCA] by commission simply punishes a conspiracy involving three or more people that results in the completion of at least one of the conspired crimes.”22 EOCA by conspiracy does not require the state to show a completed offense.23 “When the state charges a defendant with [EOCA] by commission, it must show at least one completed offense. But in both types of offenses, the state still must prove the existence of a criminal combination.”24


One of the most often misunderstood requirements of the EOCA statute is the requirement that the state prove the intention of the members of the combination to carry out multiple criminal acts. Police officers and prosecutors often believe that a defendant may be charged with EOCA if that defendant were part of a group of three or more people who commit one of the crimes enumerated in the EOCA laundry list. While multiple people working together to commit a single crime may be guilty of that crime under a “law of parties” theory, those people cannot be found guilty of EOCA.

The Texas Court of Criminal Appeals has held that the phrase “collaborate in carrying on criminal activities” does not mean an agreement to jointly commit a single crime.25 The state must prove more than the defendant and some combination of his accomplices intended to act together toward a criminal objective of committing one of the enumerated crimes.26 The prosecutor must prove beyond a reasonable doubt that a defendant’s accomplices had engaged in ongoing multiple criminal activities, and a defendant agreed to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities, and that defendant committed an overt act, even if only one, in furtherance of that crime.27


The EOCA statute expressly excludes certain defenses. For example, it is not a defense that “one or more members of the combination are not criminally responsible for the object offense.”28 Remember, in EOCA cases your client is being prosecuted for belonging to this group that does bad things. He does not have to do the actual bad thing, so long as he does some “overt act” to help others do the bad thing. Also, as stated earlier, the fact that one member of the combination was acquitted does not mean that the other members of the combination are immune from prosecution.29 Finally, the fact that members of the combination change, and that the total number of people in the combination change is not a defense so long as the defendant and at least two other individuals remain in the combination.


Unfortunately, the law allows prosecutors wide latitude in creating complicated indictments with nightmare jury charges in EOCA cases. The Texas Court of Criminal Appeals has said that “[t]he jury must be unanimous that a defendant committed at least one of the enumerated offenses as a part of a collaboration to carry on criminal activities.”30 The court has made it clear, however, that the “jury does not have to agree on which specific offense was committed in an engaging case so long as everyone agrees that at least one of the listed offenses was committed as part of a collaboration in carrying out criminal activities.”31

For EOCA cases, the commission of each predicate crime constitutes a different manner and means of committing the single offense of EOCA.32 “An indictment may allege different methods of committing the same offense.”33 Therefore, a single EOCA indictment may list completely different predicate crimes as a “manner and means” of committing EOCA. For example, an indictment may charge an individual with committing EOCA by being part of a combination and then allege criminal activities as diverse as theft, money laundering, fraudulent use of identifying information, and murder. Although a single count can’t charge people with multiple crimes,34 courts have held that EOCA is one charge and can be pleaded with different predicate crimes as different “manner and means,” and each “manner and means” may be submitted to the jury.35 Further, verdict forms must be general so a properly written jury charge will not require the jury to make any determination as to which specific individuals in the combination committed which predicate crimes.36


Generally, the punishment range for EOCA is one degree higher than the most serious offense that was committed.37 If the predicate offense is first degree offense, then the minimum sentence is 15 years in the Texas Department of Corrections.38 There are provisions that make the range more aggressive when certain sex offenses are the predicate charge.39 Conspiring to commit an offense under the EOCA statute is the same degree as the most serious offense “that the person conspired to commit.” 40

At the punishment state of a trial, the defendant may raise the issue as to whether he completely withdrew from the combination before the commission of the offense, and “made substantial effort to prevent the commission of the offense.”41 If the defendant proves this by a preponderance of the evidence then the punishment range becomes the same as the most serious offense listed in the indictment, or a degree lower if the defendant is convicted of conspiring to commit the offense.42

Importantly, a defendant convicted of EOCA is “not eligible for release on parole until [the defendant’s] actual calendar time served, without consideration for good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is [the defendant] eligible for release on parole in less than two calendar years.”43


The EOCA statute can be tricky and confusing to the untrained eye. Many police officers and prosecutors wrongly believe that if a person commits a crime with at least two other people, then that person is guilty of EOCA. As shown above, this is not the case. When attacking the State’s case pay close attention to the pleadings. Consider filing motions to quash when the state’s indictment does not identify an “overt act” and have the statute and supporting case law ready to cite when it comes time to move for a directed verdict when the state fails to present evidence of the defendant’s intent to be part of a collaboration of three or more people working together in a continuing course of criminal activities. While the complexities of the EOCA statute aid the state in some respects, those same complexities create many opportunities for the state to make mistakes. This, in turn, creates opportunities to “recover a fumble” when the defense lawyer pays close attention to the statute’s details.

Zoom Trials: The Idea Exceeds the Technology

Courts are struggling to find a way to hold proceedings in the safest way possible while still maintaining justice. Many courts have turned to Zoom and other video conferencing services to conduct hearings and other legal proceedings in an attempt to prevent the system from coming to a complete standstill. While bench trials, hearings, and even depositions have been conducted successfully via Zoom, the first binding criminal jury trial was held entirely via Zoom on August 11, 2020. We have now participated in two Zoom jury trials that went from jury selection through verdict. One was a mock trial in a civil case for the American Bar Association’s False Claims Act Virtual Trial seminar. The other was the aforementioned binding criminal trial, which was for a Class C misdemeanor charge. We wanted to embrace this technology as the future route for jury trials, but after participating in both groundbreaking trials, we simply cannot endorse it. Perhaps it can be used for small claims and Class C misdemeanors, but any trial of substance, whether the stakes are substantial damages or the potential for incarceration, it is simply not the vehicle to use to assure litigants of their Sixth and Seventh Amendment rights to a fair trial. We will leave it to the pundits, professors, and scholars to debate the constitutional implications of jury trials via Zoom.  This article is going to address the practical and technological challenges associated with Zoom jury trials, and why it’s not only a bad idea, but a very bad idea.

Inequality of Access to Required Technology

Our first concern is the access, or lack thereof, of all jury-qualified individuals to the technology required to participate in a jury trial via Zoom. Although many knew this technology gap existed, it came to the forefront of everyone’s attention once schools closed and remote learning began. Dallas County, Texas is a prime example: Through a survey conducted by the Dallas Independent School District, it was discovered that 30% of families did not have access to high-speed internet service (Smith, 2020). These households were in the same areas that experience high crime rates, food deserts, and poverty levels. When the adults in these same households receive a jury summons and are asked to report via Zoom, they will experience the same lack of access as their children. When nearly a third of households do not have the same access to reliable internet service as other jury-qualified individuals, it creates a massive participation disparity. Now your jury panel is no longer representative of your jurisdiction. This was never more apparent than at the Travis County criminal jury trial held via Zoom. The table below compares the racial and education demographics of Travis County, Texas with that of the panel of prospective jurors for the Zoom criminal trial:

The divergence in both education and race demographics is substantial. 83% of the Zoom jury panel self-reported having a college or post-graduate degree when U.S. Census data reports only 48.6% of individuals in Travis County have the same. People of color were also underrepresented in this jury pool: 73% of the Zoom jury panel self-reported their race as White when the data shows this percentage as less than 50% for the county. While some differences can certainly be accounted for by the necessity of ensuring individuals are jury-qualified (over 18 years of age, eligible to be registered voter, etc.) as well as the randomness of the jury wheel, the demographics of this Zoom jury panel was just not representative of a traditional Travis County jury pool.

Access, or lack thereof, to the appropriate hardware needed to participate in video conferencing is another facet of the technology gap. Survey results from the Pew Research Center show that 26% of adults in the United States do not own a laptop or desktop computer (Mobile Fact Sheet, 2019). That effectively means a quarter of our jury pool does not own the necessary hardware required to participate in a Zoom jury trial. While some of this is likely due to economic constraints, the technological sophistication of smartphones today means there are also many people who just do not have use for a separate computer. While it is conceivable a juror can participate in a Zoom meeting by smartphone, it is impractical. Because the screen is so small compared to a tablet, laptop, or desktop computer, it decreases the user’s view of the lawyers, witnesses, and the judge, the ability to view evidence is incredibly difficult, and interaction with their fellow jurors is severely limited. Either individuals without access to the appropriate hardware are excluded, or the counties are going to have to send out Sheriffs to hand out tablets, computers, and/or Wi-Fi hotspots if a prospective juror has neither the appropriate hardware nor access to reliable internet service. That is simply not a practical solution to this problem. By contrast, approximately 91% of U.S. households have access to a vehicle (Peterson, 2020), which they can presumably use to report to the courthouse. Simply put, access to the required technology in order to participate in video conferencing should not be a prerequisite of jury service.

Inability to Use the Technology

Access to appropriate technology is still only half of this problem. Jurors (and attorneys, witnesses, court staff, etc.) have to know how to use Zoom. Although a learning curve was expected, the ability of everyone to effectively use the technology was underwhelming. In the criminal Zoom trial, the attorneys had clearly practiced and had a good handle on how to use Zoom, but they even had hiccups along the way, from forgetting they were muted to issues with using Screen Share. For jurors, Zoom lingo cannot be assumed, must be taught prior to the beginning of jury selection, and even then, there is no guarantee the prospective jurors will be able to use Zoom without a hitch. Multiple jurors were unsure how to mute and unmute themselves, turn their video feed on or off, or move to their breakout room when instructed by the court. During jury selection in the criminal Zoom trial, several jurors could not see the defense attorney when he first began his voir dire, so the proceedings had to stop in order for the court to teach the jurors how to switch from Gallery View to Active Speaker. Lots of questions had to be repeated because of bad connections or an audio lag. Poor connectivity caused visual and audio problems multiple times throughout voir dire, which led to people talking over one another. One juror had to move locations during jury selection (for reasons unknown), which was very awkward and caused yet another delay. Some have argued that the solution is simple: Teach prospective jurors how to use Zoom prior to trial. This is much easier said than done. Who will be tasked with this project? Court staff are already being asked to be de facto IT professionals in addition to their existing duties. Offering Zoom training is also not a guarantee. At the 2020 ABA False Claims Act Virtual Trial seminar, the mock jurors received over an hour of Zoom training apiece, and during the seminar experienced many of the same problems as the criminal Zoom trial.

Technology Failures

In the criminal Zoom trial, the court did try to address the technology disparity. Four prospective jurors were given court-issued technology in order to report for jury duty, and two of those individuals were seated as jurors. Out of those two, one was excused during the oath due to connectivity and technology problems with the court-issued device. It began with a frozen screen, and despite the court’s attempts to remedy the situation, the judge eventually decided to excuse the juror. It is worth noting that, at this point, the trial was already grossly behind schedule. This individual was not the only one who was excused due to technical difficulties. A total of five jurors, over 15% of the panel, were excused due to various technology problems. These ranged from computer viruses to an outdated operating system that did not permit one juror to access Zoom at all. While we understand the court’s reasoning, we disagree with it in practice. An inability to use technology, whether caused by user error or equipment failure, should not be a legal reason to excuse any juror.

The juror whose screen froze presents another technology-related problem: What if no one had noticed when his screen froze?  Meaning, someone can look like they are listening intently when their screen is frozen, while in reality they are scrambling to address their connectivity or equipment problems. What if the juror’s audio connection fails, preventing the juror from hearing testimony? How do we ensure that juror saw and heard other evidence? Simple: You cannot. And if the jurors cannot hear and see the evidence, they cannot evaluate the evidence, which means they cannot discharge their duties as jurors.

Right to a Public Trial by Live Stream

Another concern is the Sixth Amendment right to have a public trial. All courts, consistent with Presley (Presley v. Georgia, 558 US 209, 2010), are making reasonable accommodations, which consist of either live streams on the court’s or county’s website, on a public platform such as YouTube, or, in some instances, arranging for a live video feed to an overflow courtroom. Our concern is not the method but the technology: As long as the video feed or stream works, it’s fine, but what happens if the stream or feed fails? This is not a hypothetical scenario, as the live stream went dark during the Zoom criminal trial. An additional concern with live-streaming trial proceedings is there is no guarantee that someone is not recording the trial. Somebody cannot walk into a courtroom and videotape the trial without the court’s authorization. The court does not have that kind of control over the internet. If the case is about a parking ticket or small claims, admittedly this is not much of a concern, but if you have a high-profile case, are discussing a client’s medical condition or injuries, or submitting intellectual property evidence, the concern becomes very real. The difference between public in-person trials and live streams is the court can govern the dissemination of information. Presley says that reasonable measures must be taken to accommodate public attendance at trials, but the presumption is that the courts can maintain some control over that environment.

Another logistical concern with live-streaming is broadcasting prospective jurors’ names and other personal identifying information. In the criminal Zoom trial, the judge asked each prospective juror to rename themselves as, “Juror #[Number]”, prior to voir dire so that their names were not visible. However, most of the juror check-in process was live-streamed, so anyone who logged on potentially saw the jurors’ names before that process was completed. Even if the court chooses to disseminate identifying information of the jury panel to the parties before the stream goes live, the jurors are still potentially answering very personal questions on a very public platform. Any trial lawyer will tell you it is oftentimes difficult to get a jury panel to talk, which is compounded when the lawyer must question prospective jurors on sensitive or hot-button issues. To satisfy Presley, let’s assume a Zoom jury trial in a DWI case is being live-streamed on YouTube. Both the prosecutor and the defense attorney will likely want to question prospective jurors on alcohol use and abuse. Now imagine there’s a prospective juror whose family member was recently killed by a drunk driver. This prospective juror is still grieving their loss, and is now not only on camera, but on YouTube. Yes, there is a way for this person to speak to court privately via a breakout room that is not being live streamed. But this person and their grief, which they may or may not be ready to discuss with strangers, has now been placed on a very public stage. Perhaps this is more an ethical or moral question, but our point is this: If you ask prospective jurors to answer personal questions and actually want answers, you have to make it as safe and comfortable a process as possible, which is difficult enough in open court, and essentially impossible when the trial is being live-streamed.

Evaluation of Evidence by a Zoom Jury

Evaluation of evidence is another consideration. There is plenty of evidence that is not a document or otherwise cannot be shared via a file share program such as Box. Consider a defective product, medical device, or a patent case, where it is typical to allow the jury to hold, touch, and see the product or device. Jurors are sometimes taken to the scene of the crime or the location where the injury occurred – that’s now completely eliminated. Granted, this doesn’t happen often, but it happens at least frequently enough to be a concern if you lose that ability. Photographs are only two dimensional. Video still doesn’t replace the senses that are engaged by holding and interacting with the object yourself. How can we expect the jury to truly and fully evaluate such evidence if they are not in the courtroom?

Judging the Credibility of Witnesses via Zoom

This problem with evaluating evidence also extends to testimony. What happens in the courtroom is not just judging documents, but judging the credibility of the witnesses. In fact, the jury is instructed that they are the SOLE judges of the credibility of the witnesses. What if one or more jurors does not hear a portion of the testimony due to technical problems? Even worse, what if they are not even aware that they missed something? Now there is a portion of testimony that those jurors are not considering, not because they are not giving weight to the testimony, but because they never heard it. We need these protections even more in criminal cases, where the stakes are not a damages amount, but someone’s liberty, or even life.

Body language plays an important part in judging the credibility of the witnesses as well, but nonverbal communication is almost entirely lost on Zoom. For decades, Robert has been saying in his speeches that 80% of communication is nonverbal. Tone of voice, what someone is doing with their hands or legs, at whom or where that person is looking during their testimony – all of that factors into nonverbal communication. In the courtroom, jurors are not only watching the person speaking or testifying. They are watching the parties’ reactions to the testimony and evidence. In focus groups and post-verdict interviews, the authors routinely hear jurors tell them that nonverbal cues were just as important as testimony. In Zoom, the jury can hear the witness, but they only get the benefit of tone of voice, facial expressions, or if the witness is looking down or off camera. But from the neck down the jury has no concept of what the witness is doing. Zoom takes the ability to see nonverbal communication away from the jury.

