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Federal Lawat the FrenchQuarterMarch 4–5, 2010Hotel Monteleone504.523.3341New Orleans!Register online at www.tcdla.com17th AnnualMasteringScientificEvidencein DUI/DWI CasesMarch 8–10, 2010Royal Sonesta Hotel504.586.0300Co-sponsored with the National College for DUI Defense

Contentsg Featuresg Columns20 | The “Stealth” Life Sentence: Health &Safety Code Chapter 841By Mike McMillen24 | Family Violence: Criminal & Civil Aspects,Part 2By ill Samuel .:>.ulu.. d E. .i:. • Bassett.h.!-,-,,:~~32 j.!- | Remembering .f"':l1L:ll~L.:rll,-, Judge -11_ ~ Mace i~:"'': Thurman 1 L:.i .~li44 | Catch of the Day: Motion in LimineConcerning the State’s Entitlement to aFair _..tll Trial~r~..JBy l..1 Maxwell _,Lt...~ .. .:..1 C. C Peck L";:_i_lll III8 | President’s Message10 | Executive Director’s Perspective12 | Editor’s Comment14 | Federal Corner18 | Said & Doneg Departments5 J | TCDLA r~.uL-~ ~'~':.GiL.:r Member Benefits l:

Benefits . . .“Something that promotes well-being” Enterprise Car RentalTen percent discount for TCDLA members. Enterprise isthe largest rental car company in North America in terms oflocations and number of cars, while providing the highestlevel of customer service. The corporate account number forTCDLA members is 65TCDLA. You may contact your localoffice directly or visit www.enterprise.com. When bookingonline, enter your location, date, time, and the corporate accountnumber. You will then be asked for your discount ID,which is the first three letters of TCDLA (TCD). Make yourreservation at Enterprise Rent-a-Car. La QuintaTen percent discount to all TCDLA members. Simply tell thereservations agent that you are with the Texas Criminal DefenseLawyers Association or give the discount code (TCD‐LA) on the La Quinta website to get the discounted rate. Visitwww.lq.com or call 1-800-531-5900. Subscription Services Inc.Fifty percent discount off the cover price of more than 1,000magazines, including Newsweek, New Yorker, Texas Monthly,etc. Visit www.buymags.com/attorneys. Voice for the Defense magazineA subscription to the only statewide magazine written specificallyfor defense lawyers, published 10 times a year. Membership Directory (printed and online)Comprehensive listing of current TCDLA members, updated,reprinted, and mailed annually, and online directory of currentTCDLA members. Lawyer LocatorOnline directory providing members an opportunity to listup to three areas of practice for public advertising. ListserveA partnership to engage community members in areas ofsignificant decisions, legislative and capital issues/updates,upcoming seminars and events, and more . . . TCDLA DiscountsReceive significant discounts on CLE seminars and TCDLApublications.Discounted liability insurance with Joe Pratt Insurance. Strike ForceStrike Force assistance to aid lawyers threatened with orincarcerated for contempt of court. ResourcesExpansive library of research papers from renowned criminaldefense lawyers. Significant Decisions ReportProfessional reports summarizing state and federal cases,emailed weekly. LegislatureOpportunities to be involved in the legislative effort. State Motions CDNew members will receive a comprehensive CD of stateforms and motions,including DWI, post-trial, pretrial, andsexual assault motions. Membership CertificateDisplay your TCDLA membership with pride! New memberswill receive a personalized certificate by mail. Brief/Motion Bank Expert ListExtensive list of experts for all types of criminal cases, includinginvestigation, mitigation, and forensics specialists.October 2009 VOICE FOR THE DEFENSE 5

committee chairsAmicus CuriaeWm. Reagan Wynn817-336-5600Angela Moore210-335-0706Budget & FinanceBobby Mims903-595-2169Child ProtectiveServices TaskforcePaul Conner817-332-5575Corrections & ParoleDavid O’Neil936-435-1380Criminal DefenseLawyers ProjectMark S. Snodgrass806-762-0267David Moore903-758-2200Criminal LawSpecializationGary Udashen214-468-8100Death PenaltyJohn Niland512-320-8300Jack Stoffregen806-775-5660Driving WhileIntoxicatedDoug Murphy713-524-1010David Burrows214-755-0738Larry Boyd214-691-5630Federal LawRichard Alan Anderson214-767-2746Hall of FameScrappy Holmes903-758-2200InnocenceJeff Blackburn806-371-8333Lawyers AssistanceRichard Scott Gladden940-323-9307Kelly Pace903-526-6777James M. Pape512-353-4004LegislativeMark Daniel817-332-3822NominationsWilliam Harris817-332-5575Public DefendersJeanette Kinard512-854-3030Jack Stoffregen806-775-5660Strategic PlanningTom Pappas214-871-4900Strike ForceMichael P. Heiskell817-457-2999Gary Udashen214-468-8100strike forceDistrict 1West TexasJim DarnellMike R. GibsonMary StillingerDistrict 2Permian BasinTip HargroveWoody LeverettTom MorganDistrict 3PanhandleWarren ClarkChuck LanehartBill WischkaemperDistrict 4North TexasH. F. “Rick” HagenDon WilsonRandy WilsonDistrict 5Tarrant CountyMark DanielLance EvansMichael P. HeiskellJeff KearneyLarry MooreGreg WestfallDistrict 6Dallas CountyRichard AndersonRon GoransonBob HintonGary UdashenRussell WilsonDistrict 7Northeast TexasScrappy HolmesBobby MimsDavid E. MooreBarney SawyerDistrict 8Central TexasKerri Anderson-DonicaF. R. “Buck” FilesW. W. TorreyDistrict 9Travis CountySam BassettBetty BlackwellDavid BotsfordDavid FrankDexter GilfordKeith HamptonDistrict 10Bexar CountyJohn ConveryGerry GoldsteinCynthia OrrGeorge ScharmenDistrict 11Hill CountryEmmett HarrisDistrict 12ValleyJoe ConnorsBobby LermaJames GranberrySheldon WeisfeldDistrict 13Southeast TexasJames MakinDistrict 14Harris CountyNicole DeBordeDanny EasterlingJoAnne MusickMac SecrestKatherine ScardinoStan SchneiderGrant Scheinerstaff directoryExecutive DirectorJoseph Martinez x 726 (512-646-2726)jmartinez@tcdla.comAssistant Executive Director & General CounselCynthia Hampton x 730 (512-646-2730)champton@tcdla.comCapital Assistance AttorneyPhilip Wischkaemper (806-763-9900)pwisch@tcdla.comCommunications DirectorVoice InformationCraig Hattersley x 733 (512-646-2733)chattersley@tcdla.comAccounts Payable SpecialistCristina Abascal x 725 (512-646-2725)cabascal@tcdla.comSeminar Planning AssistantDenise Garza Steusloff x 729 (512-646-2729)dgarza@tcdla.comCONTACT USAustin Home Office1717 W. 6th St.Ste. 315Austin, TX 78703512-478-2514 phone512-469-9107 main fax512-469-0512 seminar faxLubbock Office915 Texas Ave.Lubbock, TX 79401806-763-9900 phone806-769-9904 faxChief Financial OfficerDawn Thornburgh x 727 (512-646-2727)dthornburgh@tcdla.comAdministrative AssistantDiana Vandiver x 721 or 0 (512-646-2721)dvandiver@tcdla.comDirector of CLE and Special ProjectsSeminar Information | WebsiteMelissa J. Schank x 724 (512-646-2724)mschank@tcdla.comServices ClerkPublication InformationSusan Fuller x 722 (512-646-2722)sfuller@tcdla.comDatabase CoordinatorMembership InformationMiriam Rendon x 732 (512-646-2732)mrendon@tcdla.com6 VOICE FOR THE DEFENSE October 2009

