⢠'-Oft! - Voice For The Defense Online
⢠'-Oft! - Voice For The Defense Online
⢠'-Oft! - Voice For The Defense Online
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
VOICE<br />
FOR THE DEFENSE<br />
FOR THE<br />
• '-<strong>Oft</strong>!<br />
Volume 38 No. 9 | November 2009<br />
Competency Catch-22<br />
Jeanette Kinard<br />
Thinking Outside the<br />
DWI Voir Dire Box<br />
J. Gary Trichter
WINNER<br />
STAND OUT FROM THE CROWD<br />
WITH A WEB SITE FROM FINDLAW<br />
In today’s competitive world, it takes a legal specialist to make your firm stand out<br />
on the web. At FindLaw, our team of legal Web site development professionals is<br />
100% focused on creating award-winning law firm sites that are highly visible, with<br />
the kind of exceptional design and relevant content that drives clients to your door.<br />
And because visibility is an ongoing endeavor, our team continually enhances your<br />
site to improve your search engine rankings. <strong>The</strong> result? Your Web site will work as<br />
hard as you do.<br />
Let FindLaw help you increase your Web visibility and take your site to a new level<br />
of performance.<br />
Contact us at 1-866-347-6748 or visit lawyermarketing.com today.
contents<br />
g Features<br />
g ...... Columns<br />
Cc..JUJJJJJ!:f<br />
24 I Competency Catch-22: A Plea for<br />
Attorney Discretion When Considering<br />
Competency Evaluations for Defendants<br />
Facing Minor Charges<br />
By Jeanette Kinard<br />
32 Thinking Outside the DWI Voir Dire Box<br />
By J. Gary Trichter<br />
48 Catch of the Day: Defendant's Motion to<br />
Protect the Fairness of Future Juries<br />
By J. Gary Trichter and Mark Thiessen<br />
8 President's Message<br />
11 Executive Director's Perspective<br />
13 Editor's Comment<br />
15 Federal Corner<br />
18 Said & Done<br />
g Departments<br />
5 TCDIA Member Benefits<br />
6 Staff Directory<br />
7 CLE Seminars and Events<br />
39 Significant Decisions Report<br />
Volume 38 No. 9 | November Issue<br />
<strong>Voice</strong> for the <strong>Defense</strong> (ISSN 0364‐2232) is published monthly, except for January/February and July/August, which are bimonthly,<br />
by the Texas Criminal <strong>Defense</strong> Lawyers Association Inc., 1717 W. 6th St., Ste. 315, Austin, Texas 78703. Printed in<br />
the USA. Basic subscription rate is $40 per year when received as a TCDLA member benefit. Non‐member subscription is<br />
$75 per year. Periodicals postage paid in Austin, Texas.<br />
POSTMASTER: Send address changes to <strong>Voice</strong> for the <strong>Defense</strong>, 1717 W. 6th St., Ste. 315, Austin, Texas 78703. <strong>Voice</strong> for the<br />
<strong>Defense</strong> is published to educate, train, and support attorneys in the practice of criminal defense law.<br />
CONTRIBUTORS: Send all feature articles in electronic format to <strong>Voice</strong> for the <strong>Defense</strong>, 1717 W. 6th St., Ste. 315, Austin,<br />
Texas 78703, 512-478-2514, fax 512-469-9107, c/o chattersley@tcdla.com or champton@tcdla.com.<br />
Statements and opinions published in the <strong>Voice</strong> for the <strong>Defense</strong> are those of the author and do not necessarily represent the<br />
position of TCDLA. No material may be reprinted without prior approval and proper credit to the magazine. © 2009 Texas<br />
Criminal <strong>Defense</strong> Lawyers Association.
<strong>Voice</strong> for the <strong>Defense</strong><br />
EDITOR<br />
Greg Westfall<br />
<strong>For</strong>t Worth, Texas<br />
817-877-1700<br />
westfall@wpcfirm.com<br />
SIGNIFICANT DECISIONS REPORT EDITOR<br />
Cynthia L. Hampton<br />
TCDLA Home Office<br />
512-478-2514<br />
champton@tcdla.com<br />
FEATURE ARTICLES EDITOR<br />
Jani Maselli<br />
Houston, Texas<br />
713-757-0684<br />
jjmaselli@aol.com<br />
DESIGN, LAYOUT, EDITING<br />
Craig Hattersley<br />
TCDLA Home Office<br />
512-478-2514<br />
chattersley@tcdla.com<br />
PRINTING<br />
Art Jam Productions Inc.<br />
512-389-1747<br />
admin@artjampro.net<br />
PRESIDENT Stanley Schneider | Houston PRESIDENT‐ELECT William Harris | Ft. Worth FIRST VICE PRESIDENT Keith S. Hampton | Austin<br />
SECOND VICE PRESIDENT Lydia Clay-Jackson | Conroe TREASURER Bobby Mims | Tyler SECRETARY Emmett Harris | Uvalde<br />
DIRECTORS<br />
John Ackerman, San Antonio<br />
Susan E. Anderson, Dallas<br />
Kerri K. Anderson-Donica, Corsicana<br />
Stephen Baer, Dallas<br />
Robert J. Barrera, San Antonio<br />
Samuel E. Bassett, Austin<br />
Jason Butscher, Sherman<br />
Jason Cassel, Longview<br />
Jaime Carrillo, Kingsville<br />
Clay Conrad, Houston<br />
Harold Danford, Kerrville<br />
Jim Darnell, El Paso<br />
Emily DeToto, Houston<br />
Danny Easterling, Houston<br />
Steven R. Green, Athens<br />
Michael C. Gross, San Antonio<br />
Tip Hargrove, San Angelo<br />
John R. Heath Jr., Nacogdoches<br />
Sam Lock, San Antonio<br />
Constance A. Luedicke, Corpus Christi<br />
James Makin, Beaumont<br />
Jim W. Marcus, Austin<br />
Ray Merino, McAllen<br />
Patrick Metze, Lubbock<br />
David Moore, Longview<br />
Doug Murphy, Houston<br />
John Niland, Austin<br />
Dave O’Neil, Huntsville<br />
Robert Kelly Pace, Tyler<br />
Tom Pappas, Dallas<br />
Shawn Paschall, <strong>For</strong>t Worth<br />
Bruce Ponder, El Paso<br />
William E. Price, Lampasas<br />
George Scharmen, San Antonio<br />
Mark S. Snodgrass, Lubbock<br />
Fred Stangl, Lubbock<br />
Gary Alan Udashen, Dallas<br />
Tony Vitz, McKinney<br />
James Whalen, Plano<br />
Russell Wilson II, Dallas<br />
Warren Alan Wolf, San Antonio<br />
William Reagan Wynn, <strong>For</strong>t Worth<br />
Associate Directors<br />
Bruce Ashworth, Arlington<br />
Heather Barbieri, Plano<br />
Larry Boyd, Dallas<br />
Fred Brigman, San Angelo<br />
Erika Copeland, Abilene<br />
Nicole DeBorde, Houston<br />
Craig Henry, Texarkana<br />
Russell Hunt Jr., Austin<br />
Jani Maselli, Houston<br />
Todd Overstreet, Houston<br />
Stephanie Patten, <strong>For</strong>t Worth<br />
Carole Powell, El Paso<br />
Ray Rodriguez, Laredo<br />
Clay Steadman, Kerrville<br />
George Taylor, San Antonio<br />
Coby Waddill, Denton
Benefits . . .<br />
“Something that promotes well-being”<br />
Enterprise Car Rental<br />
Ten percent discount for TCDLA members. Enterprise is<br />
the largest rental car company in North America in terms of<br />
locations and number of cars, while providing the highest<br />
level of customer service. <strong>The</strong> corporate account number for<br />
TCDLA members is 65TCDLA. You may contact your local<br />
office directly or visit www.enterprise.com. When booking<br />
online, enter your location, date, time, and the corporate account<br />
number. You will then be asked for your discount ID,<br />
which is the first three letters of TCDLA (TCD). Make your<br />
reservation at Enterprise Rent-a-Car.<br />
La Quinta<br />
Ten percent discount to all TCDLA members. Simply tell<br />
the reservations agent that you are with the Texas Criminal<br />
<strong>Defense</strong> Lawyers Association or give the discount code<br />
( TCDLA) on the La Quinta website to get the discounted<br />
rate. Visit www.lq.com or call 1-800-531-5900.<br />
Sprint PCS<br />
15 percent discount to TCDLA members on its wireless<br />
services. Existing Sprint customers can receive the discount<br />
without interruption and new customers can receive additional<br />
discounts on equipment.<br />
Subscription Services Inc.<br />
Fifty percent discount off the cover price of more than 1,000<br />
magazines, including Newsweek, New Yorker, Texas Monthly,<br />
etc. Visit www.buymags.com/attorneys.<br />
<strong>Voice</strong> for the <strong>Defense</strong> magazine<br />
A subscription to the only statewide magazine written specifically<br />
for defense lawyers, published 10 times a year.<br />
Membership Directory (printed and online)<br />
Comprehensive listing of current TCDLA members, updated,<br />
reprinted, and mailed annually, and online directory of current<br />
TCDLA members.<br />
Lawyer Locator<br />
<strong>Online</strong> directory providing members an opportunity to list<br />
up to three areas of practice for public advertising.<br />
Expert List<br />
Extensive list of experts for all types of criminal cases, including<br />
investigation, mitigation, and forensics specialists.<br />
Listserve<br />
A partnership to engage community members in areas of<br />
significant decisions, legislative and capital issues/updates,<br />
upcoming seminars and events, and more . . .<br />
TCDLA Discounts<br />
Receive significant discounts on CLE seminars and TCDLA<br />
publications.<br />
Discounted liability insurance with Joe Pratt Insurance.<br />
Strike <strong>For</strong>ce<br />
Strike <strong>For</strong>ce assistance to aid lawyers threatened with or<br />
incarcerated for contempt of court.<br />
Resources<br />
Expansive library of research papers from renowned criminal<br />
defense lawyers and other valuable information and sites.<br />
Significant Decisions Report<br />
Professional reports summarizing state and federal cases,<br />
emailed weekly.<br />
Legislature<br />
Opportunities to be involved in the legislative effort.<br />
State Motions CD<br />
New members will receive a comprehensive CD of state<br />
forms and motions,including DWI, post-trial, pretrial, and<br />
sexual assault motions.<br />
Membership Certificate<br />
Display your TCDLA membership with pride! New members<br />
will receive a personalized certificate by mail.<br />
Brief/Motion Bank
committee chairs<br />
Amicus Curiae<br />
Wm. Reagan Wynn<br />
817-336-5600<br />
Angela Moore<br />
210-335-0706<br />
Budget & Finance<br />
Bobby Mims<br />
903-595-2169<br />
Child Protective<br />
Services Taskforce<br />
Paul Conner<br />
817-332-5575<br />
Corrections & Parole<br />
David O’Neil<br />
936-435-1380<br />
Criminal <strong>Defense</strong><br />
Lawyers Project<br />
Mark S. Snodgrass<br />
806-762-0267<br />
David Moore<br />
903-758-2200<br />
Criminal Law<br />
Specialization<br />
Gary Udashen<br />
214-468-8100<br />
Death Penalty<br />
John Niland<br />
512-320-8300<br />
Jack Stoffregen<br />
806-775-5660<br />
Driving While<br />
Intoxicated<br />
Doug Murphy<br />
713-524-1010<br />
David Burrows<br />
214-755-0738<br />
Larry Boyd<br />
214-691-5630<br />
Federal Law<br />
Richard Alan Anderson<br />
214-767-2746<br />
Hall of Fame<br />
Scrappy Holmes<br />
903-758-2200<br />
Innocence<br />
Jeff Blackburn<br />
806-371-8333<br />
Lawyers Assistance<br />
Richard Scott Gladden<br />
940-323-9307<br />
Kelly Pace<br />
903-526-6777<br />
James M. Pape<br />
512-353-4004<br />
Legislative<br />
Mark Daniel<br />
817-332-3822<br />
Nominations<br />
William Harris<br />
817-332-5575<br />
Public Defenders<br />
Jeanette Kinard<br />
512-854-3030<br />
Jack Stoffregen<br />
806-775-5660<br />
Strategic Planning<br />
Tom Pappas<br />
214-871-4900<br />
Strike <strong>For</strong>ce<br />
Michael P. Heiskell<br />
817-457-2999<br />
Gary Udashen<br />
214-468-8100<br />
strike force<br />
District 1<br />
West Texas<br />
Jim Darnell<br />
Mike R. Gibson<br />
Mary Stillinger<br />
District 2<br />
Permian Basin<br />
Tip Hargrove<br />
Woody Leverett<br />
Tom Morgan<br />
District 3<br />
Panhandle<br />
Warren Clark<br />
Chuck Lanehart<br />
Bill Wischkaemper<br />
District 4<br />
North Texas<br />
H. F. “Rick” Hagen<br />
Don Wilson<br />
Randy Wilson<br />
District 5<br />
Tarrant County<br />
Mark Daniel<br />
Lance Evans<br />
Michael P. Heiskell<br />
Jeff Kearney<br />
Larry Moore<br />
Greg Westfall<br />
District 6<br />
Dallas County<br />
Richard Anderson<br />
Ron Goranson<br />
Bob Hinton<br />
Gary Udashen<br />
Russell Wilson<br />
District 7<br />
Northeast Texas<br />
Scrappy Holmes<br />
Bobby Mims<br />
David E. Moore<br />
Barney Sawyer<br />
District 8<br />
Central Texas<br />
Kerri Anderson-Donica<br />
F. R. “Buck” Files<br />
W. W. Torrey<br />
District 9<br />
Travis County<br />
Sam Bassett<br />
Betty Blackwell<br />
David Botsford<br />
David Frank<br />
Dexter Gilford<br />
Keith Hampton<br />
District 10<br />
Bexar County<br />
John Convery<br />
Gerry Goldstein<br />
Cynthia Orr<br />
George Scharmen<br />
District 11<br />
Hill Country<br />
Emmett Harris<br />
District 12<br />
Valley<br />
Joe Connors<br />
Bobby Lerma<br />
James Granberry<br />
Sheldon Weisfeld<br />
District 13<br />
Southeast Texas<br />
James Makin<br />
District 14<br />
Harris County<br />
Nicole DeBorde<br />
Danny Easterling<br />
JoAnne Musick<br />
Mac Secrest<br />
Katherine Scardino<br />
Stan Schneider<br />
Grant Scheiner<br />
staff directory<br />
Executive Director<br />
Joseph Martinez x 726 (512-646-2726)<br />
jmartinez@tcdla.com<br />
Assistant Executive Director & General Counsel<br />
Cynthia Hampton x 730 (512-646-2730)<br />
champton@tcdla.com<br />
Capital Assistance Attorney<br />
Philip Wischkaemper (806-763-9900)<br />
pwisch@tcdla.com<br />
Communications Director<br />
<strong>Voice</strong> Information<br />
Craig Hattersley x 733 (512-646-2733)<br />
chattersley@tcdla.com<br />
Accounts Payable Specialist<br />
Cristina Abascal x 725 (512-646-2725)<br />
cabascal@tcdla.com<br />
Seminar Planning Assistant<br />
Denise Garza Steusloff x 729 (512-646-2729)<br />
dgarza@tcdla.com<br />
CONTACT US<br />
Austin Home Office<br />
1717 W. 6th St.<br />
Ste. 315<br />
Austin, TX 78703<br />
512-478-2514 phone<br />
512-469-9107 main fax<br />
512-469-0512 seminar fax<br />
Lubbock Office<br />
915 Texas Ave.<br />
Lubbock, TX 79401<br />
806-763-9900 phone<br />
806-769-9904 fax<br />
Chief Financial Officer<br />
Dawn Thornburgh x 727 (512-646-2727)<br />
dthornburgh@tcdla.com<br />
Administrative Assistant<br />
Diana Vandiver x 721 or 0 (512-646-2721)<br />
dvandiver@tcdla.com<br />
Director of CLE and Special Projects<br />
Seminar Information | Website<br />
Melissa J. Schank x 724 (512-646-2724)<br />
mschank@tcdla.com<br />
Services Clerk<br />
Publication Information<br />
Nicole Pham x 735 (512-646-2735)<br />
npham@tcdla.com<br />
Database Coordinator<br />
Membership Information<br />
Miriam Rendon x 732 (512-646-2732)<br />
mrendon@tcdla.com
CLE & Events . . .<br />
Providing legal education across the state<br />
November 2009<br />
November 20<br />
CDLP | Survivor Trial Tactics<br />
Granbury, TX<br />
December 2009<br />
December 3–4<br />
TCDLA | Sexual Assault<br />
Houston, TX<br />
December 5<br />
TCDLA/TCDLEI Boards, TCDLA<br />
Executive, and CDLP Committee<br />
Meetings**<br />
Houston, TX<br />
December 11<br />
CDLP | Survivor Trial Tactics<br />
Longview, TX<br />
December 11<br />
CDLP | 2nd Annual Hal Jackson<br />
Memorial Jolly Roger Criminal Law<br />
Seminar| co-sponsored with the Denton<br />
Criminal <strong>Defense</strong> Bar<br />
Denton, TX<br />
December 18<br />
CDLP | Prairie Dog Lite | co-sponsored<br />
with the Lubbock Criminal <strong>Defense</strong> Bar<br />
Lubbock, TX<br />
January 2010<br />
January 15<br />
CDLP | Survivor Trial Tactics<br />
Laredo, TX<br />
January 22<br />
CDLP | Survivor Trial Tactics<br />
Temple, TX<br />
February 2010<br />
February 12<br />
CDLP | Survivor Trial Tactics<br />
Wichita Falls, TX<br />
February 17–21<br />
TCDLA | Member’s Trip to Napa Valley<br />
Napa Valley, California<br />
February 25–26<br />
CDLP | Capital/Habeas<br />
Austin, TX<br />
February 26<br />
TCDLA/TCDLEI Boards, TCDLA<br />
Executive, and CDLP Committee<br />
Meetings**<br />
Austin, TX<br />
March 2010<br />
March 4–5<br />
TCDLA | Federal Law<br />
New Orleans, Louisiana<br />
March 14–19<br />
CDLP | 34th Annual Texas Criminal Trial<br />
College<br />
Huntsville, TX<br />
March 26–27<br />
TCDLA | 47th Annual AA Semaan<br />
Seminar | co-sponsored with San<br />
Antonio Bar Association<br />
San Antonio, TX<br />
April 2010<br />
April 8–10<br />
TCDLA | 17th Annual Mastering<br />
Scientific Evidence in DWI/DUI Cases |<br />
co-sponsored with National College of<br />
DUI <strong>Defense</strong><br />
New Orleans, Louisiana<br />
April 9<br />
CDLP | Survivor Trial Tactics<br />
Amarillo, TX<br />
April 15–16<br />
TCDLA | Cross-Examination<br />
Austin, TX<br />
May 2010<br />
May 7<br />
TCDLA | DWI <strong>Defense</strong> Project<br />
Dallas, TX<br />
June 2010<br />
June 2<br />
CDLP | Public Defender Training<br />
San Antonio, TX<br />
June 3–5<br />
TCDLA | 23rd Annual Rusty Duncan<br />
Advanced Criminal Law Course<br />
San Antonio, TX<br />
June 4<br />
TCDLEI Board Meeting and CDLP<br />
Committee Meeting<br />
San Antonio, TX<br />
June 5<br />
TCDLA Board and Executive Committee<br />
Meetings**<br />
San Antonio, TX<br />
July 2010<br />
July 8–9<br />
CDLP | Survivor Trial Tactics<br />
South Padre Island, TX<br />
July 21<br />
CDLP | Board Orientation<br />
Boerne, TX<br />
July 22–24<br />
TCDLA | Member’s Retreat<br />
Boerne, TX<br />
Seminars spon sored by CDLP are funded by<br />
the Court of Criminal Appeals of Texas.<br />
*Unless otherwise noted, seminars are open<br />
only to criminal defense attorneys, mitigation<br />
specialists, defense investigators, or other<br />
professionals who support the defense of<br />
criminal cases. Law enforcement personnel<br />
and prosecutors are not eligible to attend.<br />
** Open to all members<br />
Note: Schedule and dates subject to change. Visit our<br />
website at www.tcdla.com for the most up-to-date information.
