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Kids, Schools, Phones, and Consent

By now, we all know juveniles have the same protections of the law as adults, and in many cases increased protections. However, it wasn’t always that way. It was in 1967 when the United States Supreme Court held juveniles shall be afforded the same rights of the Due Process Clause of the 14th Amendment to the United States Constitution, as adults.1 Fortunately for children, courts and the legislature have expanded and further explained the application of due process rights for juveniles. This article explores the due process rights of children in schools and particularly regarding cell phones.

Is a Child Capable of Being Reasonable?

The scientific world has recognized the adolescent brain continues to develop until the average age of 25. A juvenile’s brain lacks a fully developed prefrontal cortex, resulting in a lack of rational, adult-like thought.2 As we know, though, an adolescent of 17 years is prosecuted as an adult. And, interestingly, an adolescent need only attain the age of 18 to make important decisions, such as voting, joining the military, or partaking in non-voidable contracts, despite the inability to think rationally. However, some industries, such as car rental companies and insurers, recognize the underdevelopment of juvenile brains, and charge higher premiums and prohibit certain activities accordingly. The criminal justice system has increasingly acknowledged the need to treat juveniles differently because they don’t have the ability to think like adults and should therefore not suffer similar repercussions as adults. As a consequence, juveniles may not be sentenced to death or life without the chance for parole.3

The United States Supreme Court held age is a factor when determining if a child believes they’re in custody.4 The subjectivity (with an objective basis) of determining custody is well established in Texas. In fact, the Third Court of Appeals established what is essentially the reasonable juvenile standard for purposes of ascertaining custody twelve years before the United States Supreme Court required age as a factor in a custodial analysis. While we know the standard for determining custody is whether a reasonable person would feel free to leave, when dealing with juveniles we look to “whether, based upon the objective circumstances, a reasonable child of the same age would believe [their] freedom of movement was significantly restricted.”5 Most children will say they are prevented from leaving the confines of a school, but does that mean they are in the State’s custody Mondays through Fridays?

Do Children Have Rights at School?

The government’s mandate of compulsory school attendance has been a fact of life in everyone’s childhood. Nevertheless, school children “do not shed their constitutional rights… at the schoolhouse gate,”6 but those rights have limitations. For example, the state of the law is that children are not in custody of the State when they are being restrained solely by a school administrator, such as a principal, despite being a State actor. However, if an officer (including a school resource officer-SRO) is present and participating in said restraint, the child is in custody.7 In fact, the Court in V.P. suggested the child was in custody while being transported to the principal’s office by a police officer, then custody ceased to exist once the officer left the room and V.P. was in the room alone with the principal. The disparate treatment of different adults handling children at school can be confusing for most, let alone children. Luckily, the courts have provided some guidance on the issue.

The seminal school search case (T.L.O. v. New Jersey) was decided by the United States Supreme Court in 1985.8 The T.L.O. Court held the 4th Amendment of the United States Constitution applies to searches of children in schools. However, the level of cause for school administrators to search children is reasonable suspicion and not probable cause. A 2-prong test was also established for searching children, to wit: 1) the search must be reasonable at its inception, and 2) the search must be reasonably related in scope to the initial purpose of the intrusion.9 Basically, a school official is not allowed to search a student for a reason unrelated to the inception of the encounter. For example, a school official is not permitted to search a student’s car as a result of the student being investigated for truancy.10 The bottom line is there needs to be a nexus between the student’s conduct and the purpose of the search. Of significance, the established lower level of cause to search students pertains to school administrators only, mainly because they are in the business of educating students and do not receive training in ferreting out crime, as police officers do.11

Continuing with the theme of determining the differing levels of cause to search a child at school, the Texas Tenth Court of Appeals, in Russell v. State, 74 S.W.3d 887, 891-92 (Tex.App. – Waco 2002, pet. ref’d), adopted a 3-category approach:

1) Searches initiated and conducted by school officials – reasonable suspicion;

2) Searches initiated and conducted by SROs – reasonable suspicion; and

3) Searches initiated by outside police officers, or school officials and SROs working at the behest of an outside police force – probable cause.12

The Russell Court ruling, which essentially equates the status of a school official and an SRO for purposes of investigating crime at school, forged a contradiction when one considers the decisions in T.L.O. and V.P. together. The T.L.O. Court rationalized requiring a lower level of cause for school officials because they are not trained as peace officers are and, therefore, should not be held to the same standard as police. Moreover, the V.P. Court ruled the child was only in custody when the SRO was present, but not in custody when he was alone with the principal. Therefore, there is a split in the Texas Courts of Appeals regarding the differing treatment of school officials and SROs when dealing with criminal investigations of delinquent conduct. Some courts have performed legal gymnastics to categorize school searches as administrative searches, thus lowering the level of cause required by the investigator, rather than focusing on the character of the searcher’s status or job.

There are certain searches that, as a matter of policy, are permissible and lack specific suspicion. Administrative, suspicionless searches occur daily at disciplinary alternative education program (DAEP) schools. The rationale behind the daily searches of children upon entering DAEPs derives from the school’s responsibility pursuant to the doctrine of in loco parentis, resulting in a duty in “maintaining a safe and disciplined environment,” particularly when dealing with a population of children with disciplinary issues.13 As a consequence, administrative searches at DAEPs serve to satisfy a governmental interest of providing a safe environment for students.14

Ordinarily, DAEPs require students and their parents to sign a contract, permitting the school to search the child upon entry. One justification for the intrusion is that the parent and child essentially consent (or are at least advised) to the search, resulting in a diminished expectation of privacy.15 Interestingly, children who are removed from their home school are required to attend a DAEP and are provided with a student handbook detailing daily searches as a matter of policy, thereby infringing on their 4th Amendment rights, and raising voluntariness issues. Students of DAEPs and their parents are put on notice and essentially consent to daily searches when provided with handbooks containing language similar to the following: “Students pass through a metal detector each morning and receive a pat search. This search entails patting the student’s outer clothing and checking pockets, socks, shoes, hems, and waistbands for prohibited items. Prohibited items will be confiscated (failure to comply could lead to suspension).”16 While schools may be permitted to confiscate prohibited items -cell phones in particular -they are not granted unfettered access to search through them.

Hell No! Not My Cell Phone!

As a parent of teenagers, and someone who has worked with teens and tweens for 20 years, I can emphatically say one of the worst punishments for kids today is the extraction of cell phones from their talon-like claws. Many children are likely extra protective of their cell phones because of the intimate nature of the information stored on it. The storage capacity of cell phones is tantamount to searching through a person’s cabinets, bureaus, and desks for personal effects.17 Hence, absent exigent circumstances such as a fear of destruction, a warrant is required to sift through the digital data.18 Even if a child consents to a search of his property, the voluntariness of said consent can still be suspect. The particular circumstances of each case in which a child gives consent must always be evaluated.

The case of a 13-year-old girl consenting to a search by the school nurse for prescription-strength ibuprofen in her bra and panties was deemed beyond the scope of reasonableness when she was asked to shake out her bra and pull out the waistband of her underwear.19 Luckily for Texans, the Family Code mandates that a child may only waive their rights under the United States Constitution or Texas Constitution if the child and their attorney both voluntarily waive the right, and only if the waiver is made in writing or in recorded court proceedings.20 It may seem unreasonable to require a child who is the subject of an investigatory stop to have their attorney with them to sign off on the waiver of their 4th Amendment right against an unreasonable search, but such is the plain language of the statute. It makes more sense once the diminished capacity of a child is considered. The safeguards are in place to level the playing field between juveniles and adult government actors. Lastly, the Court of Criminal Appeals reinforced the need for extra protection for children, even when a juvenile case is transferred and tried in adult court when they declared “…the juvenile is cloaked with the trappings of a non-criminal proceeding with attendant safeguards such as greater protections in areas of confession law,” and I would include search and seizure law as well.21

In conclusion, juveniles have underdeveloped brains, resulting in a lack of sophistication with the criminal justice system, and an inability to make rational, voluntary decisions. To counteract the inherent deficiencies in children, the legislature and courts have created extra safeguards for them. For instance, a child is not completely stripped of their constitutional rights when they enter a schoolhouse, although there are some limitations in certain circumstances. Additionally, a child’s cell phone carries with it extremely personal information, thus warranting the same constitutional protection afforded one’s personal effects. With regard to a child waiving their rights, their immaturity and underdevelopment requires they be joined in said waiver by a friendly adult who is tasked with advising them, their attorney. As a vulnerable group, children require and are afforded morally necessary protection from governmental intrusion.

Working with Diverse Juries

“When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.” 

– Supreme Court Justice Thurgood Marshall, Peters v. Kiff, 407 U.S. 493, 503 (1972).

A study conducted by psychologist Samuel Sommers concluded that diverse juries were less likely to presume a defendant’s guilt than all-white juries. Diverse juries also evaluated the evidence more thoroughly, deliberated longer, and made fewer factual errors. It was concluded that this was a result of white jurors being more careful and systematic in making decisions when interacting with non-white jurors. Sommers, S.R. (2006). On racial diversity and group decision making: Identifying multiple effects of racial composition on jury deliberations. Journal of Personality and Social Psychology, 90 (4), 597. The benefits of having diverse juries are not limited to the accused; they are appreciated by society as a whole. Trust in the criminal justice system is preserved and verdicts are more likely to be accepted with diverse juries.

So how do we work with diverse juries? As advocates, what can we do to use diverse juries to our clients’ benefit and what are the pitfalls we should be mindful of?

  • Recognize and understand the importance of implicit bias. Lots of people would never consider themselves biased against any group of people; however implicit bias is perhaps best described as “thoughts about people you didn’t know you had”.
  • Understand what diversity means. Jurors do not all share in the same, religion, education, socioeconomic, and geographic backgrounds. Don’t limit the idea of bias or diversity in your mind to just one factor when selecting a jury.
  • Do your research in advance. In some counties, lawyers have access to juror information cards before voir dire begins. Use this information and time to develop a better idea of the demographics of your jury and the jurors’ background. You will know what you’re working with, how to frame your presentation, and what to be mindful of.
  • Speak clearly. Don’t assume that you have a panel of all native English speakers. Slow it down, and enunciate to ensure that your message is understood.
  • Mean what you say and say what you mean. Figurative language can get lost in translation or not received the same by all jurors. Instead of saying “The Defendant was going to fix the Complaining Witness’s wagon” (one of my law partner’s preferred Southern phrases)—consider saying “The Defendant confronted the Complaining Witness.” Instead of “Ladies and gentleman, I’m going to tell you how the cow ate the cabbage” (another favorite)—just say “I’m going to tell you exactly what happened.”
  • Use visual aids during voir dire or witness examination. If there is a language or cultural barrier, pictures, videos, drawings, and diagrams can help aid the listener.
  • Take a moment to stop and confirm that your panel members are following the discussion. Don’t assume that everything you’re saying is being understood. Ask along the way if any of the panel members have questions about what you’re discussing. Offer clarification or rephrase the point you’re trying to make.
  • Keep it tight. The shorter you keep your presentation, and the less you talk and start to ramble, the less likely you are to stray from your game plan.
  • Avoid humor. What might be amusing in one culture could be offensive or just unfunny in another.
  • Be mindful of nonverbal communication. For example, the thumbs up might signal confirmation or great job while in some countries in West Africa and the Middle East, it means “up yours!”
  • Do not assume everyone has your same beliefs and values. When I was in law school, I would come down to the courthouse and watch jury trials. There was a talented defense attorney that quoted a lot of scripture in his closing arguments. It seemed to play well with the jury, but he also ran the risk of alienating those with different beliefs or those that were unfamiliar with the Bible.
  • Use local examples. One thing that everyone on a jury has is common is that they live in the same county. Use headlines from your local community that everyone has experienced or is familiar with.
  • Make your client universally identifiable and relatable. If you did it right, you picked a diverse jury so chances are your client is being judged by people that don’t look or sound exactly like your client.
  • Educate yourself and keep learning. Read books, travel, talk to different people in order to continue to learn about other people and cultures. Talk to jurors after trials and ask them questions about what they liked and didn’t like about your presentation style.