There are legal implications with regards to witness testimony as well. We mentioned earlier that the jury can see if a witness is looking down or off camera during their testimony. If there is someone off site or off camera feeding the witness information, that is no different than cheating on a test. What if it’s clear the witness is alone, but is obviously looking at notes or other documents? In a courtroom, the first thing the lawyer will ask the witness is, “What are you looking at?” Next, the lawyer asks if they can approach the witness. Then, the lawyer will ask the court reporter to mark the notes as an exhibit. And then, the witness gets cross examined viciously by those notes. And all this plays out in real time in front of the jury. Not so with Zoom jury trials. For example, during the criminal Zoom trial, the prosecution’s witness, the police officer, said at one point he was looking at his notes because he was unable to remember the defendant’s name. While this would have had a huge impact in a courtroom, the significance was entirely lost via Zoom. Even if the witness describes the document or otherwise explains what they are looking at, how is it confirmed by the court? Is the court going to send a Sheriff to each witness’ location? The fact of the matter is that there is no way to police this when a witness testifies via Zoom.

Another consideration for virtual witness testimony is the enforcement of the “Rule”, if invoked. During an in-person trial, the witness is simply asked to remove themselves from the courtroom. If the trial is being broadcast or live streamed, there is no way for the court and the parties to ensure that a witness is not watching the presentation of evidence on a streaming platform. In other words, when a trial is being conducted remotely, there is no guarantee that the witness is honoring the Rule.

Identification of the Accused

In criminal cases, the identification of the accused can be very important. Procedurally it is necessary, and it is often seen as a big moment by the jury. At one point during the criminal Zoom trial, the prosecutor asked their sole witness, the police officer, to identify the defendant. In a courtroom, the officer would have likely gestured towards the defense table and identified the defendant sitting next to her lawyers. In the criminal Zoom trial, however, the court had inadvertently helped the State by requiring that the citizen accused rename herself in Zoom, so the label directly underneath her video window read, “Defendant – [NAME]”. No one had considered that by doing so, the court unintentionally communicated to the jury that the State had the “right” person. While not terribly damaging in a Class C misdemeanor, this could be catastrophic for a criminal defendant in another case. Our point is that necessary legal procedures do not always translate to Zoom, and can be damaging to the parties involved.

Privileged Communication Constraints

Communication, or lack thereof, is an important concern with many legal implications. Not only was it difficult for the court to communicate instructions to jurors, it was almost impossible for the lawyers to communicate with within their own teams. Under regular circumstances, you can pass notes or discreetly whisper to one another. In Zoom, even if you know how to send a message privately using the Chat function, can the Host/Co-Host/etc. see those messages? Are they no longer privileged? You can send each other text messages or set up a separate chat room, but that is an imperfect solution. Not only can the jurors see you using other electronic devices when they have presumably been told not to by the court, but as any trial lawyer knows, trials move quickly, and by the time you text or type a question or recommendation, the moment has passed. In the criminal Zoom trial, this was particularly worrisome when trying to communicate to the lawyer to make an objection. Then, making the objection itself was awkward and caused the lawyers to unintentionally speak over each other, the jurors, and the judge. What if technical problems cause a lawyer’s objection to not be heard by the court at all? Also, in the criminal Zoom trial, the trial teams were not permitted any time to confer in between voir dire panels. Normally, this can be accomplished as the jurors file into the courtroom or during a break, but because the trial teams were required to stay on camera, conferring with one another was impossible.

Even more troublesome was the inability for the client to communicate with her own lawyers. During a regular trial, a client can ask questions, pass notes during prosecution witness testimony, or otherwise communicate with counsel. You absolutely cannot use texting or a chat room: The communications may be privileged, but the jurors will see your client on their phone or similar and punish them for it, as it will be perceived as the client not taking the proceedings seriously. It is too early to know the exact legal implications of this, but no one will deny that clients have the right to speak with their own lawyers during trial proceedings. Zoom makes this impossible.         

Potential for Improper Communication

Another communication-related problem that reared its head during the criminal Zoom trial was the jurors communicating with each other. A few jurors who clearly did know how to use Zoom used the Chat feature to ask other jurors if their screen was blurry or if it was just their connection. Other jurors started responding until the judge intervened. Yes, the Chat function can be disabled, but that is not the point. An honest mistake can create a whole host of problems. If the judge had not addressed the problem as quickly as he did, it would have likely devolved into the jurors commenting on the case itself. This raises other issues as well: While a breakout room can be used as a substitute for a jury room, what happens if whomever is hosting the Zoom meeting lets the jury back into the Zoom courtroom when the parties are addressing something to be handled outside their presence? What if the Chat feature is not disabled in the breakout room, and the jurors start privately discussing the case before jury deliberations? What if, while in the breakout room, one or more jurors looks at the live stream while the judge is handling an issue specifically outside the presence of the jury? The bailiff’s job is already difficult, made more so on Zoom. There is no way for the bailiff to adequately supervise or effectively assist the jury via the Zoom platform in the way they are able during in-person jury trials.

Jury Deliberations

Jury deliberations via Zoom are a huge concern. First off, all the technology-related problems discussed within this article also apply to jury deliberations. The biggest difference between presentation of evidence and jury deliberations is that jury deliberations are supposed to take place privately and confidentially. How do we ensure all of the jurors are able to participate in the deliberations without monitoring their deliberations? If one of the other jurors can’t hear or see their fellow jurors, is it another juror who fixes the problem or do they call someone? Who exactly do they call? Presumably the Zoom Host, but who is the Host? Now the court must arrange for additional training and the associated expense of either training court staff or hiring additional IT professionals to serve as Zoom Hosts.

Here’s the biggest concern: How do we know the jury is not subject to outside influences? They’re already permitted the use of a computer in order to participate in the trial, so what prevents them from searching the internet for answers or additional information? And if they do so, how will we ever know? Back in an in-person jury deliberation room, if someone gets on their phone, one of the other jurors is likely to say something to them. In Zoom, you cannot really tell if someone is looking at their notes or their phone. There is also the very real possibility of family members or others in their homes communicating to the jurors during deliberations, the so-called 13th juror. Of course there’s a problem with this during in-person trials, people talk to their spouse or partners. There’s a number of jurors who do it despite the admonishment not to. The difference is they might bring that person’s view into the jury room during in-person trials, but that person is not actually there. In Zoom, the person might in the same room, out of frame, giving feedback on what they like and dislike. If a juror is muted, they could be having whole discussions and conversations about the evidence with that person. When it comes to jury deliberations, the potential for abuse is profound, with virtually (pun intended) no checks and balances. While we are not suggesting that we be allowed a window into the quality or content of Zoom deliberations, how can the court ensure against these types of outside influence without violating the sanctity of jury deliberations in Zoom? The fact is jurors tend to listen a lot more to a judge when instructions are given in a courtroom setting and are far more likely to heed those instructions. Part of the magic happens when you go through the effort of going to the courthouse, through security, escorted to a courtroom where a judge sits on a bench, and you are told you are the sole judges of the credibility of the evidence. Without this process, the magic is gone. Now you’re just watching a screen.

Distractions at Home

Even if jurors are doing everything as instructed, the reality is they also have distractions at home that would not exist in a courtroom. One seated juror in the criminal Zoom trial had pets running around and jumping on the couch where she was seated, all of which occurred during testimony. Another juror was clearly responding to an email or text on his cell phone during voir dire. This prospective juror was asked to stop and the court again reminded everyone that their full attention should be on the trial, but it begs the question of how many other jurors were doing the same and just didn’t get caught? How do you prevent jurors from passing time on their phones, watching TV, etc., when they are supposed to be giving the court their full attention? The reality is that the court’s reach doesn’t extend into the juror’s homes. There’s no dress code, no assurance electronic devices aren’t being used, and the distractions of other family members, phone calls, pets, packages being delivered, etc., are problems with Zoom that are lessened or eliminated by holding jury trials in-person.

Limitations of Video Conferencing

There are many other limitations of Zoom when you try to use the platform to conduct jury trials. Gallery view can be distracting and even overwhelming, but if you switch to Active Speaker, you are no longer able to see the jury or anyone else. In Gallery View, there is no way to display the jurors in any type of sequential order. In a regular jury selection, there is typically a seating chart to which the lawyers can refer. In Zoom, the order changes as people speak and as people join and leave the meeting, making it very difficult to know who is speaking, especially when a lawyer is asking Yes/No questions or when jurors otherwise answered with a single word. During the criminal Zoom trial, the jury was never “seated” together, and instead the members of the jury were interspersed among the lawyers, defendant, witnesses, and the judge. Not being able to order the meeting attendees also made for some truly awkward visuals. Sometimes the prosecutor was next to the defense attorney, which is not a good look. The optics were even worse was when, at one point, the defendant was next to the prosecutor. For lawyers, you must have two screens at a minimum: One to see the jury (or as much of the jury as possible in one screen) and another to see PowerPoint slides, exhibits, witnesses, etc. Zoom backgrounds need to be equalized. It is unfair for the prosecutors to have an official seal in their background while defense counsel has their office, as this could reduce the defense’s credibility in the jury’s eyes. The backgrounds for the attorneys should be the same, and all the backgrounds for the witnesses should be the same, even if that background is a solid color. Even when they are working perfectly, not all audio devices are created equal. Wearing headphones helps, but that’s a distracting visual for the trial lawyer and witnesses, not to mention yet another device to ensure is working as it should.

We anticipated mental fatigue caused by watching a screen all day long, and the criminal Zoom trial did not disappoint in this respect. While you can have an eight-hour trial day, it is not reasonable or effective for jurors to watch a screen for eight hours. We have all heard stories of jurors falling asleep during voir dire or even in the jury box. If we are being truly honest with ourselves, falling asleep is much more likely if the jurors are comfortably at home, and it will be much harder to wake them virtually. The jurors must be attentive if they are to justly review and judge the evidence presented, and the inherent mental fatigue of watching a screen for several hours prevents this attentiveness.

Practical Problems Unrelated to Video Conferencing

There are practical problems with holding a virtual jury trial that have nothing to do with Zoom or any other video conferencing software. Take the presentation of evidence: A file share program can be set up for the jury, but there is nothing to prevent a juror from downloading that evidence to a personal device or saving a print view. If the jury is permitted to take notes during the trial, how is the bailiff supposed to collect and destroy those notes at the trial’s conclusion? Conversely, what if the jury is instructed not to take any notes and they do? These are issues with any virtual trial setting that do not exist in an in-person jury trial.

Zoom Trials Will Take Longer

Conducting jury trials via Zoom will inevitably prolong trials rather than move them along. In the criminal Zoom trial, the judge estimated that the whole trial, from jury selection to verdict, would be completed by 1:00PM. Instead, the juror check-in process lasted an hour and a half, jury selection was not complete until almost 2:00PM, and it was after 5:30PM before the jury was excused. Most of this was due to the significant technology problems experienced, but it was also much more difficult to ensure the jurors were present and ready to proceed at the beginning, as well as, pausing for and returning from breaks. Remember, this criminal Zoom trial was for a Class C misdemeanor. There were no hot-button issues to tackle during voir dire, each side called one witness each, and the jury was asked to return a verdict on two questions. Now, imagine a catastrophic injury case or a sexual assault trial. Those jury selections oftentimes took all day due to the issues both sides had to cover during voir dire, trials were a week or longer, and the jury is asked to return a verdict on multiple questions or, in some jurisdictions, to determine sentencing in the event of a guilty verdict. The goal might be to get jury trials back up and running, but the result using Zoom is every step taking twice as long.


The biggest legal concern about Zoom trials is that it becomes a slippery slope to eventually losing the right to an in-person jury trial altogether. If Zoom or other video conferencing satisfies the right to a jury trial, what prevents a judge in the future, after we have a vaccine and the worst of the COVID-19 pandemic is over, from deciding against holding an in-person jury trial and announcing all proceedings will be conducted via Zoom? Absent clear and specific laws in place to prevent it, this potentially jeopardizes the right to what is known as a jury trial. This is why you should never agree to a Zoom jury trial – this could spell the end of traditional jury trials forever.

The best argument of all against conducting jury trials via Zoom is that there are some jurisdictions who have already successfully returned to conducting jury trials in-person. There may come a day where holding jury trials by Zoom is the answer, but that day is not today. It probably is not in the near future. Instead, in order to address the backlog of cases rapidly piling up, courts need to take steps to keep jurors, attorneys, judges, and court staff safe. We believe there is no such thing as overcompensating on safety, and that courts are far better off adopting a better-safe-than-sorry approach. It is not only jurors who have underlying medical issues, are pregnant, have partners who are pregnant or have small children at home who are concerned. A recent study discovered that 64 million people, or 20% of the population, lived with multiple generations under one roof (Cohn & Passell, 2018). While most seem receptive to a vaccine, very few individuals want to be the guinea pigs. It is going to take time before most jurors feel safe in public spaces. We can help them feel safe by taking every precaution. 

So what can the courts do to get jury trials back up and running sooner rather than later? First, require everyone, including attorneys and judges, to wear appropriate face masks at all times, and to require they are worn appropriately over the nose and mouth. If someone arrives without a face covering or an inappropriate face covering, the court should be able to provide a suitable face mask. It is worth noting that the CDC does not currently recommend the use of face shields as a substitute for masks (Considerations for Wearing Masks, 2020). Since face coverings do muffle voices, this also means setting up microphones to capture everyone’s voices. In Texas, Harris County has arranged for grand jury proceedings and voir dire to take place at NRG Stadium, where they have installed staggered microphones in-between the socially distanced seats for the jurors. This allows the court to hear everyone without passing around a wireless microphone for everyone to touch. Social distancing must be observed by everyone. It is important to note that face masks and social distancing is not an either/or scenario. The CDC has been very clear that, in public indoor settings, it is highly recommended to wear face coverings as well as observe social distancing whenever possible. This requires everyone’s participation and the court’s enforcement. Additionally, have hand sanitizer readily available and Plexiglas shields should be installed around the bench, witness stand, and jury box, especially in smaller courtrooms where social distancing is difficult or impossible to observe. There are some low-cost to free things than can be done as well, such as limit the number of people in a given area by staggering trials, restricting the number of people can be in the elevator at one time, and setting up socially-distanced lines for the restroom during breaks. It is very troubling to hear of some courts that are not enforcing, or not allowing, the proper safeguards such as masks and social distancing. In order to get trials back on track, we all have a responsibility to be part of the solution, not the problem.

We have truly struggled with deciding whether we oppose or condone virtual jury trials via video conferencing platforms. We believe a line must be drawn. In municipal court cases, small claims, Class C misdemeanors, and similar, it can be a tool in the toolbox. Any case with higher stakes, it’s not only a bad idea, but a very bad idea. Even without the significant technological and practical problems with conducting jury trials by Zoom, you lose the gravity and importance of jury duty when jurors are reporting from their living room instead of to the courtroom.

Veterans and Violence Part 1: Psychological and Neuropsychological Evaluations of Veterans with Posttraumatic Stress Disorder and Traumatic Brain Injury


As a result of the pervasiveness of polytrauma experienced in soldiers serving in Operation Enduring Freedom (OEF-Afghanistan) and Operation Iraqi Freedom (OIF), and the recent homicides and violent offenses committed by returning veterans from the Middle East that have gained national attention, there is growing concern of their adjustment to civilian life. Of concern is their risk of future mental health problems, substance abuse, psychosocial adjustment, and risk for suicide, violence, and homicide.