Stanley Schneider<br />
<strong>The</strong> Voodoo We Do<br />
President’s<br />
Message<br />
T<br />
he current political debate over whether Texas executed an innocent man is important,<br />
but far less important than the overriding issues of scientific fraud, misrepresentation, and<br />
dishonesty that continue on a daily basis to plague our criminal justice system. Unfortunately,<br />
we cannot retry the Willingham case. In focusing solely on whether Willingham was innocent,<br />
government officials, political pundits, and the media are missing the larger issues raised<br />
by the Willingham report: that is, the ongoing corruption of forensic science and scientific<br />
evi dence in criminal proceedings in this state. Every week brings a new story of some area<br />
of governmentally sanctioned or used science being called into question.<br />
<strong>The</strong> Texas State <strong>For</strong>ensic Science Commission has been legislatively charged with inves<br />
ti gat ing and determining whether proper forensic science techniques and procedures<br />
were used by law enforcement in particular cases. If they were not followed, the commission<br />
is charged with helping those involved to develop a plan to ensure that law enforcement<br />
becomes aware of proper scientific methods and procedures and follows them in future cases.<br />
<strong>The</strong> com mission was created (and charged with the responsibility of helping) to account<br />
for technology changes and the repercussions that occur when untrained individuals make<br />
lit tle more than unsupported guesses in the name of science, which affect real cases and real<br />
peo ple in real ways. In creating the <strong>For</strong>ensic Science Commission, the legislature was not<br />
con cerned with guilt or innocence, as the current political debate seems to be, but rather<br />
whether science was properly applied in the courtroom.<br />
<strong>The</strong> recent history of forensic science in this state is abysmal. We have serious problems<br />
that need to be addressed by serious people concerning not just the results in a particular case<br />
or about whether one side wins or loses, but rather whether there’s reliability and validity in<br />
the allegedly “scientific” processes, methods, theories, and results sponsored by government<br />
in general and law enforcement in particular as a basis for depriving presumptively innocent<br />
people of their liberty.<br />
In 2000, David Botsford, Fred Whitehurst, and I made a presentation at the Criminal<br />
Jus tice Section of the annual meeting of the American Academy of <strong>For</strong>ensic Science (AAFS)<br />
entitled “Fraudulent <strong>For</strong>ensic Science Is Endemic to Our Criminal Justice System.” Fred Whitehurst<br />
spoke of his personal experience with the FBI lab and the problems that surfaced during<br />
the late 1990s. David Botsford spoke of the Richardson case in Lubbock and his experience<br />
with a medical examiner named Erdman who repeatedly falsified autopsy reports as an aide<br />
to the prosecution of murder cases in West Texas. I spoke of my experiences involving the now<br />
discredited Fred Zain, from the Bexar County Medical Examiner’s Office, who was re spon sible
for the falsification of serology and DNA test results not only<br />
in the Jack Davis capital murder trial, but also in innumerable<br />
others in both Texas and West Virginia.<br />
We spoke of Katherine Scardino’s defense of Joe Durrett,<br />
who was acquitted of capital murder in a prosecution that proceeded<br />
even though DNA evidence exonerated him. We told<br />
the group that the state’s original DNA expert, Dr. Elizabeth<br />
John son, provided a report that exonerated Joe, yet the state<br />
still prosecuted. On their way to an indictment, prosecutors<br />
con ducted a grand jury investigation of Dr. Johnson and she was<br />
fired by the Harris County Medical Examiner’s Office. A Harris<br />
County jury later determined in a civil suit that her termination<br />
was unlawful and without cause. We explained that even when<br />
the science the prosecutors’ offices relied on to convict people<br />
showed innocence, the prosecutors chose not to accept it and<br />
instead sought retribution against the analyst who dared to not<br />
give them the results they wanted.<br />
We talked about the forensic scandal in Oklahoma con cerning<br />
a medical examiner and the scandal in New York involving<br />
fin ger prints. We spoke of a problem with a lab in the Northwest.<br />
We pointed out that there existed serious forensic science issues<br />
nationwide. Fred, David, and I challenged the criminalists at that<br />
meeting in 2000 to do better work. We challenged them to be<br />
excellent. Yet the problem in Texas has only gotten worse.<br />
In 2001, we learned about a young man named Josiah Sutton,<br />
who was prosecuted, convicted, and sentenced to prison for<br />
sexual assault in Harris County. DNA testing showed that he was<br />
in no cent and that the tests performed by the Houston Police Depart<br />
ment lab reported in court were inaccurately reported. Josiah<br />
Sutton was exonerated but his story was only the beginning.<br />
Be cause of the media, the Houston Chronicle in particular, as a<br />
result of the Sutton case, we learned the extent of the Houston<br />
Crime Lab issues. <strong>The</strong> City of Houston spent millions of dollars<br />
during the independent investigation conducted by Michael<br />
Brom wich. That investigation revealed problems so numerous<br />
that it has been followed by the appointment of a permanent<br />
law yer to reinvestigate more than 400 cases. But even as the<br />
scope of potential problems expanded to 400-plus cases, it became<br />
apparent the 400 cases may have just been the tip of the<br />
proverbial iceberg. We have now learned that the HPD Crime<br />
Lab problems go back to at least the mid-1980s—a result made<br />
ap parent by the exoneration of George Rodriguez, a man who<br />
spent 17 years in custody before his innocence was proved by<br />
science.<br />
<strong>The</strong>se cases and hundreds more like them represent a massive<br />
issue of forensic accountability. But there is more.<br />
<strong>The</strong> Texas Innocence Project conducted an investigation<br />
of the latest scientific tool being used by law enforcement: dog<br />
sniff lineups. <strong>The</strong> report released in September has resulted in<br />
the dismissal of charges in a number of cases, and prosecutors<br />
across the state are reexamining the techniques. Why? Because<br />
real dog experts have examined the procedures being used and<br />
have said in writing, “This is not science.” Yet there are people<br />
in prison based on this suspect method of identification, and<br />
some prosecutions continue to move forward even though the<br />
va lid ity of the science, methods, and applications is, at best,<br />
suspect and, at worst, snake oil.<br />
But there’s more. It has been reported that a DWI technical<br />
supervisor of intoxilyzer machines in multiple Houston- and<br />
Galveston-area municipalities falsified maintenance records for<br />
the Texas Department of Public Safety Breath Alcohol Testing<br />
Pro gram. In Harris County alone, prosecutors have announced<br />
they are reviewing more than 1200 cases. In total, more than 3000<br />
breath test cases spanning almost a decade have been invalidated.<br />
While it’s nice that it was finally discovered and encouraging<br />
that action is finally being taken, where was the real review for<br />
the last decade? Why has and does Texas Department of Public<br />
Safety (DPS) continue to fight against discovery sought by the<br />
de fense bar that might have alerted officials to these problems<br />
be fore a decade’s worth of citizens were wrongfully convicted?<br />
That it was not discovered for almost a decade is reason enough<br />
to believe that our government either does not care enough to<br />
al ways look for fraud or lacks the ability to do so. <strong>The</strong> technical<br />
su per visor at issue has been sentenced to a year in prison, but<br />
that hardly makes up for the thousands of lives that her fraud<br />
adversely affected.<br />
But there is still more: <strong>The</strong> Houston-area problems with<br />
breath test machines are not isolated. Just this month, Polk<br />
County DA William Lee Hon announced that all breath tests<br />
from August 2008 through August 2009 in Polk County had been<br />
in validated by DPS because the equipment was not properly<br />
cer ti fied. In Dallas, prosecutors have announced that breath<br />
tests in the city of Glen Heights have been invalidated because<br />
an operator was falsifying results.<br />
So what does all this have to do with the Texas State <strong>For</strong>en<br />
sic Science Commission? What David, Fred, and I believed<br />
in 2000 when we spoke to AAFS has come true in this state.<br />
Fraud u lent forensic science and corrupt application of even<br />
good science have reached epidemic proportions in our criminal<br />
jus tice system. Every government entity involved in any aspect<br />
of science to be used in a courtroom in this state ought to be<br />
charged with raising the standards for science and procedures<br />
applied by analysts to ensure that there is no doubt, now or in<br />
the future, that only truly competent experts (not just those who<br />
the government can afford to hire) use only unquestionably<br />
valid science in ways that are indisputably applied properly.<br />
Any thing less is a direct and substantial breach of the trust that<br />
every citizen places in its government. Close enough for gov‐
ern ment work ought to be relegated to the dead science pile.<br />
I am mindful of the work of Barry Scheck and Peter Neufeld.<br />
Through their efforts, more than 200 men have been exonerated<br />
by DNA tests across the country.<br />
<strong>The</strong> <strong>For</strong>ensic Science Commission was created to help ensure<br />
the integrity of forensic science in this state. <strong>The</strong> public<br />
de serves to know in the future that it can trust the integrity of<br />
ex perts and the science that are being presented by prosecutors<br />
and used by law enforcement for investigative purposes. It is<br />
not enough to claim it; it must be so beyond question. <strong>The</strong> role<br />
of the <strong>For</strong>ensic Science Commission is to help ensure that the<br />
pub lic is protected and the system is fair. This should not be a<br />
po lit ical issue but an issue concerning the integrity of our system<br />
of justice. Interference by those with other motives ought not<br />
be tolerated by the people of this state. Interference by those<br />
with other motives does nothing but ensure that the mistake of<br />
the past will be repeated today and in the future. <strong>The</strong> <strong>For</strong>ensic<br />
Sci ence Commission has an important role in ensuring the<br />
integrity of the one aspect of the criminal justice system in<br />
this state: competent forensic science is used in our criminal<br />
justice in the trial of those accused of crimes. <strong>The</strong> people of this<br />
state expect their leaders to ensure the integrity of the criminal<br />
jus tice system and not politicalize it.<br />
Become a Fellow or<br />
Super Fellow<br />
, .<br />
IJ , ..<br />
Texas Criminal <strong>Defense</strong> Lawyers<br />
Educational Institute<br />
Endowment Program<br />
TCDlEI has created an endowment program<br />
to ensure continuing legal education for<br />
tomorrow's criminal defense lawyer.<br />
R Your money will be deposited into a<br />
special endowment fund.<br />
A Your contribution will be used to build a<br />
fund for future Texas lawyers.<br />
What you can do? Contribute $1,500 and<br />
become a Fellow. Contribute $3,000 and<br />
become a S.per Fellowr (form available on our<br />
website).<br />
Help support TCDLEI in its efforts to make funds<br />
available for future criminal<br />
defense lawyers in Texas.<br />
<strong>For</strong> more infonnation, con·<br />
tact Joseph Martinez at<br />
512-646-2726.<br />
MakeYOUI<br />
contribution TODAY!<br />
TCDLA<br />
Memorializes<br />
Charles Balwin<br />
Quinn Brackett<br />
Peter Bright<br />
Jack H. Bryant<br />
Phil Burleson<br />
Byron Chappell<br />
Emmett Colvin<br />
C. Anthony Friloux Jr.<br />
Jim Greenfield<br />
Richard W. Harris<br />
Odis Ray Hill<br />
Weldon Holcomb<br />
David Isern<br />
Hal Jackson<br />
Knox Jones<br />
Joe Keagans<br />
George F. Luquette<br />
Homero Martinez<br />
Ken McClain<br />
Kathy McDonald<br />
David A. Nix<br />
Rusty O’Shea<br />
Charles Rittenberry<br />
George Roland<br />
Thomas Gilbert Sharpe Jr.<br />
Travis Shelton<br />
Doug Tinker<br />
Don R. Wilson Jr.<br />
10 VOICE IDJlTHE DEFENSE November 2009
Joseph A. Martinez<br />
Thanks Giving<br />
Executive<br />
~ • , I<br />
Director’s<br />
J JJ' £:'-CLf)i' ;<br />
Perspective<br />
?~i';jJ~ -cl jy~<br />
Special thanks to all our TCDLA members who make this association strong. Special<br />
thanks to our board members for their contributions. Thanks to all who contributed<br />
their knowledge in articles for the <strong>Voice</strong> for the <strong>Defense</strong>. Thanks to all our members who<br />
promote justice and the common good.<br />
Have a safe and wonderful Thanksgiving.<br />
Special thanks to our course directors, Kameron Johnson and David Indorf, for the<br />
Defending Juveniles seminar held in Dallas in September. Thanks to their contributions,<br />
we had 116 at ten dees.<br />
Special thanks to Craig Jett, course director for Highs, Lows & the Deep Ellum Blues:<br />
Defending the Drug Case, held in Dallas in September. Thanks to his contribution we had<br />
141 attendees.<br />
A very special thanks to the course directors for this year’s CDLP 7th Annual <strong>For</strong>ensics<br />
seminar held in Houston. <strong>The</strong>y were Philip Wischkaemper, Jeff Blackburn, Rob Cowie, E. X.<br />
Martin, Dr. Chris Meissner, Dr. Roy Malpass, Larry Renner, Dr. Bill Tobin, and Dr. Fred<br />
Whitehurst. This seminar is one of the most unique in the country. We had over 30 forensic<br />
scien tists presenting. <strong>For</strong> the second year we also provided a “judges only” track for one of<br />
the breakout sessions.<br />
This year we combined the annual Innocence Clinic training with the forensic training.<br />
All total we had 284 attendees, of which 11 were judges.<br />
<strong>The</strong> membership trip is going to be to beautiful Napa Valley. Accommodations will be<br />
at the River Terrace Inn. <strong>The</strong>re will be 6 hours of CLE. Please go to our website for more<br />
details.<br />
We are working on taping a one-hour legislative update done by one of our lobbyists.<br />
We will be sending a DVD to all local criminal defense bars.<br />
Please let us know if any of our TCDLA brothers and sisters have passed away in recent<br />
months. We recognize our special Fallen Heroes at the beginning of our TCDLA Board<br />
meetings.<br />
November 2009 VOICE FOITH~ DEfENSE 11
Please help us promote the 34th Annual Texas Criminal<br />
Trial College to be held in Huntsville on March 14–19, 2010. We<br />
will have 80 openings for lawyers with less than 5 years of trial<br />
experience. An application should be available on our website<br />
and in the <strong>Voice</strong>.<br />
Good verdicts to all.<br />
Be kept up to date with the latest<br />
TCDLA information. Make sure your<br />
email and fax are correct. If you<br />
do not wish to receive fax or email<br />
notices email: mrendon@tcdla.com<br />
Get Smart!<br />
Go online to<br />
www.tcdla.com for<br />
information on the<br />
books now available,<br />
including the Texas<br />
Criminal Codebook,<br />
Appellate Manual,<br />
and Search & Seizure.
Greg Westfall<br />
Editor’s<br />
Comment<br />
[Anderson Cooper:] Joining me now is David Martin, who was [Cameron Todd] Willing<br />
ham’s defense attorney at trial. He says Willingham was a man without a conscience.<br />
. . .<br />
David, you always believed that your client was guilty. Now, over a half-dozen experts have<br />
come forward to say that there’s no way the fire was arson. You still say he was guilty. Why?<br />
Uh, Anderson, excuse my informal attire. We’ve been out checking cows, but it is nice to be<br />
with you. And, uh, tell me your question again?<br />
—Attorney David Martin, being interviewed by Anderson Cooper, October 15, 2009.<br />
“Do all lawyers defend N-Negroes, Atticus?”<br />
“Of course they do, Scout.”<br />
“<strong>The</strong>n why did Cecil say you defended niggers? He made it sound like you were running<br />
a still.”
Atticus sighed. “I’m simply defending a Negro. His name’s<br />
Tom Robinson. He lives in that little settlement beyond the town<br />
dump. He’s a member of Calpurnia’s church, and Cal knows his<br />
family well. She says they’re clean-living folks. Scout, you aren’t<br />
old enough to understand some things yet, but there’s been some<br />
high talk around town to the effect that I shouldn’t do much about<br />
defending this man. . . .”<br />
“If you shouldn’t be defendin’ him, then why are you doin’<br />
it?”<br />
“<strong>For</strong> a number of reasons,” said Atticus. “<strong>The</strong> main one is, if<br />
I didn’t I couldn’t hold my head up in town, I couldn’t represent<br />
this county in the legislature, I couldn’t even tell you or Jem not<br />
to do something again.”<br />
—Harper Lee, To Kill a Mockingbird<br />
Look, the night after these kids died, [Willingham’s] down at<br />
the “Mudhole”—which is the Mustang Club. He bought—all these<br />
people who contributed to him, I don’t know how much money<br />
cause his kids had died—he’s buyin’ a new dart board, he’s buyin’<br />
a new pair of boots, he’s buyin’ rounds for the house, that’s what<br />
we were faced with in the trial of this case. That is the evidence<br />
that the jury hears and that is indicia of guilt and that’s why they<br />
found him guilty, I think, in less than 30 minutes.<br />
—Attorney David Martin, being interviewed by<br />
Anderson Cooper, October 15, 2009.<br />
“Lemme tell you somethin’ now, Billy . . . You know the court<br />
appointed him to defend this nigger.”<br />
“Yeah, but Atticus aims to defend him. That’s what I don’t<br />
like about it.”<br />
This was news, news that put a different light on things: Atticus<br />
had to whether he wanted to or not. I thought it odd that he hadn’t<br />
said anything to us about it—we could have used it many times<br />
in defending him and ourselves. He had to, that’s why he was doing<br />
it, equalled fewer fights and less fussing. But did that explain<br />
the town’s attitude? <strong>The</strong> court appointed Atticus to defend him.<br />
At ti cus aimed to defend him. That’s what they didn’t like about<br />
it. It was confusing.<br />
—Harper Lee, To Kill a Mockingbird<br />
Here’s a gross misconception about defense lawyers. When a<br />
cli ent tells you his story, you don’t just stupidly accept everything<br />
he says. <strong>The</strong> role of a defense attorney is to test the state’s evidence,<br />
vig or ously cross-examine their witnesses, and can they prove their<br />
case beyond a reasonable doubt? If they cannot, even if the person<br />
is guilty, he is found not guilty. That’s the role of a defense<br />
at tor ney.<br />
—Attorney David Martin, being interviewed by<br />
Anderson Cooper, October 15, 2009.<br />
Judge Taylor was saying something. His gavel was in his fist,<br />
but he wasn’t using it. Dimly, I saw Atticus pushing papers from<br />
the table into his briefcase. He snapped it shut, went to the court<br />
re porter and said something, nodded to Mr. Gilmer, and then went<br />
to Tom Robinson and whispered something to him. Atticus put his<br />
hand on Tom’s shoulder as he whispered. Atticus took his coat off<br />
the back of his chair and pulled it over his shoulder. <strong>The</strong>n he left<br />
the courtroom, but not by his usual exit. He must have wanted<br />
to go home the short way, because he walked quickly down the<br />
mid dle aisle toward the south exit. I followed the top of his head<br />
as he made his way to the door. He did not look up.<br />
Someone was punching me, but I was reluctant to take my<br />
eyes from the people below us, and from the image of Atticus’s<br />
lonely walk down the aisle.<br />
“Miss Jean Louise?”<br />
I looked around. <strong>The</strong>y were standing. All around us and in<br />
the balcony on the opposite wall, the Negroes were getting to their<br />
feet. Reverend Sykes’s voice was as distant as Judge Taylor’s:<br />
“Miss Jean Louise, stand up. Your father’s passin’.”<br />
—Harper Lee, To Kill a Mockingbird<br />
I thought this is an actor at first . . . no wonder the guy<br />
was killed . . . this “attorney” was his sworn enemy, I bet<br />
[the] prosecution felt like [they were] in heaven during<br />
the process.<br />
I’m not sure it mattered who his attorney was, at the time<br />
fire science wasn’t what it is today. However it is a little<br />
disturbing to see a defense attorney that believes his client<br />
was guilty, especially with the evidence we now have.<br />
Wow . . . that attorney showed the most jaw-dropping<br />
stu pidity I’ve seen in years.<br />
How on earth could a man like that be a defense at torney?<br />
This is your defense attorney in hell, or a Kafka novel, or<br />
Texas.<br />
—Comments left on YouTube after the interview.<br />
[Editor’s note: <strong>The</strong> gist of the 10-minute interview was that<br />
Attorney Martin made a passionate and vociferous argument<br />
that his client was completely and utterly guilty. Interestingly,<br />
his conclusion that his client was guilty didn’t really depend on<br />
the contested forensic evidence at all. On that point, though,<br />
Mar tin had conducted his own experiments with carpet and<br />
lighter fluid and argued to Cooper that his burned carpet “looked<br />
just like those pictures”! It was obvious that he never believed<br />
in his client from the beginning, and in fact Martin admitted as<br />
much. Willingham was executed in 2004. Please watch the video<br />
yourself: http://www.youtube.com/watch?v=L5cFKpjRnXE.]