Alcohol Testing in the Age of COVID-19

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This in an important article, one that outlines the risks associated with breath testing during a pandemic.  Is your client at risk in providing a breath sample? Is the officer at risk in taking one? Beyond the hype, what does the known epidemiology of disease transmission under similar circumstances tell us? This article will discuss how COVID-19 will likely impact alcohol and drug related criminal investigations, now and in both the foreseeable future and perhaps, the long term under our “new normal.”

The pandemic has impacted all aspects of our society – from how and where we work, how we go to school, attend court, or eat in a restaurant.

DUIs, DWIs, breath test refusal cases and DREs will not – and more importantly should not – be done the same way in the future. Your client’s physical response to breath or blood testing may be different. What officers have been trained to believe about drug related driving offenses may no longer apply. Even the frequent use of hand sanitizers – which we should all be doing along with wearing a mask and physical distancing – may impact blood testing and urinalysis.

Before we begin, I have one caveat. This article uses information that is available as of the end of September 2020. Much is currently unknown about COVID-19, and its long-term impact on humans won’t be known until, well… the long term. So, if you’re reading this a month or two from now, or a year or two, this information may have – and probably will have changed, perhaps drastically, as we better understand the overall effect of COVID-19 on humans.

The Potential for Disease Transmission

First, let’s discuss the risk of disease transmission through breath alcohol testing – particularly roadside testing using portable testing units.

The story is simple. Your client is stopped for a vehicle infraction or roadside sobriety check. A breath sample demand is made, and a Preliminary Breath Test (PBT) instrument produced. Your client refuses the test on the grounds of the potential for disease transmission.

Is this a reasonable excuse?

What are the disease transmission risks involved with providing breath samples into a PBT in light of the current international pandemic of coronaviruses and specifically Corona Virus Disease 2019 (COVID-19)?

Well, as with most situations, it depends…

  • If we have a test subject (your client) with no predisposed medical conditions that make them unlikely or less susceptible to coronavirus transmission, and;
  • If we have an officer who has taken all reasonable precautions to prevent the transmission of any communicable disease, including but not limited to:
    • The use of appropriate Personal Protective Equipment (PPE)
    • Disinfection of the PBT before each and every use

Then the disease transmission risk may be considered acceptably low.

The problem, of course, is that no one, other than those who have been exposed, infected, become sick (either symptomatically, or asymptomatically), and recovered and who now have COVID-19 antibodies are unlikely or less susceptible to getting COVID-19. Basically, you’re only truly safe if you’ve had it and recovered. We think… there are now a number of reported cases of persons who were infected, tested positive, recovered, and are now ill again with COVID-19. 

If, on the other hand:

  • Your client is immunocompromised
  • Your client is on medication that suppresses their immune system
  • Your client’s family situation includes:
    • living in a multi-generational home with elderly family members,
    • living with a person with a pre-existing, high-risk condition, or
    • a child or spouse with a health condition
  • Your client is a high-risk worker (essential service worker, health care provider, first responder, etc.)
  • The officer produces a PBT, with an unverified level of cleanliness, not using any PPE, or minimal PPE

Then the disease transmission risk may be considered unacceptably high. This list is, of course, not exhaustive. There are any number of situations that constitute a “high-risk” background.

In addition to being designated in court as an expert in breath alcohol testing, I have some background in infectious disease control. I was the designated Chief Infection Control Officer for the Saskatoon Police Service from 1997 – 2002. I authored the Infectious Control Reference Guide and created the surrounding policy and training for police members regarding infectious control that was adopted by various police agencies across Canada. We were concerned with disease transmission from crime scenes, arrests, contaminated evidence, in the detention facilities, etc. I was a Primary Care Paramedic and served as the Chief Instructor in Emergency Response at both the Saskatchewan Police College and Saskatoon Police Service, and instructor for the First Responders program. I sat on the Instructor – Trainer’s Advisory Committees for both the Canadian Red Cross and the Saskatchewan Heart & Stroke Foundation, where we investigated disease transmission between participants during First Aid and CPR training.

How Coronaviruses Spread

For the most part, health officials think that human coronaviruses, including but not limited to SARS-CoV-2 (which causes the subsequent infectious disease COVID-19), cause infections of the nose, throat and lungs. Coronaviruses are most commonly spread from an infected person through:

  • Respiratory droplets generated when a symptomatic or asymptomatic infected person coughs or sneezes
  • Aerosolized droplets coming from a symptomatic or asymptomatic infected person’s exhaled breath from talking
  • Aerosolized droplets inhaled into the lungs from a symptomatic or asymptomatic infected person
  • Close personal contact, such as touching or shaking hands with an infected symptomatic or asymptomatic person
  • Touching something infected with the virus, then touching your mouth, nose or eyes before washing your hands appropriately or using a hand-sanitizer

This is why the simple act of wearing a mask, washing your hands frequently, and not touching your face is so important. Yes, masks are uncomfortable, hot, and sticky. (And, no, they don’t lower your oxygen levels or increase your carbon dioxide levels.) They may lower your viral exposure, keeping you from getting COVID-19 in the first place, or reducing the severity of the disease if you do come in contact with a carrier.

Current evidence strongly suggests person-to-person spread is efficient when there is close or prolonged contact, without the necessity of actual physical contact. Again, keep in mind that First Responders, including police officers, are essential service workers who are at greater risk of being in contact with persons who are infected or potentially infected, and as such, are at greater risk of passing the virus onto others, including members of the public that they come into contact with during the course of their duties.

It is currently well established that the disease transmission of the virus occurs before the infected person becomes visibly symptomatic.

The dosage of the micro-organism required for transmission of the coronavirus is measured in microns. The size of the coronavirus itself is just 0.1µ (microns) in diameter. The strength and degree of transmission from an infected person to another person is considered very high, and the pathogenicity, or seriousness, of the resulting illness (COVID-19) is deemed extremely high.

Epidemiology and Breath Alcohol Testing

It must be recognized that both the disease transmission ratio of coronaviruses and the mortality rate of COVID-19 are higher than the seasonal flu. Transfer of the virus can occur from person-to-person, and from objects to a person. By its very nature, breath testing places the officer and test subject into close physical proximity, in violation of most health agencies’ guidelines of distancing at least 6 feet from one another.

The officer conducting the breath test at roadside will have their hand within 1-2 inches to the test subject’s nose and mouth. Potentially contaminated items (the hand of the officer, regardless of gloving, and the PBT used for the breath test) are located immediately adjacent to the test subject’s nose and mouth.

Let’s personalize this a bit to illustrate the transmission mechanism. I would like you to try an experiment at home. Go get a bottle of perfume or cologne, one that may not have been used for some time. Hold the bottle of perfume or cologne, used perhaps within the last few weeks or even a few months ago, under your nose. Without activating the pump, sniff around the spray tip. Can you smell the perfume? Congratulations! If that perfume was a virus, you’ve just introduced a viral agent into your nose, air passages and lungs. You may now be infected. It is that easy.

We don’t actually know the dosage required for infection, but recent studies in China found that people with more severe infections tended to have higher viral loads, another important reason for wearing your mask, which may cut down the amount of virus you receive – potentially below the infectious dose.

“The truth is, we really just don’t know… I don’t think we can make anything better than an educated guess.”

– Angela Rasmussen, Virologist, Columbia University, New York. (as reported in The New York Times, May 29, 2020)

The pathogen is proving the familiar adage in toxicology, coined by Paracelsus more than 500 years ago: “The dosage makes the poison”. For SARS1, the infective dose was considered to be just a few hundred particles. For MERS2, the dosage required is much higher, on the order of thousands of particles. The Coronavirus (SARS-CoV-2) is more similar to the SARS virus, and therefore, the dose may be just hundreds of particles. Nobody really knows for sure.

Regardless of gloving or the use of other (PPE), the officer’s hand and the PBT will be within the protective field of the test subject. Like our illustrative perfume, any contagion, including viral contamination, will be in the immediate vicinity to the test subject’s nose and oral pathway. This is currently identified as the most accessible route of entry of the coronavirus into the body of an uninfected person.

Additionally, the World Health Organization has established that the coronavirus can remain active on non-porous or hard-surface objects for anywhere from a few hours to several days. Many health agencies identify that these items include electronic devices such as cellular phones and television remotes. These are similar in design and operation to the PBTs used by police in the sense that they are constructed with a hard-plastic exterior, are used as handheld devices, and as with cell phones, are deployed in close proximity to a person’s face, nose, and mouth.

But wait – PBTs have a disposable mouthpiece for sanitary use…

Breath alcohol testing is unique in that the operator is attempting to obtain a sample of “deep lung” air from the test subject. This air sample is being obtained from the alveolar sacs of the person blowing into the PBT. Unfortunately, the alveolar sacs are precisely where the virus is resident in the human body, and the mechanism of carrying the virus (exhaling the deep lung air) brings the virus out into the open.

The disposable mouthpieces used on the PBTs are intended only as a means of providing a clean surface between the test subject’s mouth and lips, and the device itself. They do not provide any means of epidemiological protection in any other regards. Most disposable mouthpieces use a pass-through design, and do not incorporate a one-way valve to protect either the officer receiving the breath sample, or the person providing the sample.

Even the so-called “spit-trap” used in certain mouthpieces easily allows pass through of liquids, exhaled air and the potential for contamination, as shown in Figure 1. Disposable mouthpieces cannot be considered an effective barrier to disease transmission efficacious enough to prevent the transfer of viruses, including coronaviruses.

In March 2020, one breath testing manufacturer, Intoximeters, Inc., identified three main paths for the transmission of contamination during breath testing:

  1. Breathing aerosolized particles
  2. The breath test subject could be contaminated from particles from a contaminated instrument.
  3. The Breath Test Operator can become infected from an infected test subject.
  4. The test subject could be contaminated from an infected operator
  5. Skin contact with contamination from the breath sample.
  6. Skin contact with saliva or other bodily fluids deposited on the instrument.

As a result of their warning, Intoximeter, Inc. had established a specific recommended cleaning and disinfection timetable in the use of their instruments and had provided detailed instructions for both evidentiary units and roadside PBTs. They stated that their recommended procedures for disinfection would normally take between 10 – 30 minutes per device.

Withdrawing a Warning…

Notice that I put this in past-tense. These recommendations were posted on the Intoximeter website (in March 2020) but have since then been removed. This begs the question – Why?

Was there pushback from police agencies, worrying that by NOT following the recommended manufacturer’s procedures they would expose themselves, not only to the virus, but to liability for not following standard practice? The virus hasn’t changed. The threat hasn’t changed. Virus transmission understanding has not changed. Why withdraw procedures to decontaminate these devices?

Cross Contamination from Breath Testing Devices in the Clinical Setting

Currently, there is no known research on disease transmission during roadside breath alcohol testing. The closet analogy concerns pathogen transmission during pulmonary function testing using hand-held spirometry devices, commonly found in physician’s offices and pulmonary function labs, and performed routinely among COPD (Chronic Obstructive Pulmonary Disorder) patients.

I had the opportunity many years ago to perform pulmonary function tests on patients using these devices when I participated, as one of the principal researchers, on the ability of COPD or Asthma patients to provide breath samples into roadside screening devices, so I’m very familiar with their design. The spirometers are remarkably similar in form and function to hand-held PBTs.

Research over more than 20 years has shown that the potential for cross-contamination of pathogens between patient and operator, and more alarmingly, between patients being tested by contaminated spirometers has been established. The risk is of sufficient concern to require further research and recommendations for control strategies. Researchers Rasam, et al write, “Cases of cross infection acquired from the pulmonary function laboratory, although rare, have been reported from various countries” (Rasam, et al, 2015).