The objective of this two-part article is to discuss the nature and prevalence of traumatic brain injury (TBI) and posttraumatic stress disorder (PTSD) in active military and veterans as well as the forensic psychological and neuropsychological assessment of these conditions in legal matters.

In Part I, the author will highlight the cumulative effects of traumatic brain injury and PTSD on the brain and their relationship to substance abuse and addiction, violence, and ultimately homicidal behavior.

In Part II, the author will apply the forensic assessment of military servicemen/women with TBI and PTSD to legal issues in criminal cases in both Texas and federal courts. The reader should also appreciate that the information in this article also is relevant to civilian PTSD, TBI, and violent offenses.

Nature and Prevalence of TBI in Iraq and Afghanistan Veterans

There is a growing concern regarding combat-related traumatic brain injury in the current conflicts of OEF and OIF. Traumatic brain injury is a common consequence of modern warfare. In these Middle Eastern conflicts, the blast injury has arisen as a new mechanism of brain injury. Blast induced brain injury can cause high rates of sensory impairment, pain issues, and polytrauma including serious brain and medical injuries as well as PTSD.

Recently, the Joint Theater Trauma Registry analyzed wounding patterns and mechanisms of combat wounds from the current conflicts and found an increase in numbers of injuries to the

head and neck region in the current OEF and OIF conflicts.1

A recent study found that 88% of combat-related traumatic brain injuries involved exposure to explosions (improvised explosive devices – IED’s, mortar, mine, and rocket-propelled grenades).2

A study from the Defense and Veterans Brain Injury Center of returning soldiers treated at Walter Reed Army Medical Center indicated that about 60% of those injured by explosion while deployed had a TBI (44% mild TBI, 56% moderate to severe TBI).3 Most of these TBIs occurred when an external force significantly disrupted brain function often with evidence of a period of loss of consciousness (LOC) or alteration in consciousness, including possible confusion and disorientation, as well as loss of memory (amnesia) for events immediately before, during, or after the injury.

When considering combat specific traumatic brain injuries, data from the Navy-Marine Corps Combat Trauma Registry for OIF revealed that being wounded in action was associated with more severe traumatic brain injury (skull fracture in 26% of cases), injury to more areas of the body (polytrauma), and a higher rate of evacuation. 4A recent set of studies of combat injured service members receiving inpatient care at VA polytrauma rehabilitation centers indicated that 97% had a TBI, more than half experienced mental health symptoms including depression and PTSD, as well as issues related to pain.5

Studies have shown that the overall rate of deployment related TBI is more significant and about twice as frequent than non-deployed personnel. TBI screening of specific military populations soon after return from deployment have found rates between 15% and 23% for TBI’s.6 The majority of deployed head injuries are mild in nature related to concussions including alteration of consciousness rather than a complete loss of consciousness or posttraumatic amnesia, yet many veterans returning to the U.S. continue to experience persistent post concussive symptoms.7

The Neuropsychology TBI

Traumatic brain injuries vary between mild, moderate, and severe and about 80% of all TBIs are mild in severity. Mild concussive injuries are the most common type of TBI, and repetitive concussive injuries are a major focus of military medicine due to their prevalence. While moderate and severe TBI’s often have structural injury which can be seen in neuroimaging (MRI, CT scan), complicated mild TBI’s often have structural injury and abnormal neuroimaging while uncomplicated and mild TBI’s such as concussions often do not have structural injuries revealed on imaging.

Those at risk for mild TBI include the following:

  1. Young men ages 15 to 24 years of age.
  2. Individuals of low socioeconomic status.
  3. Individuals who have reckless lifestyles including substance abusers.
  4. African/American and minority status individuals.
  5. Individuals living in high crime areas.
  6. Individuals with a history of ADHD, low IQ, and/or substance abuse.

Many veterans qualify for a number of these demographic risk factors prior to their admission to the military. The factors most significant in differentiating severities of traumatic brain injury include acute injury characteristics such as duration of unconsciousness and amnesia as well as neurological status in areas of motor function, verbal responding, and response to external commands and stimuli.8

Neuropsychological and emotional sequelae or effects after TBI germane to post-concussive syndrome include the following:

  1. Disorientation and confusion.
  2. Attention, concentration, and processing speed deficits.
  3. Short-term memory deficits.
  4. Executive functioning deficits.
  5. Fatigue and lethargy, lack of motivation.
  6. Sleep disturbance.
  7. Delayed motor/verbal responses.
  8. Language/communication deficits.
  9. Substance abuse.
  10. Depression.
  11. Irritability and aggression.
  12. Impulsivity.
  13. Problems with balance
  14. Headaches and chronic pain.
  15. Impaired hearing and vision
  16. Sensitivity to light and noise
  17. Difficulties in word finding
  18. Personality changes
  19. Social isolation

Recent studies of Army soldiers specify that most brain injuries are mild in severity and blasts were by far the most common mechanism of injury (88%).9 Researchers concluded that TBI may result from primary, secondary or tertiary effects of blast exposure which refer to the direct effects and injuries of the blasts.10

Chronic traumatic encephalopathy (CTE) has become popular in the literature of athletic concussions, and this type of brain injury may also be related to veterans with a history of multiple concussions or subconcussive blows to the head.

Importantly, blast exposed veterans report higher levels of PTSD than those with non-blast mild traumatic brain injuries, and therefore a history of polytrauma is common in many veterans exposed to Middle East war related combat.11

DSM-5 and TBI

The DSM-512 added a mild neurocognitive disorder associated with traumatic brain injury diagnosis which is caused by an impact to the head or other mechanisms of rapid movement or displacement of the brain in the skull as can happen with blast injuries. The mild neurocognitive disorder diagnosis includes primarily evidence of modest cognitive decline from a previous level of performance in one or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual-motor, or social cognition) based on concern of the individual, a knowledgeable informant, or the clinician that there has been a mild decline in cognitive function; and a modest impairment in cognitive performance, preferably documented by standardized neuropsychological testing or, in its absence, another quantified clinical assessment. The cognitive deficits do not interfere with capacity for independence in everyday activities (i.e., complex instrumental activities of daily living such as paying bills or managing medications are preserved, but greater effort, compensatory strategies, or accommodation may be required).

In contrast, major neurocognitive disorder is characterized by a significant decline from a previous level of performance and the cognitive deficits must result in a need for assistance with complex instrumental activities of daily life, such as paying bills or managing medications, or otherwise interfere with independence.

Prevalence of PTSD in Veteran Populations

The psychiatric condition of PTSD has long been a significant hallmark of the psychological effects of war. War related PTSD includes a history of witnessing and/or experiencing traumatic events that led to several cognitive, emotional, and behavioral effects at the time of and following the traumatic event(s).

For decades, PTSD was considered more of a psychiatric rather than a neuropsychiatric disorder. Not until recently has there been more of a focus on the structural and functional brain effects of PTSD. In fact, PTSD is associated with regional alterations in brain structure and function that contribute to symptoms of neurocognitive deficits associated with the disorder. A recent meta-analytic study found significant neurocognitive effects associated with PTSD with the largest in verbal learning, followed by speed of information processing, then attention/working memory, followed by verbal memory.13

Researchers estimate the prevalence of PTSD to be about 9% at pre-deployment with post-deployment rates of 12% and 18% for OEF and OIF troops.xii Reservists and National Guard members have often been found to have a higher probable PTSD prevalence than active duty soldiers. The following risk factors place individuals including military personnel at risk for PTSD:

  1. History of childhood trauma and adversity.
  2. Witnessing others wounded or killed.
  3. Lower IQ.
  4. Low socioeconomic status.
  5. Family history of psychiatric illness.

Number one is a notable risk factor, as early trauma is predictive of later trauma.

DSM-5 and PTSD

The DSM-5 made thoughtful revisions for the assessment of veterans, especially those who commit violent offenses. The diagnosis continues to include exposure to actual or threatened trauma, presence of intrusive symptoms, persistent avoidance of stimuli associated with the traumatic event, negative alterations in cognitions and mood associated with the traumatic event, and marked alterations in arousal and reactivity associated with the traumatic event. The changes in arousal and reactivity include irritable or aggressive behavior and reckless self-destructive behavior that are significant alterations and are related to physiological reactions and potential aggression and violent acts by veterans.

The DSM-5 PTSD diagnostic criteria are below:

A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

  1. Directly experiencing the traumatic event(s).
  2. Witnessing, in person, the event(s) as it occurred to others.
  3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
  4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
    • Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.

B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:

  1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
    • Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.
  1. Recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s).
    • Note: In children, there may be frightening dreams without recognizable content.
  1. Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)
    • Note: In children, trauma-specific reenactment may occur in play.
  1. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
  2. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:

  1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
  2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning, or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

  1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).
  2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
  3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
  4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
  5. Markedly diminished interest or participation in significant activities.
  6. Feelings of detachment or estrangement from others.
  7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).

E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning, or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

  1. Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
  2. Reckless or self-destructive behavior.
  3. Hypervigilance.
  4. Exaggerated startle response.
  5. Problems with concentration.
  6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).

F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.

G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.

Specify whether:

With dissociative symptoms: The individual’s symptoms meet the criteria for posttraumatic stress disorder, and in addition, in response to the stressor, the individual experiences persistent or recurrent symptoms of either of the following:

  1. Depersonalization: Persistent or recurrent experiences of feeling detached from, and as if one were an outside observer of, one’s mental processes or body (e.g., feeling as though one were in a dream; feeling a sense of unreality of self or body or of time moving slowly).
  2. Derealization: Persistent or recurrent experiences of unreality of surroundings (e.g., the world around the individual is experienced as unreal, dreamlike, distant, or distorted).
    • Note: To use this subtype, the dissociative symptoms must not be attributable to the physiological effects of a substance (e.g., blackouts, behavior during alcohol intoxication) or another medical condition (e.g., complex partial seizures).

Specify if:

With delayed expression: If the full diagnostic criteria are not met until at least 6 months after the event (although the onset and expression of some symptoms may be immediate).

As can be seen, the PTSD diagnosis reflects the DSM’s emphasis with veterans, and highlights autonomic arousal symptoms that may be related to aggression to people, irritability, recklessness, self-destructive behavior, hypervigilance, and paranoia. Further, the issue of dissociation explained below is important to consider and analyze, as many offenders have out of mind/body states that occur during their aggressive acts.

Polytrauma/Complex Trauma

Critical to examinations of military defendants is the issue of polytrauma. Many servicemen experienced numerous (poly) life-threatening traumatic events which have adversely affected their physical, psychological, emotional, behavioral, and cognitive functioning and well-being. Many military defendants possess a history of risk factors before military service, including a history of trauma, and specifically polytrauma and complex trauma. The cumulative effects of multiple traumatic events take a toll on an individual who may return to a high stress environment when they return to civilian life.

Complex trauma is the exposure to traumatic stressors including poly-victimization, life-threatening accidents or disasters, and interpersonal losses. Complex trauma often is related to deficits in attachment/bonding to parent(s), abuse and/or neglect, and adversely affects early childhood biopsychosocial development placing the youth at risk for a range of serious problems (e.g., depression, anxiety, oppositional defiance, risk taking, substance abuse) and may lead to aggression. It is also associated with an extremely problematic combination of persistently diminished adaptive arousal reactions; episodic maladaptive hyperarousal; impaired information processing and impulse control; self-critical and aggression-endorsing cognitive schemas; and peer relationships that model and reinforce disinhibited reactions, maladaptive ways of thinking, and aggressive, antisocial, and delinquent behaviors.14

It is imperative to appreciate the military veteran and the pride of the profession and impact of peer influence. Many veterans returning from foreign wars tend to be loyal to their country and their service and desire to return to action. Subsequently, they often minimize and or completely deny any symptoms of PTSD and TBI, as they do not want to put their service and chance to return to war in jeopardy. Further, they often have never been examined for TBI and PTSD issues while in theatre and emphasize loyalty and duty rather than self-care.

Similarly, while the government offers TBI and PTSD screening upon return from war, many serviceman refuse such assessments and there is a peer influence quality to this refusal of assessment and treatment as they do not want to be perceived as emotionally or physically weak. Many also want to pursue other positions, posts, or governmental agency duties and positions and do not want to have any mental health assessment records following them. Unfortunately, instead of being on the road to healing through proper assessment and treatment, they tend to turn to alcohol and drugs as a numbing coping and self-medication effect.

The returning veteran with a history of polytrauma/complex trauma often will ignore, minimize, and/or lack insight into their affected emotional, cognitive, and behavioral functioning and unfortunately will not be identified and/or seek appropriate treatment and rehabilitation.

Comorbidity of TBI and PTSD

The term comorbidity relates to the simultaneous presence of two chronic diseases, conditions, or illnesses in a patient, meaning that the individual is experiencing more than one condition at the same time.

The Rand study of post Iraqi military deployment (OIF) reported a high rate of co-occurrence between a history of mild TBI, PTSD, and depression. Of those experiencing a mild TBI, about 33-44% had overlapping PTSD or depression. On examination of multiple potential predictors of PTSD, researchers found only combat intensity and mild TBI with loss of consciousness were associated with PTSD.15 The authors found that PTSD is strongly associated with mild traumatic brain injury in that 43.9% of soldiers reporting loss of consciousness from TBI met the criteria for PTSD.

Mild TBI may diminish the capacity to employ cognitive resources that would normally be engaged in problem-solving and regulating emotions after trauma, thereby leaving an individual more susceptible to PTSD and related problems.16

Ultimately, mild TBI likely increases the chance of developing PTSD. Critical to the issue of comorbidity and the co-occurrence of mild TBI and PTSD in veteran populations, is the additional prevalence of major depression and substance abuse and addiction. PTSD and depression are related to violence towards self, including suicide, and violence towards others.

Substance Use and PTSD/TBI

Unfortunately, many veterans have both PTSD and TBI and are at more significant risk for using and abusing substances due to the aggregate effect of having both disorders. Critical to the mental health assessment of the veteran, is a dual-diagnostic consideration with emphasis not only on chronic history of substance use but also of PTSD and trauma. Anger, hostility, and violence have cognitive, affective, and behavioral components which are related to the effects of PTSD, TBI, depression, and substance use. The use of substances is a coping mechanism to curb the negative emotional states that veterans often suffer. Substances, especially depressants such as alcohol, are often utilized to self-medicate the often hyperaroused emotional and cognitive state that is related to PTSD.

Combat exposure and history of childhood abuse appear to manifest their influence on criminal and aggressive behavior through increase in substance use and mental health problems.17 It is critical for the mental health examiner to assess not only the PTSD but the prevalence and severity of depression and addiction.

Research has documented a strong relationship between co-occident PTSD and substance use problems in civilian and military populations of both genders.18 Similarly, there are high rates of PTSD among veterans seeking substance use treatment because those with PTSD are likely to use and abuse substances to cope with her emotional and psychological trauma. In fact, men with PTSD are five times more likely to have a substance use disorder compared to the general population. Patients with substance use disorders and PTSD may be at high risk for relapse, and their relapses may be triggered, in part, due to the trauma reminders and cues.