F. R. Buck Files Jr.<br />
Federal<br />
J-!c rJ sf"J<br />
Corner LfJfJJ£:;f<br />
Beware: Read Your Next Mezzanatto Letter Very Carefully!<br />
In mid-October, in the Tyler Division of the Eastern District of Texas, an Assistant United<br />
States Attorney was in the process of drafting a new Mezzanatto letter to be used by all of<br />
the AUSA’s in his district. It is safe to say that this was also happening in the other federal<br />
ju dicial districts in Texas, Louisiana, and Arkansas because of the opinion of a panel of the<br />
United States Court of Appeals for the Fifth Circuit in United States v. Sylvester, ___ F.3d<br />
___ 2009 WL 2974219 (5th Cir. 2009) (the panel: Circuit Judges Higginbotham, Smith, and<br />
Southwick; opinion by Judge Higginbotham).<br />
<strong>The</strong> term “Mezzanatto letter” may not ring a bell with some folks; however, it is a proffer<br />
letter that government, the defendant’s lawyer, and the defendant should sign before the debriefing<br />
of any defendant in any federal criminal case for the purpose of facilitating plea nego<br />
tia tions between the government and the defendant. <strong>The</strong> term comes from United States v.<br />
Mezzanatto, 115 S.Ct. 797 (1995). In that case, the Supreme Court held—notwithstanding the<br />
language of Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f)—that<br />
an agreement to waive the exclusionary provisions of statements made during plea negotiations<br />
was enforceable unless there was a showing that the defendant entered into the agreement unknow<br />
ingly or involuntarily.<br />
At first blush, FRE 410 and Fed.R.Crim.Proc. 11(f) appear to protect the statements<br />
made by a defendant during plea negotiations from being admissible against the defendant<br />
at trial—and they do. <strong>The</strong> problem is practical: <strong>The</strong> government will probably not consider<br />
en ter ing into a plea agreement favorable to the defendant without having someone debrief<br />
the defendant; and, the government is not going to debrief a defendant unless he or she<br />
signs a Mezzanatto letter, waiving his or her right to the protections afforded by FRE 410<br />
and Fed.R.Crim.Proc. 11(f).<br />
It works like this: An AUSA and the defendant’s lawyer agree on the terms of a proffer<br />
let ter which says, in essence, that the defendant must be completely truthful as to any and<br />
all information that he or she provides during a debriefing. If the defendant complies, then<br />
any thing related to the government by the defendant or his lawyer cannot and will not be<br />
used against the defendant in any proceeding unless the defendant later testifies contrary<br />
to the substance of the proffer or otherwise adopts a position inconsistent with the proffer.<br />
Un til Sylvester, such evidence was viewed as admissible only on rebuttal. Things have now<br />
changed.<br />
In Sylvester—because of the language of the defendant’s waiver—the Court has expanded<br />
the Mezzanatto Rule to allow the government to offer—in its case-in-chief—statements of<br />
November 2009 VOICE FOITH~ DEfENSE 15
a defendant made during plea negotiations if the defendant<br />
breaches the proffer agreement.<br />
Judge Higginbotham’s opinion includes these excerpts:<br />
[<strong>The</strong> Facts in Sylvester]<br />
This case springs from a large-scale drug conspiracy in<br />
Houston and New Orleans that ended with the ap prehen<br />
sion of all key members and the murder of a federal<br />
wit ness, Demetra Norse. At the time of her death in<br />
June 2003, Norse was set to testify against a member<br />
of the conspiracy, Tamara Durand. Nearly a year later,<br />
the government obtained a warrant for the arrest of<br />
Syl ves ter for the murder. Soon thereafter, Sylvester volun<br />
tarily surrendered. Accompanied by his attorney at<br />
the time, Sylvester met prosecutors at the United States<br />
At tor ney’s Office in the Eastern District of Louisiana,<br />
and was advised of his Miranda rights and informed<br />
that he was under arrest for murder and various gun<br />
and drug charges. An Assistant United States Attorney,<br />
Mau rice Landrieu, played an audio recording in which a<br />
mem ber of the drug conspiracy, Terrance Lash, identified<br />
Syl ves ter as Norse’s killer. (A jury later convicted Lash<br />
for arranging the murder.) Landrieu also confronted<br />
Syl ves ter with a description of the killer and the killer’s<br />
car from a 911 call, as well as evidence obtained during a<br />
pre-arrest search of Sylvester’s car: cocaine, a newspaper<br />
that noted Norse’s killing, and rap lyrics describing a<br />
sim ilar murder.<br />
Landrieu then explained that the Attorney General<br />
had the discretion to seek capital punishment for the murder<br />
of a federal witness, but proposed that, in return for a full<br />
con fes sion that could be used against Sylvester in court if<br />
there were a trial, and cooperating in the case, Landrieu<br />
would ask permission from the Attorney General to seek<br />
life imprisonment instead.<br />
After consulting with his attorney, Sylvester waived<br />
ob jec tion to the admission of incriminating statements<br />
at trial in the event that plea negotiations failed and the<br />
par ties proceeded to trial. Landrieu made the promised<br />
rec om men da tion to the Attorney General, but shortly<br />
af ter the meeting, Sylvester changed his mind, decided to<br />
go to trial, and requested new counsel, whom the court<br />
appointed [emphasis added].<br />
[<strong>The</strong> Motion to Suppress]<br />
Pursuant to Federal Rule of Evidence 410, Sylvester<br />
moved to suppress statements he had made during plea<br />
ne go tiations. <strong>The</strong> district court conducted a full evi dentiary<br />
hearing and, after post-hearing briefing, denied<br />
Syl ves ter’s motion. In its order, the district court found<br />
Syl ves ter’s waiver to be knowing and voluntary, and allowed<br />
the use of his plea statements in the government’s case-inchief<br />
[emphasis added].<br />
[<strong>The</strong> Government’s Case-in-Chief]<br />
With that order in hand at trial, the government in troduced<br />
Sylvester’s confession in its case-in-chief, as well<br />
as other evidence of his guilt [emphasis added].<br />
[<strong>The</strong> Verdict and Sentence]<br />
A jury convicted Sylvester on multiple felony counts,<br />
all stemming from the same factual matrix of murder<br />
and narcotics trafficking. <strong>The</strong> district court sentenced<br />
him to concurrent life sentences on seven counts, and<br />
con cur rent terms of years on three others.<br />
[<strong>The</strong> Issue of First Impression]<br />
Sylvester’s appeal presents an issue of first impression in<br />
this court: whether the government may use a defendant’s<br />
statements made in the course of plea negotiations in its<br />
case-in-chief, when the defendant, as a condition to en gaging<br />
in negotiations with the government, knowingly and<br />
voluntarily waived all rights to object to such use [emphasis<br />
added].<br />
Ordinarily, under Federal Rule of Evidence 410 and<br />
Fed eral Rule of Criminal Procedure 11(f), statements made<br />
by a defendant during plea negotiations are inadmissible<br />
at trial. <strong>The</strong>se Rules address both individual and systemic<br />
con cerns in their attempt “to permit the unrestrained<br />
can dor which produces effective plea discussions.” Most<br />
rights afforded criminal defendants, including these, are<br />
not inalienable, however. In the seminal case of United<br />
States v. Mezzanatto, seven members of the Supreme<br />
Court held that a criminal defendant can waive Rule<br />
410 protection and make otherwise excludable plea statements<br />
admissible at trial “absent some affirmative in di cation<br />
that the agreement was entered into un know ingly or<br />
involuntarily.” Notwithstanding this broad pro nouncement,<br />
the Court in Mezzanatto upheld a more limited<br />
waiver than Sylvester’s, one that allowed the government<br />
to use statements made in plea negotiations to impeach<br />
the defendant if he testified at trial, and five justices expressed<br />
doubt as to whether a waiver could be used to<br />
ad mit the defendant’s statements in the government’s<br />
case-in-chief. Two dissenters disavowed waiver entirely,<br />
while three justices concurred to raise the question of
whether “a waiver to use such statements in the case-inchief<br />
would more severely undermine a defendant’s incen<br />
tive to negotiate,” thereby presenting a more pressing<br />
pub lic policy justification for disallowing waiver.<br />
Now presented with a case-in-chief waiver, however,<br />
we can find no convincing reason for not extending Mezzanatto’s<br />
rationale to this case.<br />
***<br />
As Sylvester concedes, this is not a case of fraud or coer<br />
cion; instead, he made the waiver knowingly and volun<br />
tarily in the presence of counsel, while obtaining the<br />
bene fit of his bargain when the prosecutor requested a<br />
max i mum punishment of life imprisonment.<br />
***<br />
[C]ase-in-chief waivers serve two salient prosecutorial functions<br />
that broad rebuttal waivers cannot. First, case-in-chief<br />
waiv ers allow the prosecution to use the defendant’s plea<br />
state ments in an opening statement. Second, they admit<br />
plea statements even if the defendant limits his defense<br />
to credibility impeachment of government witnesses or<br />
es sen tially declines to wage any defense at all [emphasis<br />
added].<br />
My Thoughts<br />
g <strong>The</strong> contents of a Mezzanatto letter are subject to negotiation;<br />
e.g., it is not uncommon for the government to agree to a<br />
provision stating that the government will not use the infor<br />
ma tion furnished by the defendant in the prosecution<br />
of the defendant’s spouse or other family members.<br />
g Read any proposed Mezzanatto letter with great care. You<br />
can expect that the “standard letter” will have been modified<br />
as a result of the Court’s opinion in Sylvester.<br />
g No client should ever agree to debrief unless he or she<br />
un der stands the benefits and dangers of doing so and is<br />
com mitted to being totally truthful.<br />
g No defendant should ever participate in a debriefing unless<br />
he or she has been thoroughly debriefed by his or her lawyer<br />
and/or investigator.<br />
g No client should ever be permitted to debrief unless there<br />
is a Mezzanatto letter in the file.<br />
Give us your<br />
Word!<br />
Your experiences in criminal law can contribute<br />
to the continuing education of our membership.<br />
Write now for the <strong>Voice</strong> for the <strong>Defense</strong>.<br />
If you would like to submit an article, please<br />
send it to<br />
Cynthia Hampton at champton@tcdla.com or<br />
Craig Hattersley at chattersley@tcdla.com<br />
Swallow a loss and learn a lesson.<br />
—Chinese proverb<br />
Prior to publication, articles are reviewed and<br />
approved by Greg Westfall, editor, and Jani<br />
Maselli, feature articles editor.<br />
Questions? Call 512-646-2733
Send your letters, pictures, gripes, bonehead gaffes, or whathave-you<br />
to champton@tcdla.com or chattersley@tcdla.com.<br />
Kudos<br />
Kudos to all who helped free Ben Webb of Lubbock,<br />
<br />
a TCDLA and LCDLA member jailed for contempt of<br />
court June 11 for refusing to testify during the punishment<br />
phase of a former client’s criminal trial. Judge Jim<br />
Bob Darnell of the 137th District Court ordered Webb<br />
to return the appointed attorney fees he had received<br />
and held Webb in contempt. He was handcuffed, stripsearched,<br />
and ordered to wear jail clothing. Webb was<br />
behind bars for more than an hour before a different<br />
judge signed a personal bond. Along with a few LCDLA<br />
volunteers, Rod Hobson represented Webb, and all<br />
his hard work paid off when visiting Judge Paul Davis<br />
of Austin found Ben not guilty of contempt. <strong>The</strong> judge<br />
signed an order agreed to by Webb and Hobson and the<br />
Lubbock County DA. Several dozen members of LCDLA<br />
and others spilled onto the west courthouse lawn for<br />
an impromptu news conference following the hearing,<br />
many sporting “Free Ben Webb!” stickers on their lapels.<br />
All the Lubbock news media attended as Hobson and<br />
Webb spoke, and TCDLA member Chuck Lanehart said<br />
a few words on behalf of the association. An impassioned<br />
Hobson called for an apology from the prosecutors<br />
involved and Judge Darnell, but said he expected<br />
that will never happen. Others who assisted in the Ben<br />
Webb matter were TCDLA/LCDLA members Danny<br />
Hurley, David Guinn, Phillip Wischkaemper, and Ralph<br />
H. Brock. Congratulation to all for this victory! You guys<br />
are awesome!<br />
Congratulations to Clint Broden and Mick Mickelsen of<br />
<br />
Dallas, who, after a long fight, successfully forced the<br />
federal government to pay $356,000 in attorney and investigative<br />
fees for a malicious, vexatious, and frivolous<br />
prosecution under the Hyde Amendment. <strong>The</strong> client was<br />
charged in the Southern District of Florida in 1993 with<br />
drug distribution and ultimately convicted. Broden &<br />
Mickelsen got involved in 1998 and won a new trial for<br />
the client. <strong>The</strong> case was dismissed midway through the<br />
retrial in 1999. In 2003, the trial judge found the government<br />
liable for Hyde Amendment damages. <strong>The</strong> judge<br />
signed the order on his deathbed, the last order he ever<br />
signed. <strong>The</strong> government, taking advantage of the judge’s<br />
death, sought reconsideration and the case languished<br />
for several more years. During that time, the client himself<br />
died. Nevertheless, earlier this year (16 years after<br />
the indictment) the award was finalized and the client’s<br />
estate was paid. Impressive victory!<br />
Stan Schneider honors Delia G. De La Garza as TCDLA’s<br />
3,000th member. Delia practices primarily in the areas<br />
of immigration, criminal, and family law in Harris<br />
and surrounding counties. She earned her JD from<br />
Texas Southern University in May 2004. Delia is also<br />
a member of HCCLA and the American Immigration<br />
Lawyers Association.
Kudos on a magnificent victory to Joe Mar Wilson, Maxwell<br />
Peck, mitigator Cyndy Short, and the entire defense<br />
<br />
team in Levi King’s case. <strong>The</strong> jury deadlocked on the<br />
mitigation question in this multiple murder case (with<br />
other murders in Missouri), and so LWOP was imposed.<br />
Way to go! This is the first life verdict from a jury in Lubbock<br />
County. <strong>The</strong>se guys have been in trial on a change<br />
of venue from Pampa since July 1st. Jack Stoffregen,<br />
Rob Cowie, the lawyers at the PD’s office, and of course<br />
Philip Wischkaemper all are due a big thanks. <strong>The</strong> local<br />
bar invited the team into their homes and helped in so<br />
many ways. <strong>The</strong> guys from the Panhandle kicked butt.<br />
Wow.<br />
In the 253rd in Liberty County, TCDLA member and<br />
<br />
TCTC group G alum Lameka Trahan received the twoword<br />
verdict for her client, who was accused of possession<br />
of a controlled substance in a penal institution.<br />
Congratulations, Lameka, on a job well done!<br />
Parole guru Bill Habern of Huntsville, with Richard<br />
<br />
Gladden of Denton and Scott Pawgan of Huntsville,<br />
won another victory in federal district court, this time<br />
a finding by a jury that a parole official was personally<br />
liable for damages. Judge Sam Sparks charged the jury in<br />
Austin that as a matter of law, the Parole Board’s policy<br />
(which they refused to amend until late June 2009 after<br />
his law suit was over a year old) of placing parolees<br />
who have no sex offense convictions on sex offender<br />
supervision is unconstitutional as a matter of law. <strong>The</strong><br />
jury returned a verdict holding that: (1) Rissie Owens,<br />
chair of the Parole Board, and Stuart Jenkins, head of the<br />
Parole Division, violated Mr. Graham’s constitutional<br />
due process rights; (2) Rissie Owens acted unreasonably<br />
and Mr. Jenkins acted reasonably; (3) individual damages<br />
were assessed against only Ms. Owens in the amount of<br />
$15,000 for Graham’s emotional damages and $6,250<br />
for compensatory damages, for a total amount of damages<br />
of $21,250 (keep in mind they had to overcome<br />
state immunity defenses to get to individual damages);<br />
(4) finally, the jury found that the actions of the defendants<br />
justified Graham hiring legal counsel, meaning<br />
that attorney fees and costs will be determined and<br />
awarded by the court. Primary credit for this victory in<br />
this four-day trial, says Bill, goes to co-counsels Richard<br />
Gladden and Scott Pawgan (Bill’s partner) for their<br />
outstanding trial efforts. This decision potentially affects<br />
between 650 and 1,000 other parolees who have been<br />
subject to the same unconstitutional procedures when<br />
the parole board placed them on sex offender conditions<br />
without benefit of constitutional due process. Thanks to<br />
Bill and his team for this outstanding win!<br />
Congratulations to Lance Evans of <strong>For</strong>t Worth, who was<br />
<br />
appointed by the governor to the Texas <strong>For</strong>ensic Science<br />
Commission. <strong>The</strong> commission was created by the legislature<br />
in 2005 to establish a reporting system for instances<br />
of professional negligence and misconduct on the part of<br />
laboratories or other entities conducting forensic anal y-<br />
ses, and to investigate allegations of professional neg ligence<br />
or misconduct that would substantially af fect the<br />
integrity of the results of a forensic analysis con ducted<br />
by an accredited laboratory, facility or entity. Lance<br />
re places Sam Bassett, who has served with distinction<br />
on the commission since its inception, and whose term<br />
expired September 1st. Congratulations to Sam for a job<br />
well done and to Lance, whose adventure is just beginning.<br />
Congratulations to TCDLA Board member Doug Murphy<br />
<br />
of Houston, who was elected to the Board of Regents of<br />
the National College for DUI <strong>Defense</strong>. Doug has worked<br />
very hard to improve the quality not only of his representation,<br />
but also that of other DWI defenders by writing<br />
articles and teaching at seminars. Way to go, Doug!<br />
Ken Leggett of Abilene reports that a life sentence was<br />
<br />
obtained for Rocky Hidrogo, indicted for capital murder<br />
in the death of retired Lutheran Minister Glen Bundy of<br />
Comanche, Texas. Ken and Keith Woodley of Comanche<br />
were appointed to represent Rocky. <strong>The</strong> state was represented<br />
by Wes Mau of the Attorney General’s Office and<br />
B. J. Shepherd, the Comanche County District Attorney.<br />
Keith and Ken worked very hard and filed virtually every<br />
motion in the Losch Capital Murder Manual and hired<br />
Shelli Schade as a mitigation expert. <strong>The</strong> judge saw at<br />
the third pretrial how expensive this was going to be and<br />
“leaned” on Wes and B. J. to waive the death penalty.<br />
B. J. did so (reluctantly), and we got the LWOP we had<br />
sought (after a weeklong trial on guilt/innocence). Sometimes<br />
hard work pays off. Much thanks goes to the Texas<br />
Defenders Service (John Niland) and to Phillip Wischkaemper.<br />
<strong>The</strong>ir assistance was invaluable while the death<br />
penalty was still on the table. Team effort (and given John<br />
and Phil, our team was very strong). Congratulations to<br />
Ken and Keith!<br />
Re: People of Character<br />
Dear Colleagues:<br />
Dispatches<br />
I could not help but share a recent event regarding a client who<br />
demonstrates that there are still people of character among<br />
those we represent. I had represented a gentleman in 1997 on<br />
a Class A misdemeanor assault charge and concluded it with<br />
a plea to a reduced charge of Class C assault deferred disposition.<br />
Nothing particularly astonishing about what I deemed a<br />
good result. Following the disposition I sent him a letter (now<br />
in 1998) advising him that this disposition made him eligible<br />
for an expunction and reminding him that he still owed me
$1,500 on his legal fees.<br />
To my amazement, a couple of weeks ago I return to my<br />
office from the courthouse and find a letter from this client,<br />
who had moved to Puerto Rico, with a copy of my 1998 letter<br />
and his own letter apologizing for the 12-year delay in payment<br />
of the balance of my fee. He also figured that there must be<br />
some interest due, so he enclosed $2,000 in money orders to<br />
cover the fee and interest. I had long ago written this off as an<br />
uncollectible debt that I am sure has been an experience of all<br />
of you in your practices. <strong>The</strong> gentleman had even called my office<br />
to be sure we got his letter and told my legal assistant that<br />
he was a Christian man and knew that he had an obligation to<br />
me and simply was unable to meet it until recently.<br />
Of course I sent him a thank you letter recognizing that<br />
there are still some people of character. My faith in my clients<br />
and the work that we do is somewhat restored by this gentleman’s<br />
act. I thought I would share this with my colleagues.<br />
Sincerely,<br />
Wes Ball<br />
Jim Robinson<br />
James E. (Jim) Robinson, a charter member<br />
of TCDLA, passed away October 1, 2009,<br />
in Abilene, Texas. He was 82. Jim attended<br />
Texas A&M before enlisting in the Navy<br />
in 1944, graduating from Baylor School<br />
of Law in 1951. Jim was an “icon” as<br />
a trial lawyer in the Abilene area, lead<br />
counsel in the ’70s on the most sensational<br />
capital murder case in local history (though<br />
it was tried in Eastland County on a change of<br />
venue). Jim was instrumental in fighting off the<br />
death penalty in that case; his client lives<br />
today. Known for representing the “downtrodden”<br />
and “forgotten,” he is remembered<br />
by friends for his intelligence, compassion,<br />
and unrelenting ability as an advocate for<br />
his clients, a model for West Texas attorneys.<br />
Past president of the Abilene Bar Association<br />
as well, Jim is survived by wife Cathy; one<br />
son, John Ruther Robinson of Fairview, Texas;<br />
a daughter, Janie Robinson Long of Austin, Texas;<br />
one granddaughter; and four grandsons.<br />
In Memory of Jim<br />
He was always there when I needed him,<br />
With not only understanding but compassion as well.<br />
He was the one who always knew the answer.<br />
Never too busy,<br />
Never too tired,<br />
And always willing to give of himself.<br />
He fashioned my life and molded my character,<br />
And I owe him more than I could ever repay.<br />
He gave of himself,<br />
In exchange I feel I returned very little.<br />
<strong>For</strong> what I am or ever will be<br />
I owe to Jim.<br />
Always striving to protect the rights and liberties of his clients<br />
From the injustice of mankind, the government and its impersonal edicts,<br />
He was never afraid of the battle.<br />
His weapons, the word, his wit, and his intelligence<br />
Always armed, every ready<br />
To defend the citizen accused<br />
He was my mentor, my counselor and my friend<br />
And I shall miss him dearly.<br />
—Ra n d y Wilson (2009)
Whether you are wine tasting, dining at<br />
renowned restaurants like the French Laundry,<br />
pampering yourself with a mud bath in Calistoga,<br />
or just enjoying your stay at quaint bed &<br />
breakfasts, hotels, or resorts, Napa Valley is your<br />
spot of heaven on earth.<br />
<strong>The</strong> River Terrace Inn is located at 1600<br />
Soscol Avenue, Napa, CA 94559. Room rate is<br />
$99 per night, single or double occupancy. Call<br />
707.320.9000 to make reservations and refer to<br />
“TCDLA” to receive our group rate. <strong>The</strong> group<br />
rate is available until January 15, 2010, or until<br />
room block is full, whichever is earlier.<br />
Information on social events and rates will be emailed to those registered.<br />
Complete form if interested.<br />
Attending?<br />
YES! I would like to attend or would like more information on the Napa Valley Member’s Trip<br />
Contact Information<br />
Name ________________________________________ Bar Number __________________________________<br />
Street Address _________________________________ City ________________ State _____ Zip __________<br />
E-mail ______________________________________ Phone __________________ Fax __________________
Texas Criminal <strong>Defense</strong> Lawyers Association<br />
Capital /Habeas<br />
Philip Wischkaemper,<br />
Kathryn Kase, & John Niland<br />
February 25–26, 2010<br />
Austin, Texas<br />
Marriott Courtyard (512)236-8008<br />
$139 single or double<br />
www.tcdla.com<br />
Seminars spon sored by CDLP are funded by a state grant administered by the Texas Court of Criminal Appeals.