CLE & Events . . .Providing legal education across the state October 2009October 22–23CDLP | 7th Annual ForensicsHouston, TXOctober 29CDLP | Survivor Trial TacticsComstock, TXOctober 30CDLP | Survivor Trial TacticsUvalde, TX November 2009November 6TCDLA | Nuts ‘n’ Bolts | co-sponsoredwith the San Antonio Criminal DefenseLawyers AssociationSan Antonio, TXNovember 12–13TCDLA | Stuart Kinard MemorialAdvanced DWI SeminarSan Antonio, TXNovember 20CDLP | Survivor Trial TacticsGranbury, TX December 2009December 3–4TCDLA | Sexual Assault Scholarships availableHouston, TXDecember 5TCDLA/TCDLEI Boards, TCDLAExecutive, and CDLP CommitteeMeetings**Houston, TXDecember 11CDLP | Survivor Trial TacticsLongview, TXDecember 11CDLP | 2nd Annual Hal JacksonMemorial Jolly Roger Criminal LawSeminar| co-sponsored with the DentonCriminal Defense BarDenton, TXDecember 18CDLP | Prairie Dog Lite | co-sponsoredwith the Lubbock Criminal Defense BarLubbock, TX January 2010January 15CDLP | Survivor Trial TacticsLaredo, TXJanuary 22CDLP | Survivor Trial TacticsTemple, TX February 2010February 12CDLP | Survivor Trial TacticsWichita Falls, TXFebruary 17–21TCDLA | Members Trip to Napa ValleyNapa Valley, CAFebruary 25–26CDLP | Capital/HabeasAustin, TXFebruary 26TCDLA/TCDLEI Boards, TCDLAExecutive, and CDLP CommitteeMeetings**Austin, TX March 2010March 4–5TCDLA | Federal LawNew Orleans, LouisianaMarch 14–19CDLP | 34th Annual Texas Criminal TrialCollegeHuntsville, TXMarch 26–27TCDLA | 47th Annual AA SemaanSeminar | co-sponsored with SanAntonio Bar AssociationSan Antonio, TXNote: Schedule and dates subject to change. Visit ourwebsite at www.tcdla.com for the most up-to-date information. April 2010April 8–10TCDLA | 17th Annual MasteringScientific Evidence in DWI/DUI Cases |co-sponsored with National College ofDUI DefenseNew Orleans, LouisianaApril 9CDLP | Survivor Trial TacticsAmarillo, TXApril 15–16TCDLA | Cross-Examination Scholarships availableAustin, TX May 2010May 7TCDLA | DWI Defense ProjectDallas, TX June 2010June 4TCDLEI Board Meeting and CDLPCommittee MeetingSan Antonio, TXJune 5TCDLA Board and Executive CommitteeMeetings**San Antonio, TXJune 3–5TCDLA | 23rd Annual Rusty DuncanAdvanced Criminal Law Course Scholarships availableSan Antonio, TXSeminars spon sored by CDLP are funded bythe Court of Criminal Appeals of Texas.*Unless otherwise noted, seminars are openonly to criminal defense attorneys, mitigationspecialists, defense investigators, or otherprofessionals who support the defense ofcriminal cases. Law enforcement personneland prosecutors are not eligible to attend.** Open to all membersOctober 2009 VOICE FOR THE DEFENSE 7

Number of course directors (71)TCDLA 19CDLP 52Number of speakers (452)TCDLA 141CDLP 311Total CLE hoursTCDLA SeminarCDLP SeminarCapital CLE Hours182.25 cle15.0 ethics297.5 cle27.0 ethics40.25 cle2.0 ethicsPublication revenueTCDLA $73,269TCDLEI $5,791MembershipTotal Members 3,000New Members 382Renewing members 1,891Members not renewing 613Please let us know how TCDLA can serve you.Good verdicts to each of you.Become a Fellow orSuper FellowTexas Criminal Defense LawyersEducational InstituteEndowment ProgramTCDLEI has created an endowment programto ensure continuing legal education fortomorrow’s criminal defense lawyer.g Your money will be deposited into aspecial endowment fund.g Your contribution will be used to build afund for future Texas lawyers.What you can do? Contribute $1,500 andbecome a Fellow. Contribute $3,000 andbecome a Super Fellow (form available on ourwebsite).Help support TCDLEI in its efforts to make fundsavailable for future criminaldefense lawyers in Texas.For more information, con -tact Joseph Martinez at512-646-2726.Make YOURcontribution TODAY!The very man who has argued you down willsometimes be found, years later, to have beeninfluenced by what you said.—C. S. LewisGive us yourWord!Your experiences in criminal law can contribute to thecontinuing education of our membership. Write now forthe Voice for the Defense.If you would like to submit an article, please send it toCynthia Hampton at champton@tcdla.com orCraig Hattersley at chattersley@tcdla.comPrior to publication, articles are reviewed andapproved by Greg Westfall, editor, and Jani Maselli,feature articles editor.Questions? Call 512-646-2733October 2009 VOICE FOR THE DEFENSE 11

Greg WestfallStupid Pet TricksEditor’s.!:: ..r:JJlu/;Comment,[UlJJllJ"::1JIThis is not the column I had intended to write.I had just finished reading a report by the Innocence Project of Texas (http://ipoftexas.org/current-projects/dog-scent-lineup-cases/)(hereafter Innocence Project Report) andall the materials I could find on Fort Bend County Sheriff’s Deputy Keith Pikett and hisblood hounds. What I intended to do was to write a scathing indictment of the 14th Courtof Appeals for allowing his testimony in the first place in Winston v. State, 78 S.W.3d 522(Tex. App.—Houston [14th Dist.] 2002, pet ref’d), but I can’t do that. I’ll tell you why, butfirst let’s look a little bit at Deputy Pikett and his current situation.For some years now, Keith Pikett and his bloodhounds Quincy, James Bond, Clue, andothers have been testifying around the state to a procedure he conducts called a “scent lineup.”Pikett gets some scent from a person’s clothing, a crime scene, or even, as he has testified, afin ger print, and has his dogs sniff it. Then he gets a scent from a known suspect and putsthat scent in one of several cans with gauze pads of other people’s scents. The dogs then alertto the can containing the same scent. He has been wildly successful with this technique, andmany people are in prison as a result of his testimony. In several of the cases I have read, thedefense did not even object. I can kind of see why. At some level it just makes sense that a dogcould do this, given our almost universally shared belief that dogs—especially bloodhounds—have seemingly mystical smelling abilities.Of course, some of his claims, such as his dogs successfully trailing a car for 38 miles(http://www.fortbendnow.com/2008/08/14/32854), seem kind of outlandish, but if statedear nestly enough, I can see how it could be believed. Hell, it might even be true.Problem is, Pikett appears to have lied to several courts and juries. According to the Innocence Project report, Pikett graduated from the University of South Alabama with a bachelor’s degree in chemistry and then later obtained a master’s degree in “Sports Science” fromthe United States Sports Academy, which is also in Alabama. Innocence Project Report at 6.However, according to that same report, he has testified in court that he received a bachelorof science in chemistry from Syracuse University and a master’s degree in chemistry from theUniversity of Houston. On another occasion he testified that he received a master’s degree inchemistry from the University of South Alabama. Innocence Project Report at 7–8.In doing case research myself, I found one case where Pikett testified that he “earned abach e lor’s degree in chemistry and a master’s degree in education, with an [sic] P assistance in12 VOICE FOR THE DEFENSE October 2009