Similarly, traumatic brain injury is also common among those who misuse substances.19 Alcohol and drug abuse are major risk factors for those with TBI. A recent summary of studies of those with non-penetrating TBIs with and without substance use disorders revealed that those with both TBI and substance use disorder had poor neuroradiological outcomes, including reduced hippocampal and gray matter volumes, and enlarged cerebral ventricles. Executive function and memory were moderately affected, but attention and reasoning were not. Emotional functioning was worse in those with both TBI and substance use versus TBI only.20

Unfortunately, the neurobiology of substance use and misuse also affects critical frontolimbic brain systems involved that are some of the same brain areas affected by traumatic brain injury and PTSD. 21

Neuropsychological Assessment of Veterans

When considering neuropsychological assessment of veterans, the neuropsychologist will evaluate relevant areas:

  1. Auditory and visual attention.
  2. Processing speed and working memory.
  3. Auditory/verbal memory and visual memory.
  4. Executive functioning (planning, reasoning, mental set shifting, problem solving, mental flexibility, disinhibtion, and impulse control)
  5. Visuospatial constructional abilities and sensory perception.
  6. Language abilities.
  7. Intelligence.
  8. Emotional intelligence.
  9. PTSD and psychological functioning.
  10. Cognitive effort.

The brain behavior functions that are affected in PTSD and TBI are often very similar. When considering neuropsychological testing of TBI, obviously the specific area injured in the brain impacts the area of functional deficit. Severe TBI’s involve considerable forces, often through blasts in war producing widespread cellular death and dysfunction with clear global neurocognitive functional consequences. Traumatic brain injury affects the cognitive, emotional, psychological, and physical functioning of an individual.

Of particular interest is the observation that the orbital prefrontal cortex and related circuitry are vulnerable to damage associated with TBI which likely account for the prevalence of executive deficits after TBI and contributes to the high rates of behavioral and emotional dysregulation.22

Neuropsychological testing of TBI often indicates deficits in attention, processing speed, executive functioning, and memory loss.

Similarly, there is a growing body of evidence that suggests that neurocognitive alterations occur in PTSD patients.23 Individuals with PTSD often perform less proficiently on learning and memory tasks with impairments more frequently found in the verbal memory domain.24Attention and executive functioning impairments are often indicated in those with PTSD.25 PTSD is also characterized by impaired executive dyscontrol including increased perseveration and poor inhibition of inappropriate responses. Veterans often perform more poorly on continuous performance tasks that measure sustained visual attention as well as on tasks of working memory.

When considering brain structure, the hippocampus and the medial prefrontal cortex are often less responsive in those with PTSD leading to decreased inhibition of the amygdala. Amygdala hyper-reactivity is thought to account for heightened behavioral arousal and exaggerated responses to stimuli that are perceived to be associated with danger or threat which can often lead to aggressive or violent acts.

Violence in Veterans

Veterans returning from deployment are at risk to have a number of risk factors related to psychosocial adjustment and potential future violence:

  1. Histories of childhood abuse and neglect.
  2. Lower socioeconomic status.
  3. Potential lower levels of intelligence.
  4. Lower rank.
  5. Histories and current status of substance abuse and dependence.
  6. Prevalence of mental health issues including PTSD, depression, suicidal, and paranoid thinking.
  7. History of TBI and other medical problems.
  8. Frequent history of exposure to and proficiency in weapons.
  9. Prevalence of social isolation and interpersonal/marital dysfunction when returning from war.
  10. Unemployment and homelessness.

These risk factors can act in a cumulative manner in that the more risk factors that one is exposed to, the more likely a negative outcome.

Arrests in veterans are found to be significantly related to younger age, male gender, having witnessed family violence, prior history of arrests, alcohol and/or drug misuse, and PTSD with high anger/irritability more so than even the presence of combat exposure or TBI.26

Critically to this population, a polytrauma clinical triad (PTSD, TBI, and chronic pain) can be linked to suicidal ideation and violent impulses.27 In fact, suicidal ideation and violent impulses are correlated with PTSD, as well as the combination of TBI and PTSD, pain intensity and interference, drug abuse, and major depressive disorder.

Aggressive behaviors are common amongst veterans with PTSD, and within the first year after deployment, 48% of returning veterans with PTSD reported engaging in physical aggression and 20% reported in engaging in severe violence.28

Factors associated with physical aggression among U.S. Army Soldiers studied from surveys collected six months post-deployment measuring overt aggressive behavior found that aggressive behavior was associated with:29

  1. Highest level of combat intensity
  2. Misuse of alcohol
  3. Diagnosis of PTSD
  4. TBI
  5. Depression
  6. Prior altercation with significant other
  7. Lowest rank (E1-E4)

There were a relatively higher number of minor and severe physical overt aggressive actions reported among soldiers who were previously deployed, notably highest among deployed soldiers reporting the highest levels of combat intensity. Soldiers screening positive for the misuse of alcohol were also significantly more likely to report relatively higher levels of physical aggression.

In a recent study, a large percentage of previously deployed soldiers reported aggressive behaviors after returning home, for example, they: “get angry with someone and kick, smash, or punch something” (43%), “threaten someone with physical violence” (38%), or “get into a fight with someone and hit the person” (18%). 30Studies have focused on spousal aggression which found the prevalence to be significantly higher among soldiers than their civilian counterparts.31 The leading reason is the prevalence of the condition of PTSD. The condition of PTSD is related to not only aggression, but violent thoughts, ownership of a deadly weapon, paranoia, and tendency to have intoxicated states.

Research has revealed heightened aggressive behavior among veterans with PTSD.32 There are higher rates of aggressive behaviors seen in those with PTSD compared to those without PTSD (13.3 violent acts in the prior year compared to 3.54 acts for the prior year).33

Studies of veterans demonstrate a positive relationship between combat exposure and measures of aggression as combat may model and reinforce violence. Combat exposure, PTSD symptoms, and participation in killing have significant effects on aggressive behavior in veterans, especially violence to self, spouse, and others. PTSD is correlated with an onset of destruction of property, violence to persons, violent threats, ownership of multiple firearms, knives, aiming guns at family members, considering suicide with firearms, and loading guns with the purpose of suicide in mind.34 These facts suggest a tendency for veterans to be at risk to be violent towards self and others.

A recent study examined the risk of recidivism among justice-involved veterans.35 They found substance abuse and indicators of antisociality were linked to justice involvement in veterans, yet the evidence for negative family/marital circumstances and lack of positive school and work involvement as risk factors was mixed. PTSD and traumatic brain injury, particularly when combined with anger and irritability issues, may be veteran-specific risk factors for violent offending. Other violence risk factors include combat exposure and PTSD, TBI, and homelessness/poverty.

The authors emphasized that combat exposure PTSD is particularly relevant with a history of violent offending among veterans, especially if they are exacerbated by other factors such as substance abuse and anger. They noted that traumatic brain injury is often associated with problematic behavioral and personality changes including impulsivity, aggression, low frustration tolerance, and problem-solving deficits.

The authors cited the most recent estimates indicate that ten percent of those incarcerated in federal prison have a history of U.S. military service.36

Another study examined PTSD symptoms in family versus stranger violence in Iraq and Afghanistan veterans.37 Of those veterans studied, 13% reported aggression toward a family member and 9% toward a stranger during the one-year study period.

PTSD and Violence

Three domains of functioning are influenced by PTSD symptoms including cognition, physiological arousal, and emotions. Changes in cognition include flashbacks such as altered consciousness. Traumatized individuals tend to misperceive threat towards themselves or others in their environment. They often hold extreme beliefs about justice based on their traumatic experiences. They may believe in a need for retribution to remedy perceived wrongdoings and disregard authority or display an indifference in the law because of prior perceived and actual abuse by authority figures.

Heightened psychophysiological arousal includes evidence of anger and irritability such as hyperarousal symptoms producing the survival response of fight or flight when faced with situations perceived to be dangerous. Hypervigilance includes the person always being on guard and suspicious of their environment even to the point of having paranoid thoughts. Exaggerated startle response may include the person reacting instinctively or impulsively to threatening stimuli. Emotional reactions include psychological distress in which individuals with PTSD have heightened stress influencing their mental ability to make well-reasoned responses. Heightened emotions are often common with those with PTSD including elements of anxiety, fear, anger, shame, and depression and ultimately substance abuse to deal with these emotions.

Emotional numbing symptoms of PTSD may include diminished empathy for the victim, lack of remorse, and difficulties appreciating the severity and consequences of one’s behaviors. Furthermore, while many veterans attempt to escape and avoid distressing and trauma related thoughts, images, and negative emotions, this suppression increases sympathetic activation, ultimately making it more difficult for veterans to regulate and control emotions when they are triggered.38

It is imperative for the forensic expert and attorney to appreciate how PTSD is specifically related to emotional and behavioral dysregulation as an underlying mechanism of impulsive aggression.39

Veterans with PTSD have heightened neural and physiological responses to both trauma-related and neutral stimuli, indicating they have difficulties distinguishing between safe and potentially unsafe (trauma-related) people and places.40 Unfortunately, many veterans return from deployment and continue to interpret environmental events and people as dangerous, unsafe, and threatening, and their emotional regulation resources are overtaxed, and emotions may be difficult to control.41 The condition of PTSD places a veteran at risk to be in a state of hyper-aroused activation and to misperceive an environmental event as stressful and threatening leading them to react in an impulsive and aggressive manner.

PTSD symptoms are particularly relevant for understanding violence risk.42 Re-experiencing symptoms such as flashbacks have some connection with aggression. They stress the dissociative nature and detachment from reality that may be involved with violence as a sufferer of PTSD may commit an act of aggression while re-experiencing the trauma. In fact, re-experiencing and flashback-type symptoms recently have been reported to be positively related to aggressive or impulsive behavior.43 Numbing symptoms and avoidance may also be strong predictors of violence.44 Escape avoidance and emotionally distancing from others have been shown to be positively related to aggression and hostility. Excitation and hyperarousal response-like symptoms are also related to violence.45

Those with PTSD are typically physiologically aroused and will have an intensified state of anger and aggression. Physical reactions to triggers from the trauma including elevated heart rate, sweating, and physical tension are related to a high rate of aggression. Hypervigilance and paranoia, even to a level of psychosis, are not uncommon. Hyperarousal and dissociation type psychotic symptoms may place an individual at risk for aggression due to the connection of paranoia and threat/control override symptoms that appear in psychotic disorders. Misperceived threats and paranoia are significant to a risk of violence.

When considering neuropsychological aspects of the cognition of PTSD and risk for violence, it is noted that the need for physiological arousal and stimulation may lead to reckless and aggressive behavior. Many combat veterans return to the U.S. and have become accustomed to the variability in stress, action, and stimulation that combat brings them. This heightened stimulation changes the structure and function of the brain in areas critical to impulse control. Ultimately, they return to the U.S. with a “need for speed” in that their brain’s structure and functioning has changed, and they crave stimulation and arousal that they have been accustomed to in war and are prone in reacting recklessly and impulsively.

TBI and Violence

Traumatic brain injury is a complex injury resulting from an external force that often results in a change in brain function. Aggression is a common neuropsychiatric sequelae of TBI, and again a relationship between TBI and aggression has been found in veterans.46 A recent neuroimaging study found a difference between men and women with TBI and aggression, such that male veterans with TBI reported significantly more physical aggression, revenge planning, and urges to engage in physical violence.47

Acute post-concussive aggression and violence is often referred to as behavioral dyscontrol (including hesitation, impulsivity, disinhibition, restlessness, irritability, mood lability, and explosive behavior).

Posttraumatic aggression is often reactive in nature pertaining to the organic aggressive syndrome which describes aggressive behavior that is reactive and typically provoked, even by trivial stimuli. Such aggression is non-reflective, unplanned, non-instrumental with no clear objective, and is typically impulsive, explosive, occurring acutely without buildup, and is often egodystonic in nature in that the individual did not intend on the violent act, it was more impulsive, and the offender feels bad about their behavior.48

In contrast, posttraumatic aggression may also be considered as instrumentally objective in motive, being purposeful but unplanned, such as responding to perceived threat or acting in self-defense. Both types of aggression are consistent with TBI and PTSD.

The neuroanatomy of aggression considering traumatic brain injury includes primarily the frontal and temporal lobes, which are susceptible to injury and damage from contact and forces to which the brain is subjected during biochemical trauma.49

Traumatic brain injury is known to tear, shear, and strain brain neurons and injure white matter in a number of important areas that relate to brain behavior function, including potentially most importantly, executive functioning.

The frontal lobes are the last area of the brain to develop and are crucial in higher order cognitive processes pertaining to the regulation of emotion and behavior. Critical areas of the prefrontal cortex are responsible for executive functioning pertaining problem solving, planning, sequencing and processing information, abstraction, considering of consequences, judgment, inhibition, learning from punishment and considering behavioral risk and reward, and empathy for example. Biochemical neurotransmitters of the brain in the frontal lobe areas may be negatively altered and are related to mediation and balance of cognition and emotional behavior.50

Neuropsychological components of violence in veterans, deficits in information processing and the activation of highly arousing emotional memory networks associated with combat trauma leave veterans at risk for aggression. Response information as part of an activated memory structure toward perceived threat can trigger a survival mode of functioning which can include aggressive responding. Many veterans experience an arousal regulation deficit in which they cannot regulate their psychophysiological arousal and are at risk for physical acting out when feeling threatened.51

PTSD, TBI, the Brain, and Violence

When considering both PTSD and TBI and neuropsychological functioning, studies of aggression and violent behavior are focused primarily on the frontal, prefrontal, and temporal brain regions.

Prefrontal regions are involved in modulating and controlling emotional interpersonal behaviors and inhibiting temporal lobe areas especially the amygdala and other limbic regions involved in expression of aggressive drives.52

Research has revealed that PTSD and persistent post-concussive symptoms from TBI are related to most forms of partner and non-partner aggression.53 In another study, veterans with TBI and concurrent anger/irritability were more likely to be arrested than those with TBI but without concurrent anger and irritability.54

Furthermore, veterans with history of PTSD and/or TBI are at risk for volumetric measures of brain magnetic resonance imaging (MRI) with decreased hippocampal and amygdala (limbic system) volumes compared to controls as well as reduced blood flow in the frontal (executive) and temporal areas. All these brain regions are critical in neurocognitive functioning related to memory formation, executive functioning, emotional and behavioral dysregulation, and violence.

A recent study looked at long term associations among PTSD symptoms, traumatic brain injury, and neurocognitive functioning in Army soldiers deployed to the Iraq war.55 They found that increases in PTSD symptom severity at different intervals post-deployment were associated with poor verbal and/or visual recall and memory at the end of each interval and less efficient reaction time at post-deployment. Traumatic brain injury was associated with adverse PTSD symptom outcomes at both post-deployment and long-term follow-up. The authors found that longitudinal and long-term relationships among PTSD symptoms, TBI, and neurocognitive decrements may be due to sustained emotional and neurocognitive symptoms over time.

Importantly, PTSD should be considered as a neurobiopsychosocial disorder involving alterations in neural and brain functioning. PTSD may erode and break down potentially resilient enhancing cognitive resources such as learning and memory as the PTSD symptoms increase in severity. The more severe the PTSD condition is, the more likely it will lead to neurocognitive and emotional impairments. Additionally, having a history of traumatic brain injury also will aggravate PTSD symptomatology.

In another recent study, the author researched variables explaining cognitive complaints among OEF/OIF/OND veterans with a remote history of blast-wave mild traumatic brain injury.56 Despite good prognosis with mild TBI, at least a third of veterans with a history of mild TBI reported post-concussive symptoms inclusive of cognitive complaints. While veterans typically rated executive functioning prior to deployment as intact, over 80% rated their post mild TBI executive function problems as clinically significant. The authors found that current PTSD symptoms were associated with self-reported decline in executive functioning. While veterans often will rate their neurocognitive functioning as significantly impaired post head injury, even with intact neuropsychological testing results, the neurocognitive complaints are often subsumed within the symptoms of PTSD, since PTSD symptoms typically account for most of the perceived and functional neurocognitive decline in veterans.57

The prevalence of traumatic brain injury in offender populations is quite significant and prison studies consistently indicate that approximately 50% of offenders have self-reported histories of traumatic brain injury with evidence of loss of consciousness.58 Similarly, the prevalence of posttraumatic stress disorder is quite high in the offender population, with up to 27% for male and 38% for female prison populations having the disorder.59 It should be noted that many servicemen who experience mild TBI also experience PTSD and neurocognitive deficits may stem from both, but they are more consistently accounted for through the PTSD lens.