<strong>The</strong> 23rd Annual<br />
Rusty Duncan<br />
Advanced Criminal Law Course<br />
June 3–5, 2010<br />
Hyatt Regency (host hotel, $175 s/d, $32.44 valet, $24.87 self-park)<br />
(210)222-1234<br />
Menger Hotel ($117 s/d, $25 valet parking)<br />
(210)223-4361<br />
La Quinta ($84 s/d, $21 valet, $17 self-park)<br />
(210)222-9181<br />
Cutoff date 5/7/10 or until filled<br />
Shuttles available to convention center<br />
(Member: $485 book/CD, $435 CD only)
"Sentinel" © estate of Steve Grosskopf
FOR<br />
R~IEY<br />
.O~I<br />
S.J)ER.~IG<br />
CY<br />
."..--, ... O~IS<br />
I'IG<br />
OR<br />
Dj.\~rrS<br />
George is a 43-year-old<br />
schizophrenic man who was making<br />
almost daily calls to 911. After<br />
representing him three times for “Silent<br />
or Abusive Calls to 911” with three<br />
evaluations of incompetent, his attorney<br />
realized that George was spending<br />
more than the maximum sentence for<br />
his minor crime(s). George had a lot<br />
to lose because he received government<br />
benefits and had a stable place to live.<br />
After the fourth arrest, counsel realized<br />
that the revolving doors of evaluations<br />
and restoration to competency were<br />
probably not in George’s best interest<br />
and, at that point, tried to fashion a<br />
better solution with the prosecutor.<br />
Jeanette Kinard<br />
with special thanks to Brian W. Farabough<br />
A donation in the name of Steve Grosskopf was made to an<br />
endowed scholarship set up in his name at the UT School of Art.<br />
NCMnlber 2009 VOICE FOITHE DEfENSE 25
If you represent a defendant with mental health problems<br />
and that client has been accused of committing a class B<br />
mis demeanor, 1 he faces a maximum of six months in jail. 2 But<br />
the average number of days a defendant would spend in custody<br />
is gen erally much lower than the maximum sentence. One way<br />
to arrive at a sentence less than the maximum is for defendants<br />
to make a bargain and just plead guilty to the charge. However,<br />
to plead guilty, they must be competent to stand trial. 3 In Texas,<br />
the common practice is to move for a competency evaluation<br />
whenever there is a good faith or reasonable doubt as to the<br />
com pe tency of a defendant. But, due to the increasing number<br />
of defendants with questionable competency, the decreasing<br />
num ber of state hospital beds, and other bureaucratic obstacles,<br />
a de fen dant waiting on a competency evaluation will most likely<br />
be held in custody longer than the average client. This is the compe<br />
tency catch-22, in which the legal practitioner must make a<br />
decision regarding what is in the mentally ill client’s best interest<br />
(spending less time locked up) or regarding his ability to clearly<br />
understand and communicate about the proceeding—and proba<br />
bly their desire to spend less time behind bars.<br />
According to the most recent Bureau of Justice Statistics<br />
report regarding mental health and the criminal justice system,<br />
in 2005 more than half of all prison and jail inmates in the<br />
United States had at least one mental health problem. 4 In the<br />
Texas penal system, there are approximately 43,000 prisoners,<br />
55,000 probationers, and 21,000 parolees with a mental health<br />
diagnosis. 5 <strong>The</strong>se numbers do not include the roughly 170,000<br />
mentally ill inmates Texas county jails admit yearly. 6 <strong>The</strong><br />
recent figures are staggering when compared to the number of<br />
mentally ill inmates encountered in the United States just 50<br />
years ago, a number that has grown approximately 500% since<br />
then. 7 <strong>The</strong>re is also a strong correlation between the gradual<br />
de crease in the number of mentally ill patients being treated in<br />
state hospitals and the increase in inmates with mental health<br />
prob lems. 8 Unfortunately, the burden has just shifted from one<br />
state-run facility to another, with a new concern being re cid i‐<br />
vism as opposed to relapse. Recidivism of mentally ill inmates<br />
is high, with approximately one quarter of inmates, in both jail<br />
and prison, also carrying a criminal record with three or more<br />
in car cerations. 9<br />
<strong>The</strong> numbers strongly indicate many criminal defendants<br />
are dealing with mental health issues. Most criminal defense<br />
attorneys either have, or will, represent a client who suffers from<br />
men tal illness. <strong>For</strong> an attorney to be the best advocate possible<br />
for these mentally disabled clients, recognition of what is in<br />
the client’s best interest is crucial. Are competency evaluations<br />
in his best interest? Many criminal defense advocates answer<br />
this question with a blanket yes. However, the answer is not<br />
always so simple.<br />
Why Seek a Competency Evaluation?<br />
<strong>The</strong>re are many good reasons to request a competency evaluation.<br />
<strong>For</strong> example, if the defendant is found incompetent to stand<br />
trial, the state will be required to restore that defendant to<br />
com pe tency in order to be tried. It is generally in the client’s<br />
best interest to be restored to competency. Failing to obtain<br />
treat ment can, in some cases, seriously harm a person’s men tal<br />
health. Also, there are treatments available that restore compe<br />
tency without significant deprivation of liberty. <strong>The</strong>se outpa<br />
tient restorative intervention programs are available in at<br />
least four Texas counties. Moreover, clients who are not flagged<br />
as being incompetent, generally, face either probation or jail.<br />
Neither are adequate solutions. Probation generally fails because<br />
the mentally incompetent defendant will often violate<br />
that probation. Jails, on the other hand, lack the resources to<br />
prop erly care for inmates with mental illness. When the jailors<br />
are unaware of any mental health issues, they most likely will<br />
not attempt to treat the afflicted prisoner. Thus, the inmate is<br />
not treated for the underlying mental health issue behind the<br />
crim i nal act, which leads to high rates of recidivism. Though<br />
not exhaustive, this list indicates several of the reasons why a<br />
crim i nal defense attorney would motion to the court regarding<br />
competency to stand trial.<br />
Why Avoid Competency Evaluations?<br />
<strong>The</strong> most obvious reason defense attorneys would not seek<br />
eval u ation of competency, despite their suspicions, is the time<br />
dis parity. Clients charged with petty misdemeanors will sometimes<br />
spend more time waiting for—or in—a hospital in order<br />
to be restored than they would spend in jail if convicted. Also, an<br />
attorney could feel that disclosure of such suspicions breaches<br />
the attorney-client privilege. <strong>The</strong> often rightfully cynical attorney<br />
might feel that the client will not really get help. Thus, the lawyer<br />
might feel there is no point to try to have the client restored.<br />
Lastly, many criminal defense attorneys define zealous advocacy<br />
as “get ting the client off the hook” or obtaining the most lenient<br />
sen tence possible. When these motivating factors operate in the<br />
defense counsel’s mind, he or she will likely feel responsible for<br />
that additional time spent in the state’s custody for the compe<br />
tency evaluation. <strong>The</strong>re are certainly more reasons why attor<br />
neys would purposefully avoid a competency evaluation,<br />
but these four highlight a handful of the main drivers behind<br />
this choice.<br />
Competency Rules and Law in Texas<br />
Article 46B of the Texas Code of Criminal Procedure describes
the process by which competency issues are addressed. <strong>The</strong><br />
com pe tency standard holds that a defendant must have: (1) a<br />
sufficient present ability to consult with his lawyer with a reason<br />
able degree of rational understanding, or (2) a rational as<br />
well as factual understanding of the proceedings against him. 10<br />
Interestingly, the Texas statutory construction is more con ducive<br />
to findings of incompetence than the Dusky standard,<br />
which includes an “and” conjunction that requires a lack of<br />
both consultative ability and understanding of the adversarial<br />
pro ceed ings. When presenting information that tends to prove<br />
ei ther prong of the competency standard, the defendant’s burden<br />
of proof requires that either item (1) or (2) be proven by<br />
a pre pon derance of the evidence. 11 When a judge encounters<br />
evi dence suggesting that a defendant is not competent to stand<br />
trial, he must motion for a competency evaluation. 12 However,<br />
the prosecution or defense counsel may motion for an evaluation<br />
when evidence suggests the possibility of incompetency, but they<br />
are not required to make this motion as is the judge. 13<br />
<strong>The</strong> legal implications of a finding of incompetency are<br />
nu mer ous. First, the United States Supreme Court has found<br />
the conviction of an incompetent defendant to be a violation of<br />
the United States Constitution’s Fourteenth Amendment Due<br />
Process Clause. 14 A defendant who pleads guilty to a charge must<br />
be competent enough to understand the implications of that<br />
guilty plea. 15 Once a defendant is found incompetent, which<br />
un der the Texas standard is more likely as compared to other<br />
juris dic tions, due process requires that they not undertake the<br />
ad ver sarial system until competency is restored. <strong>The</strong> maximum<br />
period of treatment for an incompetent defendant is 120 days,<br />
with one possible 60-day extension, 16 though the waiting period<br />
and treatment cannot generally exceed the maximum sentence<br />
possible for the charged crime. 17<br />
When the question of competency arises, Texas defense<br />
at tor neys are ethically bound by the State Bar Rules, which specifically<br />
state:<br />
A lawyer shall take reasonable action to secure the appoint<br />
ment of a guardian or other legal representative for,<br />
or seek other protective orders with respect to, a client<br />
when ever the lawyer reasonably believes that the client<br />
lacks legal competence and that such actions should be<br />
taken to protect the client. 18<br />
This statutory construction appears to have left open the<br />
op tion of attorney discretion via the last clause, which mandates<br />
ac tion only when the attorney reasonably believes both that the<br />
client is legally incompetent and that the actions should be taken<br />
to protect the client. But, how discretionary is this language? A<br />
com pe tency evaluation could be considered necessary to protect<br />
the client from due process violations, or from their own mental<br />
ill ness. Conversely, an attorney might believe that avoidance<br />
of the often disproportionate time in custody during the wait<br />
for a competency evaluation and the time it takes to restore an<br />
incompetent client better protects the client. Regardless, the<br />
language of State Bar Rule 1.02(g) does not absolutely bar attor<br />
ney discretion in deciding whether or not to seek a com petency<br />
evaluation.<br />
<strong>The</strong> Texas Bar Rules also obligate candor, which requires an<br />
attorney to not “knowingly . . . make a false statement of mate<br />
rial fact” to the court. 19 A knowing omission by the attorney<br />
re gard ing his reasonable belief that a client is incompetent might<br />
vio late this rule. This possible violation stems from the fact<br />
that the omission is equivalent to knowingly making the false<br />
state ment that a client is competent to stand trial. In Texas, as<br />
in most jurisdictions, a defendant is presumed competent. 20<br />
Fail ure to bring up a reasonable belief in the incompetency of<br />
a defendant equates to a silent assertion that the defendant is<br />
com pe tent, which might violate the rule regarding candor. But,<br />
does the rule regarding candor trump the rule that mandates<br />
rea son a ble action to seek protective orders, which does allow<br />
for attorney discretion? Or, does the attorney-client privilege<br />
pre vail over candor in this situation?<br />
Dr. John King, of Washington and Lee University School of<br />
Law in Lexington, Virginia, commenting on the issue of candor<br />
and competency, indicated that candor is no more important<br />
an ethical talisman than zealous representation or protection<br />
of client confidences and secrets. 21 He also implies that most<br />
cod i fi ca tions include candor in order to “give lip service” to<br />
this “basic systemic value,” without recognizing the fact that it<br />
is “fundamentally at odds with other values” such as zeal and<br />
priv i lege. 22 Accordingly, he believes defense attorneys should take<br />
the rule of candor with a grain of salt when it runs up against<br />
other codified ethical obligations. Given that the Texas Bar Rules<br />
in clude a version of this same conflict, and that omissions are not<br />
al ways silent assertions of material fact, 23 it appears that the rule<br />
re gard ing representation of incompetent defendants could be<br />
fol lowed without violating the candor requirement. Even if it was<br />
a violation of candor, it is arguable that zealous representation of<br />
a defendant’s best interest would not necessarily sink a defense<br />
at tor ney below that unethical line set by the State Bar because<br />
these conflicting ethical obligations do not appear to trump<br />
each other. 24<br />
Because the Texas Bar Rules do not explicitly address the<br />
rules of professional conduct in regard to raising the issue of<br />
competency, many attorneys look to the American Bar As so ciation’s<br />
(ABA) Criminal Justice Mental Health Standards. Spe cifi<br />
cally, these standards state:
<strong>Defense</strong> counsel should move for evaluation of the defendant’s<br />
competence to stand trial whenever the defense<br />
counsel has a good faith doubt as to the defendant’s compe<br />
tence and permit such a motion even over the de fendant’s<br />
objection. 25<br />
Clearly, the ABA standards do not allow for attorney discre<br />
tion regarding competency evaluations, and candor trumps<br />
even client advocacy. Most commentators improperly place this<br />
same mandate of disclosure on defense attorneys. 26 Conversely,<br />
one commentator has aptly stated that the ABA mental health<br />
standards regarding raising the issue of competency as “out rageous”<br />
because it abrogates both the attorney-client priv i lege<br />
and the role of the attorney as advocate for her client. 27 This<br />
kind of automatic disclosure, once doubts regarding a client’s<br />
competency arise, would fail to consider the negative legal effects<br />
of such a motion, and could end with numerous undesirable<br />
im pacts to both the client and the penal system.<br />
<strong>For</strong> example, oftentimes for minor offenses a defendant<br />
would face far more time in state or county custody due to a<br />
com pe tency evaluation than if she just served the maximum<br />
sen tence for the crime. 28 <strong>The</strong> negative impact to the client is the<br />
ar guably unnecessary extra time incarcerated, while the state<br />
is also affected due to the extra cost of housing and treating<br />
this prisoner. <strong>For</strong> these and other reasons, some practitioners<br />
agree that for misdemeanors, the defense presumption should<br />
be avoidance of incompetency evaluations. 29 Below are three<br />
ex am ples of misdemeanor cases where the defense counsel was<br />
faced with the difficult decision of whether or not to raise the<br />
com pe tency issue. <strong>The</strong> factors vary from case to case, but the<br />
con flict between the best interest of the client and competency<br />
is common through each case.<br />
Richard:<br />
Richard is a client that the Travis County Mental Health Public<br />
De fender (MHPD) represented last year. He was charged with<br />
the minor offense of Criminal Trespass. 30 He is schizophrenic,<br />
but lives with his mother and is active with Mental Health and<br />
Men tal Retardation (MHMR). Psych medication does not seem<br />
to work with Richard. At the time of the last case, a competency<br />
mo tion was made and he was found incompetent. Between<br />
the time he spent waiting in the jail for a bed to open at the<br />
Austin State Hospital (ASH) and the time he spent in ASH, he<br />
was locked up for nine months on a Class B misdemeanor. If<br />
de fense counsel just had him plead guilty to criminal trespass,<br />
the maximum time spent in the system would have been six<br />
months. After this long stay in state custody, Richard returned<br />
from the hospital “incompetent and unlikely to regain.”<br />
Shortly thereafter, the MHPD were appointed to Richard<br />
again when he was arrested on another criminal trespass. However,<br />
this time MHPD did not make the competency motion.<br />
Rather, the defense convinced the prosecutor to dismiss the case.<br />
Ob viously this is a better outcome than the initial situation,<br />
which included a nine-month stay with the state for a maximum<br />
six-month offense. This did not comply with the ABA rules<br />
and the general practice in Texas, but his counsel did not want<br />
to send him into the same situation he was in before. <strong>Defense</strong><br />
coun sel felt it was in the client’s best interest not to request a<br />
com pe tency evaluation.<br />
Shiela:<br />
Another client MHPD represented, Shiela, was a homeless schizophrenic<br />
woman charged with Criminal Trespass. Shiela was in<br />
the late stages of liver failure due to her chronic alcoholism. This<br />
stage of her terminal illness was sadly marked by the fact that<br />
her kidneys had shut down. <strong>The</strong> failure of these vital organs led<br />
to her being terribly thin everywhere but her belly, which was<br />
swol len due to fluid collection. Shiela’s crime involved returning<br />
to a particular house and trying to get in because she believed<br />
she owned that house. <strong>The</strong> people who lived there would dial<br />
911 every time she banged on the door, and she would be taken<br />
to jail. As long as the jail would take her to a hospital to have<br />
her fluid drained, she continued to survive. Without these incustody<br />
treatments, her life expectancy would be roughly two<br />
weeks.<br />
Understandably, the High Sheriff wanted her out of his<br />
jail, as these trips to the hospital were coming out of his budget.<br />
<strong>The</strong> treatments were a necessary problem because any inmate<br />
hos pi tal death is still considered a “death in custody,” which<br />
trig gers an unwanted investigation. In order to release Shiela,<br />
the county wanted to be assured she had somewhere to stay.<br />
De fense counsel found her mother, but the mother refused to<br />
take her. <strong>The</strong>n, counsel found a nursing home that agreed to<br />
take her. After arranging to turn in dismissals and release cards<br />
when Shiela was at the hospital, the defense attorney went to<br />
her room to get her and drive her to the nursing home. <strong>The</strong><br />
MHPD’s intention was that she live out her last few weeks in a<br />
clean, comfortable place.<br />
On the contrary, her intentions were to have one last<br />
binge and die on the streets. She refused to get into the car<br />
with the defense team or consider going to a nursing home.<br />
Two days later, she was arrested again at the same house for<br />
the same charge. While in custody the second time around,<br />
she continually was moved between the jail and the hospital.<br />
Tak ing into consideration the first experience with Shiela, this<br />
time the defense went to civil court before turning in dismissals
and tried to get a guardianship. <strong>The</strong> judge found that she had<br />
ca pac ity and she was released. However, three weeks later she<br />
was back. To this day, the MHPD office still believes she is not<br />
com pe tent to stand trial and will never be competent. However,<br />
the defense also understands that no state hospital will take<br />
some one with her complicated and terminal medical problems.<br />
Mak ing a Motion for Competency in this situation dooms her to<br />
a long, expensive stay in the county jail that will only end with<br />
her death. It would be hard to say that a competency motion<br />
would benefit Shiela, being that at least without that evaluation<br />
pro cess, she is out sooner and possibly will get to live her last<br />
days outside a jail cell.<br />
Bobby:<br />
Another real-life example involved a client named Bobby. <strong>The</strong><br />
defense attorney and Bobby were in a jail call in County Court.<br />
This “cattle call” setup involved alternating rows of defendants<br />
and attorneys. <strong>The</strong> attorney was turned around on the bench<br />
seat to talk to the appointed client. <strong>The</strong> client was charged with<br />
crim i nal trespass. <strong>The</strong>re was no doubt in defense counsel’s mind<br />
that Bobby had a firm grasp on what was occurring procedurally.<br />
He understood that the person in front of him was his lawyer and<br />
that the woman in the black robe was the judge. He understood<br />
jail credit, and his most important understanding was that he<br />
wanted out of jail. Interestingly, during this interview he also<br />
told the attorney it was clear that she was an alien, and also that<br />
aliens had put him in jail. Faced with these facts, the attorney<br />
had two choices: either plead him for time served and get him<br />
out and home to his mother or request a competency evaluation,<br />
which would take about ten days and, if incompetent, would<br />
keep him locked up another three to four months before he<br />
re turned to court.<br />
<strong>The</strong> Plea for Discretion<br />
As the stories of Shiela, Bobby, and Richard illustrate, competency<br />
evaluations particularly on the misdemeanor level, are not always<br />
in the best interest of the mentally ill defendant. <strong>The</strong> application<br />
of this simple truism generally is accompanied by silence because<br />
many attorneys in Texas believe that there is an obligation to request<br />
these evaluations at the first signs of incompetency. However,<br />
neither the State Bar rules nor the Texas Code of Criminal<br />
Pro cedure explicitly prohibits attorney discretion regarding<br />
the decision to motion for a competency evaluation. Both of<br />
these authoritative codes have attorney discretion built into<br />
the statutes regarding raising the issue of competency. Article<br />
46B.004(a) of the Texas Code of Criminal Procedure says that<br />
ei ther party may motion for such an evaluation. 31 Use of the<br />
word “may” regarding both the defense and prosecution leaves<br />
the door wide open for attorney discretion when faced with<br />
rais ing the issue of competency.<br />
This discretion is also built into the Texas Bar rule regarding<br />
rep re sen tation of defendants who might be incompetent. Under<br />
that rule, as mentioned above, an attorney must take reason<br />
a ble actions to seek protective orders for a client when he<br />
reasonably “believe[s] that the client lacks legal competence<br />
and that such action should be taken to protect the client.” A<br />
com pe tency evaluation leads to an order regarding competency;<br />
thus, motioning for an evaluation is a necessary part of seeking<br />
an order of incompetency. But, as the statute states, this action<br />
only shall be taken when the attorney believes that the client is<br />
in com petent, and that the order of incompetency will protect<br />
the client. This notion of protecting the client is equivalent to<br />
tak ing into consideration what is in the mentally ill defendant’s<br />
best interest.<br />
Moreover, despite the general practice in Texas of following<br />
the ABA rules, these rules serve more as a model. <strong>The</strong> Texas<br />
Legislature revised the Code of Criminal Procedure competency<br />
frame work in 2003. During this revision, legislators maintained<br />
the state’s aversion to strict and obligatory rules, like those published<br />
by the ABA, regarding competency to stand trial. This is<br />
most no ta ble in the standards of proof required to motion for<br />
a com petency evaluation. <strong>The</strong> ABA rules regarding competency<br />
man date that all parties involved, including the judge, move for<br />
a com pe tency evaluation whenever a good faith doubt exists<br />
as to the defendant’s competency. <strong>The</strong> Texas Code of Criminal<br />
Pro ce dure’s evidence suggests the standard is much less strict<br />
than the ABA standard and allows for many more opportuni ties<br />
to have the mental competency of defendants evaluated.<br />
As one Texas judge has remarked, the Supreme Court did<br />
not establish a stan dard for determining when to raise com petency<br />
issues, and that “the purported [bona fide doubt] standard<br />
is not a creature of the constitution and our Legislature may<br />
pre scribe some other one that is adequate to meet due process<br />
re quire ments.” 32 <strong>The</strong> bona fide doubt standard presented in<br />
the Dusky opinion is not exactly the same as the good faith<br />
doubt standard set forth by the ABA, but it is really close. <strong>The</strong><br />
legislative history of S.B. 553—and the fact that both attorneys<br />
involved are provided discretion to choose whether or not to<br />
pre sent a competency motion—indicates that the members of<br />
the task force in charge of determining what standard to fol low<br />
intentionally moved away from what they considered to be a<br />
limiting standard. This also suggests that the Texas Leg is la ture<br />
be lieves that a competency statute that includes a lower eviden<br />
tiary hurdle and attorney discretion is adequate enough to<br />
meet the requirements of due process. And, this belief has not<br />
been challenged.