chemistry.” Robinson v. State, 09-06-051 CR, 2006 WL 3438076at *4 (Tex. App.—Beaumont, Nov. 29, 2006)(nfp)(editor’s note:I don’t have the slightest idea what a (or “an”) “P assistancein chemistry” is). In Trejos v. State, 243 S.W.3d 30, 50 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d), Pikett testified to“a bachelor of science degree and a master of science degree inchemistry, both from the University of Southern Alabama.” Bythe way, it appears the United States Sports Academy is in noway affiliated with the University of Southern Alabama or anyother institution. See http://www.ussa.edu/.Clearly something is rotten in Denmark. Please take thetime to read the Innocence Project report on Pikett and scentline ups. Once you have read it, you will wonder how this evergot in front of a jury to begin with.Which leads me back to the original intent of my column.I figured, after reading the report, that the court of appealshad just written an intellectually dishonest permission slip toput this kind of junk in front of a jury so that the conviction inthat case could be affirmed. Then I re-read Winston, which I hadnot read in about a year. The fact is it’s a pretty well-reasonedopin ion that pretty much follows the dictates of the Court ofCrim i nal Appeals in Nenno v. State, 970 S.W.2d 549 (Tex. Crim.App. 1998). Nenno itself is an abomination to the extent that itwas originally designed to allow admission of the über-voodooof the criminal justice system—future dangerousness testi monyin a death penalty case. But the rule announced in Nenno is anec es sary evil, for we know there is legitimate expertise notde rived through the scientific method. Nenno relaxes the ruleof Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Theprob lem is that when the rules get relaxed, mistakes happen,and Keith Pikett appears to have been one of them.All the expert cases now refer to the court as “the gate keeper”when it comes to the admissibility of expert testimony. Whatdoes this mean? All it means is that the judge makes the de cision.It is up to the parties to make that decision as informed aspossible in hopes that when it is made, it can be correct (or atleast be criticized on appeal). That is apparently what failed tohap pen in Winston, and it failed to happen in the trial court.The simple fact is that the state offers the vast majority ofex pert testimony, and I must say that Pikett’s dog thing is notthe craziest stuff I’ve seen in a Texas courtroom. Not even close.Sadly, that means in the clear majority of cases, it is going to beour job as defense lawyers to educate the judge and challengejunk sci ence. With Pikett, did the state suddenly start to feelqueasy about his claims and stop using him? Nope. In this case ittook a couple of enterprising civil and criminal defense lawyerswho did some research, and now it appears that Keith Pikett andhis magical mystery dog show will soon be off the air.Getting prepared to do battle with an expert can be difficultand draining. It takes a lot of time and resources. A good placeto start is to contact Philip Wischkaemper with TCDLA and tellhim the names of the experts you are facing and the areas ofexpertise. Oftentimes he can get info for you on the experts orthe name of an expert you can get appointed to help you. Alwaysget the names of the state’s experts. Always get experts appointedif necessary. Never let stuff like this in without objection.We are having to face more and more experts in criminaltrials, and facing experts is tough. But it is not as tough as gettingsome innocent person out of the penitentiary on a writ.TCDLAMemorializesCharles BalwinQuinn BrackettPeter BrightJack H. BryantPhil BurlesonByron ChappellEmmett ColvinC. Anthony Friloux Jr.Jim GreenfieldRichard W. HarrisOdis Ray HillWeldon HolcombDavid IsernHal JacksonKnox JonesJoe KeagansGeorge F. LuquetteHomero MartinezKen McClainKathy McDonaldDavid A. NixRusty O’SheaCharles RittenberryGeorge RolandThomas Gilbert Sharpe Jr.Travis SheltonDoug TinkerDon R. Wilson Jr.October 2009 VOICE FOR THE DEFENSE 13

F. R. Buck Files Jr.A Defendant-Appellant Prevails on a Sex Offender Registration IssueFor the second month in a row, a United States Court of Appeals has handed down anopin ion interpreting the Sex Offender Registration and Notification Act (SORNA), 42U.S.C. §16913. Last month, it was a panel of the United States Court of Appeals for theFifth Circuit affirming the conviction of a defendant for failing to register as a sex offender,United States v. Whaley, ___ F.3d ___, 2009 WL 2153651 (5th Cir. 2009). This month, it wasa panel of the United States Court of Appeals for the Ninth Circuit holding—in a case offirst impression—that the retroactive application of SORNA’s juvenile registration provisionvio lated the Ex Post Facto Clause of the United States Constitution. United States v. JuvenileMale, ___ F.3d ___ 2009 WL 2883017 (9th Cir. 2009).The panel in Juvenile Male consisted of Circuit Judges Reinhardt, Tashima, and McKeown,with the opinion authored by Judge Reinhardt. The WestLaw version of the case is 17 pagesin length and is a “must read” for anyone representing individuals in sex offense cases—adultor juvenile. Throughout the opinion, the defendant-appellant is referred to as S.E. JuvenileMale originated in the court of United States District Judge Sam E. Haddon of the Districtof Montana.Judge Reinhardt’s opinion reads, in part, as follows:Federal j-" die .r" JCorner C[; .r JJ C: .r[The Facts]At the age of thirteen, defendant-appellant S.E. engaged in non-consensual sexual actswith a ten-year-old child of the same sex. The sexual activity continued until S.E. wasfifteen years old and the younger child was twelve. S.E. pled “true” to the commissionof acts that, had they been committed by an adult, would constitute aggravated sexualabuse under 18 U.S.C. §1153 and §2241(c), because the younger child was, duringthe period of the charges, under twelve. As a result, S.E. was adjudicated delinquentunder 18 U.S.C. §5031, et seq.In 2005, a year before SORNA was adopted, the district court sentenced S.E. totwo years of detention at a juvenile facility followed by supervised release until histwenty-first birthday. He was not at this point, of course, ordered to register as a sexoffender. S.E. completed his two-year confinement and moved to a prerelease cen terwhere, pursuant to the terms of his sentence, he was to reside for six months. WhenS.E. failed to engage in a required job search, center officials deemed him a programfailure and requested his removal. In 2007, a year after the enactment of SORNA, thedistrict court revoked S.E.’s supervised release due to his failure to re side at the center14 VOICE FOR THE DEFENSE October 2009