You should focus on that last part again, “…have been reported from various countries.” This is not a one-time case study. Multiple cases of disease transmission have been reported between patient and operator, and between patients, from multiple countries. So, it goes to reason, your client could conceivably become contaminated from viral matter on the PBT from the asymptomatic person who last provided a sample. Or three samples ago – meaning three others who recently used that PBT are also contaminated, including the operator.

Certainly, the counter argument is that the officer “disinfected” the PBT between breath tests. Keep in mind that these reported pulmonary function tests (the ones with documented cross-contamination) are performed:

  • In clean, but more importantly – disinfected or sterilized clinical settings,
  • Using medical personnel who have been
  • Trained in epidemiology and infectious control,
  • They have the ability to disinfect these medical-grade devices immediately,
  • Using medical-grade disinfectants and sanitizers.

Contrast this situation with a police officer, at roadside, wiping down a PBT between breath tests, using cleaning items on-hand (as in little disposable towelettes), even if performed with the best of intentions. The decontamination and sterilization done in clinical settings still resulted in multiple documented cases of cross contamination, worldwide.

Decontamination and Cleaning of Hard-Surface Items, including Portable Breath Test Devices

The World Health Organization advises that coronaviruses are one of the easiest types of viruses to kill, as long as the appropriate disinfectant products are used according to the manufacturer’s directions. It is recommended that users clean high touch surfaces often, using either regular household cleaners or a solution containing diluted household bleach at a 0.1% sodium hypochlorite concentration. This is equivalent to just 1 teaspoon of household bleach per quart of fresh water.

This solution must be prepared fresh daily, and must, by necessity, be applied to the hard-surface item after each and every use. The surface must be sanitized with the disinfectant for at least one minute before being washed away by a clean and uncontaminated cloth. We do not know the measures taken by police agencies to ensure that PBTs are decontaminated properly between breath tests.

Even if frequent decontamination of the PBT is a policy of the police agency, the person providing the breath sample has no verification that this procedure has been properly performed, and all of the virus has been eradicated. Remember – the dosage of the micro-organism required for transmission of the coronavirus is measured in microns…

Again – Why did Intoximeter remove their disinfection instructions?

Also, keep in mind that the breath test operator can only clean the external surface of the PBT. The internal breath sampling ports cannot be adequately cleaned and disinfected in the field. The tubing and inlet ports are too small to allow access without specialized tools but are often found to be contaminated with saliva droplets from previous breath tests during annual maintenance.

Sort of like the aerosol pump on the perfume bottle… get the picture?

If the test subject were to inhale through the disposable mouthpiece, even momentarily to draw in enough breath to provide a suitable breath sample, they would inhale potentially contaminated residual matter from the PBT breath sampling assembly. You smelled the perfume, meaning you inhaled the perfume, into your body.

While one-way valves on the disposable mouthpieces would somewhat mitigate this potential area of contamination, the mouthpieces used on most handheld PBTs, as previously noted, use a flow through design, allowing the contamination to occur.

Internationally, health agencies currently advise that COVID-19 is a serious health threat, and the situation is evolving with new cases emerging daily. The risk of transmission and mortality will vary from community to community but given the increasing number of cases of both infection and loss of life, the risk to the world population is considered high. We have not seen epidemic precautions of this nature taken worldwide since the Influenza pandemic that lasted from January 1918 to April of 1920.

Argue if you will that the coronavirus risk has been overblown by the media and government response. I heard an epidemiologist interviewed early on in the crisis say, to the effect, that we will be successful at combating the virus if we look back on our response at a future point in time and think that we overreacted.

The consequences for under-reacting are too grave to consider. Remember the 1918 Influenza pandemic is estimated to have infected approximately one-third of the world’s population and killed perhaps as many as 50 million people – in four consecutive waves, with the second wave the deadliest.

Currently, the current risk of contamination of Covid-19 is considered elevated merely by going to a grocery store, to a family member’s home, or otherwise out in public, even as restrictions begin to relax. And with these relaxing restrictions, we are seeing an increased level of exposure, disease transmission and infection. Governments around the world have instituted physical distancing and isolation measures in response to the increased threat of virus transmission.

Police agencies have also identified breath testing as a risk factor in contracting COVID-19. Many have suspended roadside breath testing programs. Some have switched to taking blood samples or urinalysis under controlled settings back at the police station. In general, it is recognized that roadside breath alcohol testing places a risk to both the officer and test subject due to:

  • The form and function of the equipment used,
  • The lack of appropriate and available PPE that can be used during testing,
  • The inability to confirm suitable decontamination of the breath testing device used,
  • The close physical proximity of the operator to the test subject, and
  • The overall nature of breath testing.

The only logical conclusion to draw is that persons receiving or providing breath samples for alcohol testing are at a substantially increased risk of potential contamination and transmission of the SARS-CoV-2 virus, which causes the subsequent infectious disease COVID-19. Couple that with the risk factors listed at the beginning of this article, and you have a recipe for disaster. 

Does this constitute a reasonable excuse to refuse a breath test? That is a legal issue for you to argue. The risk factor, scientifically, is both identifiable and measurable.

I’m going to ask you again – Did you smell the perfume?

For more information on the effects of COVID-19 on forensic alcohol investigations, including a video presentation, numerous supporting articles, and special Counterpoint subscription pricing for TCDLA members, go to Counterpoint-Journal.com/TCDLA. Enter the code TCDLA2019 on checkout and receive 25% off all past volumes, or an annual subscription.

References:

  1. “Coronavirus Disease (COVID-19): Prevention and Risks”, Public Health, Government of Canada , found at https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html?topic=tilelink on September 24, 2020.
  2. Coronavirus: Police Scotland Reported to the HSE Over Breath Tests”, BBC World News, found at https://www.bbc.com/news/uk-scotland-52713404 on May 19, 2020.
  3. Hierbert, T, Miles, J & Okeson, G C, “Contaminated Aerosol Recovery from Pulmonary Function Testing Equipment”. Am J. Respir Critical Care Med Vol 159. pp 610-612, 1999.
  4. “How COVID-19 Spreads”, Centers for Disease Control and Prevention, found at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html on September 24, 2020.
  5. “Infection Control, Cleaning and Disinfecting, Intoximeters Handheld Breath Testing Instruments”, Intoximeters, Inc. March 2020.
  6. “Q&A on COVID-19”, European Centre for Disease Prevention and Control, found at https://www.ecdc.europa.eu/en/covid-19/questions-answers on September 24, 2020.
  7. “Q&A on Coronaviruses (COVID-19)”, World Health Organization, found at https://www.who.int/news-room/q-a-detail/q-a-coronaviruses on September 24, 2020.
  8. “Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)” — United States, February 12–March 16, 2020, Centers for Disease Control and Prevention, found at https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm on September 24, 2020.
  9. Kim, Jeong-Min et al. “Identification of Coronavirus Isolated from a Patient in Korea with COVID-19”. Osong Public Health and Research Perspectives, Vol. 11,1 (2020): 3-doi:10.24171/j.phrp.2020.11.1.02
  10. Prabhu, M.B., Hurst, T.S., Cockcroft, D.W., Baule, C. and Semenoff, J., “Airflow Obstruction and Roadside Breath Alcohol Testing”, Chest 1991: Volume 100, pages 585-586.
  11. Rasam, S. A., et al, “Infection Control in the Pulmonary Function Laboratory”, Lung India, 2015 Jul-Aug; 32 (4): 359-366.
  12. Semenoff, J., “The Infectious Control Reference Guide”, Saskatoon Police Service, 1997.
  13. Semenoff, J., “Infectious Disease Controls and Police Response Issues”, presentations to the Canadian Police Association and the Saskatchewan Federation of Police Officers, Fall, 1997, Regina, SK.

Invest in Secure E-Mail Services

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If you are like most of us, you send and receive dozens, if not hundreds, of e-mails every day, so this is a subject that is on everyone’s minds. Unfortunately, for most of us, the only thing we think about when it comes to e-mail is what to write and what someone else wrote. There are other issues to think about when e-mailing. One of the most important issue is security. If you do not think about it, you could end up like me – fighting to get out of the junk folder.

Since the beginning of time, or maybe the mid-‘90s, people have been sending unsolicited e-mails as advertisements and for other unscrupulous reasons. These messages are known as SPAM. Some of the e-mail messages are designed to scam you into buying inferior or non-existent products or trick you into providing them with sensitive data – a process called “phishing.”  

It would be easy to fix if all of these people would create a domain name and use that domain name in their e-mails; then we could block the spammers, phishers, and scammers, and everyone would be happy, except them. Instead, they use your domain name. Well, maybe not yours, but, apparently, they used mine.

 You may have received an e-mail that looked like it came from your own e-mail address. This is called “spoofing.” Eventually, if your e-mail address is spoofed enough, you could be blacklisted by larger information technology (IT) departments, including the IT department of the county government you deal with on a regular basis. You would not even know. You would be sitting in your office, watching your paralegal twiddling her thumbs, and wondering why nobody has responded to any of your e-mails, including the urgent messages about deals that need to be made. It happened to me, and it could happen to you.

I do not have all the answers, and I am not nearly the expert my mother thinks. I am simply an inquisitive guy trying to understand why things do and do not work. I am trying to explain things without all the big words the experts use.

I am lucky enough to have friends and family that work in all areas of the county government. When I realized that people were not responding to my e-mails, I called a few of them. It was discovered that my e-mail address had been spoofed and used by enough scammers that independent “spammer lists” had blacklisted me and the county’s mail server automatically sent all of my e-mails to the junk folder. 

While it may be a costly undertaking for you, you should consider utilizing a secure, third-party e-mail server. Microsoft offers subscriptions to their Exchange Server. Amazon offers a similar service, and some web hosting companies, such as GoDaddy, offer Microsoft Exchange for e-mail service, as well. Without getting too technical, these e-mail servers enter codes into every e-mail message that comes from you and it prevents anyone from being able to “spoof” you. 

In the end, I chose Microsoft for my office. The cost was minimal – approximately $12 per month to protect me and my staff. It is money well spent to ensure that my e-mail messages actually get to the person intended, whether that be a prosecutor, an expert witness, a client, or even a judge. Set up was easy and, much to my surprise, I was able to speak with a real, live person in the United States, who walked me through the process. They even called me back the next day to help finish setting up. 

It has taken a little bit of time and a little bit of money, but my name has been removed from the list of spammers and scammers. I can now get back to work representing my clients.  In the future, if I find myself wondering why my e-mails are being ignored, I will know it is not because my messages ended up in the junk file. If you ever find yourself in the same situation, it might be something you want to investigate.

ADVOCATING FOR CRIMINAL DEFENSE: TCDLA Lobbyists Head to the State Legislature

Allen Place, Shea Place, and David Gonzalez comprise your 87th Texas legislative session TCDLA lobby team. The team is gearing up for what will certainly be an unprecedented session.

Allen, a former State Representative of nearly 10 years, has been with TCDLA for over 20 years. He was Chairman of the House Committee on Criminal Jurisprudence and authored the Penal Code revision. He maintains his law practice in his hometown at Place Law Office, where he works with his wife and daughter. Generally, whether in session or not, you can find Allen meeting with legislators, staying up to date on current Texas politics and races, and talking to the media.

Shea practices with Allen at Place Law Office in Gatesville and Austin with a focus on parole law. Shea has been with TCDLA for 4 years and this will be her third session. Shea regularly attends legislator, stakeholder, and affiliate group meetings, follows current events, keeps track of member requests, and provides legislative updates to members. You can access these updates in the legislative list serve on the TCDLA website.