Conclusion<br />
In a decision of the United States District Court for the District<br />
of Columbia, O’Beirne v. Overholser, which was later reversed,<br />
Judge Holtzoff attacked the defense counsel’s choice to seek an<br />
incompetency order for a misdemeanant by saying:<br />
It may not be inappropriate to observe that counsel<br />
for defendants in borderline cases in which the offense<br />
is of a type that would carry at most a short term of<br />
im pris on ment, frequently do their clients a disservice<br />
when they request a mental examination. <strong>Oft</strong>en the<br />
out come of the examination is that the defendant is<br />
found competent and yet will have been incarcerated<br />
for several months in the criminal ward of a mental hospi<br />
tal amidst madmen while the study of his mental state<br />
is being conducted; and if he is eventually convicted and<br />
sentenced to imprisonment, his incarceration is prolonged<br />
that much longer. On the other hand, if he is<br />
ac quit ted on the ground of insanity, he runs the risk<br />
of being incarcerated for a much longer period than<br />
might have been the case if he were sentenced to a short<br />
term in jail. Counsel for defendants are advocates and<br />
must have the courage to represent their clients’ best<br />
in ter ests within the orbit of ethical practice. . . . If the<br />
de fen dant is actually in need of mental treatment, his<br />
coun sel would serve him better by securing treatment for<br />
him on the civil side of a mental institution, possibly as<br />
a voluntary patient, if and when an opportunity to do so<br />
arises. Mental examinations and the defense of insanity<br />
are better reserved for capital cases, as well as for cases<br />
in which the defendant runs the risk of being sentenced<br />
to imprisonment for a long term. 33<br />
Dr. John King has remarked about this quote that the obser<br />
va tion is unremarkable to any attorney who has “wrestled”<br />
with this difficult issue. 34 What is remarkable is that there are<br />
at tor neys who mistakenly neglect advocating for their mentally<br />
ill client’s best interest because they believe that they lack the<br />
dis cre tion to choose whether or not to motion for a competency<br />
evaluation.<br />
<strong>The</strong> Texas Bar rules and the Code of Criminal Procedure<br />
are both constructed to allow for attorney discretion when confronted<br />
with a defendant who might need a competency eval uation.<br />
Using this discretion by actually weighing what is in the best<br />
interest of the client might call for the defense counsel to avoid<br />
the competency issue. This is especially true when the charge<br />
is minor, such as Criminal Trespass, a class B misdemeanor. As<br />
the stories of Shiela, Richard, and Bobby illustrate, there are<br />
some situations where the answer to what is in the client’s best<br />
in ter est is not a routine motion for a competency evaluation.<br />
In these instances, forgoing the competency evaluation and<br />
buy ing the client more time outside state custody is in those<br />
de fen dants’ best interest, and should be considered side by side<br />
with the issue of competency.<br />
Notes<br />
1. Jennifer S. Bard, Re-Arranging Deck Chairs on the Titanic: Why the In carceration<br />
of Individuals with Mental Illness Violates Public Health, Ethical, and Consti<br />
tutional Principles and <strong>The</strong>refore Cannot Be Made Right By Piecemeal Changes to<br />
the Insanity <strong>Defense</strong>, 5 Hous. J. Health L. & Pol’y 1, 42 (2005) (emphasizing that<br />
the majority of the seriously ill are incarcerated for minor misdemeanors).<br />
2. Tex. Penal Code Ann. §12.22 (Vernon 2009).<br />
3. Criswell v. State, 278 S.W.3d 455, 457–58 (Tex. App.—Houston [14th<br />
Dist.] 2009) (stating that a conviction obtained while the defendant is legally<br />
in com petent violates due process of law).<br />
4. Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and<br />
Jail Inmates (2006), at 1, http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf.<br />
5. Marc A. Levin, “Expand Program to Divert Mentally Ill from Prisons:<br />
New Approach Can Save Money, Improve Safety,” Houston Chronicle, April<br />
23, 2009, at B11, available at http://www.chron.com/CDA/archives/archive.<br />
mpl?id=2009_4728379.<br />
6. Ante, at n. 5.<br />
7. John D. King, Candor, Zeal, and the Substitution of Judgment: Ethics and<br />
the Mentally Ill Criminal Defendant, 58 Am. U.L. Rev. 207, 212 (2008) (stating<br />
that a nearly five-fold increase in the number of mentally ill incarcerations has<br />
occurred over the last 50 years, with a national incarceration rate of 162 per<br />
100,000 inmates in the mid-1950s and a current incarceration rate that is over<br />
700 per 100,000 inmates).<br />
8. Ante, at n. 7 (stating that the institutionalization rate of people in mental<br />
hospitals has dropped from 339 to 20 per 100,000 over the last 50 years, and<br />
also that the shift from institutionalization to incarceration of the mentally ill<br />
in the United States is well documented).<br />
9. James and Glaze, ante note 4, at 1.<br />
10. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1-2) (Vernon 2009)(This is<br />
often referred to as the Dusky standard since the standard was formulated by<br />
the Supreme Court in Dusky v. United States, 362 U.S. 402, 402 (1960). However,<br />
the Dusky standard requires both (1) and (2), while the Texas standard only<br />
re quires either (1) or (2) to establish competency).<br />
11. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2009).<br />
12. Tex. Code Crim. Proc. Ann. art. 46B.004(b) (Vernon 2009) (“If evidence<br />
suggesting the defendant may be incompetent to stand trial comes to the attention<br />
of the court, the court on its own motion shall suggest that the defendant may<br />
be incompetent to stand trial”).<br />
13. Tex. Code Crim. Proc. Ann. art. 46B.004(a) (Vernon 2009) (“Either party<br />
may suggest by motion, or the trial court may suggest on its own motion, that<br />
the defendant may be incompetent to stand trial”).<br />
14. Pate v. Robinson, 383 U.S. 375, 378 (1966).<br />
15. Godinez v. Moran, 509 U.S. 389, 396 (1993); Tex. Code Crim. Proc. Ann.<br />
art. 26.13(b) (Vernon 2009).<br />
16. Tex. Code Crim. Proc. Ann. art. 46B.073(b) (Vernon 2009); Brian D.<br />
Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with<br />
Mental Illness: An Analysis and Guide 88 (4th ed., National Alliance on Mental<br />
Illness 2008).<br />
17. Tex. Code Crim. Proc. Ann. art. 46B.0095(a) (Vernon 2009).<br />
18. Texas Disciplinary Rules of Professional Conduct, Rule 1.02(g), 11 (2005)<br />
(emphasis added).<br />
19. Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(1), 59
(2005).<br />
20. LaHood v. State, 171 S.W.3d 613, 618 (Tex. App.—Houston [14th Dist.]<br />
2005), pet ref ’d (citing Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon<br />
2006)).<br />
21. King, ante note 7, at 215–26.<br />
22. King, ante note 7, at 219.<br />
23. Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(1)<br />
Comment 2, 60 (2005) (quoting that there are circumstances where failure to<br />
make a disclosure is the equivalent of an affirmative misrepresentation, and<br />
in fer ring that there are circumstances where that is not the case).<br />
24. Texas Disciplinary Rules of Professional Conduct, Preamble: A Lawyer’s<br />
Responsibilities (7), 5 (2005) (stating that within the framework of these Rules<br />
many difficult issues of professional discretion can arise, and that the Rules<br />
and their Comments constitute a body of principles upon which the lawyer<br />
can rely for guidance in resolving such issues through the exercise of sensitive<br />
pro fessional and moral judgment).<br />
25. A.B.A. Crim. Justice Mental Health Standards 7-4.2(c) (1989).<br />
26. King, ante note 7, at 234 (commenting that such an approach is not<br />
jus tified by history, necessity, or logic and undermines the integrity of the<br />
attorney-client relationship and, therefore, the integrity of the criminal justice<br />
system).<br />
27. King, ante note 7, at 235.<br />
28. 1 Crim. Prac. Manual §3:3 (2009).<br />
29. Ante at n. 28.<br />
30. Tex. Penal Code Ann. §30.05(d) (Vernon 2009) (stating that Criminal<br />
Trespass is a class B misdemeanor, except when it meets any of the requirements<br />
that heighten the crime to a class A misdemeanor).<br />
31. Tex. Code Crim. Proc. Ann. art. 46B.004(a) (Vernon 2009).<br />
32. Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980).<br />
33. O’Beirne v. Overholser, 193 F. Supp. 652, 661 (D.D.C. 1961).<br />
34. King, ante note 7, at 238.<br />
Jeanette Kinard is Director of the Travis County<br />
Mental Health Public Defender Office. A<br />
long-time criminal defense attorney, Jeanette<br />
has a Bachelor’s Degree from UT-Austin and<br />
a law degree from U of H in Houston. She is a<br />
frequent speaker, state wide, on the topic of the<br />
mentally ill in the criminal justice system. She is a member<br />
of the State Bar of Texas, Austin Crim i nal <strong>Defense</strong> Lawyer’s<br />
Association and Texas Criminal <strong>Defense</strong> Lawyer’s Association.<br />
Seminars spon sored by CDLP are funded by a state grant administered by the Texas Court of Criminal Appeals.
Thinking Outside the<br />
DWI Voir Dire Box<br />
Jury selection is the single most important part of a DWI trial. Breath test<br />
DWI prosecutions are more difficult to defend then no test cases. Blood<br />
test cases are even harder to defend. Accordingly, voir dire preparation in<br />
a breath test case is more critical than in a no test case. It is here that the<br />
defense begins the task of undermining the prosecution’s evidence. It is here<br />
that exculpatory theories emerge, that jurors begin to learn their proper role,<br />
that defense counsel starts making the potential jurors his witnesses and<br />
initiates the task of persuading them to vote “not guilty”.
No brilliant opening statement, outstanding crossexamination,<br />
or spectacular closing argument can<br />
make up for a wrong-thinking jury. It is for this<br />
rea son de fense counsel must always plan the voir<br />
dire so questions can both teach and stimulate jurors not only<br />
to understand the jury-trial right of the defendant, but also to<br />
make them think of, and espouse, exculpatory theories.<br />
No jury can decide a DWI case absent having a deep appre<br />
cia tion and working grasp of the constitutional precepts of<br />
“presumption of innocence” and “proof beyond a reasonable<br />
doubt.” Clearly understanding these notions is paramount to<br />
both effective jury service and effective assistance of counsel.<br />
Regrettably, most jurors do not understand them. It is,<br />
how ever, hard to blame them for this deficiency because most<br />
judges, prosecutors, and defense lawyers do not either. Notwith<br />
standing the fact that most lawyers do know the words<br />
“pre sump tion of innocence” and “proof beyond a reasonable<br />
doubt,” they simply lack an appreciation of their constitutional<br />
his tory, true meaning, breadth, and spirit.<br />
Recognizing these criminal justice system inadequacies, the<br />
good lawyer will not only set about to teach these constitutional<br />
notions to the judge and jury, but also seek to make these legal<br />
and factual jurists actually embrace them. Accordingly, be cause<br />
of judicial time constraints, learned defense counsel must thoroughly<br />
explore both these constitutional assurances with the<br />
jury, even to the exclusion of other material topics if the cit i zen<br />
ac cused is going to get the fairest trial possible. Indeed, it was<br />
with this recognition in mind that the majority of this ar ti cle<br />
has been written.<br />
<strong>The</strong> following voir dire questions, comments, and silver<br />
bul let tips are offered to defense counsel as food for thought so<br />
that you can hopefully render effective assistance of counsel.<br />
Introduction<br />
Comment: Reintroduce yourself and your client.<br />
Comment: Tell the jurors that you and your client are<br />
not there in defiance of the DWI laws. Indeed, share with<br />
them your common belief that the laws are necessary and<br />
good, but you are there because your client thinks he is not<br />
guilty.<br />
Silver Bullet Tip 1: Do not refer to your client as “the<br />
defendant.” Call him by name there and throughout<br />
the trial. Try to personalize your client.<br />
Silver Bullet Tip 2: Self-disclose any fears you have<br />
so as to allow the jurors to both identify with you and<br />
self-disclose their fears to you. <strong>For</strong> example, admitting<br />
you had a fear of being misjudged by the jurors because<br />
of the way you wear your hair might connect to a juror<br />
who has a fear of public speaking. Your courage to<br />
self-disclose could cause the juror to have courage to<br />
speak up, and more importantly, self-disclose a bias/<br />
prej u dice/defense.<br />
Silver Bullet Tip 3: In preparing your voir dire questions<br />
and comments, create a fear list—i.e., evidence<br />
that bothers you about the case. Addressing your fear<br />
list in voir dire is the best way to create defenses for it<br />
dur ing the trial.<br />
Silver Bullet Tip 4: Use open-ended questions as often<br />
as you can. If you use close-ended questions, then ask<br />
for an explanation as to why a juror responded a certain<br />
way.<br />
Silver Bullet Tip 5: Try to create controversy in the<br />
ques tions you create. <strong>For</strong> example, some people say<br />
that if a group of ten people were charged with a crime,<br />
nine of whom were absolutely guilty and one who was<br />
ab so lutely innocent, that it is better to convict them all<br />
to protect society from the nine guilty persons. Others<br />
say you can only protect society by freeing them all to<br />
pro tect the innocent person. What do you think?<br />
Silver Bullet Tip 6: Design your questions to make<br />
the jurors think so that they create defensive themes<br />
for your client.<br />
Silver Bullet Tip 7: Try not to use lawyer words. Speak<br />
like a lay person.<br />
Silver Bullet Tip 8: Listen carefully to not only what<br />
jurors say, but also what their body language says too.<br />
Make eye contact with each juror.<br />
Silver Bullet Tip 9: <strong>The</strong> more time you spend talking<br />
is less time for the jurors to talk. Accordingly, try to<br />
have the jurors talk as much as possible.<br />
Silver Bullet Tip 10: Loop, loop, and loop again. <strong>The</strong><br />
number three is a powerful number. Asking one juror<br />
what he thinks and then asking the next juror what he<br />
thinks of that answer, and then asking the third juror<br />
what she thinks of the first two answers is a powerful<br />
tool for bonding jurors together, creating defenses, and<br />
for making witnesses.<br />
Silver Bullet Tip 11: Know your case law and statutory<br />
rules on challenges for cause and peremptory challenges.<br />
You must also know the law on asking for additional<br />
time and whether or not a question is proper.<br />
Silver Bullet Tip 12: Remember that even though<br />
most jurors have made up their mind as to how they<br />
are going to vote at the end of voir dire, it is not over<br />
un til it is over.
Presumption of Innocence<br />
and Burden of Proof<br />
<strong>The</strong>re are four cornerstones that make up and support our crimi<br />
nal justice system. <strong>The</strong>y are the Presumption of Innocence, the<br />
requirement that guilt be proved beyond a reasonable doubt by<br />
the government, the right of a citizen to have an attorney, and<br />
the right to be tried by a jury of our peers. You and I are two of<br />
those cornerstones, but let us discuss the remaining two.<br />
1. What is the presumption of innocence?<br />
Comment: It is one of the four cornerstones of our criminal<br />
justice system. It has been with us since our coun try was<br />
born on June 21, 1788. <strong>The</strong> presumption of innocence is a<br />
legal instruction from our founders to the judge, prosecutor,<br />
and jury that it is the government’s ob li ga tion and duty<br />
to prove guilt. Said another way, accused persons have no<br />
obligation or duty to prove themselves innocent.<br />
2. What is the one and only presumption or assumption a<br />
ju ror can make in a criminal case?<br />
Comment: <strong>The</strong> presumption of innocence.<br />
3. What will you require Mr. Defendant to prove in order for<br />
you to find him not guilty? And why?<br />
Comment: “Nothing!” <strong>The</strong> presumption of innocence<br />
requires only the government to prove anything. Where the<br />
government fails to prove guilt, the default or automatic<br />
ver dict is always “not guilty.”<br />
4. If the prosecutor chose to let you decide this case right<br />
now, and both Mr. Defendant and I did too, and the judge<br />
agreed, how would you vote, “guilty or not guilty”? And<br />
why?<br />
Comment: <strong>The</strong> presumption of innocence is so im portant<br />
that it is the only lawful authority needed for you to<br />
find a person “not guilty” where the government’s proof is<br />
insufficient to convince you of guilt.<br />
5. How long does the presumption of innocence last?<br />
Comment: It exists throughout the entire trial.<br />
6. Does the presumption of innocence exist after you have<br />
heard:<br />
Y the opening statement of the prosecutor?<br />
Y the sworn testimony of the arresting officer?<br />
Y the sworn testimony of all police officers in this case?<br />
Y the breath test machine officer say he ran a valid test?<br />
Y the government’s paid expert witness say that the breath<br />
test machine was properly working and that Mr. De fendant<br />
failed the test?<br />
Y the prosecutor present a closing argument and tell you<br />
why you should vote guilty?<br />
Y the judge tell you to go into your deliberation room and<br />
decide this case?<br />
Comment: “Yes” to all these stages of the trial.<br />
7. In regard to the presumption of innocence, where the offi<br />
cer says Mr. Defendant is guilty, does the presumption of<br />
in no cence require you to look for an innocent explanation<br />
or for some kind of mistake? Explain.<br />
8. In regard to the presumption of innocence, where the govern<br />
ment and/or machine witness says Mr. Defendant is<br />
guilty, does the presumption of innocence require you to<br />
look for an innocent explanation or for some kind of mistake?<br />
Explain.<br />
9. Where Mr. Defendant does voluntarily take a breath test,<br />
with the presumption of innocence in mind, can you presume<br />
that he didn’t think he was guilty? Why?<br />
10. Does the presumption of innocence exist while each of you<br />
are deciding/talking about this case after you start de lib erat<br />
ing?<br />
Comment: Absolutely, the presumption of innocence is<br />
there as an instruction/guide to each of you individually<br />
and collectively to constantly remind each other about when<br />
eval uating the sufficiency of the government’s evidence.<br />
Comment: Some legal scholars have compared the presump<br />
tion of innocence to the “scales of justice,” where<br />
each bit of evidence is weighed or evaluated. A jury can<br />
de ter mine if any particular evidence has no weight, some<br />
weight, or a lot of weight. Those same scholars say that the<br />
presumption of innocence is only overcome where the govern<br />
ment’s evidence is so overwhelming and weighty that<br />
the scale not just tips or leans to the government, but rather<br />
the scale is pegged all the way against Mr. Defendant.<br />
11. How would you use the presumption of innocence where,<br />
af ter hearing and seeing all the evidence, you conclude<br />
“I can’t decide whether Mr. Defendant is guilty or not<br />
guilty”?<br />
Comment: Where not convinced of guilty, the default,<br />
or automatic vote, is always not guilty.<br />
12. When you hear or see evidence that says Mr. Defendant<br />
is guilty, what does the presumption of innocence require<br />
that you think as you receive that evidence?<br />
Comment: <strong>The</strong> presumption of innocence requires that<br />
you constantly search for innocent explanations and to<br />
accept and embrace them until such time, if possible, the<br />
government does disprove them by proof beyond a reason<br />
able doubt.<br />
13. How many presumptions or assumptions are there in a<br />
crim inal case, and, can you name them?<br />
Comment: <strong>The</strong> presumption of innocence is the only<br />
al low able presumption and assumption.<br />
14. Knowing there is only one presumption/assumption in a<br />
crim inal case, and that is the presumption of innocence,
can you:<br />
Y assume that where Mr. Defendant elects not to testify<br />
for him self that he thinks he is guilty? Why not?<br />
Y presume that police motor skill coordination exercises<br />
or police standardized sobriety tests are reliable and accu<br />
rate for<br />
Q the average person?<br />
Q Mr. Defendant?<br />
Q any person? Why not?<br />
Y presume that Mr. Defendant has the same motor skills or<br />
coordination as a so-called average person? Why not?<br />
Y presume that the motor skill/coordination performance<br />
of Mr. Defendant as described by the police is how he<br />
nor mally is? Explain.<br />
Y presume that Mr. Defendant can, on any sober day in his<br />
life, perfectly or correctly perform police field sobriety<br />
tests? Why not?<br />
Y assume that the police breath test machines work, or are<br />
accurate, or are reliable because:<br />
Q the government bought them? Why not?<br />
Q a paid government witness said it was working, accu<br />
rate, reliable? Why not?<br />
Q the result showed a .08? .16? .20? 40? Why not?<br />
15. “Tolerance” is a word you may hear in this case. Tolerance,<br />
according to the dictionary, can have several meanings.<br />
One meaning is that tolerance is an acceptable margin of<br />
er ror—i.e., we will tolerate a mistake if we don’t think it<br />
is a big one.<br />
Another meaning of tolerance can be where a person,<br />
over time, builds up a kind of immunity against something<br />
or simply learns to cope with something. <strong>For</strong> example, a<br />
gov ern ment breath test expert might say a person has a<br />
tol er ance to alcohol where there appears to be no alcoholic<br />
ef fect to their mental or physical abilities but they still failed<br />
the breath test.<br />
Y With the presumption of innocence in mind, can you<br />
pre sume or assume that Mr. Defendant has a tolerance<br />
to alcohol? Why not?<br />
Y With the presumption of innocence in mind, can you<br />
pre sume or assume Mr. Defendant, if impaired, can mask<br />
or hide the effects of alcohol? Why not?<br />
16. Do you personally think the presumption of innocence is<br />
im por tant and why?<br />
17. Keeping the presumption of innocence in mind, can you<br />
pre sume or assume that just because a person consumed<br />
an alcoholic drink that there:<br />
Y is any loss of their normal mental ability?<br />
Y is any loss of their normal physical ability?<br />
18. What about where consumption is admitted and the amount<br />
consumed was:<br />
Y 2 beers?<br />
Y 4 beers?<br />
Y 6 beers?<br />
Y 20 beers? Why not?<br />
19. What other words or ways can you suggest or teach to me<br />
how I might better explain the presumption of innocence<br />
to future jurors?<br />
Proof Beyond a Reasonable Doubt<br />
1. What is your definition of “Reasonable Doubt”?<br />
Comment: “Reasonable doubt” is the second of the four<br />
cor ner stones of our criminal justice system. It is a legal instruc<br />
tion to the prosecution, the judge, and the jury as to<br />
how much evidence is required for the government to prove<br />
be fore we can label a citizen a “criminal.” Remembering<br />
those “scales of justice” we spoke about earlier, beyond a<br />
rea son able doubt is the farthest measuring point opposite<br />
from the presumption of innocence. It is the measuring<br />
point that once crossed, once you go beyond the pegging of<br />
the scale, that a finding of guilt is allowed.<br />
Texas has no specific definition of reasonable doubt except<br />
the one you have personally. Indeed, you may each have a<br />
dif fer ent definition so long as it meets our constitutional<br />
min i mum level of required proof.<br />
We have a number of gradually increasing degrees of<br />
re quired evidence in our justice system. Proof beyond a<br />
rea son able doubt is the highest measure of required proof<br />
in every criminal court in the United States. To best un derstand<br />
what a “constitutional reasonable doubt” is, we can<br />
com pare it to other less important levels of proof requiring<br />
less certainty than reasonable doubt.<br />
Comment: “Reasonable Suspicion”—this measure is more<br />
than a mere hunch or a mere suspicion or conclusion. It<br />
can not just be a guess, and it must be supported by specific<br />
ac cu rate reasons. This is the minimum level of proof we<br />
re quire our peace officers to have in order to momentarily<br />
stop a person suspected of being involved in a criminal<br />
ac tiv ity. It is an evidence measure that does not support<br />
ei ther an arrest or a search. <strong>For</strong> example, it would be okay<br />
for an officer to stop someone who was parked in front<br />
of a bank at lunch where the motor was running, where<br />
the driver was smoking, a number of cigarettes butts were<br />
observed on the ground at the driver’s door, and where<br />
the driver appeared nervous and looked as if he was doing<br />
surveillance. However, it would not be okay where the officer<br />
says only that the car was legally parked for a moment with<br />
the engine on. <strong>For</strong> example, if we imagine a football field,
easonable suspicion would be at the government’s 20 yard<br />
line.<br />
Comment: “Probable Cause”—a measure of proof re quiring<br />
more than reasonable suspicion that allows an officer<br />
to arrest a person, search him, and even perform a strip<br />
search. It is also the minimum level of proof required for<br />
the issuance of a search warrant for a home and everything<br />
in it. “Probable cause” is defined as that measure of evidence<br />
show ing that a person has probably committed a crime or<br />
that the place to be searched has probable evidence there.<br />
<strong>The</strong> keyword here to be remembered is “probable.” Let us<br />
look again to the football field example and imagine that<br />
the probable cause measure is at the government’s 35 yard<br />
line.<br />
Comment: “Preponderance”—a measure of proof requir<br />
ing more evidence than probable cause. It is sometimes<br />
called the 51% rule because the party in a lawsuit who<br />
con vinces the jury that 51% of evidence favors their side<br />
wins. This measure is used in civil lawsuits where we are<br />
talk ing about taking money or property from one person<br />
or business and giving it to another person or company.<br />
This measure allows a party to win when the jury might<br />
have a 49% degree of uncertainty. Turning again to our<br />
football field example, the government now is required to<br />
get the ball to the defendant’s 49 yard line.<br />
Comment: “Clear and Convincing”— a measure of proof<br />
re quiring much more certainty than preponderance. Indeed,<br />
in Texas, it is statutorily and judicially defined as a “firm<br />
be lief that the allegations are true.” This is an extremely high<br />
de gree of certainty/measure of proof that is used in child<br />
custody cases. Said another way, it is a required measure<br />
of proof where the government could come and take your<br />
child away from you or a neighbor’s child away from her<br />
parents. This measure requires less certainty to take a child<br />
away from parents than it does to convict someone of a<br />
crime.<br />
2. Mr. Juror No. 1, you are a parent; so is Juror No. 2. <strong>The</strong> clear<br />
and convincing evidence measure protects both you and<br />
your children from being wrongly separated. That measure<br />
of certainty must be applied to you both the same way if<br />
there was a question about your fitness to raise your child.<br />
With that in mind, what percent of certainty would you<br />
have to be convinced in order to allow the government to<br />
take your fellow juror’s child from him?<br />
3. Mr. Juror No. 2, same question: How certain in terms of<br />
per cen tage would you have to be in order to allow Ju ror<br />
No. 1’s child to be taken from him?<br />
4. Mr. Juror No. ___: I want you to think about the phrase<br />
“a firm belief that the allegations are true,” which is the<br />
measure for the clear and convincing evidence standard.<br />
When something is “true,” how much of it can be false before<br />
we can say it is no longer true?<br />
5. What then does the phrase “firm belief” mean to you in<br />
de clar ing that something is untrue?<br />
Comment: “Beyond a Reasonable Doubt”— the highest<br />
de gree of certainty in our law. This is the measure needed<br />
to be overcome in order to label someone a criminal for<br />
the rest of his or her life. Remembering our football field<br />
ex am ple, this requirement can be likened to the entire length<br />
of the football field where the government moving goal line<br />
to goal line is not enough to convict. Failure to get beyond<br />
the defendant’s goal line is an automatic default verdict of<br />
not guilty.<br />
Comment: Our law provides that reasonable doubt can<br />
come from three places:<br />
a. from a conflict of evidence;<br />
b. from a lack of evidence; and<br />
c. from the evidence.<br />
6. In regard to “conflicts of evidence,” Mr. Juror No. _____, do<br />
you understand that if we had a case where a person failed<br />
a breath test, but you saw a video that was made close to the<br />
same time that showed no impairment, that the video can<br />
be a basis of reasonable doubt for you that the test result<br />
was wrong?<br />
7. On a “lack of evidence,” Mr. Juror No. _____, do you un derstand<br />
that if we had a case where a person failed a breath test<br />
and the government expert said the machine was properly<br />
working, that if you were not convinced enough it was correctly<br />
working or the witness was not convincing enough<br />
to you, that you can use those facts for reasonable doubt?<br />
8. And finally, on the “from the evidence” idea: When a<br />
non-police witness says he saw a defendant’s videotaped<br />
sobriety test session and, because he knows the defendant’s<br />
normal mental and physical abilities, he says the driver was<br />
not intoxicated, can you use that testimony as reasonable<br />
doubt?<br />
9. Do you think simply because a police officer or machine<br />
says something that you must accept it? Explain.<br />
10. How do “beyond a reasonable doubt” and “the presumption<br />
of innocence” work together?<br />
11. Understanding the presumption of innocence and the<br />
con sti tu tional requirements of proof beyond a reasonable<br />
doubt, can we convict a person of a crime where we have<br />
only:<br />
Y a reasonable suspicion?<br />
Y a probability he did it?<br />
Y 51% of the evidence leans to guilt?<br />
Y a firm belief the allegation is true that the person did
com mit the crime?<br />
Y a reasonable doubt?<br />
Normal Mental and Physical Abilities<br />
Comment: “Normal v. Average and Normal Range”—the<br />
definition of intoxication in Texas for DWI purposes is<br />
where, because of alcohol, a drug, or a controlled substance,<br />
a person drives while she has lost the normal use of her<br />
men tal or physical abilities. <strong>The</strong> normal abilities you are<br />
go ing to examine will be those of Mr. Defendant.<br />
1. Mr. Juror No. _____, supposing we take this row of jurors<br />
and we make believe you all have a normal shoe size 8. We<br />
will do the same with the next row except we will give them<br />
all a size 10.<br />
Y what would the average shoe size for the jury?<br />
Y would it be normal for juror ___ to wear a size 9?<br />
Y would it be fair, comfortable, or even safe to require all<br />
of you to wear a size 9 shoe?<br />
Y can we agree that normal does not mean average?<br />
2. When it comes to what is normal for a person in regard to<br />
their mental or physical abilities, are they always the same<br />
for that person?<br />
Y Does an older person generally have the same strength<br />
and coordination he had in his youth? Explain.<br />
Y Does a person have the same mental and physical snap<br />
at all times of just one day?<br />
Y Waking up vs. midday vs. the end of the day?<br />
Y Why do athletes warm up?<br />
Comment: Normal is not some static point on a 1-ft ruler<br />
like the 6-inch mark. Rather, normal is a range, for example,<br />
from the 4- to 8-inch mark.<br />
3. With the presumption of innocence in mind, are you allowed<br />
to presume that Mr. Defendant’s normal abilities are<br />
those of the average person? Explain.<br />
Comment: No. <strong>The</strong> presumption of innocence requires<br />
that you presume he had and displayed his normal mental<br />
and physical abilities.<br />
4. Some people say the exercise of good judgment is proof of<br />
no loss of normal mental abilities while others say not it is<br />
not. What do you think?<br />
Breath Test Voir Dire and Refusal<br />
1. What do you know about the accuracy and reliability of<br />
the breath test machine?<br />
Comment: In Texas, a driver is generally allowed to decline<br />
to take blood, breath, and urine tests. Three exceptions exist<br />
for compelling a blood test: where a judicial warrant is ob‐<br />
tained or where a person is seriously injured or dies as a<br />
result of the driver’s intoxication. No law requires you to assume/presume<br />
guilt or says that a license will be suspended<br />
because a driver refused to submit to a breath or blood<br />
test.<br />
2. Would your opinion on the breath test machine be changed if<br />
you learned that it was never warranted by its manufacturer<br />
to be fit for breath testing on humans, but rather was only<br />
warranted for parts and labor? Explain.<br />
3. Would you allow your children to have lasik eye surgery<br />
on a machine that was warranted just for parts and labor?<br />
Explain.<br />
4. Would you allow your children to have lasik surgery on an<br />
unwarranted machine where, in addition to the possibility<br />
your child’s vision might be harmed, if a problem arose,<br />
you could be punished with 6 months in jail, a $2,000 fine,<br />
and a year loss of your license? Explain.<br />
Comment: <strong>The</strong> punishment for DWI can be as much<br />
as 6 months in jail, a $2,000 fine, and a year loss of your<br />
license.<br />
5. As an innocent person, what would be your biggest fear of<br />
taking a breath test you knew nothing about?<br />
6. As an innocent person, how could you best protect your<br />
in no cence when asked to take a breath test?<br />
7. Assume with me the following hypothetical facts are true.<br />
<strong>The</strong> IRS, to save space, has instituted a new tax procedure<br />
wherein they seize all your records, compute your tax, destroy<br />
your records, and then send you your tax bill. Explain<br />
your thoughts on the fairness of this procedure.<br />
8. What are your thoughts on a police practice or policy<br />
wherein written statements are made by citizen defendants<br />
explaining their actions, after which an officer reads the<br />
state ment, destroys it, and then writes what he thought it<br />
said in his report?<br />
9. What possible reasonable justification could the police have<br />
for not preserving the written statement of a citizen/de fendant?<br />
10. Assume with me that it cost about one dollar to preserve a<br />
breath test specimen for retesting. What possible reasonable<br />
justification could the police have for not offering a citizen/<br />
de fendant the choice of preserving his breath sample if the<br />
citizen pays the dollar?<br />
11. Can you tell me some innocent reasons why an innocent<br />
per son might not take a breath test?<br />
12. Having talked about machine mistakes, lack of breath sample<br />
preservation, lack of warranty, maximum punishments,<br />
would it be an exercise of good or bad judgment to not<br />
take a breath test? Explain.