as required by his conditions of supervision, and orderedan ad di tional six months of confinement and continuedsu per vi sion until S.E.’s twenty-first birthday. The judgealso imposed a “special condition” mandating that S.E.reg is ter as a sex offender. S.E. objected to the impositionof the registration requirement and timely filed a noticeof appeal.[The Positions of the Parties]The government argues that the special condition is validbecause S.E. is required to register by SORNA. S.E. respondsthat the Ex Post Facto Clause of the United StatesConstitution bars the retroactive application of the registra tion provision of SORNA to persons who prior toits passage were designated as juvenile offenders.[Society’s Attitude towards Juvenile Offenders]As a society, we generally refuse to punish our nation’syouth as harshly as we do our fellow adults, or to holdthem to the same level of culpability as people who areolder, wiser, and more mature. The avowed priority ofour juvenile justice system (in theory if not always inprac tice) has, historically, been rehabilitation ratherthan retribution. Juvenile proceedings by and largetake place away from the public eye, and delinquencyad ju di ca tions do not become part of a young person’sper ma nent criminal record. Rather, young offenders,ex cept those whose conduct a court deems deserving oftreat ment as adults, are classified as juvenile delinquentsand placed in juvenile detention centers. Historically, anes sen tial aspect of the juvenile justice system has beento maintain the privacy of the young offender and, contraryto our criminal law system, to shield him from the“dissemination of truthful information” and “[t]rans parency”that characterizes the punitive system in which wetry adults. Compare 18 U.S.C. §5038(e) (“[N]either thename nor picture of any juvenile shall be made publicin connection with a juvenile delinquency proceeding.”)with Smith v. Doe, 538 U.S. 84, 99, 123 S.Ct. 1140, 155L.Ed.2d 164 (2003) (“[O]ur criminal law tradition insistson public indictment, public trial, and public impositionof sentence.”).[The Sex Offender Notification andRegistration Act (SORNA)]On July 27, 2006, Congress enacted the Adam Walsh ChildProtection and Safety Act, 42 U.S.C. §16901 et seq., whichincludes the Sex Offender Registration and NotificationAct (“SORNA”). SORNA was enacted “[i]n order to protectthe public from sex offenders and offenders againstchil dren, and in response to the vicious attacks by violentpred a tors” against seventeen named victims of sex crimes.42 U.S.C. §16901. SORNA “establishes a comprehensivena tional system for the registration of [sex] offenders,”id., and requires anyone convicted of specified crimes,in clud ing aggravated sexual abuse, to register with thena tional sex offender registry. 42 U.S.C. §16911(4)(A)(i).SORNA defines convictions to include juvenile delinquencyad ju di cations of aggravated sexual abuse if the offender isfour teen years of age or older at the time of the offense. 42U.S.C. §16911(8).Congress delegated to the Attorney General the decisionwhether SORNA should apply retroactively to sex offenderswho were convicted before the statute’s effective date. 42U.S.C. §16913(d). Congress gave the Attorney General noinstruction regarding whether SORNA should apply retroac tively or not, and certainly gave no indication to theAt tor ney General that if applied retroactively to adults,it should be so applied to juveniles as well. Exercising thedele gated authority, the Attorney General promulgateda regulation that renders SORNA applicable to “all sexof fenders, including sex offenders convicted of the offensefor which registration is required prior to the enactmentof that Act.” 28 C.F.R. §72.3 (2007). The regulation wentinto effect immediately as an interim rule, without providing for a notice and comment period in advance ofSORNA’s retroactive application. Office of the AttorneyGen eral, Applicability of the Sex Offender Registration andNo ti fi ca tion Act, 72 Fed.Reg. 8894-01, 8896-97 (Feb. 28,2007). The regulation contains no exception for personsad judged juvenile delinquents, and it does not appearthat the Attorney General considered any such exception.In deed, there is no indication that the Attorney General,in de ter mining the scope of SORNA’s retroactivity, gaveany con sideration at all to the special circumstances ofjuveniles who had been adjudicated delinquent under adifferent—and largely confidential—judicial system, orto the societal costs versus benefits of applying SORNA’sju ve nile registration requirement retroactively [Emphasisadded].[The Implications of SORNA]The retroactive application of SORNA’s juvenile reg istration provision affects people of all ages—not onlyju ve niles. As we are still close in time to SORNA’s passage,some, like S.E., were adjudicated delinquent relativelyOctober 2009 VOICE FOR THE DEFENSE 15

e cently and are still minors or young adults. The vastma jority of persons affected, however, were adjudicatedde lin quent years or even decades before SORNA’s enactmentand quite obviously are no longer juveniles. In deed,the brunt of SORNA’s retroactive application to ju venileoffenders is felt mainly by adults who committedof fenses long ago as teenagers—many of whom havebuilt families, homes, and careers notwithstanding theirhis tory of juvenile delinquency, which before SORNA’sen act ment was not a matter of public record. For theseadults, sex offender registration and reporting threatensto disrupt the stability of their lives and to ostracize themfrom their communities by drawing attention to decadesoldsex offenses committed as juveniles that have, untilnow, remained sealed. Although from this point forwardno new individuals will be affected by the retroactivitypro vi sion, its effects will be felt by numerous individualsfor the rest of their adult lives.[The Issue Before the Court]We must decide as a matter of first impression—inour court and in any other circuit court—whether theret ro ac tive application of SORNA’s provision coveringin di vid uals who were adjudicated juvenile delinquentsbe cause of the commission of certain sex offenses beforeSORNA’s passage violates the Ex Post Facto Clause of theUnited States Constitution.[The Court’s Conclusion]In light of the pervasive and severe new and additionaldis ad van tages that result from the mandatory registrationof former juvenile offenders and from the requirementthat such former offenders report in person to law enforcement authorities every 90 days for 25 years, and inlight of the confidentiality that has historically attachedto juvenile proceedings, we conclude that the retroactiveap pli ca tion of SORNA’s provisions to former juvenileof fenders is punitive and, therefore, unconstitutional.[The Court’s Holding][W]e hold that SORNA’s juvenile registration provisionmay not be applied retroactively to individuals adjudicateddelinquent under the Federal Juvenile Delinquency Act,and we reverse the directive that S.E. must register underthe Act.The Rest of the StoryThe rest of the opinion is too long, even if excerpted, to includein this column. Judge Reinhardt did, however, discuss the following:• the Federal Juvenile Delinquency Act—18 U.S.C. §5031 et.seq.;• whether the application of SORNA’s juvenile registrationpro vision is punitive;• whether the effect of SORNA’s juvenile registration ap plication is punitive;• whether the retroactive application of SORNA’s juvenilereg is tration provision “imposes an affirmative disabilityor restraint”;• whether requiring former juvenile sex offenders to registerand report to law enforcement regularly is a historical meansof punishment;• whether SORNA promotes the traditions aims of pun ishment—inparticular, the aim of retribution;• whether SORNA’s juvenile registration provision has a nonpunitivepunishment and, if it does, whether the re quirementis excessive in relation to the goal.My ThoughtsYes,g I know that S.E.’s case was in a federal court and not in astate court;g I know that the opinions of the Ninth Circuit are not heldin high esteem by some legal scholars and by some of thejudges of the other Courts of Appeal;g I know that it is not uncommon for the Ninth Circuit tobe reversed by the Supreme Court; and,g I know that I cannot predict what the implications of Juvenile Male will be for those of us who practice in the stateand federal courts within the Fifth Circuit.But, I also know that there are a significant number ofin di vid uals who are required, as was S.E., to register as a sex offenderbecause of conduct that occurred before the enactment ofSORNA. Eventually, one of these individuals is going to wanderinto a lawyer’s office and ask what, if anything, can be done tomake his registration go away. At the very least, Juvenile Malegives us a basis for an Ex Post Facto argument.16 VOICE FOR THE DEFENSE October 2009