David has worked for TCDLA for over 10 years. He is a partner in Sumpter & Gonzalez in Austin and serves as an adjunct professor in the Trial Advocacy Program at the University of Texas School of Law. He is board certified in criminal law, was appointed by the Supreme Court to serve on the Board of Disciplinary Appeals, and has served as a special prosecutor for Travis, Kendall, and Panola Counties. TCDLA is fortunate to have David working for the association during the session.

TCDLA Legislative Committee members are: Chair William (Bill) Harris, Vice Chair Bobby Mims, Mark Daniel, Danny Easterling, Michael Heiskell, Susan Kelly, Timothy Rose, and Mark Snodgrass. Additionally, TCDLA President Grant Scheiner, TCDLA Executive Director Melissa Schank, TCDLA staff member Keri Steen, and TCDLA lobbyists Allen Place, David Gonzalez, and Shea Place all serve on the legislative committee.

The legislative committee meets for an in person (when allowed) meeting every quarter at the TCDLA board meetings. We have monthly calls to discuss new business. The committee reviews, discusses, and votes on each legislative request submitted for consideration. These suggestions form a list of priorities for the next legislative session. The committee also follows Texas politics and current events to better understand the political landscape and works to hash out the finer details of legislation like bill language and sponsors.

Typically, during pre-covid sessions, Allen, David, and I spend most of our time at the State Capitol. We work to draft legislation, defend against bills we do not support, testify in support of or opposition to bills of interest, maintain continual interaction with legislative members, committee chairmen, and their staff, and often work to make last minute changes in order to garner the most support for a bill. We attend any and all hearings relevant to our bills. These hearings are known to have delays and last well into the night.

Legislators are able to start filing bills in November. There are approximately 6,000-7,000 bills filed each year. The lobby team reads each bill and finds those of interest to TCDLA. We then track those bills, usually about 800-1,000 bills that relate to criminal justice. We continue following our bills of interest through each chamber and on to the Governor’s desk.

Much like football teams after winning a championship, the TCDLA lobby team celebrates for a day, then gets right back to work. We enjoy an excellent sine die party, but the work for the next session, still over a year and a half out, is already falling into place. We immediately start to formulate our agenda for the next session, prepare our full legislative report paper, and teach legislative update CLEs around the state to inform members about the new laws. Throughout the interim we also attend affiliate group, state agency, and stakeholder meetings, as well as individual meetings with legislators.

In the 87th legislative session, we face a lot of uncertainties. Not only are we in the middle of a pandemic and unsure how much access we will have to the Capitol building, we also do not know who the Speaker of the House will be. Texas will once again have a new Speaker of the House, which indicates yet another speaker’s race in 2020 just as we had in 2018. The primary difference in this year’s race is the talk of the Texas House turning Democratic. Without question, this speaker’s race has been quieter since many Representatives are hedging their bets, waiting on the results of the November election. Further, the pandemic and the social unrest of the last few months have spawned numerous bill ideas from both the right and the left, with some comments from those in the middle as well.

We have our positive agenda prepared and are ready to defend against bills that negatively affect criminal justice in Texas. Among other issues, TCDLA is looking at ways to improve grand juries and other criminal justice reform measures, such as mandatory body cameras and blind administration of photo arrays. It is anticipated the authors of the Sandra Bland Act will seek additional changes in 2021. In addition, Texas should have its own version of a bill in honor of George Floyd.

Although our legislative agenda is finalized for the 2021 session, you can email us at . Please do not hesitate to reach out if you have any questions or concerns.

The Boy with the Crime Scene Tattoo: Tattoo Evidence in Texas Courts

According to a recent survey, four out of ten adults in the U.S. (ages 18 to 69) have at least one tattoo, with roughly a quarter of the respondents acknowledging that they bear multiple examples of body art.1 Thirty percent of all college graduates have tattoos. One side effect of this popularity is the growing importance of tattoos as evidence in criminal cases. It’s so important that the U.S. government, through the National Institute of Standards and Technology, recently completed a tattoo image-matching system, Tatt-E (Tattoo Recognition Technology Evaluation) to assist law enforcement in finding criminal suspects.2

Indeed, body ink can reveal a lot about a person, and its importance transcends use as a mere form of identification. In one high-profile example in 2017, a Massachusetts judge allowed evidence of former New England Patriots tight end Aaron Hernandez’ tattoos to be admitted in a double murder trial; the tattoos, which were done soon after the slayings, included one of a revolver with five bullets in the chamber—supposedly indicative of the five shots fired into the victims’ car.3 Tattoos have become so critical that judges have sometimes resorted to creative measures to obscure a defendant’s ink during the guilt or innocence phase of a trial. One Florida judge had a cosmetologist (paid $125 a day by the state) use makeup to cover up the disturbing neo-Nazi facial tattoo of one murder defendant, while an Indiana judge had the hair of another murder suspect dyed to hide a “death row x 3” neck tattoo that apparently referred to two other murders unrelated to the one that was the subject of trial.

The significance of tattoos as evidence has even reached the U.S. Supreme Court. In the 1992 case of Dawson v. Delaware, the Court considered the case of an escaped prisoner who burglarized a house, stole a car, and brutally murdered the woman who owned the car.4 After being convicted of first-degree murder, Dawson was confronted with evidence during the penalty phase of trial about his membership in a white supremacist prison gang—including multiple swastika tattoos and an “Aryan Brotherhood” tattoo on his hand. The jury recommended the death penalty and Dawson appealed, arguing that because the murder wasn’t racially motivated, the evidence of his tattoos and association with the hate group wasn’t relevant. The Supreme Court agreed, holding that both Dawson’s Fourteenth Amendment rights and his First Amendment rights of freedom of association were violated by the admission of the tattoo evidence.

In addition, a number of courts have held that tattoo evidence can be used not just as a form of identification or as proof of an association (such as with gangs) but can be testimonial evidence as well. For example, in the 2011 case of U.S. v. Greer, the Second Circuit considered the conviction of a man arrested after police found ammunition in a car linked to the suspect, along with a car rental agreement signed by someone named “Tangela Hudson.” At the time of his arrest, police noticed the name “Tangela” tattooed on Greer’s left arm, a fact that was brought up at trial. The Second Circuit held that while the tattoo evidence was indeed both testimonial and incriminating (thus implicating his Fifth Amendment rights), since it hadn’t been compelled by the government, there was no Fifth Amendment violation.5

But there are some cases that give new meaning to the term “testimonial,” like our titular “boy with the crime scene tattoo.” The 2011 murder conviction of California gang member Anthony “Chopper” Garcia owed much to the sharp-eyed detective who noticed that Garcia’s chest tattoo bore an eerie resemblance to the crime scene of an unsolved 2004 murder of a man outside Ed’s Liquor store in east Los Angeles. The tattoo depicted a helicopter, or “chopper,” raining down bullets on the body of a man (pointed in the same direction as the actual victim), along with the Ed’s Liquor store itself complete with Christmas lights, a distinctively bowed street lamp, and a street sign—all under the chilling banner “RIVERA KILLS” (a reference to Garcia’s gang, Rivera-13). As Sheriff’s Captain Mike Parker described it, “He tattooed his confession on his chest.”

As bizarre as the Garcia case may be, he’s not the only “boy with the crime scene tattoo.” In late February 2019, Eastland’s Eleventh Court of Appeals issued its opinion in Martin v. State, in which Richard Joseph Martin, a member of the Rolling 60s Crips gang, contested his conviction for murdering fellow gang member D’Quay Harris. Believing that Harris and another gang member had robbed him and his stepdaughter, Martin shot Harris multiple times. The prosecution introduced a photo of Martin’s tattoo, which featured the following elements: a bent stop sign at Seminole Street (the shooting took place at the intersection of Seminole and Rochester); a rat with its mouth taped shut, hanging from the stop sign and shot in the chest (Harris had been shot in the chest); the rat’s legs were torn off (Harris was initially paralyzed, losing the use of his legs, before succumbing to his gunshot wounds); on one side of the rat was a person with “Ke Loc” on the eyebrow (a reference to Harris’ friend and purported eyewitness Kevorick Shedwin, who went by the nickname “Ke Loc”); and on the other side of the rat was the name “Desi” (the name of Martin’s stepdaughter who was robbed). As the court put it, “the jury was able to see that Appellant’s tattoo reflected many of the details and circumstances surrounding the shooting.”

Martin argued on appeal that the tattoo was not relevant, since it merely reflected his support of a “no snitch culture” in which informants shouldn’t cooperate with law enforcement. He also maintained that introducing the photo of his tattoo violated his First and Fifth Amendment rights, and that the prejudicial nature of the tattoo outweighed its probative value. The Eleventh Court rejected all these arguments and pointed out that the detailed tattoo was “highly probative” because “[i]n many respects, the tattoo can be viewed as a confession.” The court observed that while the tattoo was a testimonial communication, Martin had not been compelled to make it, making it “more akin to a preexisting documentary communication.”

In fact, Texas courts have routinely held that the display of a defendant’s tattoo to the jury is not a violation of Fifth Amendment rights against self-incrimination.6 Texas courts have treated tattoos as a personal identifying characteristic, just like (as one court put it) “the color of a person’s eyes, the sound of his voice, or the color of his hair.”7 Because of this, an accused may be compelled to disclose his or her tattoo to the jury regardless of its location on the body.

Evidence of particular types of body ink has been used to prove a defendant’s gang affiliations.8 It has also been deemed relevant to illustrate the defendant’s background or character or to provide evidence of the defendant’s beliefs or motives for committing the crime in question. For example, the Court of Criminal Appeals upheld the compelled display of the defendant’s tattoo of a “demon eating the brains of Christ” as relevant not only to the defendant’s character but also “an assessment of future dangerousness.”9 In various contexts such as the punishment phase of a trial, tattoo evidence has been introduced to show that the defendant has a history of violence or white supremacist ties.10

In one of the more bizarre examples in Texas law, tattoo evidence was used to show not just the defendant’s moral character, but also his “disregard for the truth” and “lack of respect for society.” In Wood v. State, the defendant challenged the admission of testimony by Sheriff David Halliburton during the punishment phase about Wood’s unique eyelid tattoos.11 The word “Lying” appeared on one eyelid, while the word “Eyes” was inked on the other. The Eastland Court of Appeals held that this testimony (which was referenced by the prosecutor during closing argument) was relevant to show Wood’s disregard for the truth, and that such evidence did not violate the defendant’s First Amendment rights.

So, when it comes to tattoo evidence, you might say (with due apologies to Don Henley), that “there ain’t no way to hide your lying eyes.” Tattoo evidence can speak volumes about a defendant, and in the case of certain poorly chosen tattoos, even provide evidence of motive and the crime scene itself. A picture is indeed worth a thousand words.

Dealing with Stress, Isolation & Illness in the Age of COVID from a Psychiatric Perspective

Many of us in American society lived demanding, socially isolated lives, even before COVID-19 entered the picture. Our daily interactions with others were frequently draining, both mentally and emotionally. Our perverse sense of duty as professionals distorted our boundaries; thus, governed by an inability to say “no,” the resultant overinvolvement in our work left little energy for ourselves. The era of COVID has only exacerbated these states of mind, resulting in weariness and feelings of desolation. We may be more connected through the Internet than our predecessors, yet a lack of social intimacy has only deepened our feelings of alienation during the pandemic. Before practical measures for combating stress, dealing with isolation, and promoting psychological and physical health can be addressed, it would behoove us to define “stress” and the “Body-Mind” relationship.