Veterans are at risk for a number of mental health problems such as PTSD, alcohol and drug abuse, head injuries, and there is a cumulative risk to violence with the collection of those disorders affecting one’s cognitive, emotional, and behavioral functioning. Imperative to the assessment of active military and veterans in relationship to risk and violence, veterans are at jeopardy for a number of mental health concerns and polytrauma. The polytrauma combination of PTSD, TBI, pain intensity, as well as substance abuse and major depressive disorder leave veterans at serious risk for suicidality, violence, and homicidality.60

While it is vital for the forensic expert to have a good handle on risk factors for violence in veterans, they also must have an appreciation of the protective mechanisms relevant to the prevention of violence and aggression in veterans.61 Many of these factors include steady work, resilience, social support, report of no physical pain, ability for self-care, healthy sleep, perceived self-determination, and having needs met. Therefore, emphasis on VA rehabilitation programs and interventions to reduce homelessness, retrain veterans for civilian work, enhance financial literacy, and improve social supports are likely to reduce violence among veterans. Obviously, many veterans have a multitude of risk factors and therefore require a variety of rehabilitative efforts.


The fight/flight sensory perception>emotional>and behavioral response system is critical to the veteran who has PTSD and or TBI history and their legal defenses.

Humans, like all species, have self-protective mechanisms to help us survive. Our fight/or/flight response system is based on a survival mechanism that allows people to react quickly to acute life-threatening situations and is designed to mobilize our brain and body to fight an enemy, run from an avalanche, or freeze to hide from a predator. There are a host of hormonal and neurophysiological affects and responses that interact to assist someone in fighting the threat or fleeing to safety.

Our brain sometimes misinterprets safe situations as dangerous and can set off false alarms. When the amygdala, our brain’s watch dog, senses danger, our body enters survival mode quicker than our rational mind can react, trying to figure out why we feel in mortal danger.

Individuals with chronic PTSD and/or traumatic brain injuries can misperceive and overreact to stressors that may not be life threatening. The heart of the limbic and emotional system of the brain is the amygdala, which plays significant roles in emotional responses (fear, anxiety, and depression), as well as development of emotional memories and decision making. It is essentially an alarm system that processes threat and danger.62 In distress it sends a message to the hypothalamus, which is a command center of the brain.

When considering the brain structure and function in the fight/flight response system, the hypothalamus of the brain as a command center that communicates with the rest of the body through the automatic nervous system (sympathetic and parasympathetic nervous systems). The sympathetic nervous system functions as if it was a gas pedal in the car triggering the fight or flight response leading to heightened arousal to perceived dangers while the parasympathetic nervous system is the brakes and is described as the “resting and digesting” response system that calms the body down after the danger leaves. There are a number of hormones that are active in this alarm, gas, and brake system.

Many military veterans and criminal defendants in general have evidence of PTSD and traumatic brain injuries, and chronic substance use and intoxicated states at the time of violent offenses that compromise and haywire this fight/flight threat response neuropsychiatric system. There may be a number of symptoms and functional impairments that forensic psychological and neuropsychological examinations can detect regarding the psychiatric diagnoses and brain injuries that must be explored in the context of the situation, environment, and perception of the defendant at the time of their aggressive act.

Both PTSD and TBI symptoms and impairments can lead to a dysfunctional brain. Emotional trauma through PTSD and traumatic brain injuries can place a brain at risk for an overstimulated amygdala and highly alert system perceiving threat everywhere, along with a damaged and dysfunctional frontal lobe system that impedes proper executive functioning regarding problem solving, planning, appreciation of consequences, and impulse control for example. Unfortunately, substances such as methamphetamine, alcohol, and other drugs critically affect brain reward systems that are in part the same areas that are affected and damaged by PTSD and TBI.63 Therefore, there often is a triple threat in violent offense cases regarding PTSD and trauma, brain dysfunction, and the acute and chronic effects of substance use.

Part II of this article in the next edition of the Voice will address forensic psychological and neuropsychological evaluations in military cases with PTSD and TBI. I will examine legal defenses that may be applicable in state and federal cases as well as mitigation and treatment issues with the veteran.

Practical Handgun Laws and Defenses in Texas

As a child, my parents blessed my sister and me by taking us all over the world. On a European vacation, I met some friendly people from France. As most Europeans do, they spoke some English. Like most Americans, I spoke no French. When they asked where I was from, I told them Texas. Upon this response, they put their hands in the air like guns and said, “Bang bang, cowboys, Texas.” I chuckled and agreed while saying, “Yes, Texas.”

My meeting with the French couple happened in the ‘80s, and things have changed quite a bit since then. I remember rifles and shotguns in back windows. I remember my mom teaching me how to use my first gun, a Browning Auto .22 rifle. My friends and I used to walk down the street with our .22s. Not only have opinions about firearms changed and advocates become more vocal, but the laws regarding possessing firearms have also changed around the country and in Texas.

The physical response by the French couple was not a rarity. Most people I meet throughout the U.S. and around the world think of Texas as a rambunctious state. They still think Texas is the Wild West full of cowboys, guns, and all the trappings of such thoughts and beliefs. Surprisingly, Texas, unlike numerous other states, has quite a few laws regarding weapons, firearms, and, more specifically, stricter laws when it comes to handguns.

A. Firearm v. Handgun – Basic Definitions

Most of us regularly get asked questions like:

“Can I have a gun in my car?”

“Can I have a gun if (this)?”

“Can I have a gun if (that)?”

“What happens if…?”

Possession of firearms is often fact-specific to what type of firearm, where, and how. Let’s start with the different types of firearms and how the law is fairly specific as applied to each.

What is a firearm? The Texas Penal Code defines a firearm as:

(3) Firearm means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

(A) an antique or curio firearm manufactured before 1899; or

(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition

This definition generally follows the federal definition found in 18 U.S.C. § 921(a)(3). However, the federal definition also includes a firearm to be the “frame or receiver, a silencer, or a destructive device.” The frame or receiver provides housing for the hammer, bolt or breechblock, and firing mechanism, and is usually threaded at its forward portion to receive the barrel.

Well, what is a handgun? Federal and state laws are very similar here, as well. The Texas Penal Code defines a handgun as any firearm designed, made, or adapted to be fired with one hand.

With these basic definitions, we can delve into some of the intricacies of Texas gun laws.

B. Law on Handguns

Through the years, I have seen a lot of bad advice on social media regarding handguns. Because of this, I wanted to break down handguns or pistols (collectively herein called “handguns”)  and the laws controlling them.

Almost everyone can picture what the handgun looks like when they think of the movie scene when Dirty Harry asks, “Do you feel lucky?” It’s the nickel-plated Smith and Wesson .44 revolver. Or, some may always remember the role of the Colt .45 seen in almost every war movie, or the Beretta 92 seen in Die Hard, The Bourne Series, C.S.I., The Sopranos, and more. A handgun is the gun you shape your hand into when you say “Bang,” as the French couple did. The common misconception about Texas and guns is you can get a gun and carry wherever you want (as long as you’re not a felon). However, most lawyers and those who are familiar with firearms know that is wrong.

“Constitutional carry” means the United States Constitution says you can carry a handgun how you want and not need a permit. Even though many have argued for and attempted to sway the legislature, Texas is still not a constitutional-carry state.

In Texas, to carry a handgun on one’s person, one must obtain an “LTC” or license to carry. To be eligible for an LTC, a person cannot be: (1) under 21 years of age; (2) a convicted felon; (3) a fugitive; (4) delinquent on child support; (5) and a few other things. If eligible, a person has to: (1) provide fingerprints; (2) a passport picture; (3) undergo a background check; (4) complete an application; (5) take a class; (6) pass a written test; (7) and pass a practical shooting test. Although it sounds difficult, honestly, it is not.

C. Laws If You Do Not Have an LTC

First, let’s discuss laws for a handgun for someone without a valid LTC. If someone does not have an LTC, they can possess a handgun: (1) on or about their person; (2) on premises they own or control; and (3) in their motor vehicle or watercraft. They can also possess a handgun while headed to or from the premises, to their motor vehicle, or vice versa. However, since the person in this example does not have an LTC, any handgun must be concealed while doing so. This means the handgun cannot be recklessly or intentionally in plain sight. Also, there are no restrictions on the gun being loaded or where it has to be. The handgun can be on the front seat of the vehicle and covered by a handkerchief. The handgun can be in their pocket, the glove box, or any other place as long as it is concealed.

What are “premises” as referred to above? Under Texas law, it means real property. It also means a motor vehicle designed to live in or a trailer with temporary living quarters inside (both are recreational vehicles). Such items are travel trailers, motor homes, a horse trailer with living quarters, a camper, etc.

Are there times when someone without an LTC cannot have a handgun in their motor vehicle or watercraft? The short answer is yes. If someone does not have an LTC, they can only have a handgun in their motor vehicle or watercraft if it is concealed. They can still face criminal charges of unlawfully carrying a weapon (UCW) if: (1) they are engaged in any criminal activity other than a class-C traffic or boating violation; (2) are otherwise prohibited from possessing it; (3) or are a member of a criminal street gang. The offense usually occurs or accompanies an arrest for driving while intoxicated, possession of marijuana or other prohibited substance, and reckless driving.

D. Unlawfully Carrying a Weapon

UCW with a handgun in Texas is a class-A misdemeanor under Texas Penal Code §46.02 with a possible range of punishment up to one year in county jail and up to a $4,000 fine. This punishment is usually more significant than the range associated with the underlying offense. Additionally, if someone does not have an LTC and carries a handgun into an establishment with a permit to sell alcoholic beverages, it is a third-degree felony with a range of punishment up to 10 years in prison and up to a $10,000 fine.

E. LTC Laws

Once a person gets their LTC, they can carry their handgun in more places than just their motor vehicle and other “premises.” However, there are still limits to the LTC.

Let’s begin with the LTC in a motor vehicle. Remember, a person without an LTC can have a handgun in their motor vehicle or watercraft, but it must be concealed. If someone has an LTC, any handgun must still be concealed unless it is in a shoulder or belt holster. If the handgun is in a shoulder or belt holster, then the handgun can be in plain view.

When I was a prosecutor, and the open-carry law came out, the funny discussion at the TDCAA Legislative update was, “What is a holster?” Well, nowhere in the statute is holster defined. Some funny memes circulated, including a gun in a sandal stuck in someone’s belt. In essence, a holster can be anything a person would place a handgun in. And, as long as the handgun is in a “holster,” the handgun can be anywhere in the vehicle. The handgun can be in a “holster” on the dashboard, the seat, on your waist, anywhere. However, whether someone would get arrested or charged could vary depending on the jurisdiction, an overzealous prosecutor, or an exuberant officer. This is one of those can’t-beat-the-ride scenario. Will it stick? Who knows. Since there is no statutory definition of a “shoulder or belt holster,” a jury somewhere could decide a sandal is not a holster.

Even with an LTC, there are places a handgun can’t be brought unless the licensee falls into an excepted group. Also, there are statutes allowing businesses and other public or private entities to prohibit a licensee from coming on the premises with a handgun.

Texas Penal Code §30.06 addresses the offense of trespass by a licensee with a concealed handgun. This offense requires notice to a licensee when the entity wishes to prohibit their entry with concealed handguns. Commonly referred to as “30.06 signs,” these have to meet every requirement outlined in Texas Penal Code §30.06. This section has a lot of things to unpack and deals explicitly with a licensee trespassing on specific properties prohibiting carrying a handgun by licensees. Section 30.06 also lays out the defenses licensees have if they do go on prohibited premises. If an entity has communicated in written form with “30.06” signs they’re prohibiting a licensee carrying a concealed handgun, the licensee shall not enter with a concealed handgun. Texas Penal Code §30.07 has all the same language of Section 30.06, but Section 30.07 relates to a licensee openly carrying a handgun on an entity’s premises. All warnings must be explicitly posted and follow Section 30.07 guidelines. If a licensee comes on the property in violation of either Section 30.06 or 30.07, it is a class-C offense with up to a $200 fine; it is a class-A misdemeanor if the licensee is told to leave and refuses to leave.

As defense attorneys, it is imperative to know the defenses available. There are myriad defenses to both Section 30.06 and Section 30.07, the biggest being if the person is personally told to leave, and he promptly does. Other defenses include being an owner, tenant, or guest of either an owner or tenant of a condominium, a rental unit, a manufactured home lot, and the individual possesses the handgun in the respective premises or is directly in transit to or from their motor vehicle or premises. Another defense is if the licensee is a volunteer E.M.S.

F. LTC and College Campuses

If not prohibited by some other law, anytime a licensee is in a public place, and the licensee intentionally displays the handgun in plain view of another, it is a violation of the law if it is not in a holster. Texas Penal Code §46.035(a-1) through (a-3) specifically addresses a licensee’s possession on institutions of higher education. While on the premises of an institution of higher education or the public or private driveway, garage, or parking lot of an institution of higher education, a licensee isn’t supposed to “flash” the handgun in plain view of another person, even if the handgun is in a holster. If an institution of higher education has established rules regarding licensees where a school-sponsored activity is taking place, and the institution provides notice in compliance with §30.06, a licensee cannot carry a handgun, holstered or not, on the grounds or building or in a vehicle of the institution. Additionally, a licensee cannot carry a concealed handgun on a portion of premises located on a campus of an institution of higher education if the institution provides notice complying with §30.06. 

All the offenses in the previous paragraph are punishable as a class-A misdemeanor, and they also share the same defense to prosecution. It is a defense if, at the time of the commission, the licensee displayed the handgun when the licensee would have been justified in using force or deadly force. Also, §46.035(a-1) through (a3) does not apply to a historical reenactment in compliance with the Texas Alcoholic Beverages Commission.

G. More Premise Limitations

There are quite a few other places a licensee is forbidden from carrying a handgun, whether concealed or not, even if it is in a holster. One of these places is a bar––not the bar part of a restaurant, but a full-fledged bar, which includes any establishment making 51 percent or more of its income from on-premises sale or service of alcoholic beverages for consumption. These locations usually have the big red “51%” signs posted at their entrance. Another prohibited place to carry while possessing a valid LTC is on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place unless the licensee is a participant in an event where the handgun is used. The prohibition also includes the premises of a correctional facility like a county or city jail or prison, a hospital or nursing facility (unless the carrier has written authorization), an amusement park, or the premises of a civil commitment facility. Licensees also cannot carry into an open meeting of a governmental entity subject to Chapter 551 of the Government Code, and the entity provided notice of the meeting. Of course, being intoxicated and carrying a handgun under the authority of being a licensed carrier is against the law, whether holstered or not. Most of these are a class-A misdemeanors unless the licensee is in a bar or correctional facility, in which case it is a third-degree felony.

Texas Penal Code §46.03, “Places Weapons Prohibited,” limits where both licensees and non-licensees can possess certain other weapons and firearms, including a handgun, unless the individual falls under a particular exception. One of these prohibited places is the (1) physical premises of a school or educational institution, any grounds or building where there is a school activity or a transportation vehicle unless the person has written authorization from the school or the person has a valid LTC and the premises are an institution of higher education. Prohibited places also include (2) polling places during an active election, (3) government court or office utilized by the court unless given written authorization, (4) a racetrack, (5) the secured area of an airport (more on this later), and (6) within 1,000 feet of a prison where an execution is happening and the person received notice of the prohibition. Under this statute, if the weapon possessed was a firearm, including a handgun, the offense is a third-degree felony.