Texas Criminal Defense Lawyers AssociationCapital /HabeasPhilip Wischkaemper& John NilandFebruary 25–26, 2010Austin, Texaswww.tcdla.comSeminars spon sored by CDLP are funded by a state grant administered by the Texas Court of Criminal Appeals.October 2009 VOICE FOR THE DEFENSE 17

college to their clients’ benefit. They have recently receivedthree “not guilties” (DWI, failure to identify/fugitivefrom justice, and assault/family violence) and a hungjury (DWI). Keep up the great work, guys!Send your letters, pictures, gripes, bonehead gaffes, or whathave-youto champton@tcdla.com or chattersley@tcdla.com.KudosJerry BuchmeyerRichard A. Anderson at the Advanced Criminal LawSeminar in Dallas this past August was presented aLifetime Achievement Award for Outstanding Contributionsto Excellence and Professionalism by the State Barof Texas. Congratulations, Richard! No one deserves itmore than you.Congratulations to Russ Hunt Sr. of Waco, who got deathwaived in a case involving a client who was alreadyserving a prison sentence for murder. Russ showed howthe state had not been properly medicating the clientfor a psychotic condition when the second murder occurred.Good work, Russ!Rick Wardroup and Mark Snodgrass pled Alonzo Lewisto life without parole in this Lubbock County case.Mr. Lewis was charged with killing a retired Air Forcecolonel in the gentleman’s own home. The decedent hadsimply offered Mr. Lewis a drink of water when he approachedhis house. Additionally, Jack Stoffregen and hiscrew from the West Texas Public Defender’s office gotan agreed not guilty by reason of insanity in Crane fortheir client, Gilly Thurby, who was accused of a doublehomicide. Good work, guys! Keep it up. The numbersare good for 2009 so far. There have been ten deathsentences this year with only five of those being whatare considered “new” sentences. The remaining wereretrials.Texas Criminal Trial College graduates Jeremy Deshonghand DeAndre Gibbs are using the skills learned at theThe Honorable Jerry Buchmeyer, retiredfederal district judge of Dallas, died onMonday, September 21, 2009. Appointedto the federal bench in 1979 by PresidentJimmy Carter, Buchmeyer was chief judgeof the Northern District of Texas from 1995to 2001. He assumed senior status in 2003and stepped down to inactive status in2008. Among his other accomplishments,Judge Buchmeyer was well-known andadmired by Texas lawyers for his humorcolumn, “et cetera,” published monthly inthe Texas Bar Journal.18 VOICE FOR THE DEFENSE October 2009

Ron Goranson surprisesStanley Weinberg with aplaque on the occasionof his 80th birthday.Stan, a charter memberof TCDLA, has served aseditor of the Voice andon the TCDLA Boardof Directors, as well asbecoming a fellow ofTCDLEI.Affiliate MemberSusan Wright, South Padre IslandPublic Defender MembersJoe Jacinto, LaredoDerric McFarland, TexarkanaRegular MembersKaren Bretzke, TylerJames Lee Bright, DallasRobert D. Cox, TemplePatrick Daley, MineolaNora Farah, WacoKitha J. Ferguson, Fort WorthTCDLA TeDLA New IJ::; J Members rJ1::;ffI[)::;rsEricon L. Garza, HoustonChristopher Lauren Graham, DallasLaurie R. Hamlett, WaxahachieDavid Wayne Hampton, SanAntonioDouglas Henager, WacoDavid Hilburn, BryanJennifer Renee Janz, GeorgetownMonita Keathley, WacoCharles Kevin Keathley, WacoMario R. Madrid, HoustonSamantha M. Malfitano, ConroeTony Martin, Cedar HillAntonio Y. Pina, WacoGina Gisele Smith, DesotoCarmen M. Smith, WoodwayRobert M. Stem, Jr., WacoBenjamin A. Stephenson, SanAntonioAllen M. Tanner, HoustonShawn E. Vandenberg, SchertzMelanie R. Walker, WacoBrian Warren, HoustonSylvia A. Williams, AustinStudent MemberJennifer Ann Gillespie, AustinOctober " [" 2009 '1'1 -, VOICE . ! L i FOR : ",. THE Jd DEFENSE I ! i : j I . ,I 19 1'1

The “Stealth” Life SentenceHealth & Safety CodeChapter 841Mike McMillenAssume that you represent a 25-year-old person who has been charged withattempted sexual assault, and that he has a prior conviction for the sameoffense. For whatever reason, the D.A. offers your client five years to do. Youadvise him to accept, and he does. About three years later, you receive a callfrom your former (?) client. He wants to know why you did not advise him thateven after he serves his prison time, he could face another big problem gettingback to the free world, because of his two convictions. He then tells you he hasjust been served a petition for something called “civil commitment.”20 VOICE FOR THE DEFENSE October 2009

Origin of the Texas CivilCommitment StatuteThe statute, created to impose involuntary civil commitment,is located in Texas Health & Safety Code Chapter 841: “CivilCommitment of Sexually Violent Predators.” In 1999, the TexasLegislature found that “a small but extremely dangerous groupof sexually violent predators exists [in Texas] and that thosepred a tors have a behavioral abnormality that is not amenable totra di tional mental illness treatment modalities and that makesthe predators likely to engage in repeated predatory acts of sexualviolence.” The legislature further found that existing involuntarycivil commitment provisions for mental health treatment werein ade quate to address the unique risk that sexually violent predators pose to the general health and welfare. 1Though graphic, the title of the statute alone may not conveyits broad scope. For example, under certain circumstances, a conviction for attempted burglary could be used as an index offenseto classify someone as a sexually violent predator. 2Civil Commitment of Sexually ViolentOffenders Held ConstitutionalThe United States Supreme Court and the Texas SupremeCourt have each addressed various constitutional challengesto the Texas and Kansas civil commitment statutes. In Kansasv. Hendricks, the Supreme Court examined a Kansas statuteand found it to be “of a kind” with other civil commitmentstat utes (such as the Texas statute), requiring a finding of futuredan ger ous ness. That finding was linked to the existence of a“men tal abnormality” or “personality disorder” that makes itdif fi cult, if not impossible, for the person to control his or herbehavior. 3 The Supreme Court then found the statute’s defi nitionof “mental abnormality” satisfied substantive due pro cessrequirements. Finding the statute to be civil instead of crimi nal,the Court determined it comported with due process re quirements;accordingly, it did not violate double jeopardy principles.4The Texas Supreme Court, agreeing with the analysis inHen dricks, held the Texas statute to be constitutional, and notpu ni tive. Further, the Court held due process does not require aRespondent in a civil commitment proceeding to be competentto stand trial. 5Persons Subject to Civil CommitmentAs a practical matter, everyone targeted for civil commit ment isserving time in prison when first considered. The Texas De partmentof Criminal Justice (TDCJ) notifies a mul ti dis ci plin aryteam of an offender’s approaching release date. 6 Within 60 daysof the notification, the team must: 1) assess whether the personis a repeat sexually violent offender and whether the personis likely to commit a sexually violent offense after release; 2)give no tice of the assessment to TDCJ; and 3) recommend theas sess ment of the person for a behavioral abnormality, as appropri ate. 7 The statute requires an “expert” to make “a clin i calas sess ment based on testing for psychopathy, a clinical interview,and other appropriate assessments and techniques to aidTDCJ in its assessment.” 8 If, as a result of the assessment, TDCJbelieves the person has a behavioral abnormality, TDCJ refersthe case to the attorney representing the state. 9 It is then withinthe dis cre tion of the state whether to initiate civil commitmentpro ceedings.The Prima Facie CaseThe statute describes a “sexually violent predator” as a personwho: 1) is a “repeat sexually violent offender” and 2) suffersfrom a “behavioral abnormality” that makes the person likelyto engage in a “predatory act” of sexual violence. 10 Each of thephrases within quotation marks is a legal term of art more fullyde fined in Section 841.002 of the statute. Counsel must reviewthe definitions to determine whether the statute’s provisionsap ply to a specific person’s case, because the provisions of thestat ute are wide-ranging.The statute provides: “the attorney representing the state. . . may file, in a Montgomery County district court, other thana family law district court, a petition alleging the person is asex ually violent predator and stating facts sufficient to supportthe allegation.” 11 There are no alternate venue provisions in thestat ute, nor any apparent reason for venue being in MontgomeryCounty. Either side is entitled to a trial by jury on the merits.At the trial of a contested civil commitment proceeding,the State (“Petitioner”) is represented by the Civil Division ofthe Special Prosecution Unit. The Respondent, if indigent, isusu ally represented by the State Counsel for Offenders.During its case in chief, the state introduces the Respondent’spen packets into evidence to prove that he has more than onecon vic tion for a sexually violent offense (element number 1). Thestate usually calls the Respondent. The Respondent does not havea right to invoke the privilege against self-incrimination, unlesshis answer could subject him to prosecution for an unadjudicatedof fense. The remainder of the state’s evidence is usually presentedby two expert witnesses, a forensic psychiatrist and a forensicpsy chol o gist, who have examined, tested and/or diagnosed theRe spondent. 12 Usually over objection from Respondent’s counsel,the Court allows these experts to testify from hearsay, suchas police reports and prison records; if requested, the courtOctober 2009 VOICE FOR THE DEFENSE 21