First, what does “stress” really mean? Physics’ original definition is “The interaction between a force and the resistance counter to it.” In medicine, the clinical notion was popularized by Hans Selye, a Canadian physiology researcher, who tested the impact of stress on rats. He took the concept of stress to a new level: “The nonspecific response of the body to any demand put upon it.”1 No matter what “stress” he subjected his lab rats to, including injecting toxins or the cold winter, on autopsy, there were always the same three findings, called “the triad of stress”:

  • Enlargement of the adrenal glands
  • Lymph node/immune system atrophy
  • Stomach ulcers

These findings extrapolate to humans2 in that with both species stressors cause the release of brain hormones which trigger the adrenals, where cortisol and adrenaline are produced and stored. Adrenaline signals the stomach to become acidic, which leads to ulcers – once known as the “merit badge of Wall Street.” Selye’s animal’s third symptom of stress has as its more modern counterpart GastroEsophageal Reflux Disease. GERD, a stress-induced stomach disease, is an “equal opportunity” affliction, manifesting not only in the time-pressured businessman but also in the “worry-wart” type of blue-collar worker.

The overstimulated adrenals also release cortisol, a steroid known to alter and suppress the immune system. A dysfunctional immune system cannot properly destroy the mutant cancer cells due to aging, nor can it “put the brakes on” the body’s cells attacking its glands and organs—like in the autoimmune diseases of Lupus or thyroiditis.

The oldest conception of the “Body-Mind” relationship came in the form of the Greek physician Hippocrates’s (460 BCE—375 BCE) “four humors” consisting of yellow bile, black bile, blood, and phlegm. The basic idea was that if the physician could balance these fluids, their patient should be entirely healthy.3 2000 years later, René Descartes proposed that the body and mind had no relationship and were entirely separate entities, with the body being the doctor’s realm and the immaterial mind belonging to God. The Cartesian paradigm was supplanted over time, and the “Body-Mind” relationship has been redefined on multiple occasions by such familiar figures in psychiatry as Sigmund Freud (“there must be a comprehensive fusion of biological and psychological concepts”) to less familiar personages such as his student, Franz Alexander (“physical symptoms are but a symbol of unresolved unconscious conflicts”).

Although the “Body-Mind” relationship is a bit more difficult to characterize than “stress,” modern science provides strong evidence suggesting that there is more than a nominal interconnection. Robert Ader, Ph.D., the founder of “psychoneuroimmunology” (the theory that the brain and immune system comprise a single, integrated defense system), used classical conditioning techniques with his research animals. Ader’s behavior modification paradigm consisted of force- feeding his lab rats saccharine paired with injecting them with cyclophosphamide, an anti-tumor drug and immunosuppressant. After several trials, he found that the animals could be administered only the sweet taste and still manifest a depressed immune system. For human beings, this capacity for a placebo or “mind-only based response” is much greater than for a rat.

With these understandings, the million-dollar question remains: what can you do to alleviate feelings of COVID-related stress and isolation? Since we cannot directly affect others’ behaviors, we can only change our own feelings, thoughts, and actions. However, it is critical to recognize that this intellectual answer may not be consciously endorsed by the brain’s lower regions: the limbic-emotional system or the primitive-reptilian brainstem. A salutary ego-syntonic approach that would allow all of these parts of the brain to work together in a coordinated fashion (rather than in conflict) can be achieved through a process hearkening back to A. H. Maslow’s “Hierarchy of Needs.” “Maslow’s pyramid” (see Fig. 1)4 demonstrated that a person had to satisfy the needs embodied in the bottom-most tier (e.g., physiological) before the next highest tier (e.g., safety needs) could be achieved, with the goal to continue moving upwards, thereby completing the hierarchy.

Although Maslow’s “Hierarchy of Needs” certainly has its benefits when it comes to coping with COVID-19, it may not be entirely effectual. Thus, I have devised a pandemic-focused edition of Maslow’s hierarchy:

The bottom-most hierarchy level is the most rapid and minimal in time and cost: a non-obligatory Prescription Medication Consultation. This might involve a visit to one’s primary care physician, or, if necessary, to a psychiatrist for a psychotropic medication evaluation (e.g., anti-anxiety agents, antidepressants, a sleeping pill, or a pain med). This is a useful first step, with the emphasis on it being a consultation, meaning that pharmaceuticals might not be needed or that the person may ultimately decide not to take medication.

The next level that may be entertained is Lifestyle, which involves nutrition, weight management, exercise, and good sleep hygiene. The pyramid climber does not need to take on all these lifestyle changes at once, but instead can pick one that seems doable and may add on the rest as they see fit. (It is not recommended that more than one be added at a time until you are already well-practiced in the others.)

Socialization (level 3) includes 12-step groups (e.g., Alcoholics Anonymous) which can fulfill multiple levels of needs on the hierarchy (i.e., Step 11’s admonition re: “prayer and meditation”5 is a prescription for tools found on level 5). Recreational clubs, group psychotherapy, and spiritual groups round out this social skills tier. By joining a group, not only will you experience decreased sensations of isolation, but you may also find a sense of community and an outlet for expression. Most of these groups host both in-person and virtual meetings to accommodate everyone’s needs during the pandemic.

But what if the idea of joining a group causes part of your anxiety or stress? Similarly, what if the initial adverse body signals or feelings of dysphoria while starting a new exercise regimen, or diet, are so overwhelming they drive you back to being a couch-potato or pigging out on carbs? While you may benefit from starting at level 1 of the pyramid and progressing step-by-step, if the level 3 tier of Socialization, or any other level, simply seems overwhelming then you can always start elsewhere, and become relational on a smaller, more structured scale, as may be found on level 4: Professional One-on-One. Psychotherapy, a successful treatment method for many people, is often covered by insurance, and entails 45-60 minutes at a frequency of roughly once every 1-2 weeks. Studies show its success is predicated on only two factors: that you believe it works, and that you like and respect the therapist.6

For those who prefer a more physically involved type of remedy, bodywork (a branch of healthcare with a focus on touch-based healing) is a good option. Bodyworkers are encompassed by a wide range of professionals, using techniques involving manipulative therapy, breath work, or energy medicine.7 The focus is on treating the “mind” through the “body.” Research supports the existence of abdominal neural serotonergic networks—hence the “gut feeling” truly results from the “gut brain,” as well as the gut microbiota.8,9

As for the 5th and final level, Spiritual Tools, meditation has proven to be popular and effective in furthering physical and psychological health. How to Meditate by psychologist Lawrence LeShan divides meditation into two branches: “mindfulness” and “structured.” Mindfulness, or Vipassanā10 Meditation, is the act of non-judgmentally observing one’s environment. Conversely, structured (concentrative) meditation is exemplified by the Zen Buddhist koan, an intellectually unsolvable puzzle, e.g.: “What is the sound of one hand clapping?” Movement meditations, which may be useful for those of us who feel most focused when our bodies are engaged, include yoga, t’ai chi and mindful workout routines.

Psychologist BJ Fogg’s Tiny Habits that Change Everything outlines the “baby steps” used to create an epiphany through “changing the environment.” For instance, with meditation, you could start by setting an alarm to remind you to meditate for 3 minutes a day at lunchtime, and once that has become a habit, increase the amount of time you meditate accordingly. Meditation (“listening to God”) can be complemented by prayer (“talking to God”). Prayer is an activity often “ego-syntonic” with religious beliefs. Science supports that it benefits various physical and mental diseases by physiological mechanisms, and some say divine intervention (which cannot be disproven).11

While these are all excellent methods for alleviating your COVID-related stress, it can be difficult to decide where to start. Considering that every individual has different needs, the “risk/benefit ratio” can determine where to strike a balance. Thus, one evaluates their personal experiences with health and stress and what has worked for them previously, according to their individual values. My own approach (admittedly at one extreme) to address the vicissitudes of the pandemic, is guided by a personal history of viral hepatitis and viral pneumonia acquired treating E.R. and I.C.U. patients, as well as a work history having ministered to thousands of viral and infectious illnesses. Because of my familiarity with clinical/epidemiological issues and the well-being I experience from maintaining a socially and physically active lifestyle, the benefits outweigh the potential risk of acquiring coronavirus. At the opposite end of the spectrum, a highly respected psychotherapist colleague, whose wife died from a viral infection, has found a different balance. For her, the risk of acquiring coronavirus and transmitting it far outweighs any potential benefits of being socially active, thus she maintains strict social distancing, while continuing to conduct therapy sessions and classes by teleconference.

In conclusion, even though COVID-19 has dramatically altered the avenues we use to seek stress relief, we are not without options. Using the pyramid based on Maslow’s Hierarchy of Needs, you can find a combination of treatment modalities encompassed by one or all of five levels. Some may need to start at the Prescription Medication Consultation level or the Professional One‐on‐ One level. For others, they might find it most beneficial to begin elsewhere, like at Socialization, Lifestyle, or even Spiritual Tools. When deciding where to set in motion your program, as well as which way to proceed, you may consider using the risk/benefit ratio to evaluate which level and its representative modalities fit best with your personal experiences and resources. All in all, while COVID-19 has flipped so much of our world on its head, there are treatments that you can use to decrease your feelings of stress and isolation, harmonize the Body-Mind relationship, and ultimately improve your overall physical and mental health.

Diagnostic Aid (Appendix A): The Holmes-Rahé stress scale helps to “diagnose” stress as causal to medical conditions. This eponymously named tool developed in the late ’60s was invented by two psychiatrists at the University of Washington – Thomas Holmes and Richard Rahé. They examined over 5000 medical records of patients to determine what stressful events might cause illness. Their research generated a list of some 43 “life events,” each of which was, according to statistical methods, given a different “weight” in terms of a point scale. Based on your point score from events that occurred in the previous year you can rate your chances of “stress-induced health breakdown” in the upcoming two years. https://drive.google.com/file/d/1kqmn6XukzGImqW0p5Z_Fl9AwH-he4u_T/view?usp=sharing

APPENDIX B:

Treatment Aid: An effortless relaxation or meditation technique derived from yoga has been popularized by Andrew Weil, M.D., the holistic physician from Arizona. This “4-7-8” breathing technique can be found on his 3-minute video at: https://www.youtube.com/watch?v=gz4G31LGyog

The Road of Recovery

The road to addiction is paved with self-doubt, selfishness, bad decisions, insanity, and confusion.  Getting that drink or getting that medication (drug) is the only red blip on the radar.  It challenges the importance of everything and everyone else and ultimately overcomes them.  There is a general surrender of your will and the cunning, baffling, powerful pull of the addiction takes over, completely.  You may not have ended up in jail, but you could have.  You may not have completely destroyed all of the relationships around you, but you could have.  It is important to know as you deal with all the shame and guilt that comes with this is that you have a disease.  It is not a moral failing, it is not a character defect, it is a disease.  A disease for which there can be recovery and healing.

This story is personal because it is my story. I have also found that with changes in the details, this is the story of many others, too. I took a prescription medication for anxiety and before long I was addicted. My life revolved around my next prescription or my next visit to get a prescription. We are in a stressful career, the law and lawyering can be overwhelming at times, and I was sure that I could manage the prescription and its use until I woke up one day and I could not.  “As needed” quickly became “all the time”. I knew, in the depths of my conscience, that I had no control over this drug or my use of it. It scared me, but because I have a disease, I continued to use. I used more and more of it. Some colleagues made comments about my speech or my general appearance when I was in the depth of my disease. I always had a response to deflect the true concern they had for my well-being. I was not going to give up my relationship with this drug. I could not. It made me numb, and in my addicted mind, numb was better than feeling and taking life on life’s terms. 

I continued to win cases and this only made the illogical argument that I had to have this medication even stronger. God was watching over me, and I refused to see it – all I saw was the little pill(s) that made me numb. All I could do was continue to feed the monster of addiction. Numb to everything. I lost my laugh, my tears, my love. I was simply and completely numb. I could and would lie to even the closest people to me, including my wife and children. I was fine, work was just hard. I am fine, I am just tired. I am fine, you cannot find out that I must have this drug, that I have no power over my taking this drug.