H. Exceptions to the Law

Further defenses to Section 46.03 (1-4) are if the person were in the actual discharge of duties as a member of the armed forces, National Guard, or a guard employed by a penal institution or an officer of the court.

No one has a defense to carrying while intoxicated. The legislature sometimes passes two versions of a statute, and §46.035(h-1) is no different. However, the versions are not too dissimilar. A judicial officer, as defined in Texas Government Code §411.201, and his bailiff escorting him, have a defense to prosecution to all the offenses listed in the first paragraph of Section G above. Volunteer emergency service personnel also share this defense. The next group consists of a judge or justice of a federal court, active judicial officers as defined in Texas Government Code §411.201 (duplicated by both versions of (h-1), attorney general, United States attorney, district attorney, criminal district attorney, county attorney, or an assistant of one of those attorney categories. This select group has a defense to prosecution to enter or remain on any of the places listed in the first paragraph of Section G unless the premises is a correctional facility or commitment facility.

If a hospital, nursing facility, amusement park, or open meeting of a governmental entity fails to provide valid notice by placing signage meeting the requirements of Sections 30.06 or 30.07, then a licensee can carry a handgun into those establishments as there is no crime.

More defenses exist for those who are inside the secure area of an airport, as well. The first defense is for a person traveling while or discharging their duties as a member of the armed forces or National Guard or as a guard at a penal institution. This defense also includes someone traveling while or discharging their duty as a commissioned security guard who is either wearing a distinctive uniform and his weapon is in plain view or is not wearing a uniform, and his weapon is concealed.

There are also specific protections for individuals who check their firearms following federal guidelines before entering the secure area. Likewise, it is a defense if a licensee carrying a concealed handgun enters the screening checkpoint for a secured area and leaves immediately after completing the screening process after notification he possessed the handgun (think of a person who forgot about the handgun in their bag). An officer cannot arrest a licensee who enters the secure area unless the officer tells the person about the defenses, allows the licensee an opportunity to exit the screening area, and the person does not leave. 


Many people still think Texas is the Wild West where everyone rides horses to work, and everyone carries a gun. However, this gun-loving state has plenty of rules. If you didn’t know before reading through this, now you do. There are even deeper and more specific caveats throughout the weapons code in Texas. Texas gun laws offer cross-sections between the Government Code, the Penal Code, and the Federal Code. So take your time when researching defenses to a particular gun charge. Whether representing a client in a gun case or owning one yourself, it is always best to know the law.

Chapter and Verse: A Deep Dive into the CCP

I have noticed that as I get busy and old, I tend to fall into bad habits. One of those habits, which I have also noticed in other attorneys (none in TCDLA, of course) I call “practicing law by word of mouth.” By this, I mean relying on what other attorneys or judges say the law is rather than actually looking it up and reading it oneself. At that point, we may as well be taking legal advice from our client’s cell mate’s cousin, who once took a criminal justice class, and has reported to most of the tank that they are all  entitled to that famous and elusive provision, §12.44(a).

I thought recently of my Southern Baptist adolescence, spent desperately paging through daily devotionals, where one read a short chunklet of the Bible and then a brief explanation or illustration of what it said with the intention of eventually familiarizing oneself with the most important selections of that impenetrable tome. If one can get twelve-year-olds to solemnly read the Pentateuch, I feel strongly that us grown-ups with law degrees can muddle our way through our own books of the law in similar fashion.

So, in order to try and combat my own laziness and ineffectiveness, I am endeavoring to read the entire Texas Code of Criminal Procedure, start to finish, and I am inviting you, dear friend, to do it with me. Of course, it would not be effective or efficient to reproduce the Code in its entirety in this humble article, but I will focus on what I think is interesting and important as we move forward. C’mon, you’ve already gotten this far, let’s go.

Dust off your code book and let’s open together to TCCP Art. 1.03, The Objects of this Code.

Section 1.03 outlines the reasons the State wanted to write this code in the first place – namely, to prevent crime, ensure the secure confinement of prisoners, effectuate fair and speedy trials, to produce relevant evidence, and to make sure sentences actually get carried out when they’re pronounced. Section 1.03 proclaims that it “make[s] the rules of procedure […] intelligible to the officers who are to act under them, and to all persons whose rights are to be affected by them.”

I’m unconvinced that the code actually achieves any of these quite aspirational goals, starting with intelligibility, but I suppose as we move forward in this endeavor, we shall see for ourselves. I like the idea, though, of putting us all on notice of the rights we are losing to the State. The 4,000 year-old code of Ur-Namu, the written law of an ancient Sumerian king, emphasizes how important the availability of the law to the public is in its prologue, “…so the orphan is not delivered up to the rich man, so the widow is not delivered up to the mighty man…” I like that. That’s what our CCP says it’s trying to do, too, in its own inelegant way.

Check out Parker v. State, 745 SW 2d 934, which is an interesting case. In Parker, the trial judge threatened both the State and Defense attorneys in a DWI case with contempt if they dare tell the jury they could review evidence during deliberations. It seems that this inordinate pique came from the judge’s ill humor and desire to get things over with. The record is silent as to why neither attorney objected to this or what came later. One would imagine that the video would probably be helpful to one side or the other or why on earth would it be relevant in the first place? But during closing arguments, no one mentioned the option to the jury.

The jury, acting on its own, requested to see the video during deliberations. The judge pulled the jury out into the courtroom and basically told them, “Look, that’s going to be a real pain. We don’t have a lot of VCRs down here, one of them eats tapes, and we’d have to wait for the court next door to be done with theirs, so, like, I don’t really want to go through all that since you already saw it once. Just make up your minds and let’s gooooooooo.” More or less.

Parker got convicted and appealed. The 14th COA really felt strongly about the fact that this, in spite of being unpreserved by a lack of objection, was harmful and prevented a fair trial. They felt so strongly, in fact, they quoted a flowery old 1914 case, from back when judges wrote with a bit of a flourish:

“No one, under any circumstances, should be deprived of any right given him by the laws of this state, and, if any provision of our [CCP] has been overlooked or disregarded, if, in the remotest degree, it could have been hurtful or harmful to the person on trial, the verdict should be set aside.”

Dang. That’s beautiful.

Getting Your Wings Back: How Pilots Charged with DWI Can Get Back to Flying

The job of the Aviation Medical Examiner (AME) in the aviator “Fitness for Flight” medical examination process is to coordinate the flow of information to the Federal Aviation Agency (FAA) so it may make an informed and safe decision regarding the aviator’s flying status. When an aviator has their flight physical, and there is a Driving While Intoxicated (DWI) charge or conviction noted in the history section of the medical application (Form 8700-2; Question 18), the AME will ask the applicant questions about that event. Regardless of the level of alcohol at the time of the event, the AME cannot certify the applicant and must defer that decision to FAA.  A DWI type charge can have many different names such as DUI (Driving Under the Influence), OWI (Operating While Intoxicated), and OUI (Operating Under the Influence, but for FAA purposes, they are all treated the same and mean that a driver was charged with or convicted of being intoxicated or impaired while driving. If there is a driving type intoxication offense noted, the FAA does not distinguish between intoxication or impairment that is caused by alcohol, a legal or illegal drug, a controlled substance (even if prescribed by a physician), or a combination thereof.

Here, it must be acknowledged that the FAA is not known for its rapid speed decision-making process. Knowing that, how can the AME accelerate this process for the aviator? First, he or she can make sure that the aviator has timely notified the FAA Security and Hazardous Materials Safety Office (SHMSO) in Oklahoma City, Oklahoma, of the DWI conviction and/or license suspension event, as the aviator has 60 days after the event to notify the SHMSO. Should that 60-day window be missed, it is still better to report the event late then not at all. Normally, if late but still reported, the FAA response is to keep a memo in your file about the failure to report, and thereafter expunge it.  Second, the AME will remind the aviator to request their driving record from their Department of Motor Vehicles. The AME will further request the aviator to obtain from his DWI lawyer all records from the DWI and license suspension cases so that they, too, can be given to the AME for review. By doing so, the AME can make a judgment about how serious the event was and inform the FAA of that opinion. Indeed, the AME may pre-furnish those documents to the FAA to try to speed the medical application along.  Here, in rare circumstances, the end result may be that the AME, having pre-furnished the documents to the FAA, may be able to receive telephone approval for the issuance of the medical certificate without a deferment. However, this is rare, but it has happened, and it is certainly worth trying.

A Senior AME, and especially a Human Interventional Motivational Study (HIMS) qualified AME (These AME’s have additional training and certification relating to a study that clinically and scientifically showed that aviators were very motivated to return to flying and could remain abstinent from drugs and/or alcohol.  Such aviators will not let the matter rest with mere submission of the flight physical exam.) These AMEs will contact the FAA and try to determine what the FAA’s decisions are regarding the specific applicant and what will be the rehabilitation requirements to get the pilot back flying. That conversation will likely be with the FAA’s HIMS qualified AME.

Regarding proving sobriety to fly, the aviator should prepare themselves for frequent and random drug/alcohol tests, and, at least quarterly visits to their AME of record. Here, it is presumed that the aviator will hire the AME to represent and guide through this FAA reapplication process. Of course, the aviator should be sure they have a comfortable and trusting working relationship with their AME because the process will likely take at least one year or more. Note, this process is fluid, and there are no guarantees that it will be successful. Accordingly, it is often the case that the aviator will become frustrated with the process.  Notwithstanding, with unceasing dedication and hard work by the aviator and the AME, success may be achieved.

Focusing on whether there will be a medical deferment because of a DWI arrest, it does not matter what BAC level resulted from a breath test or blood test, a deferment is the default FAA position.  Moreover, any result at, or above 0.15%, is a red flag presumption to the FAA that the aviator has a substance abuse and/or addiction problem.  Understanding this, the aviator can expect that the FAA will want, in addition to the above, evaluations showing that there is no dependence on drugs and/or alcohol.  In this instance, the aviator will be counseled that the cause would be better served if a licensed professional counselor (LPC) is hired to make that determination. Better yet the hiring of a psychiatrist or an addiction medicine specialist will make the aviator’s case to get back flying more persuasive.  If money is not an object, or if the aviator wants to increase the chances of success, the aviator can create a team by hiring the licensed professional counselor, a psychiatrist, an addiction medicine specialist, and an attorney who is very experienced in FAA matters. From the FAA’s view, the more qualified the medical evaluators are, the more weight will be given to their opinions.  Also, in almost all cases, the FAA will require that the aviator participate an out-patient sobriety program such as Alcoholics Anonymous (AA) meetings.  Here, it is important that the aviator have a log which can be signed by the individual running each meeting to prove their attendance.  Also, it is a good idea for the aviator to keep a journal of what was discussed and learned at each meeting so both the log and the journal can be produced to the FAA as part of its evaluation.  It is here, by gathering, organizing, and assembling your sobriety and low risk to aviation safety proof, that the experienced aviation lawyer can be of great assistance.

Turning now to the type of medical application sought, if the aviator is a applying for a First or Second Class Medical Certificate, and the applicant is flying for an airline that has its own HIMS Program (generally these are national or international airlines that have their own regulations and specifications that have been HIMS approved. ( Nevertheless, all First or Second Class Medical Certificates are certified in Washington DC. History has shown that in some cases the process takes 14-16 months just to make the initial decision.  That being the case, if the aviator is not flying for one of these large commercial airlines or not flying commercially, many Senior AMEs will recommend that the aviator apply only for a Third Class Medical Certificate because that decision will not be made in Washington DC, but rather, the FAA in Oklahoma City makes that “okay to return to flying” decision and does so with much less delay—about a year or more.  Here, it must be remembered that a deferment only means that the pilot can no longer act as pilot in command.  The pilot can still fly with a certified flight instructor. 

So, what advice do Senior AMEs give to their pilot applicants?  To be blunt, never drink and drive.  Being charged with a DWI, even if you are innocent, is not worth the risk of losing your flying privileges, and from a commercial pilot’s perspective, your career, and your future. While it is legal in some states to drink and drive while not intoxicated, it is far safer to use a designated driver, ride-share vendor or taxi.  If none are available show good judgment, and simply don’t drive after drinking or don’t drink if you must drive. Thinking in terms of a defense team, it is important to remember that the FAA Medical Certification Division decision-makers will only speak to physicians. To be clear, we are not talking about the enforcement process where your lawyer would be speaking to the FAA, but medical fitness, which is solely the jurisdiction of the Medical Certification Division.

Here are just two examples of the collateral dangers of drinking and driving to the aviator. In the first example, there was an aviator who was erratically driving in a church parking lot and was arrested for DWI.  It took five years of sobriety proof for that aviator to be returned to a flying status. The second example involved an aviator who was speeding to escape the threat of a sexual assault and was arrested for DWI. Her reinstatement took over a year of sobriety proof before she could be returned to flying status. These two examples hopefully clearly show that an aviator should not drink and drive no matter what the reason.  Incidentally, even where the aviator is found to be not guilty of a DWI, the FAA still takes a presumptive guilt position until there is substantial proof of continued sobriety.

From an aviation medical perspective, the AME is critical in knowing where the aviator’s case stands with the FAA.  Having this knowledge, allows the AME to guide you and your sobriety team to the best path to have your flying privileges reinstated. In closing, the best defense against losing your flying privileges is by pre-deciding to NEVER drink and drive.  However, if you do, the best medicine to overcome a medical deferment is to hire both an AME who is experienced and cares, and, a lawyer experienced in FAA matters!

Balancing the Scales: A Closer Look at Ake v. Oklahoma

In October of 1979, Glen Burton Ake quit his job as an oil field worker. He and a co-worker, Steven Keith Hatch, borrowed a car and drove to the home of Reverend and Mrs. Richard Douglass. Ake and Hatch held the Douglass’s and their two children, Brooks and Leslie, at gunpoint. They bound and gagged the mother, father, and son and attempted to rape twelve year old Leslie. They then shot all four of the Douglass family. Reverend and Mrs. Douglass died, but the children survived.

This horrible, life shattering evening was the predicate to the United States Supreme Court case that leveled the playing field in criminal law more than any cases since Gideon v. Wainwright. Prior to Ake v. Oklahoma in 1985, there was no constitutional guarantee of funding for indigent defendants to obtain experts to mount a defense. Ake, and its progeny, recognized that “justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” 1

This paper is going to take a closer look at Ake, its background and the Supreme Court’s holding. Next, we’ll take a look at how the law developed to its current state and its application in Texas. Finally, we’re going to look at some practical application points for obtaining funding for your indigent, or sometimes even retained clients to be able to participate meaningfully when their liberty is at stake.

 A Closer Look At Ake

From the introduction to this paper we can see that the facts of The State of Oklahoma vs. Glen Burton Ake are horrific. Two parents murdered and a family devastated. The judicial process afforded to Glenn Ake leading up to his Supreme Court appeal was almost as bad. During arraignment on two counts of murder in the first degree and two counts of shooting with the intent to kill, Ake’s behavior was so bizarre that the trial judge, sua sponte, ordered Ake examined for competency.  2 Ake was diagnosed with paranoid schizophrenia, and transferred to a state hospital with respect to his “present sanity”. 3 

Six weeks after his transfer to the state hospital, Ake was declared competent to stand trial: as long as he had three daily doses of 200 milligrams each of Thorzine. For comparison, the current recommended dosage according to is about 1/10th of that amount for the most severe cases of psychosis in an outpatient setting. Even the Oklahoma Court of Criminal Appeals acknowledged that Ake “stared vacantly ahead through the trial.” 4

In June of 1980 at a pretrial conference, Ake’s attorney informed the trial court that he intended to raise insanity as a defense to the charges against Ake. Ake’s attorney requested that the court either arrange for a psychiatrist to examine Mr. Ake for trial, or provide the funds for the tests to be arranged. The request was denied. 5

At trial the defense called each of the psychiatrists who had examined Mr. Ake at the state hospital to address his sanity at the time of the offense. However, none of those doctors examined Ake in regards to his sanity at the time of the offense. The State hammered that point on cross examination. The jury was instructed that Ake was presumed sane at the time of the offense unless he provided sufficient evidence to raise a reasonable doubt about his sanity at the time. 6 Ake had no expert witness to testify to his sanity. The jury rejected Ake’s defense of insanity and found him guilty on all counts.