Miscellanous Must-Ask<br />
Questions and Comments<br />
Comment: It is not against the law to consume alcohol<br />
and drive. It is only against the law to drive while you are<br />
in toxicated.<br />
Comment: It is not against the law to have a breath/blood<br />
test result of greater than .08. It is only against the law to<br />
have that result when a vehicle is being operated.<br />
1. Who has not consumed alcohol in the past twelve months?<br />
Six months? Three months? Why?<br />
2. Who has had prior criminal jury service? Prior DWI jury<br />
ser vice? Who did punishment—the judge or jury?<br />
3. Who has worked with law enforcement or has a very close<br />
friend or relative in law enforcement?<br />
4. Who has been involved in an automobile accident or had<br />
a close family member or close friend involved in an auto<br />
mo bile accident where alcohol has been involved?<br />
5. What would you think about a law that said everyone that<br />
consumed alcohol and then drove was automatically guilty<br />
of DWI?<br />
6. What would you think about a law that said everyone who<br />
con sumed alcohol and committed the traffic offense(s) of<br />
_____________ (insert the offense for which your client<br />
was stopped) was automatically guilty of DWI?<br />
J. Gary Trichter offices in Houston and<br />
Bandera, Texas, but tries cases throughout<br />
the Lone Star State. In practice for 29<br />
years, he is co-author of the two-volume<br />
treatise entitled Texas Drunk Driving Law<br />
(4th Edition) and is author/co-author of<br />
over 40 journal articles on topics ranging from<br />
DWI, grand jury, and drug couriers to aviation. Gary has<br />
handled cases in over 20 states, has lectured in 25 states and in 5<br />
foreign countries. He is past Regent for the National College for<br />
DUI <strong>Defense</strong> and was Dean of the College for 2002–2003. Gary<br />
is a former Director and past co-chair of the DWI Committee<br />
for the Texas Criminal <strong>Defense</strong> Lawyers Association. He has<br />
also served as past chairman of NACDL’s Drunk Driving<br />
Committee. He has been named a “Super Lawyer” in Texas<br />
Monthly magazine 2004–2009. Gary’s latest endeavor is to play<br />
Col. William Frederick “Buffalo Bill” Cody in rodeo and Wild<br />
West show events, competing in the equine sport of Cowboy<br />
Mounted Shooting.<br />
Affiliate Member<br />
Melidia Perez, Austin<br />
Paralegal Members<br />
Jennifer Fry, Austin<br />
George Negrete, Austin<br />
Regular Members<br />
Jennifer Linn Barnes, Rockwall<br />
Monique Bracey, Garland<br />
Lionel Castro, Houston<br />
Tony Diaz, Austin<br />
Leira Moreno Gracia, Houston<br />
Muneeza Ilahi, Pearland<br />
Louis J. Jones II, Houston<br />
Daniel Kamin, Houston<br />
Andrew H. Longan, Austin<br />
Eric McDonald, Austin<br />
Marie Munier, Houston<br />
Ethan Myers, Austin<br />
Alberto Osorio, Mission<br />
Allen Parker, Port Arthur<br />
Philip A. Perez, San Antonio<br />
John A. Prisner, Houston<br />
Michael G Salazar, Austin<br />
Paul F. Tu, Houston<br />
Nicolette Westbrooks, Houston<br />
Student Members<br />
Samuel H. Ackels, Lubbock<br />
Raymond J. Baeza, Lubbock<br />
Stefanie M. Gonzalez, Houston<br />
Larry Prater McDougal Jr.,<br />
Richmond<br />
Rachel J. Nichols, Lubbock<br />
Charles A. Pelowski, Lubbock<br />
Sarah R. Preston, Lubbock<br />
Benton G. Ross, Lubbock<br />
Courtney Stamper, Lubbock<br />
Tania Ward, Lubbock
Significant Decisions Report<br />
Please do not rely solely on the summaries set forth below. <strong>The</strong> reader is advised to read the<br />
full text of each opinion in addition to the brief synopses provided.<br />
<strong>The</strong> Significant Decisions Report is published in <strong>Voice</strong> for the <strong>Defense</strong> thanks to a state<br />
grant from the Judicial and Court Personnel Training Fund, administered by the Texas Court of<br />
Criminal Appeals.<br />
Fifth Circuit<br />
United States v. Weatherton, 567 F.3d 149 (5th Cir. 2009)<br />
District court did not plainly err in imposing upon defendant, convicted of making a false claim to<br />
FEMA, special supervised release conditions requiring defendant to undergo psychosexual evaluation<br />
and any necessary treatment, and also requiring him not to possess any sexually explicit materials;<br />
defendant’s 1979 rape conviction and accusations that he had committed another sexual offense in<br />
2007 (accusations defendant failed to deny) were a sufficient basis upon which to ground these conditions;<br />
moreover, on plain-error review, the conditions were not plainly a greater deprivation of liberty<br />
than necessary to achieve the goals of sentencing; finally, because it is not clear whether defendants<br />
are entitled to advance notice before imposition of special conditions of supervised release, any error<br />
in failing to give such notice was not “plain,” as necessary to grant relief under plain-error review.<br />
Cynthia Hampton<br />
Tim Crooks<br />
United States v. Conroy, 567 F.3d 174 (5th Cir. 2009)<br />
(1) District court did not abuse its discretion in denying defendant’s motion to withdraw her guilty<br />
plea to several FEMA fraud charges; the government’s alleged withholding of exculpatory evidence,<br />
in violation of Brady v. Maryland, 373 U.S. 83 (1983), did not supply a reason to allow withdrawal of<br />
the plea, because under Fifth Circuit precedent—see, e.g., Matthew v. Johnson, 201 F.3d 553 (5th Cir.<br />
2000)—defendant’s guilty plea waived her right to assert a Brady claim; nor did the other factors to<br />
be considered favor allowing defendant to withdraw her plea.<br />
(2) In FEMA fraud case, district court reversibly erred in applying an upward departure under<br />
USSG §5K2.7 for significant disruption of a governmental function; the district court incorrectly interpreted<br />
Fifth Circuit precedent to allow the departure in any case in which there was any disruption of<br />
an important government function; rather, the departure properly applies only where the extent of the<br />
disruption is significant; if the district court finds a significant disruption of a governmental func tion,<br />
the importance of the function may, however, be considered in determining the extent of an upward<br />
departure; accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing.<br />
Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir. 2009)<br />
District court did not err in denying law enforcement defendants’ qualified immunity defenses<br />
to Fourth Amendment claims arising out of officers’ raid on nightclub:<br />
(1) At least as it was alleged to have occurred, the officers’ entry and search of the nightclub clearly<br />
violated the Fourth Amendment; the entry could not be justified on the theory that the officers had the<br />
same right to enter as any other patron, since the officers did not enter like other patrons, but rather<br />
en tered projecting official authority by means of a SWAT-type raid; nor could the entry be justified<br />
as a permissible warrantless administrative inspection, as the entry and extensive search unreasonably<br />
ex ceeded the scope of state and local administrative inspection laws.<br />
(2) <strong>The</strong> officers’ arrest of three of the plaintiffs (owners of the nightclub) also clearly violated<br />
the Fourth Amendment because, at least on the facts alleged in the amended complaint, defendants<br />
did not have probable cause to believe that plaintiffs had violated the laws under which they were<br />
arrested.<br />
(3) At least as they were alleged to have occurred, the officers’ searches and seizures of plaintiffs
clearly violated plaintiffs’ Fourth Amendment rights because (a)<br />
the searches and seizures far exceeded the scope of permissible<br />
searches for weapons under the Louisiana statutory scheme; (b)<br />
the searches and seizures were not based upon individualized<br />
suspicion as required by Terry v. Ohio, 392 U.S. 1 (1968); and (c)<br />
were not searches incident to arrests based on probable cause.<br />
United States v. Setser, 568 F.3d 482 (5th Cir. 2009)<br />
(1) Where SEC, in the course of conducting a parallel civil<br />
investigation of defendant’s allegedly fraudulent activities, appointed<br />
a receiver to preserve the defendants’ assets, receiver’s<br />
search and seizure of property did not violate the Fourth Amendment;<br />
the receivership order was not required to possess the<br />
same particularity as that required for a warrant; nor was there<br />
any showing of specific evidence that the receiver had seized<br />
that was outside the scope of the receivership order; nor was the<br />
re ceiver’s search spoiled by the failure to post the required bond<br />
be fore conducting the search; this purely technical defect did<br />
not rise to the level of plain error; moreover, once the receiver<br />
had seized the property in question, criminal law enforcement<br />
of fi cers did not need a warrant in order to take possession of or<br />
re view the property, because the defendant lost possessory, and<br />
hence privacy, rights upon the receiver’s taking possession of<br />
the property; finally, there was no improper collusion between<br />
the SEC’s civil investigation and the FBI’s parallel criminal investigation.<br />
(2) In fraud case involving a Ponzi scheme, district court<br />
did not commit reversible plain error in admitting evidence of<br />
the guilty pleas of co-conspirators where the court gave a proper<br />
limiting instruction, where the government’s references to the<br />
pleas were limited, and where the defense itself made use of the<br />
pleas as part of its case; nor did the district court reversibly err in<br />
allowing the SEC receiver to testify that defendant’s operations<br />
constituted “security fraud” and a “Ponzi scheme”; however,<br />
the error was harmless; finally, the district court did not err in<br />
admitting evi dence that defendant’s businesses had not filed<br />
corporate tax returns, because the evidence was intrinsic to the<br />
fraud offenses charged and the district court gave appropriate<br />
limiting instructions.<br />
(3) In fraud case involving a Ponzi scheme, district court<br />
did not reversibly err in calculating the Guideline loss amount<br />
at tributable to one defendant; under USSG §2B1.1, in a Ponzi<br />
scheme, the Guideline loss amount should be reduced by the<br />
amounts of money returned to investors before the offense is<br />
de tected, but those credits should be offset by any returned<br />
mon ies that are subsequently reinvested in the Ponzi scheme;<br />
the Fifth Circuit held that its 2000 decision respecting Guideline<br />
loss calculation for Ponzi schemes (United States v. Deavours, 219<br />
F.3d 400 (5th Cir. 2000)) was superseded by a 2001 amendment<br />
to the Sentencing Guidelines.<br />
Singh v. Holder, 568 F.3d 525 (5th Cir. 2009)<br />
Immigrant’s 1987 Virginia felony conviction for unlawful<br />
wound ing (Va. Code Ann. §18.2-51) was a “crime of violence,”<br />
and hence an “aggravated felony,” under 8 U.S.C. §1101(a)(43)<br />
(F), that rendered him statutorily ineligible for naturalization<br />
as a United States citizen.<br />
United States v. London, 568 F.3d 553 (5th Cir. 2009)<br />
Adopting as precedent the reasoning and holding of its<br />
nonprecedential decision in United States v. Collins, 205 Fed.<br />
Appx. 196 (5th Cir. 2006) (unpublished), the Fifth Circuit held<br />
that the “except to the extent that a greater minimum sentence is<br />
oth er wise provided” clause of 18 U.S.C. §924(c)(1)(A) did not<br />
bar imposition of a five-year consecutive sentence under §924(c)<br />
(1)(A), even though defendant was also subject to a ten-year<br />
man da tory minimum sentence on a drug count. NOTE: This<br />
holding conflicts with the holdings of the Second Circuit in<br />
United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), adhered<br />
to on denial of reh’g, 540 F.3d 87 (2d Cir. 2008), and United<br />
States v. Williams, 558 F.3d 166 (2d Cir. 2009).<br />
United States v. Brigham, 569 F.3d 220 (5th Cir. 2009)<br />
Where magistrate judge had (1) dismissed supervised release<br />
revocation proceeding for lack of probable cause to believe<br />
de fen dant (originally convicted of receipt of child pornography)<br />
had violated the terms and conditions of supervised release, and<br />
(2) ordered defendant released pending any further proceedings,<br />
the district judge had jurisdiction/authority both to stay<br />
the magistrate judge’s orders and to review (and reverse) those<br />
or ders; furthermore, the district court did not improperly delegate<br />
to nonjudicial officers the right to require a polygraph<br />
of defendant, nor did the district court improperly consider<br />
poly graph results in violation of defendant’s right against selfincrimination;<br />
finally, the special supervised release conditions<br />
defendant was accused of violating (possession of “any pornographic,<br />
sexually oriented or sexually stimulating materials”<br />
and a bar on possessing or using a computer or the Internet)<br />
were not unconstitutionally vague or overbroad or statutorily<br />
im proper.<br />
United States v. Douglas, 569 F.3d 523 (5th Cir. 2009)<br />
District court did not err by reducing defendant’s Guideline<br />
offense level by three levels for acceptance of responsibility<br />
(thus producing a Guideline imprisonment range of eighteen<br />
to twenty-four months), but then imposing an above-Guideline<br />
sentence of thirty months’ imprisonment based upon defendant’s<br />
lack of remorse; because lack of remorse is a different<br />
con sid eration from finding acceptance of responsibility under<br />
USSG §3E1.1, there was no inconsistency in the district court’s<br />
finding both that defendant had accepted responsibility and that<br />
he lacked remorse for his conduct; because these two findings<br />
could co-exist, and because the lack of remorse finding was
factually supported, there was no procedural error tainting defen<br />
dant’s sentence.<br />
United States v. Andrade-Aguilar, 570 F.3d 213 (5th Cir.<br />
2009)<br />
District court reversibly erred in characterizing defendant’s<br />
sec ond Texas conviction for possession of a controlled substance<br />
as an “aggravated felony” for purposes of USSG §2L1.2(b)(1)(C),<br />
be cause the government did not carry its burden of proving that<br />
the first conviction had become final before the offense underlying<br />
the second conviction was committed; accordingly, the Fifth<br />
Circuit vacated the sentence and remanded for resentencing,<br />
but allowed the government on remand to come forward with<br />
any additional evidence it could muster to show finality.<br />
United States v. Duarte, 569 F.3d 528 (5th Cir. 2009)<br />
Fifth Circuit declined to find defendant’s 46-month, lowend-of-the-Guidelines<br />
sentence unreasonable; the Fifth Circuit<br />
noted that the defendant had “argue[d] with some force that<br />
the 16-level enhancement provided for illegal re-enterers who<br />
com mit certain crimes can lead to excessive sentences for some<br />
de fen dants”; this possibility of unjust sentences in some cases,<br />
how ever, did not authorize the Fifth Circuit to overturn the<br />
pre sump tion of reasonableness that the Fifth Circuit applies to<br />
within-Guidelines sentences; nor did Kimbrough v. United States,<br />
128 S. Ct. 558 (2007), abrogate the Supreme Court’s previous<br />
ap proval of appellate presumptions of reasonableness, even<br />
where it could be argued that (as in Kimbrough) the Guideline<br />
in question lacked empirical grounding.<br />
United States v. Velez-Alderete, 569 F.3d 541 (5th Cir.<br />
2009)<br />
Defendant’s prior Texas felony conviction for arson (in<br />
vio lation of Tex. Penal Code §28.02 (1993)) qualified as the enumer<br />
ated “crime of violence” of “arson” under USSG §2L1.2, and<br />
hence warranted a 16-level enhancement under USSG §2L1.2(b)<br />
(1)(A)(ii); the “generic, contemporary” definition of “arson”<br />
in volves a willful and malicious burning of property (including<br />
not just real property, but also personal property), without<br />
any requirement that the burning present a threat of harm to a<br />
per son; the full range of conduct covered by the Texas statute<br />
was within this “generic, contemporary” definition of “arson.”<br />
Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir.<br />
2009)<br />
Holding itself bound by United States v. Cepeda-Rios, 530<br />
F.3d 333 (5th Cir. 2008), the Fifth Circuit held that defendant’s<br />
second conviction for possession of a controlled substance corresponded<br />
to recidivist possession under 21 U.S.C. §844(a), a<br />
felony under the federal Controlled Substances Act, and hence<br />
was an “aggravated felony” under 8 U.S.C. §1101(a)(43)(B), even<br />
if the second conviction was not obtained after formal en hancement<br />
procedures commensurate with those prescribed by 21<br />
U.S.C. §851; the Fifth Circuit declined to give a different reading,<br />
in the immigration context, to the same statutory scheme that<br />
was considered in the criminal context in Cepeda-Rios.<br />
Hatten v. Quarterman, 570 F.3d 595 (5th Cir. 2009)<br />
(1) Where, before his resentencing, death-sentenced Texas<br />
defendant had filed a state post-conviction relief petition challenging<br />
his conviction, on which petition the Texas Court of<br />
Crim inal Appeals never ruled, the challenges to his conviction<br />
raised in that petition were exhausted, but there was no final<br />
Texas court decision to review or to which to defer for purposes<br />
of the AEDPA; accordingly, for the two claims falling into this<br />
cate gory, the Fifth Circuit simply reviewed the federal district<br />
court’s factual findings for clear error and that court’s legal<br />
con clusions de novo.<br />
(2) <strong>The</strong> Fifth Circuit rejected defendant’s claim that a juror<br />
during his guilt-innocence trial was biased, thus depriving<br />
de fendant of an impartial jury and a fair trial under the Sixth<br />
Amend ment; defendant failed to show either actual or implied<br />
bias arising from (a) the juror’s allegedly lying on his juror<br />
ques tion naire and during questioning regarding his drug use;<br />
(b) the juror’s alleged concealment of a relationship with the<br />
vic tim’s father (the intended victim of the murder) and also<br />
with the defendant’s stepfather; and (c) the juror’s allegedly<br />
be ing threatened with prosecution.<br />
(3) Even if defendant was erroneously shackled during closing<br />
arguments in the guilt-innocence phase of his trial, in violation<br />
of his due process rights, any error was not prejudicial and<br />
did not have a substantial and injurious effect on the verdict.<br />
United States v. Seale, 542 F.3d 1033 (5th Cir. 2008),<br />
district court’s ruling on single issue affirmed by an<br />
equally divided en banc court, 570 F.3d 650 (5th Cir.<br />
2009) (en banc), and question certified to the U.S.<br />
Supreme Court, ___ F.3d ___, WL 2256481 (5th Cir.<br />
7/20/09) (en banc).<br />
(1) Where defendant was not federally indicted until 2007<br />
for two counts of kidnapping and one count of conspiracy to<br />
com mit kidnapping (in violation of 18 U.S.C. §1201(a) and<br />
(c)), but the kidnappings occurred in 1964, the panel held that<br />
de fen dant’s prosecution for these offenses was barred by the<br />
stat ute of limitations; although these offenses were, in 1964,<br />
capi tal offenses that were not subject to a statute of limitations,<br />
see 18 U.S.C. §3281, in 1968 the United States Supreme Court<br />
in validated the death penalty for the federal kidnapping statute,<br />
and in 1972 Congress amended the federal death penalty statute<br />
to eliminate the death penalty as a possible punishment; the<br />
amend ment decapitalizing the offenses with which defendant<br />
was ultimately charged was retroactive with respect to the applica<br />
ble statute of limitations, which then became the standard<br />
five-year statute of limitations applicable to noncapital offenses,
see 18 U.S.C. §3282; moreover, the 1994 amendments reinstating<br />
the death penalty as a possible punishment for these offenses<br />
could not revive the limitations period for these offenses, inasmuch<br />
as that limitations period had expired well before 1994;<br />
ac cordingly, the Fifth Circuit panel vacated defendant’s convictions<br />
and rendered a judgment of acquittal.<br />
(2) On rehearing en banc of the statute of limitations issue,<br />
the Fifth Circuit divided evenly (9–9), and thus the decision of<br />
the district court on the sole issue of its denying dismissal of<br />
the indictment because of the running of the statute of limitations<br />
was affirmed by operation of law. (Judge DeMoss filed a<br />
dissenting opinion.)<br />
(3) A majority of the en banc Fifth Circuit voted to certify<br />
the statute of limitations question to the United States Supreme<br />
Court. (Chief Judge Jones filed a dissenting opinion in which<br />
she was joined by judges King, Wiener, Clement, and Owen.<br />
Judge Stewart dissented without opinion.)<br />
Stoot v. Cain, 570 F.3d 669 (5th Cir. 2009)<br />
District court reversibly erred in dismissing Louisiana<br />
state defendant’s federal habeas petition as time-barred by the<br />
AEDPA’s one-year statute of limitations, because there was an<br />
un resolved factual issue about whether the statute of limita tions<br />
was tolled by a state petition for review of the denial of postconviction<br />
relief allegedly mailed by defendant from prison but<br />
never received by the Louisiana Supreme Court; in Louisiana<br />
courts, a pro se prisoner’s pleading is deemed filed on the date<br />