Then I get a call from the pharmacy around the time that I always waited for, it was even on my calendar, refill day. The call was that they could not refill my prescription because I had the same prescription I had recently refilled at another pharmacy. A cold sweat came over me and a huge sense of desperation. I was convinced at this point that I could not and would not make it if I did not have my special little pills. Desperation became detoxification and a nightmare of a time. I could not get my medication and my body and mind, after many years of taking it, rebelled and screamed mightily. There is something called “night terrors” which is aptly named. It is the dreams one can have while detoxifying from my drug. The dreams were so terrorizing and so real that sleep was to be avoided at all costs.  But waking hours also held their own terrors. I began to say things that were hurtful and hateful. I began to believe, truly believe, that I had killed myself (suicide) and was only able to watch my family around me and that they could not see, hear, or interact with me. I thought I was living, or not living, in someplace in between and that the verdict was still being decided as to whether I went to Heaven or Hell.  Then God stepped in for me in the form of my wife. She got the kids together and took them to her mother’s house and told me that I must go see a doctor immediately. I was in Hell and did not even have the energy to argue. I surrendered to everything at that point. The doctor said I needed professional help, and I was immediately enrolled in a treatment facility.

I do not even remember the drive to the treatment facility; detoxification was having a surreal effect on my mind and my body. Sleep was filled with night terrors and being awake was just filled with terror. I was not doing well. I was seen, upon my arrival, by a psychiatrist who specialized in addiction, and the shame of what was happening to me seemed to be all that I had. Shame was the only feeling I had, but at least it was a feeling. I was thinking like a crazy man, I was not at my home, I could not see or speak to my family and I was broken, completely. The psychiatrist, I am told, informed me that I could have died at home from the withdrawals. This was told to me again after I got clean of the drug because I did not remember the first conversation with the psychiatrist. I would have died. And, without this recovery, I would have without a doubt. I would have continued to ruin all that was right in my life.  Now, I was in treatment – the place I had so often recommended to clients that struggled with addiction. Here I was.

I started out on a cot in a room where there was another man who I had never met. I felt completely alone and disconnected from life. It appears that I slept for the first 20 to 24 hours. I woke up after the sun had gone down on another day and I was groggy and unsure of everything. I was shaky, angry, and full of shame, that dreaded shame. I ventured out of my room on the detox side of the house and walked into a dining room with more than 30 people I had never met. I felt alone and out of place though I was surrounded by people. Over the next 35 days, these people became my family with all the love and little fights that come with being a family living and struggling together. We ate together, we cried together, and we grew together. I dispelled my biggest fear while in treatment; I found out I was not alone in my struggle or my addiction.  What a wonderful gift that is. I was convinced I was absolutely and completely alone. Some kids were 18-years of age and some men and women were approaching 60 years of age.

For the first 6 or 7 days, I remained in a fog and took in as much as I could at the hourly meetings. My mind and body were recovering from the years of toxifying them. Topics of dopamine and frontal cortex and all manner of ways that intoxicants affect the brain were being discussed and I was taking in about 10% of it and wondering what was happening the rest of the time until that great day. I had been hearing ringing in my ears and could not sleep more than a few minutes at a time. I finally slept the entire night with no night terrors, I finally woke up with a clear head, something I was not accustomed to. I felt myself slipping out of my selfish little self and began wondering and asking about others’ stories and states of being. It was this journey into a fellowship of like-minded people that began the true and glorious road to recovery.

I was participating in AA meetings and NA meetings, something I had only ever recommended to clients of mine with addiction problems. I found out that my suggestions were just what I needed. During down times when we were not in formal meetings or counseling, I began to form real friendships with people from all walks of life. Two of my best friends are a surgeon from Texas and a restaurant owner from India, both of whom I met in recovery. The idea that I was not alone began to take root. I found brothers and sisters on this road to recovery. We shared the same disease, addiction.  I have now come to peace with the idea that addiction is a lifelong issue I will continue to recover from, gloriously recover from day by day, sometimes minute by minute.

When I say gloriously please do not misunderstand me. The one day at a time saying that many have heard is factual. Any addict is one drink or one fix away from destruction. One is too many, and a thousand is never enough. But the road to recovery is also paved with clear thoughts, feeling again, being present in the moment, and change. I have ventured on the road of recovery with meetings, a counselor, and a greater relationship with my God/Higher Power. I am learning that taking each day as it comes and doing so one day at a time does not have to be the nail-biting, cringe-worthy way of living I thought it was. It is much more beautiful without the constant fog and chasing my addiction, much more beautiful. For sure there are and will continue to be apologies that need to be said, amends that need to be made, but it is me doing it. Not the numbed out, always a little altered me, but me. There is peace that comes with this.  There is room for pride where there was only shame and guilt.

I think counseling has played a big part in my progress on the road of recovery.  In my mind, I thought recovery meant pain. I did not think that it was a true recovery if everything did not hurt. That is not the case. There are days where the actions of my past come to visit me, and those are certainly uncomfortable days but to make it through those days, honestly, are just more victories on my road. There is a saying that a good day is when things go well and you do not use the substance, but a great day is when the day is hard and has the problems of life and you still don’t use the substance.  I have found this saying to be very true. I am learning to take life as it is, not as how I so foolishly wanted it to be or thought I could control. I have found pleasure in things that would have bored me when I was using. I have found it much easier to listen and truly hear what people are saying and, at times, what they are not saying. This active listening was impossible while I was using, utterly impossible. One thing that I am finding out is who I really am and that who I am is enough, always. That is something I completely denied and did not believe while I was active in my addiction. I was never enough so I had to keep feeding the monster – the monster that would have certainly taken my life.

As I remain on this recovery road I look back and wonder what was it that made it so hard to reach for help. I now realize that the disease of addiction is a disease with deceit as part of the foundation. We lie about our use, we hide our use, we lie even to ourselves and ignore the voice begging for help because our addiction silences it. Another realization I have come to is that the stigma and shame that come with addiction is paralyzing, or it can be. It took an act of God to wake me up and I was put on this ride to recovery almost against my will. The earliest concerns and some that still stay with me are “what does this make me?”, “what will people think of me?”. In moments of clarity I know that this makes me a human with a disease.

Still, in our society, many see it as a moral issue when the truth is that it is a disease, one that will take everything from you. The sad part is that the uncommon part of this is getting the help we need. The stigma remains too tall, too deep and too much.  But it does not have to be. We can begin to accept our brothers and sisters with addiction.  We can begin to reach out and provide services that will take the scarlet “A” out of addiction. Some studies indicate our career, lawyers, has one of the highest rates of addiction. It is, however, not to be the end of the story. There are counselors, meetings, sponsors, friends, and family that can help us stand when we need to stand the most. Some stories are similar to mine in every town and every profession. It is time that attorneys circle the wagons and allow those that are suffering from addiction to be open and honest without the fear of scorn or mocking.  That was such a fear of mine, a paralyzing fear. I was convinced that nobody would understand and everybody would cast judgment against me. This is not a disease that is unique to us – it affects all levels of our society – but we are in a profession where support has been and can be hard to find. Recovery is a journey and not an easy one but the return of who you are and what you can and will be are certainly worth the fight. Now let us all join and support our brothers and sisters and celebrate the road of recovery. It is possible….one day at a time.

I have found that there are beautiful and caring people that will find you as you walk the road of recovery. There will be moments that you can only explain as your God/Higher Power intervening in your life.  Recovery does not need to be a religious thing but it is certainly a spiritual one in my experience. I have stumbled across and become friends with some people that have walked the dark path of addiction and are now living their very best life. I am on the road to my best life, too. It is that first step, reaching out, that too many people do not experience, and for them, I pray. The difference between an active addiction and an active road of recovery are as different as sanity and insanity.

Reach out and know hands are waiting to grasp yours. Friendly hands, experienced hands, loving hands. Desperation can either be the beginning of the end or the beginning of recovery. You can escape the craziness of addiction, and you can feel again. Celebrate recovery.

Expert Witnesses and Challenges to Expert Testimony Pt. 2

This is a continuation of Expert Witnesses and Challenges to Expert Testimony Pt. 1 in the December 2020 issue of Voice for the Defense.

III.  Texas Rule of Evidence 703
Bases of an Expert’s Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed.  If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

A. Basis of Expert Opinion

Rule 703 describes the type of information upon which an expert may base an opinion. “An expert’s opinion can be based on (1) facts the expert has personally observed, (2) facts reviewed by the expert, (3) facts the expert has been made aware of, (4) facts presented to the expert at a trial or hearing in the form of hypothetical questions, and (5) facts that are inadmissible as evidence.”  Brown and Rondon, Texas Rules of Evidence Handbook, Rule 703, p.737 (2019); Hart v. Van Zandt, 399 S.W.2d 791, 798 (Tex. 1965) (doctor should have been allowed to give an opinion on the cause of patient’s condition based on a personal examination, patient’s history and correspondence with other doctors); Williams v. Illinois, 567 U.S. 50, 67, 69 (2012) (plurality op.) (“It has long been accepted that an expert witness may voice an opinion based on facts concerning the events at issue in a particular case, even if the expert lacks first-hand knowledge of those facts. . . .  Modern rules of evidence continue to permit experts to express opinions based on facts about which they lack personal knowledge, but these rules dispense with the need for hypothetical questions.  [A]n expert may base an opinion on facts that are ‘made known to the expert at or before the hearing,’”); Duckett v. State, 797 S.W.2d 906, 920 n.17 (Tex. Crim. App. 1990) disapproved on other grounds, Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (“Rule 703 provides that the facts or information upon which an expert witness bases an opinion or inference includes that which he or she perceives or is made known to the expert at or before the hearing.”). The facts and data underlying an expert opinion need not be admissible themselves for the opinion to be admissible, as long as experts in the particular field would reasonable rely on those kinds of otherwise inadmissible facts or data in forming an opinion. In the Commitment of Regalado, 598 S.W.3d 736, 741 (Tex. App.-Amarillo 2020).

“Physicians routinely rely on a variety of sources, including patients and family members, medical records kept by others, conversations with the nurses and technicians, and x-rays, CT scans, and other test results. If physicians make treatment decisions based on such data, the argument goes, the rules of evidence should not preclude them merely from offering an opinion based on the same data. Their training and experience enable them to gauge the reliability of the hearsay data that they routinely rely on in their professional lives. Physicians also routinely consult with specialists and other physicians and rely on their opinions. Rule 703 allows an expert to consider other expert’s opinions in drawing their own opinion.”  Goode and Wellborn, Texas Practice, Guide To The Texas Rules Of Evidence, Vol. 2, 4th Ed. 2016, § 703.3, p.113; Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 352 (Tex. 2015) (“No rule prohibits experts from using other experts opinions to formulate new opinions based on their own expertise.  In fact, Tex. R. Evid. 703, and our prior cases contemplate exactly such an arrangement.”); Anderson v. Gonzales, 315 S.W.3d 582, 587 (Tex. App. – Eastland 2010, no pet.) (“An expert may rely on the opinions of other individuals that have rendered reports or diagnoses.”); Roberts v. Williams, 111 S.W.3d 113, 121-122 (Tex. 2003) (pediatrician based opinion in part on pediatric neurologist); Stam v. Mack, 984 S.W.2d 747, 749-750 (Tex. App. – Texarkana 1999, no pet.) (trial court did not err in allowing expert pediatrician to base opinion in part on expert radiologist’s opinion); Associated Indem. Corp. v. Dixon, 632 S.W.2d 833, 835-836 (Tex. App. – Dallas 1982, writ ref’d n.r.e.) (“Medical experts may rely on ‘examinations, tests and diagnosis by other doctors’”.). “Rule 703 goes beyond simply eliminating the need to introduce otherwise admissible data; expert opinion may be predicated solely on inadmissible hearsay.”  Goode and Wellborn, supra at 114; Wood v. State, 299 S.W.3d 200, 212 (Tex. App. – Austin 2009, pet. ref’d). Opinions based on evidence already admitted are admissible. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 563 (Tex. 1995).