will give a limiting instruction. These witnesses then opinethat the Respondent suffers from a behavioral abnormalitythat predisposes him to commit future acts of sexual violence(ele ment number two). As a rule, they base their opinions ontheir clinical judgment. The state then rests.The Respondent’s case focuses on a rebuttal of the state’sevidence as to each element. However, as a practical matter, theCourt routinely grants the state’s motion for directed verdictas to Element 1, based on the pen packet’s admission into evidence.Accordingly, the Respondent is usually relegated to crossexaminationof the state’s expert witnesses in an attempt todis credit their methodologies and conclusions. Typically, aRe spon dent’s only relevant defense is by successful proof thathe does not suffer from a behavioral abnormality, the type ofevi dence that requires expert witness testimony. 13 In fact, Respondents often are forced to proceed without the benefit ofan ex pert wit ness. The Respondent’s most common defense ispre sented as an argument that the state has failed to sustain itsbur den of proof on the merits.If the attorney representing the state is successful inprov ing the two elements above, the judge “shall commit the[Respondent] for outpatient treatment and supervision . . .” 14 Theterm “outpatient treatment and supervision” is a misnomer—ifcommitted, a Respondent will be housed in a secure facility,com pelled to wear a GPS monitor, and supervised constantlyby the Council on Sex Offender Treatment (CSOT), a divisionof the Texas Department of State Health Services. 15Potential Lifetime Consequencesof a Commitment OrderThe order of commitment is a final judgment for the purposesof appeal, but as an order of commitment, it operates to committhe person indefinitely, subject to the court’s so-called “review”ev ery two years. However, its terms can be modified by theCourt at any time, in essence as a judgment nunc pro tunc. 16 Asa practical matter, once a person is committed, he will remaincom mit ted for life. There is no effective avenue for appeal, noris there any viable procedure for a committed person to filea petition for release from civil commitment, without CSOTap proval. 17 Since 1999, CSOT has not granted permission for aRe spondent to seek release.Since 1999, all Respondents have been males. Once a Respondent is committed, he is placed under a number of con ditions,one of which “requir[es] the person’s participation in andcom pli ance with a specific course of treatment.” 18 Even thoughthe statute does not specify a culpable mental state, violationof a civil commitment requirement is a third-degree felony. 19Hence, a committed person may be charged with a new thirddegreefelony based solely on a technical violation. Prosecutorscan and do then use enhancement paragraphs to expand therange of punishment.“Bad Law Makes Bad Facts”Although governed by the Texas Rules of Civil Procedure, confusion often results because several important aspects of civilcommitment proceedings distinguish them from ordinary civilmatters, for example:g the State’s burden of proof is beyond a reasonable doubt,and the jury’s verdict must be rendered by the unanimousvote of twelve jurors; 20g if indigent, a Respondent is entitled to appointment ofcounsel; 21g the statute places venue solely in Montgomery County,Texas; moreover, the cases are all filed in one court withinMont gomery County; hence, the same judge presides overev ery case; 22g a Respondent is compelled to submit to examinations andpro vide adverse information to the State’s experts; if hedoes not, the Respondent is subject to contempt and toRule 215 “death-penalty” discovery sanctions—in effect,a default judgment of civil commitment; there are no 5thAmend ment protections; 23g the statute restricts a Respondent’s right to object to anas signed judge under TRCP 74.053; 24g if a rule of civil procedure or appeal conflicts with a provision in the statute, the statute prevails; 25g the trial court refuses to submit relevant definitions, instructions or questions concerning the issue of “volitionalcon trol” in its charge; 26g the jury is precluded from participating in the decisionwhether or not the Respondent is committed; 27g no jurisdictional error is recognized for the state’s failureto give a Respondent various required notice(s); 28g although the court’s order of commitment is a “final” order,the Court can modify it at any time—even years after theRespondent has been committed; 29g the right of appeal is limited and there is no meaningfulpro cess to review or address the continuing, permanentloss of liberty occasioned by the initial order of civil commitment. 30Out of the Joint But Not Out of a JamEven though the statute providing for civil commitment of sexualoffenders has now been in place for ten years, many attorneys22 VOICE FOR THE DEFENSE October 2009

and judges are unaware of its existence. As a result, many Respondents encounter a harsh reality at a time they had goodrea son to believe their freedom was about to be restored.A working knowledge of the statute could enable counselto give a client valuable prospective advice or offer trial strategiesthat may help someone avoid the severe consequences of civilcom mitment.Almost all petitions for civil commitment are served onof fenders who are near the end of their prison terms and areabout to be paroled or released. Because of the indefinite termof civil commitment, it may last longer, and be as burdensome,as time served in prison.Your 25-year-old client—after doing all of his “time”—maybe come a senior citizen before he is released from civil commitment, if ever.Notes1. S.B 365, Art. 4, Sec. 4.01, eff. Sept. 1, 1999.2. Tex. Health & Safety Code Ann. Sec. 841.002(8). (Vernon Supp. 2008)3. Kansas v. Hendricks, 521 U.S. 346, 358 (1997).4. Hendricks at 371.5. In Re Commitment of Fisher, 164 S.W.3d 637, 656 (Tex. 2005)6. Sec. 841.021(c).7. Sec. 841.022(c).8. Sec. 841.023(a).9. Sec. 841.023(b).10. Tex. Health & Safety Code Ann. Sec. 841.003(a)(1), (a)(2).11. Tex. Health & Safety Code Ann. Sec. 841.041(a).12. The Special Prosecution Unit relies on a small number of expert witnesses,most of whom have testified on behalf of the state in every previous case.13. By analogy, this is comparable to a rule of law that would require a defendant in a criminal case to prove his innocence.14. Tex. Health & Safety Code Ann. Sec. 841.081(a).15. Tex. Health & Safety Code Ann. Sec. 841.007.16. Sec. 841.082(d),(e); See Tex. R. Civ. Proc. 329b(h); see also In Re Commitmentof Davis, __ S.W.3d __ (Tex. App. No. 09-08-00124-CV—Beaumont,de liv ered June 25, 2009).17. Though the statute allows a Respondent to file an “unauthorized” petitionfor release, the title of that procedure reflects its chance for success.18. Sec. 841.082(a)(4).19. Sec. 841.085.20. Sec. 841.062.21. Sec. 841.005; Sec. 841.144.22. Sec. 841.041.23. Sec. 841.061(f).24. Sec. 841.061(g).25. Sec. 841.146(b).26. In Re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.—Beaumont2003).27. Sec. 841.081(a); the trial judge prohibits counsel from making anyreference to “civil commitment” during any phase of the trial, including voirdire examination of prospective jurors.28. Sec. 841.1463.29. Sec. 841.082(e).30. The statute does not provide any guidance regarding an appellate process,although a Respondent may appeal the original order of commitment.Mike McMillen is a 1988 graduate of the Universityof Houston Law Center. He practiceslaw in Montgomery County.John Law got you hornswoggled overall this blood-draw palaver?Git on down to San AntoneNovember 12-13if you know what’sgood for ya.Register online at www.tcdla.comStuart Kinard Memorial Advanced DWI SeminarOctober 2009 VOICE FOR THE DEFENSE 23