that the prisoner submits the pleading to prison authorities to<br />
be mailed, regardless of whether the pleading actually reaches<br />
the court; accordingly, the Fifth Circuit reversed the judgment<br />
of dismissal and remanded to the district court for a factual<br />
in quiry into whether, under the prison mailbox rule, defendant<br />
sub mit ted a timely petition for review to the Louisiana Supreme<br />
Court, even if that petition was never received.<br />
Morgan v. Quarterman, 570 F.3d 663 (5th Cir. 2009)<br />
Where Texas state prisoner was disciplined (with the loss<br />
of good time credit) by prison authorities for writing a vulgar<br />
note to an assistant attorney general with whom he was engaged<br />
in litigation, disciplinary action did not violate prisoner’s<br />
First Amendment rights because the prison authorities had a<br />
le git i mate penological interest in rehabilitation that justified<br />
the disciplinary action; nor did prisoner’s disciplinary hearing<br />
vio late due process; prisoner received notice of the disciplinary<br />
hearing and his attendant rights, and received adequate<br />
pro cess during the hearing; moreover, the evidence was more<br />
than adequate to meet the “some evidence” standard necessary<br />
to support disciplinary action; finally, prisoner failed to establish<br />
that the hearing officer was biased; accordingly, the Fifth<br />
Cir cuit affirmed the district court’s denial of habeas relief to<br />
prisoner.<br />
United States v. Stephens, 571 F.3d 401 (5th Cir. 2009)<br />
(1) Where, in response to defense closing argument pointing<br />
out government’s failure to produce a witness, government<br />
objected that the defense could also have subpoenaed that witness,<br />
government’s comment was not an impermissible shifting<br />
of the burden of proof, but rather a permissible response to<br />
the defense’s closing argument; in any event, even assuming<br />
ar guendo that the statement was error, it was not sufficiently<br />
prej u dicial to require reversal, given the curative instruction<br />
given to the jury respecting the burden of proof and given the<br />
am ple evidence produced at trial; likewise, the government’s<br />
ref er ences, in opening and closing argument, to the defendants’<br />
tak ing advantage of the generosity of persons trying to help the<br />
vic tims of Hurricane Katrina, did not constitute reversible plain<br />
er ror; this was not an out-of-bounds argument because the<br />
scheme charged involved the creation of a fake Salvation Army<br />
web site designed to fraudulently elicit money from persons<br />
de sir ing to assist the victims of Hurricane Katrina; moreover,<br />
the district court instructed the jury not to base its verdict on<br />
preju dice or sympathy, including for the victims of Hurricanes<br />
Ka trina and Rita.<br />
(2) Where defendants were on trial for charges arising out<br />
of the creation of a fake Salvation Army website designed to<br />
fraud u lently elicit money from persons desiring to assist the<br />
vic tims of Hurricane Katrina, district court did not plainly err in<br />
ad mitting evidence that defendants had also registered a bogus<br />
Red Cross website; this evidence was not “intrinsic,” but rather<br />
was extrinsic and thus subject to the strictures of Fed. R. Evid.<br />
404(b); however, the evidence was admissible under Rule 404(b)<br />
to prove defendants’ intent, planning, preparation, and knowledge;<br />
nor did the defendants show that the unfair prejudicial<br />
ef fect of this evidence substantially outweighed its probative<br />
value.<br />
United States v. Stalnaker, 571 F.3d 428 (5th Cir. 2009)<br />
Where a government witness suffered a panic attack on<br />
the stand, which eventually left her unable to complete her<br />
tes ti mony, and the district court struck her testimony and instructed<br />
the jury to disregard it, defendant was not denied his<br />
Sixth Amendment right to confront/cross-examine that witness;<br />
be cause the district court struck the witness’s testimony and<br />
in structed the jury to disregard it, the witness’ testimony was<br />
not part of the “body of evidence” the jury could consider in<br />
as sess ing guilt and thus could not be the basis for a confrontation<br />
violation; put another way, as a result of the court’s actions,<br />
the witness was no longer a witness “against” the defendant as<br />
con templated by the Sixth Amendment’s Confrontation Clause;<br />
accordingly, the district court did not err in denying defendant’s<br />
motion for a mistrial on this ground.
United States v. Molina-Gazca, 571 F.3d 470 (5th Cir.<br />
2009)<br />
<strong>For</strong> purposes of 18 U.S.C. §3624(e), which provides that<br />
“[a] term of supervised release does not run during any period<br />
in which the person is imprisoned in connection with a con viction.<br />
. . ,” a term of supervised release is tolled during the pe riod<br />
of pretrial detention in a case in which the defendant is ul timately<br />
convicted and sentenced with credit for time served, even<br />
where the conviction does not occur until after the supervised<br />
release period would otherwise have expired; thus, based on<br />
May 3, 2007, warrant, district court had jurisdiction to revoke<br />
defendant’s supervised release where, although defendant’s super<br />
vised release would have normally expired on November 2,<br />
2006, defendant was taken into custody on a state charge on<br />
July 8, 2005, for which he was convicted and sentenced after<br />
No vem ber 2, 2006 (with sentencing credit for his pretrial detention).<br />
(<strong>The</strong> Fifth Circuit noted that its ruling agreed with<br />
the Sixth Circuit’s decision in United States v. Goins, 516 F.3d<br />
416 (6th Cir. 2008), but conflicted with the Ninth Circuit’s<br />
decision in United States v. Morales-Alejo, 193 F.3d 1102 (9th<br />
Cir. 1999).)<br />
United States v. Armendariz-Moreno, 571 F.3d 490 (5th<br />
Cir. 2009)<br />
On remand from the United States Supreme Court for further<br />
consideration in light of Begay v. United States, 553 U.S.____,<br />
128 S. Ct. 1581 (2008), and Chambers v. United States, 555 U.S.<br />
____, 129 S. Ct. 687 (2009), see Armendariz-Moreno v. United<br />
States, 129 S. Ct. 993 (2009), the government conceded, and the<br />
Fifth Circuit agreed, that in light of Begay and Chambers, the<br />
Texas offense of unauthorized use of a vehicle can no longer<br />
be considered a “crime of violence” under 18 U.S.C. §16 or,<br />
hence, an “aggravated felony” under 8 U.S.C. §1101(a)(43)(F);<br />
ef fectively overruling United States v. Galvan-Rodriguez, 169<br />
F.3d 217, 219–20 (5th Cir. 1999), and Brieva-Perez v. Gonzales,<br />
482 F.3d 356, 360–61 (5th Cir. 2007).<br />
Court of Criminal Appeals<br />
Appellants’ PDRs<br />
Grammer v. State, __S.W.3d__ (Tex.Crim.App. No.<br />
1508-08, 9/30/09); Affirmed, Hervey (9–0)<br />
Appellant was placed on deferred-adjudication community<br />
supervision (“probation”) for ten years after pleading guilty to a<br />
9-count indictment charging him with aggravated sexual assault<br />
and indecency against an 11-year-old. A condition of appellant’s<br />
probation required him to pay $250 in court costs, and another<br />
condition required him to “avoid association with persons having<br />
criminal records and having disreputable or harmful character.”<br />
<strong>The</strong> trial court later found that appellant violated these<br />
two conditions and sentenced him to lengthy concurrent prison<br />
terms (60 years on the three aggravated sexual-assault counts<br />
and 20 years on the six indecency counts) immediately after<br />
ad ju di cating his guilt. CCA affirms that the trial court did not<br />
have to hold a separate punishment hearing before sentencing.<br />
CCA finds that at the adjudication hearing, the trial court did<br />
not prevent appellant from presenting punishment evidence,<br />
and that appellant presented extensive punishment evidence<br />
(e.g., his theory that he innocently believed he had permission<br />
to associate with and marry a convicted felon and his reasons<br />
for not paying the $250).<br />
Tapps v. State, __S.W.3d__ (Tex.Crim.App. No. 0946-08,<br />
9/30/09); Affirmed, Price (9–0)<br />
Appellant was indicted under Tex.Penal Code §46.04(a)(1)<br />
for unlawful possession of a firearm by a felon. <strong>The</strong> underlying<br />
felony was failure to register as a sex offender, a state jail<br />
fel ony. Four additional priors were alleged for enhancement.<br />
<strong>The</strong> jury convicted Appellant, and the trial court found two of<br />
the priors “true” and sentenced him to 32 years confinement.<br />
Ques tion raised by Appellant’s PDR is whether a state jail felony<br />
is a “felony” for purposes of Section 46.04(a)(1), and therefore<br />
whether the evidence was legally sufficient to support Appellant’s<br />
con vic tion for possession of a firearm by a felon. CCA holds<br />
that a state-jail felony is a “felony” for purposes of §46.04(a)<br />
(1); therefore, the evidence was legally sufficient to support<br />
Ap pellant’s conviction for possession of a firearm.<br />
State’s PDRs<br />
Ex parte Hunter, __S.W.3d__ (Tex.Crim.App. No. 1047-<br />
08, 9/16/09); Dismissed: Price (9–0)<br />
When it was discovered early in Hunter’s trial for aggravated<br />
sexual assault that one of the jurors had also served on<br />
the grand jury, the trial court sua sponte declared a mistrial.<br />
COA held that the State’s attempt to try Hunter a second time<br />
vio lated double jeopardy. CCA granted the State’s PDR, but<br />
Hunter has since died. Ordinarily under these circumstances,<br />
in which appeal has been perfected but COA has yet to issue<br />
its mandate, the appeal will be permanently abated. CCA has<br />
made an exception for cases in which the State is the appealing<br />
party. If a defendant dies during an appeal by the State from a<br />
pre-trial order, the appellate court should dismiss the appeal<br />
rather than abate it.<br />
Hall v. State, __S.W.3d__ (Tex.Crim.App. No. 1304-08,<br />
9/16/09); Affirmed, Keasler (8–1)<br />
At a suppression hearing in Hall’s DWI trial, Hall challenged<br />
the reliability of a LIDAR device that the officer used to measure<br />
Hall’s speed. Hall claimed that because the State failed to prove<br />
the reliability of the LIDAR, the officer’s decision to stop him<br />
was not supported by probable cause. CCA holds that the judge<br />
was not required to hold a Rule 702 Kelly hearing to evaluate
the device’s reliability. <strong>The</strong> Texas Rules of Evidence, with the<br />
ex cep tion of privileges, do not apply to suppression hearings.<br />
How ever, CCA holds that the judge abused his discretion in<br />
deny ing the suppression because there was no evidence that<br />
the LIDAR supplied probable cause for the stop.<br />
State v. Moreno, __S.W.3d__ (Tex.Crim.App. No. 0821-<br />
08, 9/23/09); Affirmed, Keasler (8–1)<br />
During a hearing immediately prior to trial, the judge ruled<br />
the statement of the State’s cop witness inadmissible because<br />
it was testimonial, and the cop was not present. Throughout<br />
the trial, the judge reprimanded the prosecutor for stalling to<br />
wait for the cop. <strong>The</strong> cop was subpoenaed to appear at 1:30; he<br />
showed up at 2:55. Defendant was granted a directed verdict<br />
be cause the cop showed up after the State presented all its evidence.<br />
When the State appealed, COA dismissed the case for<br />
lack of jurisdiction, holding that the State could not appeal an<br />
acquittal. <strong>The</strong> State argues that the judgment granting the directed<br />
verdict was not really an acquittal but a dismissal of the<br />
in dict ment, which it could appeal under Tex. Code Crim. Proc.<br />
44.01(a)(1). CCA disagrees. <strong>The</strong> judge’s obvious intent was to<br />
ac quit Moreno. <strong>The</strong> judge explicitly ruled that the State had<br />
not met the required elements. Moreover, the case is jeopardy<br />
barred. CCA understands that the judge was exasperated with<br />
the delays, but when a key witness is right outside the doors, it<br />
is unacceptable and inexcusable not to allow his testimony. But<br />
even erroneous acquittal bars further prosecution.<br />
Appellee’s PDR<br />
State v. Rhine, __S.W.3d__ (Tex.Crim.App. No. 0912-08,<br />
9/23/09); Affirmed, Johnson (9–0)<br />
Rhine was charged with improper outdoor burning. He filed<br />
a motion to quash the information, alleging that the provision<br />
of the Administrative Code under which he was charged was<br />
void because the legislature unconstitutionally delegated author<br />
ity to the Texas Commission on Environmental Quality, an<br />
executive-branch agency, in violation of separation of pow ers.<br />
<strong>The</strong> trial court granted the motion, and COA reversed. CCA<br />
holds that Tex. Health & Safety Code §382.018(a), which dele<br />
gates to TCEQ the power to prohibit or control the outdoor<br />
burn ing, is a constitutional delegation of legislative authority.<br />
Be cause the legislature declared a policy and set standards and<br />
limi tations on the authority delegated to TCEQ that are capable<br />
of reasonable application, provide guidance, and limit discretion,<br />
it has not unconstitutionally delegated to TCEQ authority<br />
more “properly attached to” the legislature and, therefore, there<br />
is no violation of the separation of powers principle of Art. II,<br />
§1, of the Texas Constitution.<br />
Mandamus<br />
In re Escareno, __S.W.3d__ (Tex.Crim.App. No. 76,055,<br />
9/16/09); Dismissed as Moot, Meyers (8–1)<br />
Thirty-five days passed, and the trial court did not forward<br />
Escareno’s habeas application to CCA as required by Code Crim.<br />
Proc. art. 11.07. CCA inquired about the status of the application,<br />
but the district clerk continually refused to respond. Even though<br />
CCA denied Escareno’s habeas application, and the application<br />
is moot because Escareno received his requested relief when<br />
the application reached CCA, the Court reprimands the clerk’s<br />
con duct as unacceptable. CCA holds the clerk in contempt and<br />
assesses the maximum fine of $500.<br />
Habeas Corpus<br />
Ex parte Harbin, __S.W.3d__(Tex.Crim.App. No. 76,093,<br />
9/16/09); Relief Granted, Meyers (8–1)<br />
At the time he was charged, Harbin was not required to<br />
reg is ter for either of the sex offenses listed in the indictment.<br />
<strong>The</strong> offenses were two California convictions—one in 1988<br />
for lewd and lascivious acts with a child and one in 1994 for<br />
an noy ing and molesting a child. A savings clause in the Sex Offender<br />
Registration Act precluded out-of-state convictions that<br />
oc curred before September 1, 1995, if the offender was not in the<br />
Texas correctional system for the offenses on or after September<br />
1, 1997. CCA notes that the savings clause is only applicable to<br />
of fenders who failed to register between September 1, 1997,<br />
and August 31, 2005. Harbin is presently required to register<br />
the California offenses listed by the DPS as substantially similar<br />
to Texas laws.<br />
Direct Appeal—Denial of DNA Testing<br />
Skinner v. State, __S.W.3d__ (Tex.Crim.App. No.<br />
75,812, 9/23/09); Affirmed, Keller (9–0)<br />
Skinner was convicted of capital murder and sentenced to<br />
death. CCA affirmed his conviction and sentence on direct appeal.<br />
Subsequent DNA testing was conducted, but some items<br />
re mained untested. Skinner requested testing of these items.<br />
He claims testing is now required due to a new development in<br />
CCA case law and new factual developments. CCA holds that<br />
in the usual case, the interests of justice do not require testing<br />
when defense counsel declined to request testing as a matter of<br />
rea sonable trial strategy. Also, the new case law Skinner relies<br />
upon is an unpublished opinion; therefore it cannot be used as<br />
an authority of any sort.<br />
Habeas Corpus<br />
Ex parte Smith, __S.W.3d__ (Tex.Crim.App. No. 76,102,<br />
9/30/09); Relief denied, Womack (9–0)<br />
Applicant was found in possession of a firearm while he<br />
was on deferred-adjudication community supervision for the<br />
second-degree felony of possession of a controlled substance.<br />
He pleaded guilty and was sentenced to the maximum punishment<br />
of 10 years in prison. <strong>The</strong> trial court ordered that the<br />
sentence run concurrently with the 20-year sentence that it<br />
imposed in the controlled-substance case. Smith seeks relief<br />
from the possession-of-firearm conviction on three grounds:<br />
in suf ficient evidence of guilt, ineffective assistance of counsel,
and unknowing and involuntary plea. CCA rejects these claims.<br />
First, petitioners may not, in post-conviction habeas corpus,<br />
col laterally attack the sufficiency of the evidence to support the<br />
con viction. Second, counsel’s advice to plead guilty was not ineffective<br />
assistance given the circumstances of the case and because<br />
it is unclear whether the Unlawful Possession of Firearm statute<br />
applies to a person who is or has been on deferred-adjudication<br />
community supervision.<br />
Court of Appeals<br />
Summaries are by Chris Cheatham, of Cheatham and Flach,<br />
PLLC, Dallas, Texas.<br />
Police approached D and asked if he had a weapon.<br />
“I have a knife,” he said, and then pulled an antique<br />
machete (yes, machete) from his pants. D unsuccessfully<br />
asserted defenses of “traveling” and “curio.”<br />
In re A.G., __S.W.3d__ (Tex.App. No.<br />
11-08-00025-CV—Eastland, 7/09/09) (juvenile case)<br />
Regarding the “traveling” defense, “[D] was only a short<br />
dis tance from his home, and he was not traveling overnight.<br />
Fur ther more, the presence of three other individuals walking<br />
along with appellant at the time that Officer Perkins stopped<br />
him is a fact that contradicts his contention that he was simply<br />
re turn ing home with a knife that he just found while walking to<br />
a friend’s house.” Regarding the “curio” (i.e., antique) defense,<br />
“[D] does not cite any authority that carrying a knife that might<br />
constitute a collector’s item is an exception to prosecution under<br />
Sec tion 46.02. In this regard, the Penal Code provides a ‘curio’<br />
ex cep tion for firearms, but it does not provide a similar exception<br />
for illegal knives.”<br />
Police officer who was employed by City A approached<br />
an occupied car parked in the middle of a roadway of<br />
City B, smelled alcohol, reached into the vehicle, pulled<br />
the keys from the ignition, and waited for officers from<br />
City B to arrive. <strong>The</strong> officer’s actions amounted to an<br />
“encounter” not a “stop,” concluded court.<br />
Abraham v. State, __S.W.3d__ (Tex.App. No.<br />
05-08-00008-CR—Dallas, 7/02/09)<br />
“[T]here is no evidence [Frisco officer] ‘stopped’ [D] at all.<br />
Instead, the record is clear that [D’s] vehicle had been stopped<br />
for a considerable period of time when [Frisco officer] came<br />
upon it. Nor is there any evidence in the record that [Frisco offi<br />
cer] spoke to [D] or anyone else concerning a possible traffic<br />
vio lation.”<br />
In the same case, sufficient evidence supported DWI<br />
even though none of the officers actually observed D<br />
drive the vehicle in which he was found.<br />
Abraham v. State, supra.<br />
“[D] asserts, without authority, that the State must establish<br />
‘a time of driving’ to determine the relationship between<br />
his alleged driving and his intoxication. When asked by [officer]<br />
whether he had been drinking, [D] told the officer he had<br />
drunk four beers in a bar in Dallas and was on his way home.<br />
Thus, the evidence demonstrates [D] drove from a Dallas bar to<br />
Plano. Further, as the result of [D’s] effort, the vehicle remained<br />
stopped for a considerable amount of time in the center lane<br />
of an intersection of two public streets. <strong>The</strong> evidence shows he<br />
re mained passed out in the vehicle at least as long as it took a<br />
pas serby to report his presence to [officer], for [officer] to find<br />
him, and for [officer] to rouse him. <strong>The</strong> only reasonable inference<br />
is that [D’s] driving and operation of his vehicle took place<br />
while he was intoxicated.”<br />
Trial court no longer had authority to cumulate D’s<br />
sentences, and its attempt to do so by written order on<br />
a later date had no effect, because the trial court failed<br />
to order cumulation in open court while pronouncing<br />
the sentence. <strong>The</strong>reafter, D was taken into the custody<br />
of the TDCJ and began serving his sentence. By then it<br />
was too late.<br />
Grays v. State, __S.W.3d__ (Tex.App. No.<br />
14-08-00051-CR—Houston [14 Dist], 7/14/09)<br />
In intoxication manslaughter trial, D unsuccessfully<br />
argued that because the family of the victim chose to<br />
voluntarily discontinue life support to prolong victim’s<br />
life the State failed to show that his operation of the<br />
vehicle caused the death.<br />
Quintanilla v. State, __S.W.3d__ (Tex.App. No.<br />
03-07-00561-CR—Austin, 7/14/09)<br />
“Although medical intervention may have succeeded in<br />
delaying [victim’s] death, and even if the lung empyema and the<br />
dis continuance of life support were concurrent causes sufficient<br />
to result in her death, the evidence shows that [victim] would<br />
not have developed the empyema or required life support but<br />
for [D’s] conduct.”<br />
Make room for the<br />
new publications!<br />
Texas Criminal<br />
Codebook,<br />
Appellate Manual,<br />
Search & Seizure.<br />
Go to<br />
www.tcdla.com for<br />
more information.