B. Hypothetical Questions

An expert may base his or her opinion on facts presented through hypothetical questions.  To be proper under Rule 703, the hypothetical questions must be based on facts and evidence, facts within the personal knowledge of the witness, or facts assumed from common or judicial knowledge.  Gonzales v. State, 4 S.W.3d 406, 417-418 (Tex. App.–Waco 1999, no pet.). The rule does not require the expert to have personal knowledge of the facts contained in the hypothetical question.  Matson v. State, 819 S.W.2d 839, 851 (Tex. Crim. App. 1991); Moore v. State, 836 S.W.2d 255, 259 (Tex. App.–Texarkana 1992, pet. ref’d). The questions may assume facts per the questioner’s theory of the case as long as the assumed facts can be inferred from facts and evidence.  Barefoot v. State, 596 S.W.2d 875, 887-888 (Tex. Crim. App. 1980).  The questions do not have to assume all of the facts presented in evidence. The questioner can limit the facts the experts should consider on direct examination, anticipating that the opposing party will vary the hypothetical on cross-examination.

However, if an omission makes the hypothetical questions misleading, the question is improper. Harris v. Smith, 372 F.2d 806, 812 (8th Cir. 1967).  Hypothetical questions may include facts not yet admitted into evidence as long as the proponent of the expert testimony eventually introduces those facts into evidence.  If testimony supporting the hypothetical is never offered, a court has the discretion to strike the expert’s opinion and to instruct the jury not to consider the testimony in its deliberations. If an instruction to the jury appears insufficient to cure the harm the trial judge may declare a mistrial. Brown and Rondon, Texas Rules of Evidence Handbook 2019, p. 740. The use of hypothetical questions has been subjected to criticism as being clumsy, artificial, and time-consuming. Due to the change in modern evidentiary rules that allow an expert to base his opinion on a broader range of information, the use of the hypothetical question is now generally unnecessary. Williams v. Illinois, 567 U.S.50 69 (2012) (plurality op.). 

C. Confrontation Issues

Rule 703 allows expert witnesses to base opinions on inadmissible facts, but the rules of evidence are subject to constitutional provisions.  Crawford v. Washington, 541 U.S.36, 61 (2004); Wood v. State, 299 S.W.3d 200, 212 (Tex. App.–Austin 2009, pet. ref’d) (“[E]vidence rules cannot trump the Sixth Amendment”). Therefore, Confrontation Clause issues can arise in criminal cases where an expert relies on hearsay information in forming an opinion. There is not a problem if the expert is available for cross-examination and the underlying information is not used to prove the truth of the matter asserted but instead is used only to explain the basis of the expert’s opinion. Martinez v. State, 311 S.W.3d 104, 112 (Tex. App.–Amarillo 2010, pet. ref’d) (Confrontation Clause not violated merely because an expert bases an opinion on inadmissible testimonial hearsay; testifying expert’s opinion is not hearsay and testifying expert is available for cross-examination).

However, if the expert conveys the substance of the testimonial out of court hearsay statements to the jury, the defendant has not had an opportunity to cross-examine the person who made the statements and the proponent of the expert testimony does not establish the declarant’s availability, the defendant’s right to confrontation is violated.  Crawford v. Washington, 541 U.S. at 68; United States v. Mejia, 545 F.3d 179, 198-199 (2nd Cir. 2008) (expert’s reliance on the repetition of out of court testimonial statements by individuals during the course of custodial interrogations violated the defendant’s rights under the Confrontation Clause). Also, out of court testimonial statements cannot be communicated to the jury in the guise of an expert opinion.  United States v. Lombardozzi, 491 F.3d 61, 72 (2nd Cir. 2007); United States v. Flores-de-Jesus, 569 F.3d 8, 19-20 (1st Cir. 2009). Testimonial statements do not have to be spoken communication.

In Melendez-Diaz v. Massachusetts, the Supreme Court held that affidavits by chemists declaring that the evidence seized was cocaine were testimonial statements under Crawford, admission of the certificates without the chemists’ testimony violated the defendant’s confrontation rights because the certificates were functionally identical to live, in-court testimony, and there was no showing that the analysts were unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine them. Melendez-Diaz v. Massachusetts, 557 U.S. at 310-311.  However, when an expert bases an opinion on inadmissible evidence that does not reveal the contents of the evidence in his testimony, there is generally no violation of the Confrontation Clause.  Williams v. Illinois, 367 U.S. at 78, 79.

IV. Texas Rule of Evidence 704
Opinion on An Ultimate Issue

An opinion is not objectionable just because it embraces an ultimate issue

Rule 704 allows witnesses to express opinions on ultimate issues to be decided by the trier of fact.  It is a rejection of the common-law rule that no witness could testify to an ultimate issue in a trial for fear the witness might invade the province of the jury.  The current rule focuses on whether an opinion is otherwise admissible or is objectionable under another evidentiary rule.  Both lay and expert witnesses may give an opinion about an ultimate fact or issue under Rule 704 as long as the lay opinion is helpful under Rule 701 or the expert’s opinion will assist the trier of fact under Rule 702.  Helena Chem Co. v. Wilkins, 477 S.W.3d 486, 499 (Tex. 2001); Blumenstetter v. State, 135 S.W.3d 234, 248-249 (Tex. App.–Texarkana 2004, no pet.) (expert testimony that defendant was intoxicated based on his breath-test results and retrograde extrapolation should have been excluded as a scientifically unreliable opinion on an ultimate issue under Rule 704); Gonzales v. State, 4 S.W.3d 406, 417-418 (Tex. App.–Waco 1999, no pet.) (expert testimony about Child Sexual Abuse Accommodation Syndrome and typical behavior patterns of victims aided jury and did not decide ultimate fact issues); Russell v. Ramirez, 949 S.W.2d 480, 489 (Tex. App.– Houston [14th Dist.] 1997, no writ) (under Rule 704, accident reconstruction witness could testify that defendant driver’s failure to drive at a legal speed limit was a “cause in fact” of the passenger’s death). 

Opinions that do no more than tell the jury what verdict to return, whether a criminal defendant is guilty or innocent, what punishment to assess, or what witnesses to believe, are mere personal conclusions and are not helpful to a jury and therefore not admissible.  Kirkpatrick v. State, 747 S.W.2d 833, 836 (Tex. App.–Dallas 1987, pet. ref’d) (while Rule 704 authorizes opinion testimony on an ultimate issue, the opinion must be otherwise admissible and the opinion of one witness as to the veracity of another’s testimony is not otherwise admissible); Taylor v. State, 774 S.W.2d 31, 34 (Tex. App.–Houston [14th Dist.] 1989, pet. ref’d) (error to permit police officer to testify that defendant’s statement to him was not credible; witness could not give an opinion about the truth or falsity of other testimony, but error was harmless because the “jury could not logically have reached a different conclusion”); Ayala v. State, 352 S.W.2d 955, 956 (Tex. Crim. App. 1962) (counsel cannot ask a witness’ opinion on whether another witness’ testimony is true or false, but the defendant was not harmed when State cross-examined him on whether police officers were incorrect in their testimony about his intoxicated demeanor); Smith v. State, 737 S.W.2d 910, 915-916 (Tex. App.–Ft. Worth 1987, pet. ref’d) (defendant could not ask a doctor his opinion about whether a child “had been raped or not” because the response would have amounted to an inadmissible comment on the child’s credibility).

A witness cannot give an opinion on a pure question of law because such a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact.  Williams v. State, 531 S.W.3d 902, 921 (Tex. App.– Houston [14th Dist.] 2017, pet. granted 3/21/18).  An expert may not instruct the jury on the requirements of the law or express an opinion on the meaning or content of the law and the jurisdiction. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 752-753. Courts have permitted expert witnesses to offer opinions on mixed questions of law and fact in which “a standard or measure has been fixed by law and the question is whether the person or conduct measures up to that standard.” Rule 704 does not permit any witness to testify that a particular legal standard has or has not been met when the standard is expressed as a legal term that would be unclear to those outside the legal profession. Thus, for the opinion to be admissible, there must be a showing that the witness knows the proper legal definition in question. If the legal term carries an ordinary meaning that is understood by or can be made clear to the witness, Rule 704 does not bar opinion testimony on that matter.  If the term is one that the witness does not normally use or that does not carry an ordinary meaning, the witness may not use that term in testimony unless the term has been defined and clarified by the judge.  Id. at pp. 753-754.

V. Texas Rule of Evidence 705
Disclosing the Underlying Facts or Data and Examining an Expert About Them

(a)  Stating an Opinion Without Disclosing the Underlying Facts or Data Unless the court orders otherwise, an expert may state an opinion–and give the reasons for it–without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

(b)  Voir Dire Examination of an Expert About the Underlying Facts or Data. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may–or in a criminal case must–be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.

(c)  Admissibility of Opinion. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.

(d)   When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed; Instructing the Jury. If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect.  If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly.

The procedural provisions of Rule 705 serve three purposes: (1) to ensure that the judge and opposing party have an opportunity to discover whether the proffered expertise is based on sufficiently reliable underlying facts or data to be admissible, (2) to ensure that inadmissible facts or data reasonably relied on by an expert and disclosed to the jury are not misused as substantive evidence by the fact-finder, and (3) to provide the trial judge with the discretion to prevent disclosure of inadmissible facts or data that, although supportive of the expert’s opinion, that are unfairly prejudicial. Rule 705 permits a broader range of expert witness testimony than the common law did and allows greater flexibility in how the expert may testify. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 755-756.

Rule 705(a) permits an expert to give an opinion without first testifying to the underlying facts or data.  Rule 705(b) requires the trial judge to give the opposing party an opportunity, if the party so requests, to voir dire the expert outside the jury’s presence on the facts and data underlying their opinions. In civil cases, the trial court has the discretion to provide such an opportunity. In criminal cases, it is mandatory. Rule 705(c) makes the expert’s opinion inadmissible if the court finds that the expert does not have a sufficient basis for their opinion.  Rule 705(d) provides that, if the probative value of the inadmissible facts or data on which the expert is reasonably relying in helping the jury to evaluate the opinion is outweighed by their prejudicial effects, courts must exclude these underlying facts or data. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992) (court must determine whether disclosure of data would be “more prejudicial than probative”); Kramer v. State, 818 S.W.2d 923, 925 (Tex. App.–Houston [14th Dist.] 1991, pet. ref’d) (evidence may be admitted if “the probative value outweighs the probability that it will be improperly used by the jury”); Speering v. State, 763 S.W.2d 801, 807 (Tex. App.–Texarkana 1988) (court must not permit disclosure of underlying evidence to the jury if evidence’s value in supporting expert’s opinion is outweighed by the danger that it will be used for an improper purpose), reformed on other grounds, 797 S.W.2d 36 (Tex. Crim. App. 1990).  Rule 705(d) is slanted more toward exclusion than is Rule 403, where the probative value must be “substantially” outweighed by a counterfactor before the relative evidence may be excluded. Brown and Rondon, Texas Rules of Evidence Handbook 2019, pp. 756-757.