FamilyViolencePart 2Samuel E. Bassett24 VOICE FOR THE DEFENSE October 2009

Texas Courts and Crawford Issues“Testimonial” has been defined in Texas courts as structuredques tions in an investigative environment or courtroom wherethe declarant reasonably believes the responses might be usedin the future. Walter v. State, 209 S.W.3d 722 (Tex. App.—Texarkana 2006); Gongora v. State, 214 S.W.3d 58 (Tex. App.—Ft.Worth 2006).In Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006), theCourt affirmed the lower court finding that statements madeby a homeless man in the emergency room to a deputy abouthis injuries were testimonial and violated appellant’s right tocon fron tation under the Sixth Amendment. In the Wall case, thetrial court had admitted the statements as excited utterances. InGutierrez v. State, 150 S.W.3d 827 (Tex. App.—Houston [14thDis t.] 2004, no pet.), a co-defendant’s videotaped statementgiven voluntarily to police qualified as a testimonial statement asa matter of law. In Lee v. State, 143 S.W.3d 565 (Tex. App.—Dallas2004, no pet.), the Court held a co-defendant’s out-of-courtstate ment made in response to questions of the officer during aroad side stop after appellant had been arrested was testimonial.Id. at 570. In Cassidy v. State, 149 S.W.3d 712 (Tex. App.—Austin2004, pet. ref’d.), the Court held that the interview of a witnessat the hospital by a police officer, shortly after an assault, wasnot interrogation and therefore was not testimonial hearsay.Id. at 716.In Rodriguez v. State, 274 S.W.3d 760 (Tex. App.—San Antonio2008), the court held that some of the victim’s statementswere testimonial and some were not. The officer arriving at thescene initially questioned the victim, who told him that she had“es caped” from inside the house and that the assailant was insidein the master bedroom. After the officer located and detainedthe suspect, the victim was questioned further and providedmore detail regarding what had happened to cause her injuries.The court held that the second set of answers was testimonialand thus inadmissible under Crawford. The first responses tothe officer were held to be non-testimonial since the officer wasdeal ing with an emergency at that time. In the end, the Courtheld the improperly admitted answers to be harmless error inlight of the other evidence admitted at trial.In Rangel v. State, 199 S.W.3d 523 (Tex. App.—Fort Worth2006, pet. dism’d., improvident grant), the statements of a fouryear-oldto in ves ti ga tors were held to be testimonial “regardlessof whether the four-year-old child may or may not have perceivedwhen she made the statements that they could be used againstthe appellant as evidence in a criminal case.” In that case, thestatements were obtained not to address an ongoing emergency,but were focused on a description of past events.In Brooks v. State 132 S.W.3d 702 (Tex. App.—Dallas 2004),the court reversed an aggravated robbery conviction in which aco-defendant made a statement that was the product of custodialinterrogation after he had been arrested. The court went onto state that the error was harmful. A similar conclusion wasreached by the Fort Worth Court of Appeals in Hale v. State,139 S.W.3d 418 (Tex. App.—Ft. Worth 2004). However, boththese cases were easy in light of Crawford since they involvedco-defendants who produced statements that were a productof custodial interrogation as a matter of law.In Rubio v. State, 241 S.W.3d 1 (Tex. Crim. App. 2007),the Court of Criminal Appeals does an ex ten sive review of theapplication of harmless error analysis when there is Crawforderror.Practice Note: When dealing with hearsay statements infamily violence trials, always make your objections on thegrounds of hearsay and the Sixth Amendment confrontationclause as well as the confrontation clause under Article I, Section10, of the Texas Constitution. For the time being, it maybe that constitutional grounds are actually stronger methods toexclude these statements than traditional hearsay objections underthe Rules of Evidence. I would also suggest that you conducta hearing outside the presence of the jury to ask the police officerwho elicited the statement questions such as:1. Did you ask questions of the complainant?2. Did you place the complainant under oath or otherwisetell him/her that he/she must be truthful in answering yourques tions?3. Did you cross-examine the complainant when you spokewith him/her?4. Did you videotape the complainant as he/she answeredques tions or made statements to you? Your departmenthas videotape capability, does it not?There is no doubt in my mind that law enforcement of ficersare trained to answer these questions in a manner to limitar gu ments of “testimonial interrogation.” The answers to thesequestions may hurt your argument on admissibility but no doubtcan provide ammunition for closing argument (i.e., when thecom plain ant made whatever statement was made, he/she was notunder oath and no one was there to cross-examine him/her).Waiver/“Forfeiture by Wrongdoing”Under Davis-Hammon, the doctrine of forfeiture by wrongdoingis developing in Texas courts, dealing with the issue of allegationsof a defendant coercing a complainant to be absent from thetrial and, thus, unavailable to testify. The key inquiries here willbe factual and a hearing outside the presence of the jury is noOctober 2009 VOICE FOR THE DEFENSE 25

doubt going to be required. The State bears the burden by a preponderance of the evidence to show that the defendant did infact “undermine the judicial process” by “procuring or coercingsi lence” of the complainant. In this circumstance, if the showingis made, a defendant forfeits his/her confrontation claims.Crawford Does Not ApplyCrawford does not apply to probation revocation hearings. Diazv. State, 172 S.W.3d 668 (Tex. App.—San Antonio, 2005). Crawforddoes not apply to suppression hearings. Vanmeter v. State,165 S.W.3d 68 (Tex. App.—Dallas 2005).Excited UtterancesHearsay Exception under Rules of EvidenceTexas Rule of Evidence 803(2) is an exception to the hearsayrule allowing statements relating to a startling event or conditionmade while the declarant was under the stress of excitementcaused by the event or condition. The availability of the declarantis irrelevant. The exception is rooted in the theory that such statementsare involuntary and do not allow the declarant adequateop por tunity to fabricate. Reyes v. State, 48 S.W. 3d 917 (Tex.App.—Ft. Worth 2001). Factors that courts have held should becon sidered include whether the statement was made in responseto questioning and how much time elapsed between the startlingevent and the statement.The Court of Criminal Appeals dealt with this is sue in Zulianiv. State, 97 S.W.3d 589 (Tex. Crim. App. 2003). In that case,the court held that the trial court did not abuse its discretion instatements made by the victim to the victim’s sis ter where a policeofficer requested that the sister take the vic tim into a separateroom to “find out what had happened.” This conversation tookplace twenty-four hours after the alleged as sault. In its holdingthe Court states:[I]t is not dispositive that the statement is an answer to aques tion or that it was separated by a period of time fromthe startling event; these are simply factors to consider inde ter min ing whether the statement is admissible underthe excited utterance hearsay exception97 S.W. 3d at 596Perhaps the court was persuaded by additional facts,which included that the victim had not been separated fromthe defendant during the 24-hour period, the victim stated shefeared the defendant, the victim stated to the husband of thesis ter, “help me, help me, help me,” prior to their arrival on thescene, and the victim had a scalp injury requiring stitches thathad been left untreated. The court stated, in its conclusion, “thekey is whether the declarant was still dominated by the emotions,ex cite ment, fear, or pain of the event.”In Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005),the court held that a statement of the victim of an aggravatedrob bery made to his daughter four days after he was attackedwas admissible under the excited utterance exception to thehear say rule. In that case, the court relied upon the fact that thevictim had been in surgery, heavily medicated, unconscious, orincoherent up until the day he made the statement to his daughter.Further, the court states that the victim appeared “mad” and“excited” during his very first conversation with his daugh terabout the attack while in the hospital. The court posed theques tion, “Can there ever be a ‘suspended excitement’ or ‘suspendedanimation’ variation of the excited utterance hearsayexception?” They answered, in their holding, this question inthe affirmative.In Lane v. State, 111 S.W.3d 203 (Tex. App.—Eastland,2003), the court held that the alleged victim’s statements madeto medical personnel and officers at the hospital were admissibleas excited utterances and under the medical diagnosis exceptionto the hearsay rule. In that case, the alleged victim took the standand stated she had lied to the medical personnel and officers atthe hospital. She testified at trial that appellant had never assaultedher and she made the statements because she was angry.The Court of Criminal Appeals, in Lane v. State, 151 S.W.3d 188(Tex. Crim. App. 2004), upheld this ruling due, in part, to thefact that trial counsel did not properly preserve error.In Glover v. State, 102 S.W.3d 754 (Tex. App.—Texarkana2002, pet.ref’d), the court held that the excited utterance ex ceptiondid not apply to a situation where a mother interrogatedher 14-year-old daughter about sneaking out and having sexwith a 26-year-old man. The court, however, did hold thatthe statements were admissible under 803(24) as a “statementagainst social interest” since a reasonable person in the 14-yearold’sposition would not have made such statements since shewould be subjected to her mother’s disgrace unless she believedthem to be true.In Aguilera v. State, 75 S.W.3d 60 (Tex. App.—San Antonio2002), the court held that statements made one year after thedate of the event were not excited utterances and the trial courtabused its discretion in admitting the statements.In Liggens v. State, 50 S.W. 3d 657 (Tex. App.—Ft. Worth2001), store employees’ statements to police were admitted asex cited utterances even though the declarants were not spe cifically identified.26 VOICE FOR THE DEFENSE October 2009