At the sentencing proceeding no new evidence was presented. The State relied heavily on the testimony of the psychiatrists who all testified during the guilt phase that Ake was dangerous. Ake had no expert to rebut that testimony. He was sentenced to death on each of the murder counts and five hundred years imprisonment on the two counts of shooting with intent to kill. 7

Ake appealed to the Oklahoma Court of Criminal Appeals. He argued, among other issues, that as an indigent defendant he should have been provided the services of a court-appointed psychiatrist. His argument was rejected. The Oklahoma Court of Criminal Appeals held that even when attempting to impose the death penalty, “the State does not have a responsibility of providing such services to indigents charged with capital crimes.” 8

The Supreme Court granted certiorari and ultimately reversed the convictions. Relying on the Fifth and Fourteenth Amendments of the United States’ Constitution the Court determined that “mere access to the courthouse doors does not by itself assure” a fair trial. 9  Defendants needed “access to the raw materials integral to the building of an effective defense.” 10 The court applied a three part balancing test to determine when additional protections validated providing those raw materials: 1) the private interest that will be affected by the action of the State; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the addition or substitute procedural safeguards that are sought and the risk of deprivation of the interest if the safeguards are not provided. 11

In Ake’s case, the first factor, the private interest, was clear: the State wanted to kill him. On the second factor, the State’s interest, the Supreme Court noted the minimal financial burden in providing expert assistance and that “a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cause a pall on the accuracy of the verdict obtained.” 12 Finally, the court recognized the necessity of psychiatric assistance crucial to mounting a defense. The three factors weighed heavily in Ake’s favor and his convictions were reversed.

In 1986 Glen Burton Ake was retried on two counts of First Degree Murder and two counts of Shooting with Intent to Kill. He was found guilty and sentenced to life imprisonment for each of the First Degree Murder charges and two hundred years imprisonment for each of the Shooting with Intent to Kill. 13 He died in a prison hospital April 23, 2011, at age 55.  

The Aftermath of Ake

Ake v. Oklahoma provided a new foundation for obtaining expert assistance for indigent defendants. The specific holding, though, was narrow. The Supreme Court only ruled that “when a defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on the issue if a defendant cannot otherwise afford one.” 14

How is this applicable in non-capital cases? Can we obtain funds for experts for non-psychiatric issues? Does this type of assistance apply to pre-trial hearings? Is it a neutral expert, or one specifically provided for the defense? How can this standard affect other grounds for which a defendant should be entitled to expert assistance? Can this apply to a non-criminal case? We will address each of these critical questions in turn.

 The Scope of Ake

As noted above, the holding in Ake was fairly limited.  One of the first questions was if the right to expert assistance goes beyond psychiatric assistance. There were some early attempts by various States to limit Ake’s holding to psychiatric assistance only. 15

However, the general consensus among the states, including Texas, is that upon a showing of need, the court must provide an indigent defendant an expert, “regardless of the field.” 16 17 (“There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.”). The same conclusion was reached on whether Ake applied to non-capital cases, and is accepted by most courts. 18 (“We [do not] draw a decisive line for due process purposes between capital and noncapital cases.”) 19

What about a non-criminal or quasi-criminal proceeding? Interestingly, a case pre Ake established the scope of expert assistance beyond that of only the criminal defendant. Little v. Streater was a paternity action that the Supreme Court labeled as “quasi-criminal”. 20 There an indigent defendant in a paternity suit had a right to a blood grouping test to determine paternity. 21

For non-criminal proceedings where indigent individuals are seeking court funded assistance, the Due Process analysis used in Ake is the same; weigh the private right balanced against the State’s interest and the probable value of the additional safeguard. Due process protections have been found to apply in a number of non-criminal proceedings. 22

 Whose Expert Is It?

Ake was vague on the question of what role the expert to be appointed would have in the case. It was not clear if a ‘neutral’ expert reporting to the court would satisfy due process protections, or if a Defendant was entitled to their own expert. Justice Rehnquist’s dissent in Ake even noted in the opinion that “I see no reason why the defendant should be entitled to an opposing view, or to a ‘defense’ advocate” 23

Courts are split on the question. The Fifth Circuit has held that “a court-appointed psychiatrist, whose opinion and testimony is available to both sides, satisfies [the accused’s] rights” 24

The Texas Court of Criminal Appeals, however, has ruled that a ‘disinterested’ expert witness does not satisfy the due process protections of Ake. 25 The court recognized that a neutral examination could not provide technical assistance, evaluate strengths of a defense, identify weaknesses in the State’s case or witnesses, or be able to testify at trial for the defense if favorable. 26 A defendant requires their own expert to help prepare and present their defense.

This does not mean that a defendant is entitled to an expert of their choosing. 27 30 Simply put, if you cannot afford to hire the expert you love, love the expert you can afford.

 Implications to Effective Representation

Now that our clients have the right to the assistance of an expert, what is our duty as attorneys to ask for that assistance? Does the failure to obtain an expert equate to a finding of ineffective assistance of counsel?

It may. If an attorney’s performance falls below “an objective standard of reasonableness under prevailing professional norms” that representation is ineffective.” 31

Briggs is a great case to review for appointed and retained attorneys alike. Ms. Briggs attorney was retained, and recognized that an expert was necessary to review medical records in a case involving the death of his client’s child. However she could not afford to retain experts. Ms. Briggs ultimately plead guilty to a lesser charge of injury to a child and was sentenced to seventeen years in prison.  Her case was overturned on a writ of actual innocence and ineffective assistance of counsel. The court found that her attorney was ineffective in not procuring the necessary experts to investigate and assist in the case. 32  The court, quoting Wiggins and Strickland remind us that while “strategic choices… are virtually unchallengeable” we, as attorneys, “have a duty to make reasonable investigations” to make those strategic choices possible. 33

What is an objective standard of reasonableness when it comes to seeking out and obtaining expert assistance? “Prevailing norms of practice as reflected in the American Bar Association standards and the like…are guides to determining what is reasonable.” 34

The State Bar of Texas has adopted “Performance Guidelines for Non–Capital Criminal Defense Representation.” 35  Specifically:

“Counsel should consider whether expert of investigative assistance, including consultation and testimony, is necessary and appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of expert when it is necessary or appropriate to:

  1. The preparation of the defense;
  2. Adequate understanding of the prosecution’s case;
  3. Rebut the prosecution’s case or provide evidence to establish any defense;
  4. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and
  5. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.”

The test for effectiveness is the thoroughness of counsel’s investigation. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable…” 37 If an expert is consulted, and not used, or a theory investigated and not pursued, that is not ineffective. It’s when we don’t look or we don’t ask that our representation falls short.

 Practical Applications

With the boundaries of Ake better defined, where does the rubber meet the road? How do we get the expert assistance we need to defend our clients? What if my client can pay me, but cannot afford to hire the expert we need? What can I do when the Judge says “no”?

 The Motion

There is no specific format that any motion must be in. There are however some central points to include in your motion, as well as times where requests for assistance have failed because these things were not there.

 Ex Parte

The first thing to note is that your motion for assistance should be ex parte. The foundation for this application comes from Ake itself. 38 Texas courts, following the due process principles that Ake used reached the same conclusion. 39

If, however the State wants to stick its nose in your request for assistance do not limit your argument for the ex parte aspect of your motion just to due process analysis. An attorney’s ability to retain an expert without the State’s input or even knowledge triggers equal protection, effective assistance of counsel, and due course constitutional arguments as well.

 Statement of Indigence

The central issues in Ake are that you need some expert assistance, and your client cannot afford it. Your motion must include some showing that your client is indigent and the reasons why you are asking the court to pay, i.e. why is the expert necessary.

Standards to determine indigence are found in the Texas Code of Criminal Procedure section 26.04(m). In determining indigence a court may consider: a defendant’s income; sources of income; assets; property owned; outstanding obligations; necessary expenses; number and ages of dependents; and spousal income that is available to the defendant. 40  The code specifically excludes a defendant’s ability to make bond, except that it reflects on their financial circumstances. 41

Additionally, Texas courts have held that it is the financial condition of the client, “not his parents or other relatives” that is relevant. 42 Indigence cannot be denied just because a defendant’s counsel is retained. 43  The question of indigence is at the time of the application, not the arrest or even based on previous findings of indigence. 44 Your motion does not have to lay out all of the arguments for indigence, but it must at least make the suggestion.

Centrality, Importance, and Complexity of the Issue to the Case

Just because you can get an expert does not mean that you will get an expert. “The state does not need to ‘purchase for the indigent defendant all the assistance that his wealthier counterpart might buy…” 45  “The burden is on the defendant to provide concrete reasons for why the expert should be appointed.” 46

In Ehrke, an indigent defendant wanted an expert appointed to retest the methamphetamines he was charged with. The Court of Criminal Appeals held that the application was appropriately denied because his motion failed to make a preliminary showing of significance, or why there was any reason to doubt the first analysis. 47 The court noted that motions which are denied tend to lack support for the request, such as affidavits or other evidence in support of the defensive theory, explanation of the defensive theory, or how an expert will help establish that theory. 48

This doesn’t mean not to request the help to challenge what has been accepted as established expert or scientific evidence. Eyewitness ID, bite mark evidence, arson investigation, and even finger print analysis have been called into question and even debunked. Just make sure to give the court the reason why you need the help.

State all of your legal grounds

If you want to make your appellate counsel happy remember this one phrase: if you haven’t raised it, you’ve waived it.

Appellate courts have no latitude to reverse a trial court’s decision on new theories of law not previously presented to the trial court for its consideration. 49 This means too that if you’re only ever making a due process argument your appellate counsel will never be able to argue your equal protection, right to counsel, due course of law, confrontation clause and due course of law arguments on appeal. An objection stating one legal theory at trial cannot be used to support a different legal theory on appeal. 50

Some judges may grant your Ake motion without any real analysis or argument. Some may fight you tooth and nail to open the purse strings and you’re going to need to develop your record with affidavits and potentially even testimony to show what you need and why. At the very least, your motion should have in it every conceivable constitutional ground as a foundation for your request for assistance. Ake was decided on due process, but it is not the only leg the argument has to stand on.

 What can you do when the Judge says “No”?

You’ve filed your motion and argued ex parte. You’ve shown a need and the centrality to your defensive theory, and supplemented with affidavits. You’ve urged and re-urged for your client and every time you hear “Denied counsel.” Or even better the judge gives you $250 for the DNA analysis central to your defense. Thanks…

What do you do? First you come to a hard realization: there is nothing we can do to make a judge do the right thing. They are not the judge because they are always right, they are always right because they are the judge… until they get overturned on appeal.

Most of the practical tips for what to do when you’re told “no” have already been addressed above. File your motion. Supplement and make your record. Make sure you’ve given your appellate counsel everything they need to develop a great argument on appeal if it’s needed. But also do all you can do. In Ex parte Briggs, discussed above, the Court of Criminal Appeals points out that if Ms. Briggs’ attorney had been denied the expert assistance he never sought he should have subpoenaed every doctor that ever made a note on the child’s health, introduce the medical records, and elicit their expert testimony. 51 If you’re denied the tools you need, use the tools you have.

Fighting the good fight does not hurt your client on appeal. In De Freece, the Court of Appeals attempted to explain away any harm of denying an expert because of defense counsel’s “admirable” cross-examination of the state’s psychological witness that succeeded in impeaching her without the benefit of expert assistance. 52 In response, the Court of Criminal Appeals pointed out that it “does not mean that he could not have done an even more effective job with the aid of an expert…” 53

That is the point; to do a better job for our clients. Before 1984 our scales of justice had a notable tip. Indigent Defendant’s had no right to the very basic of resources for their defense. Unless they were independently wealthy they didn’t have the vast resources which are available to the State.  Often those with significant resources got a better shake than those without. It goes without saying that the State will almost always possess significantly more resources than the accused. Ake v. Oklahoma put a thumb on that scale to help balance out the scales of justice. It’s up to you to use the tools that the Supreme Court has now provided.

Rethinking Article 38.23(a) Jury Instructions

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a)

Defense counsel have struggled with the question of how a jury views an Article 38.23(a) jury instruction. Will the jury  be able to provide the necessary system of checks and balances on a denial by a trial judge of a motion to suppress? Will the jury use their life experiences, including their history of encounters with law enforcement, while considering a 38.23(a) jury instruction? The frustrating reality is, we rarely hear of a jury agreeing with a 38.23(a) instruction. With juries rarely acting favorably on 38.23(a) instructions, the frequency of requests for such instructions tends to diminish over time.

The case law regarding obtaining these types of jury instructions is not exactly friendly toward defense counsel. In Serrano v. State, 464 S.W.3d 1 (Tex. App. – Houston [1st Dist.] 2015, pet. ref’d), the officer claimed the defendant was speeding, conducted a traffic stop, claimed he smelled the odor of alcohol from the car, and suspected the defendant was intoxicated given the defendant’s bloodshot eyes and slurred speech. At the police station, the officer met with the breath test operator (BTO). The officer agreed with defense counsel that the BTO first came in contact with the defendant when they entered the intoxilyzer room where breath testing is conducted. In the intoxilyzer room, the BTO turned on a video recording device, read the defendant the statutory warning, and requested a breath sample. The video recorded for approximately six minutes before the BTO turned it off to conduct the breath test. The officer testified that there was no time lapse from when the video ended until the time the defendant provided his breath sample. The BTO testified that the BTO “has to make sure that the suspect is watched over for 15 minutes” before taking a breath test. The defense claimed the 15-minute period was not met so the breath test was inadmissible. The trial judge admitted the breath test into evidence, and the defense requested a 38.23(a) instruction which the trial judge denied. The defense claimed it raised the factual issue of whether the BTO waited 15 minutes before taking the breath sample. The court of appeals held that the defendant “failed to raise a fact issue about whether [the BTO] complied with Texas Administrative Code section 19.4(c)(1) and that Serrano therefore was not entitled to the submission of an article 38.23 instruction.”

In Villalobos v. State, 550 S.W.3d 364 (Tex. App. – Houston [14th Dist.] 2018, pet. ref’d), the court of appeals found that the trial judge reasonably concluded that the defendant was temporarily detained for a DWI investigation, was not in custody, Miranda did not apply, and the area where the defendant was found was a suspicious place. The defendant requested a 38.23(a) instruction on the issue of “suspicious place” which was denied by the trial judge. The court of appeals found no authority for the claim that a defendant is entitled to a jury question regarding the legality of an arrest based on whether the defendant was found in a suspicious place. The court of appeals held that Article 38.23 applies only to illegally obtained evidence and does not address the legality of warrantless arrests.