A. Rule 705(a). Stating An Opinion Without Disclosing Underlying Facts or Data

“Rule 705(a) permits the expert to give an opinion at the outset of the explanatory testimony without first testifying to the underlying facts or data. In fact, the rule permits the witness to be qualified as an expert and then give a one-sentence opinion under direct examination.”  Brown and Rondon, supra at 757. A primary goal of Rule 705 was to eliminate the need for the cumbersome hypothetical question that had historically been the only mode for an expert with no personal knowledge of the facts to express an opinion. While the rule still allows hypothetical questions, it does not require them. The trial judge retains the discretion to require advance disclosure of facts and data that the expert used in forming the opinion.  Brown and Rondon, supra at 758. Because an expert who has no personal knowledge of the specific facts of a case, is not limited under Rule 703 to giving an opinion in response to a hypothetical question, they can base an opinion solely on inadmissible and unadmitted evidence. The rule also eliminates the need to inform the jury, before the expert gives the opinion, of all the facts taken into account in forming the opinion.  Joiner v. State, 825 S.W.2d 701, 707-708 (Tex. Crim. App. 1992); Ramirez v. State, 815 S.W.2d 636, 651 (Tex. Crim. App. 1991). If the facts and data on which the opinion is based are not disclosed by the proponent of the evidence, ordinarily the opponent will request such disclosure on cross-examination. Nenno v. State, 970 S.W.2d 549, 564 (Tex. Crim. App. 1998); Moranza v. State, 913 S.W.2d 718, 727-728 (Tex. App.– Waco 1995, pet. ref’d) (trial court did not err in allowing State to impeach expert witness with hearsay statements included in another expert’s report because witness relied on a summary of the report to form his opinions). However, while both the direct examiner and the cross-examiner normally have great discretion to explore the factual basis for an expert’s opinion, some evidence upon which the expert relied in rendering his opinion may be inadmissible before the jury because of the danger the jury may improperly use those facts as substantive evidence which is addressed by Rule 705(b).  Brown and Rondon, supra at 760-761.

B. Rule 705(b). Voir Dire Examination of an Expert

In criminal cases, Rule 705(b) requires a voir dire examination outside the jury’s presence, upon request of the opponent, to determine the underlying facts or data of the expert’s opinion. Alba v. State, 905 S.W.2d 561 (Tex. Crim. App. 1995), cert. denied 516 U.S. 1077; Brook v. Brook, 865 S.W.2d 166 (Tex. App.–Corpus Christie 1993); Harris v. State, 133 S.W.3d 760 (Tex. App.–Texarkana 2004), pet. ref’d, habeas corpus denied, denial of post-conviction relief affirmed; Goss v. State, 826 S.W.2d 162 (Tex. Crim. App. 1992), cert. denied 509 U.S. 922 (because of mandatory nature of rule permitting defendant to conduct voir dire examination of State’s expert, the trial judge’s denial of timely and proper motion for such a hearing constitutes error). The voir dire examination under Rule 705(b) is supposed to be directed to the underlying facts or data upon which the expert’s opinion is based. Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995), cert. denied 516 U.S. 1077. It has been said that the purpose of the voir dire examination is two-fold: (1) it allows the defendant to determine the foundation of the expert’s opinion without the fear of eliciting inadmissible evidence in the jury’s presence, and (2) it may supply the defendant with sufficient ammunition to make a timely objection to the expert’s testimony on the ground that it lacks a sufficient basis for admissibility.  Shaw v. State, 329 S.W.3d 645 (Tex. App.– Houston [14th Dist.] 2010).

While the Rule 705(b) hearing is ostensibly for the opponent of the evidence to determine and explore the underlying facts and data that supports the expert’s opinion, it should be a vehicle by which the opponent may challenge the admissibility of the expert’s testimony by challenging the qualifications of the expert and the relevance and reliability of the expert testimony. The opponent should challenge the admissibility of the expert testimony and include all applicable legal grounds and should make the challenge outside the presence of the jury. However, an opponent’s objection to an expert’s qualifications is separate from a Rule 705(b) hearing, which is supposed to only explore the underlying facts or data of an expert’s opinion.  Jenkins v. State, 912 S.W.2d 783, 814 (Tex. Crim. App. 1995) (op. on reh’g) (it was harmless to deny Rule 705(b) hearing outside the jury’s presence because the defendant already had a copy of the witness’ report setting out the facts and data and the expert did not testify to damaging and inadmissible material). The opponent of expert testimony should seek to have the Rule 705 hearing well before trial. The opponent of the evidence should use such a hearing as an opportunity to subpoena the records of the expert to the hearing and all the expert’s underlying documentation in the case. Also, the opponent could serve a subpoena on the expert seeking production of the authorities, articles and publications relied on by the expert in rendering his opinion in this particular case. The opponent of the evidence should request that he be allowed to review all of the expert’s authorities before the Rule 705 hearing, or at least before the expert’s testimony at trial. The party seeking a hearing outside the presence of the jury should state all the purposes for which the opponent wants to examine the expert witness. Jenkins v. State, supra.

C. Rule 705(c). Admissibility of Opinion

Rule 705(c) makes the expert’s opinions inadmissible if the trial court finds that the expert does not have a sufficient factual basis for the opinion. While the inquiry under the Daubert/Kelly/Robinson line of cases focuses on the reliability and relevance of an expert’s scientific theory and methodology without regard for the conclusions, Rule 705(c) focuses on the specific factual data that supports the expert’s conclusions.  The issue here is not whether experts can reach reliable results on a certain issue, but whether the facts that the expert in the present case relied on were adequate to support a conclusion.”  Brown and Rondon, supra at p.763; Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017); Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 832-833 & n.11 (Tex. 2014); In the Commitment of Regaldo, 598 S.W.3d 736, 741 (Tex. App.-Amarillo 2020).

In Flowers v. State, 2002 WL 31247093 (Tex. App.–Dallas, pet. ref’d), the admission of testimony from sexual assault nurse examiner that in 80% to 85% of cases of sexual assault on children the physical examination of the victims is completely normal, was not an abuse of discretion in an aggravated sexual assault case. The nurse testified to the authors of some of the articles she relied upon in her testimony and there was no evidence in the record that the expert failed to provide the titles of the articles she relied on to defense counsel as she promised.

In Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006), that expert testimony from a certified legal nurse consultant that no rape occurred because no DNA evidence or physical evidence linked the defendant to the alleged rape, was inadmissible in a sexual assault trial. The court of appeals failed to conduct an adequate inquiry into the consultant’s qualifications, evaluate the reliability of the testimony and give proper deference to the trial judge’s ruling excluding the testimony, thus the judgment of the court of appeals was vacated and the case remanded. In Escamilla v. State, 334 S.W.3d 263 (Tex. App.–San Antonio 2010, pet. ref’d), the trial court erred when it allowed a SANE to testify that the quick dilation of the victim’s anus was consistent with sexual abuse because the testimony was not reliable as the witness could not elaborate to the extent to which the underlying scientific theory and technique were accepted as valid in the relevant scientific community, she made only vague references to the literature supporting her underlying scientific theory and technique, and she did not appear to understand the concept of the potential rate of error of the technique.

In Teczar v. State, 2008 WL 4602547, 2011 WL 1743756 (Tex. App.– Eastland, pet. ref’d), a clergy abuse victim who operated counseling services to clergy abuse victims, was not qualified to testify as an expert on the psychology and behavior of those who would commit child sex abuse because the witness had a lack of actual institutional instruction in the field, other than five-weekend seminars, and the witness’ testimony was not supported by evidence of any scientific theory, soft or otherwise. The witness was not qualified as an expert to advance conclusions, and the witness’s testimony about the defendant’s activities with him was remote in time and was character conformity evidence. 

D. Rule 705(d). When Otherwise Inadmissible Underlying Facts or Data May be Disclosed

“Rule 705(d) provides that the inadmissible facts or data on which the expert is reasonably relying will be excluded if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. The balance is between the probative value of the admissible data to help the jury evaluate the reasonableness of the expert’s opinion and either, (1) the unfairly prejudicial effect of this inadmissible material on the opposing party or, (2) the likelihood that the jury may use this inadmissible data as substantive evidence for some other purpose. If the otherwise inadmissible facts and data supporting the expert’s opinion are disclosed to the jury, the opponent, upon a timely request, is entitled to an instruction restricting the jury’s consideration of that inadmissible data solely to its permissible explanatory purpose.”  Brown and Rondon, supra at p.765; Depena v. State, 148 S.W.3d 461, 470 n.10 (Tex. App.– Corpus Christi 2004, no pet.). The right to this limiting instruction would apply only when the underlying facts or data were otherwise inadmissible.

Trial courts may permit experts to give opinions, but not allow them to testify to all of the admissible facts that led to their conclusions.  Rule 705 does not give the proponent of the expert testimony the right to disclose all the facts and underlying data. First Southwest Lloyd’s Insurance Company v. MacDowell, 769 S.W.2d 954, 958 (Tex. App.–Texarkana 1989, writ denied). Thus, the trial judge has the discretion to limit the admission of such underlying inadmissible data under Rule 403 if it is unduly prejudicial, confusing, or misleading. Id. at 958.  An expert witness cannot be used as a conduit to put the party’s self-serving hearsay version of the facts before the jury. Davis v. State, 268 S.W.3d 683, 701-702 (Tex. App.–Ft. Worth 2008, pet. ref’d) (the trial court properly prohibited the defendant from asking the detective, as an expert witness, about statements that defendant had made to the detective; the defendant admitted that the value of the statements was not as an explanation or support for the detective’s expert opinion, but instead as substantive evidence to advance his own self-defense claim, a purpose that Rule 705(d) intends to prevent).

In Walck v. State, 943 S.W.2d 544, 545 (Tex. App.–Eastland 1997, pet. ref’d), the trial court did not err in barring the defendant’s expert from relating, on direct examination, the content of the interview between the defendant and the expert. The defendant claimed that under Rule 803(4), his expert could relate inadmissible hearsay on the defendant’s state of mind at the time of the offense because it was imperative to the expert’s opinion. The trial and the appellate court disagreed with that contention, concluding that the evidence was not admissible under Rule 803(4) because the expert did not examine the defendant for purposes of medical diagnosis or treatment, but instead conducted the evaluation to formulate an opinion about “sudden passion.” The court of appeals reasoned that the trial judge had the discretion to exclude the defendant’s self-serving out of court statements under Rule 705(d) because the danger that they would be used for an improper purpose outweighed any probative value they might have had in explaining the expert’s opinion. Id. at 545-546. While generally, an expert may testify to the facts underlying his or her opinion, if the underlying facts or data would otherwise be inadmissible, they may not be disclosed if their probative value is outweighed by their prejudicial effect. In the Commitment of Regalado, 598 S.W.3d 736, 742 (Tex. App.-Amarillo 2020). A limiting instruction may mitigate the prejudice of admitting testimony regarding the facts upon which the expert relied in admitting his or her opinion.  Such instruction should instruct the jury to not consider the testimony for its truth, but only as the basis of the opinion of the expert.  In the Commitment of Lares, 2020 WL 2441368, *5 (Tex. App.-San Antonio).

Rule 705(d)’s balancing test does not need to be conducted on the record. Davis v. State, 268 S.W.3d 683, 701 (Tex. App.–Ft. Worth 2008, pet. ref’d). Unlike under Rule 403, the unfairly prejudicial effect does not need to substantially outweigh the probative value before the underlying facts or data can be excluded. A preponderance of the evidence is sufficient. The balancing provision of Rule 705(d) is mandatory so that a trial judge must, upon a timely request, exclude any references to the inadmissible material if he determines that the prejudicial effect outweighs the probative value. Id.

E. Conclusion

Rule 705 substantially relies on cross-examination by the opponent to determine whether the expert testimony is admissible and to provide the trier of fact with all the necessary information needed to evaluate the testimony. In a criminal case, an opposing party (most often a defendant) is entitled to the Rule 705 hearing. So, the defense should seek a Rule 705 hearing since it is required that the court grant the hearing upon request.

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

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

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

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

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

What is parole?

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

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

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

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

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

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

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

How much time will an offender serve before parole eligibility?

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

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

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

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

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

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

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

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

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

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

What are the chances an offender will make parole?

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

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

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

What is Discretionary Mandatory Supervision?

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

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

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

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

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

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

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

Can you give me an example of DMS eligibility?

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

So what makes DMS voting different?  

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

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

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

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

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

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

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

What are disqualifying offenses for DMS?

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

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

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

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

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

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

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

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

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

What is Parole in Absentia?

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

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

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

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

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

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

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

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