Do YOU wont to<br />
moke 0 difference?<br />
c<br />
to ~'-" serve :s2~' v e '-' on __ the ~ __ 2: TCDLA _'-' ______ board '-''-' ......_'-"<br />
President<br />
Stan Schneider<br />
President-Elect<br />
Bill Harris<br />
1st Vice President<br />
Keith Hampton<br />
District 1<br />
Clara Hernandez, El Paso<br />
District 2<br />
Andrew Graves, San Angelo<br />
District 3<br />
Mark Snodgrass, Lubbock<br />
District 4<br />
Anthony “Tony” Vitz, McKinney<br />
District 5<br />
Lance Evans, <strong>For</strong>t Worth<br />
District 6<br />
Susan E. Anderson, Dallas<br />
District 7<br />
Kelly Pace, Tyler<br />
VOLUNTEER!<br />
Ar1!J metk of TCDLA in gxx! Mand~gwho dem:sto make applkatian to ~ on the<br />
TCDLA board ofJi,ecta& should lIII outthe app'~K:ation on tIie opposite pa9l and<br />
.forward il:wt1en:DLAhomeoAice O.7l1W. 6th 51:., stll.}l" Au6tin, TX78~)<br />
orfmt. f\::to 5Il--i6.9~.9107 on or before NOYe/IIber 16, 2.009.<br />
<strong>The</strong> TXlIIIination6 committee listed belowwiH c.onsider ~ nominating<br />
new board n-tnbers on ~ ,. 2009, moor ~9 rioard MacH, sin Hoo6Ion.<br />
Plea5ehdpusc.ontirueto~thc~train·runnj~~oo.erthe<br />
member5who>Mllnot~~hardforTCDLA,<br />
rignsofourcitizens.Weneed<br />
but also infu5e nev.' blood and icbM inlothe a56OciaI:ion.<br />
TCII.A OffIcers<br />
2009-10 _ CommiIee<br />
2nd Vice President<br />
Lydia Clay-Jackson<br />
Treasurer<br />
Bobby Mims<br />
Secretary<br />
Emmett Harris<br />
District 8<br />
Kerri Anderson-Donica, Corsicana<br />
District 9<br />
Jeanette Kinard, Austin<br />
District 10<br />
Robert J. Barrera, San Antonio<br />
District 11<br />
Kim de la Garza, Seguin<br />
District 12<br />
Constance Luedicke, Corpus Christi<br />
District 13<br />
David O’Neil, Huntsville<br />
District 14<br />
Grant M. Scheiner, Houston
APPLICATION FOR MEMBERSHIP TO BOARD OF DIRECTORS<br />
Date: _________Name: _______________________ Date of birth:___________Business address:________________________City: _____________<br />
State: _________ Zip:______________Business phone: ______________Office fax:_____________________Business e-mail: __________________<br />
College Attended: ________________________________________ To: ____________From:____________ Degree: ____________________<br />
Law School Attended: ____________________________________ To: ____________From:____________ Degree: ____________________<br />
What percentage of your practice is devoted to Criminal Law? ________State Bar membership number: __________<br />
Date admitted to the State Bar of Texas: ________<br />
Name of firm, partnership and/or professional association: _________________________________________________________________________<br />
Describe your legal career and experience as criminal defense practitioner (Please attach additional sheets, if necessary) : ____________________<br />
________________________________________________________________________________________________________________________________<br />
During the five years immediately preceding the date of this application, list your criminal law activities to the extent and the capacity indicated:<br />
ACTIVITY NUMBER AS LEAD COUNSEL NUMBER AS CO-COUNSEL<br />
State Felony Jury Trials<br />
State Misdemeanor Jury Trials<br />
Federal Jury Trials<br />
State Appeals<br />
Federal Appeals<br />
State and Federal Non-Jury Trials<br />
State and Federal Pleas of Guilty<br />
State and Federal Post Conviction Remedies<br />
Juvenile Proceedings<br />
Dismissals<br />
Grand Jury No-Bills<br />
Case Decided on Pre-Trial Motions Where Evidence was Presented<br />
Probation and Parole Revocations<br />
DISCLOSURE OF CONDUCT<br />
(circle one)<br />
Yes No (1) Have you been subject to any disciplinary sanctions by the State Bar of Texas, by a district court in Texas, or by an<br />
entity in another state which has authority over attorney discipline? Disciplinary sanctions include disbarment,<br />
resignation, suspension, reprimand (public or private), order of rehabilitation, or referral to the professional<br />
enhancement program?<br />
Yes No (2) Have you received notification from a district grievance committee from the State Bar of Texas or similar entity in<br />
another state that a finding of just cause as defined by Section 1.06(P) of the Texas Rules of Disciplinary Procedure<br />
has been made against you?<br />
Yes No (3) Has a criminal indictment or information been filed against you for a felony or misdemeanor involving moral<br />
turpitude or other serious crimes as defined in the attorney standards?<br />
Yes No (4) Have you been convicted, received probation/community supervision (whether deferred or not), or fined for a felony<br />
or misdemeanor involving moral turpitude or other serious crime as defined in the attorney standards?<br />
Yes No (5) Have you been sued for legal malpractice or other private civil actions alleging attorney misconduct, or have similar<br />
actions been concluded by settlement, dismissal, or judgment for or against you?<br />
Yes No (6) Has a finding of inadequate representation been made against you regarding representation in a criminal case?<br />
If any answers are circled “yes”, please provide a full written explanation and supporting documentation.<br />
TCDLA PARTICIPATION<br />
Please state when you first became a member of the TCDLA and describe your participation in TCDLA since that time.<br />
________________________________________________________________________________________________________________________________<br />
List any articles, writings, outlines or publications that you have authored in connection with substantive or procedural criminal law matters.<br />
________________________________________________________________________________________________________________________________<br />
List any speaking engagements you have undertaken relating to or addressing substantive or procedural criminal law topics.<br />
________________________________________________________________________________________________________________________________<br />
Describe briefly the reasons that you wish to become a member of the Board of Directors of the Texas Criminal <strong>Defense</strong> Lawyers Association.<br />
________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________<br />
Will you accept the obligation as a Director of the Texas Criminal <strong>Defense</strong> Lawyers Association to regularly attend board meetings (held<br />
quarterly), submit articles to the <strong>Voice</strong>, participate in legislative efforts, be available for assistance in the Strike <strong>For</strong>ce, participate in the Second<br />
Chair (mentor) Program, maintain the highest level of ethical standards, maintain the highest level of competence and support by attendance and<br />
participation at TCDLA and Criminal <strong>Defense</strong> Lawyers Project programs and endeavors? Yes _____ No ________.<br />
28 VOICE FOR THE DEFENSE October 2003
Defendant’s Motion to Protect the<br />
Fairness of Future Juries<br />
by J. Gary Trichter & Mark Thiessen<br />
CAUSE NO. _______<br />
STATE OF TEXAS § IN THE COUNTY CRIMINAL<br />
§<br />
VS. § COURT AT LAW NO. ____<br />
§<br />
_______________ § ___________ COUNTY, TEXAS<br />
TO THE HONORABLE JUDGE OF SAID COURT:<br />
1. <strong>The</strong> Defendant in this case has a prior criminal history which will not be admissible in the guilt/<br />
innocence part of this criminal trial absent the <strong>Defense</strong> opening the door, which it will not do. <strong>Defense</strong><br />
Counsel is concerned, should this case end in a “not guilty” verdict or with a discharge of a hung jury, that<br />
the prosecutors may improperly attempt to share their knowledge of the Defendant’s prior criminal history<br />
with discharged jurors in an attempt to adversely influence future actions against other defendants. A<br />
prosecutor can easily do so by telling discharged jurors defendant’s prior criminal history. During the guilt/<br />
innocence part of the trial a jury cannot be told of that criminal history; that the defendant’s history shows<br />
a disrespect for the law; that defendant shows a predisposition to break the law; and that this predisposition<br />
is evidence defendant committed the crime he was charged with. Of course, the fear here is that the<br />
discharged jurors will leave believing that all criminal defendants have hidden prior criminal histories. In<br />
support hereof, Counsel for the Defendant would show:<br />
2. Texas Disciplinary Rule 3.06 of Professional Conduct is entitled “Maintaining Integrity of Jury System.”<br />
Section 3.06(d) provides in pertinent part:<br />
After discharge of the jury from further consideration of a matter with which the lawyer was connected,<br />
the lawyer shall not . . . make comments to a member of that jury that are calculated merely to<br />
harass or embarrass a juror or to influence his actions in future jury service [emphasis added].<br />
3. Comment 1 of Rule 3.06 provides, in pertinent part, that:<br />
[to] safeguard the impartiality that is essential to the judicial process, . . . jurors should be protected<br />
against extraneous influences . . . after the trial, communication by a lawyer with jurors is not prohibited<br />
by this Rule so long as he refrains from . . . making comments that intend to harass or embarrass a<br />
juror or to influence action of the juror in future cases [emphasis added].
4. Comment 1 for Rule 3.09 provides in pertinent part that:<br />
special responsibilities of a prosecutor provides first and foremost that “a prosecutor has a responsibility<br />
to see that justice is done and not simply to be an advocate. This responsibility carries with it a<br />
number of specific obligations among these is . . . [that] a prosecutor is obliged to see that the Defendant<br />
is accorded procedural justice [and] that the Defendant’s guilt is decided upon the basis of<br />
sufficient evidence . . . [and not evidence of predisposition].”<br />
5. Accordingly, where a case ends in a not guilty finding or where a jury is discharged because it is<br />
hung, and where a Defendant had a prior criminal history, it is a violation of the Texas Disciplinary Rules<br />
of Professional Conduct for a prosecutor to disclose, intentionally or recklessly, that a defendant had a<br />
criminal history because it will create a presumptive predisposition in the minds of those jurors that any<br />
future criminal defendant likely has a criminal history too, and that the future defendant was likely predisposed<br />
to commit the crime in issue.<br />
6. Comment 4 to Section 3.06(d) is clear that a violation of the aforementioned rule is a serious matter.<br />
It says, in pertinent part, that:<br />
[b]ecause of the extremely serious nature of any actions that threaten the integrity of the jury system,<br />
the lawyer who learns of improper conduct . . . towards . . . a juror . . . should make a prompt report<br />
to the court regarding such conduct. If such improper actions were taken by . . . a [prosecuting] lawyer,<br />
either the reporting lawyer or the court normally should initiate appropriate disciplinary proceedings<br />
[emphasis added].<br />
7. Hence, it is equally clear that where a prosecutor makes such a disclosure both the defense lawyer<br />
and the judge are obligated to initiate a disciplinary proceeding. Here it is far more comfortable to avoid<br />
the problem altogether by having the court issue a precautionary order to maintain the integrity of the jury<br />
system by protecting future jurors. Moreover, there is no harm to the State by the issuance of the requested<br />
order.<br />
PRAYER<br />
8. WHEREFORE PREMISES CONSIDERED, should this case end in a “not guilty” or discharge of a<br />
hung jury, this Honorable Court is respectfully asked to instruct the prosecutors herein not disclose the<br />
Defendant’s prior criminal history. <strong>The</strong> Court is also asked to order the prosecutors to instruct their fellow<br />
prosecutors, agents, and employees not to make this same disclosure.<br />
Respectfully submitted,<br />
By: _____________________________<br />
J. GARY TRICHTER<br />
SBN 20216500<br />
MARK THIESSEN<br />
SBN 24042025<br />
<strong>The</strong> Kirby Mansion<br />
2000 Smith Street<br />
Houston, Texas<br />
Tel: (713) 524-1010<br />
Fax: (713) 524-1080<br />
Attorneys for Defendant,<br />
CITIZEN PILGRIM
CERTIFICATE OF SERVICE<br />
I hereby certify that a true and correct copy of the above and foregoing Motion for has been furnished<br />
to the Assistant District Attorney presently assigned to this case, on this the ____ day of _____________,<br />
2009.<br />
______________________________<br />
J. GARY TRICHTER<br />
CAUSE NO. _______<br />
STATE OF TEXAS § IN THE COUNTY CRIMINAL<br />
§<br />
VS. § COURT AT LAW NO. ____<br />
§<br />
_______________ § ___________ COUNTY, TEXAS<br />
ORDER<br />
On this ____day of _______________, 2009, the Court considered the Defendant’s Motion to Protect<br />
the Fairness of Future Juries, and the Court having heard from both the State and the <strong>Defense</strong>, GRANTS the<br />
Motion in total. <strong>The</strong>refore, the Prosecution is ORDERED not to mention the Defendant’s prior criminal history<br />
in the event that this case results in a not guilty finding or the jury is discharged because it is hung and<br />
cannot decide.<br />
______________________________<br />
PRESIDING JUDGE<br />
Note: Last month’s motion was mistakenly attributed to Maxwell Peck. It should have been credited to Joe Marr<br />
Wilson, lead counsel in the Levi King case. We regret the error.
.Fecler:a.l.1ilw<br />
Federal Law<br />
ill at uJhe the .F French rMe.hi<br />
-QJlflder Quarter<br />
March 4–5, 2010<br />
Hotel Monteleone<br />
504.523.3341<br />
- I ~.,<br />
.. u ." " , __ , , •.<br />
New Orleans!<br />
Register online at www.tcdla.com<br />
17th Annual<br />
Mastering<br />
Scientific<br />
Evidence<br />
in DUI/DWI Cases<br />
April 8–10, 2010<br />
Royal Sonesta Hotel<br />
504.586.0300<br />
Co-sponsored with the National College for DUI <strong>Defense</strong>
Join TCDLA Join TCDLA Join TCDLA<br />
tcdla.com<br />
When yoo you join Te TCDLA, you become a part of a long history<br />
of providing outstanding 5ervices services and assistance to criminal<br />
l<br />
defense lawyers la\l'll}'ers across acrooz the great state ofTe%31S. Texas.<br />
Join tOOay today and take advantage of numerous nuf'i"IeI"oos member benefits.<br />
Endorse a colleague or friend-encoorage friend—encourage otner.; others to become a<br />
member of TCDLA. Te DlA..<br />
Member Benefits<br />
g <strong>Voice</strong> \tbice fur for the <strong>Defense</strong> Magazine hiagazine<br />
A A subscription rubscriptioo to the tile ONLY statewide magazine<br />
written specifically s()&Cifically for defense lawyers, published publiiShed 10<br />
times a year.<br />
g Membership ~rsh i p Directory<br />
A A listing of all TeDLA TCDLA members. Updated and reprinted<br />
ri rrted<br />
annually.<br />
g Te TCDLA Discounts<br />
Receive significant discounts on CLE seminars and TCDLA TCDu\<br />
publications. publicatiOO$.<br />
g Vendor' Discounts Discounl:S<br />
Receive discounts on various goodz goods and services $ervice5 provided<br />
by numerous vendors, vendors.<br />
g Strike <strong>For</strong>ce<br />
Strike <strong>For</strong>ce assistance which comes corne; to the aid of lawyers la~<br />
in need.<br />
g Listserve ListsenJe Access<br />
Access to TCDLA I.Jl\, listserve, where you can exchange legal<br />
information and resources re;ources with other TCDLA TCDl...A members. ~ .<br />
g Website—Members Website-Members Only Section<br />
Access AcCE!s:; to the “members "'member.s emlyN only” section of the website,<br />
which includes ude; information iriformatioo on experts, summaries of<br />
cases from the state stare SInd and federal COO courts, ri:5, and more.<br />
g Experts<br />
Ex~<br />
Extensive list Ii $!: of experts eX~rI:$ for all 'type5 types of criminal cares. cases.<br />
g Resources<br />
Expansive library of research reM:!arch papers papern from renowned<br />
criminal defense lawyers.<br />
g Legislature<br />
Opportunities to be involved in the legislative effort. effi:rt.<br />
Resources for Texas Capital Litigators<br />
Capital Litigation UpdateU pda~e<br />
Published PlJblished 10 times a year with a “Motion NMotion of the Month” h'klnth"<br />
enclosed.<br />
Capital Resource Resoon::e Listserve LiiSiM!rve<br />
Access to a listserve Ii~rve consisting of Texas-only Tex:as-on lawyers,<br />
investigators, inve51:igators, and mitigation specialists sJ=ECialisi:§ woo who practice in<br />
the capital arena.<br />
Motions hiotions Bank and Claims<br />
Access to a capital-specific motions moI:iorn; bank and habeas haOea!i<br />
corpus claims -fof for Sialte state and federal practice.<br />
Experts Ex~ Database [Jaf:a.too.se<br />
Access to a database of experi:5 experts in irJ a wide area of<br />
expertise.<br />
CLE Opportunite;<br />
Opportunites<br />
Comprehensive substantive SIJOOi:alntive cootinuing continuing legal education.<br />
Locating Assistance<br />
Assistance locating capital capii:a[ qualified investigators and<br />
mitigation specialists. ists.<br />
Membership Application<br />
To join TCDLA you must be a member membar in pd good standing ~tooding of the State Slaw Bar of<br />
Texas T_ engaged engagEd in the defense defen!le of criminal cases CUES (except (!eJ:W!!pt law sWd:Eoo students or affiliate<br />
applicants). awlicam:l). An applicaJ1t applicant must mtI§t he be endorsed endorwd I:Pj by a TCDLA TCOLA member. Membml Members of<br />
the j~diciary judiciary (except honorary members) l'm1rTJbJ.1ro) and those t!Ilooe regularly K1gt11larly employed in a<br />
prosecutorial prt:l!OCutorial office are a!N:l not eligible.<br />
Your membership memlM!t$hip will go into effect upon !,llpon approval rJ of application and receipt<br />
of annual membership memoorohip dus. dues. Please Pleare allow a~low 6 to 8 e weeks week:; for confirmation coofirmation and<br />
certificate.<br />
g Mr. g Ms. hk. g] Mn. Mrs.<br />
_______________________________________<br />
First Fil'it Name Last Ltit Name Middle Initial Illitial<br />
__________________________________________________________________<br />
Law Firm<br />
__________________________________________________________________<br />
Mailing Adrlre$s Address<br />
__________________________________________________________________<br />
City<br />
State Zip<br />
__________________________________________________________________<br />
Telephone<br />
Fax<br />
__________________________________________________________________<br />
Email<br />
Crnmty County<br />
__________________________________________________________________<br />
Bar Card card Number NUMber<br />
__________________________________________________________________<br />
Date of Birth<br />
__________________________________________________________________<br />
Name Harrm of other local criminal bar association amximtion or section rection<br />
Nominating Endorsement (must be completed)<br />
N. As a curreaJt current member Il1I2mher ofTCDLA. TCDLA, I believe bElieve this applicant to be a person pErron of<br />
professional profei5iool1l1 competency, competmcy, integrity, inWgD"ity, and good moral charactlar. character.<br />
_________________________________________<br />
Signature of Endorser EndMer (must be current member)<br />
______________________________________________________________________<br />
Printed Prinred Name ai of Endorser Endorrer (mum: (must be current rurrem: member) lMmoor)<br />
Membership Category (please check one)<br />
IJ First-Time First-lime Member- — $75 per year<br />
IJ Renewing ReUlewing Membership Membarohip -— $150 per par yeillr year<br />
g Voluntary Suztlaining Sustaining Member -— $300 per year<br />
IJ Sustaining §U$ta.ining Member MEmbEr -— $200 per year<br />
IJ Affiliate Member (E;qlIlJ!rt:Ii (Experts or Legal leplllzsi$l).arn) Assistant) -— $50 per year<br />
g Public PUblic Defender Dafundar -— $50 pElr per year<br />
IJ Investigator In'lll5tigaror -— $50 per pEr}'Ellr year<br />
IJ Law LOIW Student -— $20 per year<br />
Payment Method (please check one)<br />
IJ<br />
Check e!OClosOO enclosed (payable (payoble to TCDLN TCDLA)<br />
g Vi" Visa g] Mtitercard Mastercard g] American Express O:preii5 g Discover<br />
DiocQOlS1l"<br />
__________________________________________________________________<br />
Credit CMlit card Card Number N:umber<br />
Expiration Date Dare<br />
__________________________________________________________________<br />
Name Hilma on Card Ci!iD'd<br />
Signature<br />
Mail h'lffiil completed ©IDJlIj~lfIlm ffiMm form and _ payment ~ !@ to<br />
Texas T~ Criminal <strong>Defense</strong> Deflmre Lawyers l..awyllrs MrociaOOn Association (TCDLA) rrCDl..A)<br />
1717 W. 6th St., Ste. SW. 315 • 0 M.I~tin, Austin, Texa:; Texas 78703<br />
Fax friMw to (if paying ~ItrtO'lWii:J by credit card): ~) ; 512-469-9107<br />
TAX NOTICE $36 of your annual dues drUIE!iii ($19 if a Student Siludan'l. Member) Mamlrer) is for a one-year<br />
subscription $ubscription to the <strong>Voice</strong> \t!ice for the rile <strong>Defense</strong>. Dues to TCDUI. TCDLA are iU(! not dr!ductible deductible as<br />
a charitable chalritable contribution cootribullion but may be deducted di:docred a~ as an aln ordinal['( ordinary business oolineu rezpenfa. expense.<br />
<strong>The</strong> non-deductible portion of regular regulillr and ilnd initial inrual membership memlbenihip dues d~1e!!i<br />
is $39 in<br />
accordance alCCOrdaOO2 with IRC IPC soc sec 6033.<br />
Join TeDl Today!
Change language