In the recent published case of Sanchez v. State, No. 04-18-00302-CR (Tex. App. – San Antonio, April 17, 2019), an officer saw a defendant allegedly commit two distinct traffic violations: (1) failure to drive on the right side of the road in violation of Tex. Transp. Code Ann. § 545.051(a)(2); and (2) failure to signal a lane change in violation of Tex. Transp. Code Ann. § 545.104(a). Defense counsel requested a 38.23(a) instruction on these two issues which was denied by the trial judge. In affirming, the court of appeals began by stating Article 38.23(a) provides that illegally obtained evidence is inadmissible. The court of appeals stated that a 38.23(a) jury instruction is limited to disputed issues of fact material to a defendant’s claim that a constitutional or statutory violation renders certain evidence inadmissible. Three requirements must be met before a defendant is entitled to a 38.23(a) instruction: (1) evidence before the jury must raise an issue of fact; (2) evidence on that issue of fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Merely raising the contested factual issue during cross-examination is insufficient to create a factual dispute warranting a 38.23(a) instruction. Defense counsel must dispute the contested factual issue, otherwise the legality of the conduct is determined by the trial judge alone, as a question of law. Defense counsel must further dispute all other facts which are sufficient to support the lawfulness of the challenged conduct. Absent such contesting of all factual issues by defense counsel, “the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.” The court of appeals held that defense counsel failed to produce any evidence supporting an issue of fact that was affirmatively contested regarding whether the defendant turned left without signaling. Without such evidence, the defendant was not entitled to a 38.23(a) instruction.

In the recent published case of Olsen v. State, No. 01-18-00281-CR (Tex. App. – Houston [1st Dist.], April 14, 2020, no pet. h.), the defendant was convicted of felony DWI with a child passenger. The defendant requested a 38.23(a) instruction which was denied by the trial judge. The court of appeals affirmed and concluded that the defense did not contest the fact that the defendant allegedly exhibited clues on the SFST’s that were consistent with intoxication. The court of appeals stated that the defendant’s results on the HGN, WAT, and OLS were consistent with intoxication. The court of appeals noted that the officer’s subjective perception of the defendant’s physical and mental faculties was not a fact supporting probable cause, but the defendant’s performance on the SFST’s was a material fact supporting probable cause for the defendant’s arrest. The defense, however, did not contest this at trial. Because the defendant “did not challenge the administration of any of the field sobriety tests or her performance on those tests, particularly the HGN, she failed to contest all facts material to the probable-cause determination.” The court of appeals then concluded that because the defendant “failed to contest all facts material to the lawfulness of her arrest in this case, we conclude that [the defendant] has not raised a fact issue essential to the determination of probable cause. Therefore, the trial court did not err by denying [the defendant’s] request to submit an Article 38.23 instruction to the jury.”

If you plan on seeking a 38.23(a) instruction in your case, be sure to adhere to the rationale of the foregoing case law, such that you are able to convince the trial judge to give you a 38.23(a) instruction. Additionally, during voir dire be sure to address 38.23(a) instructions with the venire panel. If argue and follow the rationale of the above case law and properly dispute the contested factual issue and obtain a 38.23(a) instruction, will the jury be sympathetic to your argument? You should voir dire the panel about their thoughts and feelings on your contested factual issue in general, before you decide which panel members would be acceptable jurors for your case. We all know you cannot talk about the facts of your case during voir dire and that you cannot commit a potential juror. Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). You may, however, inquire into the venire member’s philosophical thoughts about the criminal justice system. Davis v. State, 349 S.W.3d 517 (Tex. Crim. App. 2011). Also, you may voir dire on the different standards of proof. Contreras v. State, 440 S.W.3d 85 (Tex. App. – Waco 2012, pet. dism’d). These are two powerful tools of inquiry, which can help you better determine which potential jurors may be receptive to your contested factual issue.

During the current period of acute awareness of social inequality, potential jurors should be open to express their views regarding such key issues as reasonable suspicion to detain a person and probable cause to arrest a person. We know that these standards of proof are covered during voir dire to help distinguish between the highest standard of beyond a reasonable doubt with the lesser known standards of proof. A potential juror with certain views on these issues may be, depending on the issues in your case, an excellent juror on the particular contested factual issue, in your case.

A reading of the 2020 article “The Supreme Court Built America’s Broken Policing System And It’s Working Just As Intended” by Paul Blumenthal in Huffpost provides particularly good thoughts on these issues for use by defense counsel during voir dire. As of July 26, 2020, this article may be found at Mr. Blumenthal reminds us that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involved two Black men repeatedly looking into a store window during the daytime and an officer finding that suspicious but the officer was unable to articulate why he found that suspicious. The two Black men refused to provide their names to the officer which further aroused the officer’s suspicion, so the officer grabbed the men, pushed them against a wall, and searched their bodies and pockets. This case involved the highly contentious stop-and-frisk of suspicious persons (mostly minorities) by police based upon reasonable suspicion and how stop-and-frisk is condoned by the courts. Mr. Blumenthal reminds us to hear again the prophetic warnings by the lone Terry dissenter, Justice William Douglas:

We hold today that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action . . . To give the police greater power than a magistrate is to take a long step down the totalitarian path . . . Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

Terry v. Ohio, supra (Douglas, J., dissenting).

It has always been extremely difficult to find venire members who care about any of these issues,  let alone someone on the trial or appellate bench who would voice the warnings voiced by Justice Douglas in Terry. Today, with the heightened concerns regarding  social inequality, and specifically that of racial inequality, raise the question of what would your venire panel think, when asked about how much evidence an officer needs, before that officer could grab two Black men while they were repeatedly looking into a store window during the daytime, shove them against a wall, and search them? What should we brothers and sisters of the criminal defense bar think about this situation? I suggest that these issues should cause us to rethink Article 38.23(a) jury instructions and how we attempt to ensure that the people who are sworn in as jurors in our cases are best suited to be open to consider the contested factual issues which are present and argued. These issues should also cause us to rethink how our profession and the criminal justice system is viewed by venire and by the public at large. Good luck on your cases.

Cold Texting: The New Wave of Barratry

Recently, Harris County and other counties around that state have increased Personal Recognizance bonds. This bond paperwork then becomes public record. In this paperwork, people are requested to list their cell phone numbers, and some marketing companies and lawyers have started using this information to solicit new clients via text messages.

Rapidly evolving technology coupled with aggressive marketing tactics have created a new minefield for the uninformed lawyer. It’s been well settled that attorneys are not allowed to “cold call” potential new clients, whether it be for personal injury actions, criminal cases, or other legal work.  Often referred to as “ambulance chasing,” which has been rampant in the personal injury world for years, we are faced with a new similar threat in the criminal world. Welcome to the world of cold calling or cold texting clients on their cell based off public information received from the district clerk or bond documents. 

Unsolicited Text Messages Can Be Illegal

Texas Penal Code § 38.12(a) makes it a third-degree felony “if, with the intent to obtain an economic benefit the person…solicits employment, either in person or by telephone, for himself or another.” It is also a third-degree felony if a person “knowingly finances” or “invests funds the person believes are intended to further the commission” of act of barratry. Tex. Pen. Code § 38.12(b)(1-2). The Penal Code further prohibits a lawyer from knowingly accepting “employment within the scope of the person’s license … that results from the solicitation of employment in violation of [the barratry statute].” Tex. Pen. Code § 38.12(b)(3).1

A person convicted of barratry faces severe penalties from the State Bar because a “[f]inal conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.” Tex. Pen. Code § 38.12(i). 

Depending on the facts surrounding the particular situation, a creative and aggressive prosecutor could even try to throw in a Money Laundering charge (Tex. Pen. Code § 34.01) for the amount of the fee that the client paid the lawyer who committed barratry.

The Texas Disciplinary Rules of Professional Conduct Frown Upon Unsolicited Text Messages

The Texas Disciplinary Rules of Professional Conduct recognize that “[i]n many situations, in-person, telephone, or other prohibited electronic solicitations by lawyers involve well-known opportunities for abuse of prospective clients.” Tex. Disc. R. of Prof. Cond. 7.03, com. 1. The “principal concerns presented by such contacts are that they can overbear the prospective client’s will, lead to hasty and ill-advised decisions concerning choice of counsel, and be very difficult to police.” Id.

Texas Disciplinary Rule of Professional Conduct 7.03(a) says that a “lawyer shall not by in-person contact, or by regulated telephone contact or other electronic contact…seek professional employment concerning a matter arising out of a particular occurrence or event…from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment…” 

This same rule defines “regulated telephone contact” as “any electronic communication initiated by a lawyer or by any person acting on behalf of the lawyer…that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means.” Tex. Disc. R. of Prof. Cond. 7.03(f). Clearly, text messages fall under this definition.

Follow State Bar Rules for Advertisements

From the outset, when in doubt, follow the requirements of the State Bar of Texas Advertising Review Committee.  Submit your advertisement or plan of attack to the Bar and ask for permission.  Note: the Bar will never give a lawyer clearance over the phone. All advertisements must be submitted in writing, and if approved, will be approved by letter with a green stamp on it. Failure to have this written approval subjects the lawyer to defending their marketing tactic before the Bar. Rule of thumb if you have a “clever” new marketing idea: get it formally approved. Texas Disciplinary Rule of Professional Conduct 7.07 lays out the requirements for submitting your marketing idea to the State Bar for approval.

The State Bar has set very specific rules regarding unsolicited direct mail outs. See Tex. Disc. R. of Prof. Cond. 7.05. The font, color, and material must all be pre-approved by the State Bar. This is widely known and has been the case for over 20 years. However, with evolving technology, one could hypothetically reach potential clients faster than mail, by text, or direct phone call. The same rule that governs mail outs also governs electronic or digital solicitations. Id.

We are aware of only a single lawyer who received an approval letter from the State Bar of Texas Advertising Review Committee for the use of sending a text message to potential clients. It is important to note, however, that this opinion expressly stated that “[i]t does not address any unauthorized practice of law or ethics issues that may be present, which are beyond the scope of an advertising opinion.” Therefore, even if you get an approval from the State Bar of Texas Advertising Review Committee, you still face potential ethics issues, as discussed above, and liability issues, which are discussed in more detail below.

It should also be noted that the text message that received this approval stated “*ADVERTISEMENT*” in all capital letters at the top of the message and ended with “PLS DO NOT REPLY TO THIS MESSAGE. REPLIES ARE NOT RECEIVED NOR [sic] RETURNED.” Also, this text message only asks the recipient to call the number listed if the recipient did not already have an attorney. The fact that this was an automated message that lacked the ability for the lawyer to directly start a conversation with the potential client could have been an important factor that distinguishes this kind of message from interactive direct texting.

Be Careful with Lawyer Referral Services

Both the Texas Penal Code and the Texas Disciplinary Rules of Professional Conduct make it clear that a lawyer can get in trouble if that lawyer knowingly uses a lawyer referral service that breaks the rules. These services are regulated by the Texas Occupations Code, which defines a “lawyer referral service” as “a person or the service provided by the person that refers potential clients to lawyers regardless of whether the person uses the term ‘referral service’ to describe the service provided.” Tex. Occ. Code. § 952.003(1).

Many of the people operating lawyer referral services do not realize that a “person may not operate a lawyer referral service in this state unless the person holds a certificate issued” under the Occupations Code. Tex. Occ. Code § 952.101. Also, applicants for these certificates must be operated by a governmental entity, or a nonprofit entity. Tex. Occ. Code § 952.102. 

So, be weary when your email box gets flooded with various lawyer referral services trying to get you to pay them for client referrals. Many of these businesses are not operating legally. If your marketing company directly texts potential clients on your behalf, you are the one who faces the legal consequences.

Unsolicited Text Messages Seeking Clients is Illegal and Subjects the Sender to Civil Liability

There are several civil penalties that exist for directly soliciting clients via text message. Tex. Gov’t Code § 82.0651, for example, creates an aggressive civil penalty for barratry where the offending party must forfeit their attorney’s fees, pay a $10,000 fine, and pay the attorney’s fees of the party bringing an action.

Additionally, the Telephone Consumer protection Agency (TCPA) and Federal Communications Commission (FCC) regulations make it illegal for a company to send a text message unless the person receiving the text message gave consent to receive it, or if the message was sent for emergency purposes. While we all agree that getting new business is important, it falls well short of being an “emergency” under these regulations.

The bottom line is that any lawyer who directly or through a third party sends unsolicited text messages to people charged with a crime to solicit that person’s business risks significant criminal and civil liability. Lawyers should not cold call any number. The first contact, whether directly or through a legitimate lawyer referral service, needs to come from the potential client.

Duty to Report

As attorneys we have an affirmative ethical duty to report barratry. Tex. Disc. R. of Prof. Cond. 8.03.

However, if a text message mimics the requirements established in the Rules, would it be ethical? As of the date of this writing, we have found no ethics opinion or court opinion that authorizes such conduct. Any lawyer who wishes to engage in this unscrupulous tactic should first seek State Bar Advertising Review Committee approval, but even that will not necessarily shield you from ethical consequences or civil or criminal liability. 

While no lawyer wishes to “snitch” on a fellow lawyer, this affects us all and cheapens our profession. If we do not take action against this conduct, then we risk having a criminal bar that goes the way of the personal injury bar – where significant numbers of cases are illegally “run” by the criminal law version of the ambulance chaser in a cheap suit. This illegal and unethical conduct makes all of us look bad in a world where people already have a hard time trusting lawyers. 

Some might suggest that an unsolicited text message is no different from mailouts, which have been approved and have been happening for years. Unsolicited texts messages are distinguished from mailouts for several reasons:

  1. Direct mailouts don’t cost the client anything. The United States Postal Service is a free service for receivers unlike cell phone or even landlines. Many subscribers must pay for call minutes or data used for texting. Many calls or texts are not free to a potential new client. Some clients work extremely hard just to pay to keep their phone on; imagine if that client was then inundated with hundreds of unsolicited calls or texts from lawyers. The fees would become an extreme hardship and they should not have to pay them just because their information was placed on a bond or cross referenced via public data.
  2. As stated above, lawyer marketing must be submitted to the State Bar for approval. If the marketing is approved, the State Bar will then send you a letter with its verification. This is a crucial step that must be taken by any lawyer who wishes to tread in these ethically murky waters.
  3. A person’s cell phone is a greater invasion of privacy than a land line. In the past, municipalities provided phone books which gave specific addresses or names for landline numbers. Cell phone numbers are not freely given for a good reason. Cell phones are also no longer publicly attached to an address. Spam calling, and telemarketing are all allowed to be blocked for the protection of privacy. Attorneys should not be allowed to circumvent this privacy in the hopes of gaining a new client.
  4. There is a delay with mailouts that provides a “cooling off” period for the potential client to avoid making a “hasty and ill-advised decision.” See Tex. Disc. R. of Prof. Cond. 7.03, comm. 1. An unsolicited text message can reach a prospective client literally the minute after they get out of jail when that client is particularly vulnerable.
  5. Citizens are used to junk mail. While it is not unusual to get many pieces of junk mail in your mailbox, it is not as common to get direct calls or text messages. These texts or calls are personal and come with more physical, psychological, and legal pressure than direct mail outs. Calling or texting prospective clients the moment they are released from jail on potentially the most life-changing day of their lives creates alarmism that could cause that person to make rash decisions.  Indeed, the Texas Penal Code creates a 30 day “no solicitation” period for personal injury or wrongful death cases. See Tex. Penal Code § 38.12(d)(2)(A). Shouldn’t people accused of crimes, with all the safeguards afforded by the constitution, be entitled to the same grace period?

No one likes to snitch on friends. However, the practice of unsolicited text messaging is unethical and illegal unless specifically allowed by the State Bar. This article is not intended to encourage grievances, prosecution, or civil lawsuits; rather, it is intended to educate those attorneys who think they or the company they hired found a cutting age way to market for new clients. Technology may be evolving, but the basics of law remain the same. Remember, pigs get fat, hogs get slaughtered. If you have a new way to market, get it approved. The State Bar will not tell your competitors, but this approval will vindicate you when your competitors take offense.

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