Shout out to Justin Underwood for a recent vitory in a week-long Intox Manslaughter and Manslaughter trial in El Paso. Trial resulted from an accident on I-10 in a construction zone. No witnesses at scene, but cops said D was intoxicated. Only officer at hospital said Intox, based solely off HGN and interaction with D—an interaction he described as perfectly normal about 20 times, says Justin. D consented to blood draw an hour and 40 minutes after accident: .086 +/– .009. After a hard-fought contest and 9 hours of jury deliberation, Justin heard the big NG. He credits Deandra Grant Clendenin and Mark Thiessen for their help in his preparation. Congratulations on a tough win, Justin.
Chuck Lanehart sends out a shout out to Danny Hurley of Lubbock for a significant win recently in 140th District Court, Lubbock County. The trial was about a 64-year-old medical school professor (PhD) accused of Indecency with a Child, 7 counts. Chuck says, “It was a story of Mr. and Mrs. Wilson and 10-year-old next-door neighbor ‘Denise’ the Menace, on steroids.” The neighbor child roamed the neighborhood entering everyone’s home when she had the urge, pooping in the client’s pool, drawing phallic symbols on the sidewalk in chalk, coming in unannounced at very private times. D, a decorated war hero of Iraq (Bronze Star in 2004), was depressed, suffered PTSD and adult ADD, and was the typical absent-minded professor. On the weekend in question, D had been at Balmorhea State Park scuba diving and hadn’t taken his meds for four days. He was particularly goofy when he returned and neighbor kids wanted to sleep in his RV. At some point during the night, they woke him up and he exposed himself. They claimed he made them “touch it.” He denied that they touched him with anything but a glitter paint brush. D pled no contest under Article 1.15 of CCP, which still required that the state meet their burden of proof. Judge Darnell surprised everyone by doing the right thing and finding the client not guilty of Indecency by Contact but guilty of Indecent Exposure. We suspect it was because the 10-year-old got caught in several significant lies.
Before and during trial Danny begged for a five-year sentence to Indecent Exposure. The prosecution wanted 12–15 TDCJ on a 3g offense. Judge Darnell sentenced the client to 10 years of probation, with 90 days shock (sex offender registration is required because of age of child). Danny reports he was assisted by an outstanding team, including mitigator Lindsey Craig (a TCDLA member), investigator Hal Humphreys, and law student Keltin VonGonten. Great job, team.
A shout out to Ted Wood of Houston for some perceptive lawyering. Client received a life sentence, but Ted recognized an error in the indictment and argued in the First COA that the indictment did not allege a first-degree felony. He was thus able to demonstrate that the life sentence was illegal. The case was remanded for a new punishment hearing within the proper range of punishment 2 to 20 years. Way to go, counselor.
Jani Maselli notes that the appellate section of their public defenders office has reeled off an impressive number of wins lately:
- Nick Hughes had a 30-year sentence reversed for jury charge error. Nick, who originally lost on appeal to the 14th Court of Appeals, convinced the opinion’s author to change her mind on a motion for rehearing—though, he still lost 2–1. He successfully petitioned the CCA, which reversed and remanded, then the COA reversed.
- In another recent win, Nick Mensch had a capital murder case reversed for jury charge error. The trial court failed to include an instruction regarding the voluntariness of the confession under CCP 38.22 § 6.
- Two weeks earlier, Cheri Duncan had an aggravated sexual assault of a child case reversed because the trial court failed to elect at the close of the case-in-chief which alleged incident of sexual assault it sought to submit to the jury.
- And finally, on a motion for a new trial team of Sarah Wood and Scott Pope and a motion for new trial granted on insufficient evidence to support the verdict, the case fell apart: It was dismissed.
An impressive string of wins for the warriors in the Houston public defenders office. Congratulations to the whole PDO team.
A shout out to Rick Harrison and Amanda Branans, victorious in a case where client was charged with agg sex assault from 2012—originally a continuous but indicted without the continuous. Complaining witness was his stepsister. His dad and her mom (who was actually her sister and had adopted her) got divorced. D had moved to Dallas after graduating high school and moved in with the family. On academic scholarship to UTA, D worked full time, went to school, and helped with his siblings, taking them to and from school and helping with homework and making dinner. When CW’s mom moved out with the kids during the divorce, D continued to help out. When mom remarried and wanted to move the kids to Florida, the unhappy dad said he was going to fight that and try to keep kids. Then CW outcries that D had been sexually assaulting her for years, her story changing from the CAC interview to when on the stand. Dad testified, his brother testified, and D testified. Judge said he found the CW to be credible but also found D credible—and ruled not guilty. Congrats on a good win, team.
Kudos to Jim Huggler of Tyler, who was named a new board member for the National Conference of Bar Foundations. Jim, who’s been active in his local foundation as well as the Texas Bar Foundation, now takes the next step. In addition, he has served three terms as president of the Smith County Criminal Defense Lawyers and as president of the Smith County Bar Association and the Smith County Bar Foundation, also finding time to serve on the State Bar CLE Committee and the Advanced Criminal Law Course Planning Committee. In 2011 he received the Weldon Holcomb Award from the Smith County Criminal Defense Bar and in 2012 the Smith County Bar Association Award of Excellence. A shout out to Jim for all his good work.
Editor Sarah sends along a shout out to Michael Mowla for this post on the Dallas Criminal Bar listserve:
“Whenever the State appeals an order (usually after you win a MTS), read the State’s notice of appeal carefully and make certain that the notice strictly complies with the certification requirements in Tex. Code Crim. Proc. Art. 44.01(a)(5) and the 20-day filing-deadline requirement of Tex. Code Crim. Proc. Art. 44.01(d). These requirements are jurisdictional and not merely for show. The State appealed an MTS in a DWI case that David Burrows and Eric Reed won in Fannin Co., and they brought me on to handle the appeal for the client. I noticed that in the original notice of appeal, the State failed to comply with the cited statutes, a fatal defect that was brought to the attention of the Court of Appeals. To ‘cure’ the defect, the State files an ‘amended notice of appeal’ well after the 20-day filing-deadline requirement of Art. 44.01(d).
“I filed [a] Motion to Dismiss the State’s Appeal for Want of Jurisdiction, which was granted by the Court of Appeals [available in the Motion Bank of the members-only section of the TCDLA website, along with the opinion].
“The State loves to play ‘gotcha’ with our clients on procedural matters, and this is one of the few opportunities we have to return the ‘procedural-gamesmanship’ favor.”
DWI Committee Co-Chair Mark Thiessen notched another win in his specialty. Mark described D as “a great kid” who went to MIT and now works for the Department of Defense doing programming for our satellites. Been flying in from Boston for over 20 months. He wrecked his car into a parked car on NYE. Mark notes: “HGN 6, WAT 5, OLS 3, and even said the dreaded ‘I couldn’t do that sober.’” D refused chemical test and they didn’t get a warrant. In a tense trial, overzealous prosecutor objected to everything. Mark says he even told him at a bench conference, “I just hope the jury thinks you’re as annoying as I do.” Mark portrayed D as a nerdy and scared 21-yr-old—and that’s not intoxicated. Jury apparently agreed and returned the big NG. All in a day’s work, eh counselor?