Marital PrivilegeTexas Rule of Evidence 504(b) states that in a criminal case, thespouse of the accused has the privilege not to be called as a witnessby the State. However, the exception is in any proceedingin which the person is charged with a crime against the person’sspouse, a member of the household of either spouse, or any minor.This permits the State to force spouses to testify against theirwishes in those types of situations. However, it may be ar guedthat in a prosecution for a violation of a protective or der, thespouse is not the “victim” of the crime. Therefore, a mar riage(even if a marriage without ceremony) might pre ventthe State from calling a spouse in such a case.See Section 2.401 of the Texas Family Codefor the requirements to establish a commonlaw marriage.Due Process to Present DefenseIn Alonzo v. State, 67 S.W.3d 346 (Tex. App.—Waco 2001), the murder defendant sought to introducea videotape of an eye wit ness who identified another as theperpetrator. The witness was sub se quently charged withfalse report to a police officer and re fused to testify. The trialcourt refused to allow the introduction of the statement. Dueprocess requires that the defendant be al lowed to present hisdefense. As a result, the appellate court found error in denyingthe introduction of the tape when there was no issue as to itstrustworthiness and the State had ample op por tunity to examinethe witness prior to trial.Expert TestimonyExpert witnesses are not permitted under Rule 702 of theRules of Evidence to give an opinion that a complainant or aclass of persons to which the complainant belongs is truthful.See Aguilera v. State, 75 S.W.3d 60 (Tex. App.—San Antonio2002).Lay witnesses are also prohibited from giving their opinionabout whether or not the complainant is telling the truth. “Thistype of testimony is inadmissible because it does more thanas sist the trier of fact to understand the evidence or determinea fact in issue; it impermissibly decides an issue for the jury. Inother words, it is not helpful to the jury, and consequently, isin ad missible under Rule of Evidence 702. Although this issuegenerally arises in the contest of expert witnesses, lay opinionsmust also be helpful to a clear understanding of the witness’testimony or the determination of a fact in issue under Rule ofEvidence 701.” The defense attorney preserved error adequatelyby objecting that the testimony was improper bolstering. Thecourt held, however, that the error was harmless. Arzaga v. State,86 S.W.3d 767, 776 (Tex. App.—El Paso 2002).Medical TestimonyLaywitnesses are alsoprohibited from giving theiropinion about whether or notthe complainant is tellingthe truth.Rule 803(4) of the Texas Rules of Evidence holds that statementsmade for purposes of medical diagnosis or treatment that arerea son ably pertinent to diagnosis or treatment are not excludedby the hearsay rule. In Reyes v. State, 48 S.W.3d 917 (Tex.App.—Ft. Worth 2001), the court held that thestate ment “says husband assaulted her withfists,” contained in the medical records,was admissible under this exception.The dissent pointed out that there was noshow ing that the statement was made forthe pur pose of medical treatment and, infact, the patient did not want medical treatment.Violation of Protective Orders“[I]t is not necessary that the underlying protective order bespe cific enough to support a judgment of contempt; it is onlynec ess ary that it be specific enough to meet the normal requirements of specificity that attach to allegations of culpableconduct.” See Lee v. State, 799 S.W.2d 750, 752–54 (Tex.Crim.App.1990).The information in these cases and the protective ordersboth track the statutory language of the Penal CodeSec tion prohibiting the criminal conduct of going ‘at ornear’ the named location of Collins’ wife’s residence andplace of em ploy ment. Or di narily, a charging instru mentis sufficient if it tracks that stat u tory language of the lawpro hib it ing the conduct alleged. See Bollman v. State, 629S.W.2d 54, 55 (Tex.Crim.App. 1982); Ames v. State, 499S.W.2d 110, 114 (Tex.Crim.App. 1973).Collins v. State, 955 S.W.2d 464–467 (Tex.App.—Fort Worth1997)The State properly pled the essential elements, but it alsoun nec ess arily included the date of the order’s issuance. Oncethe State pled the year of the original protective order, 1993, theState was bound to prove a violation of a 1993 protective or der.Rohr scheib v. State, 934 S.W.2d 909, 911 (Tex.App.—HoustonOctober 2009 VOICE FOR THE DEFENSE 27

[1st Dist.] 1996). A copy of the 1995 protective order was in troducedinto evidence as State’s exhibit 1, and there was testimonyre gard ing the 1995 protective order. No proof was presented,how ever, as to the 1993 order that was pled in the information.Additionally, in contrast to the State’s contentions, protectiveor ders are not renewed or continued.In conclusion, we hold ap pel lant did not commit thecrime alleged by the State as a mat ter of law. As previouslystated, protective or ders are valid for a time period notto exceed one year [now two years]. Te x.Fa m.Co d e An n.§71.13 (a). By its very nature, a protective or der au to matically expires one year [now two years] after its issuance.As the State er ro neously pled in the in for ma tion, on July26, 1995, it was le gally impossible for ap pel lant to vio latea protective order issued in 1993.Rohrscheib v. State, 934 S.W.2d 909 (Tex. App.—Houston [1stDist.] 1995).The defendant must have notice of the protective order. InSmall v. State, 809 S.W.2d 253 (Tex.App.—San Antonio 1991,pet.ref’d), the appellant appealed his conviction for violatinga protective order, alleging that there was no evidence that heac tually knew of the court order and that he therefore could notvio late an order he knew nothing about. Id. at 254. The courtheld it was an essential element of the offense that the Stateprove the appellant knowingly and intentionally violate thecourt order in question beyond a reasonable doubt. The courtfound that “[u]nless a defendant is somehow aware of what heis prohibited from doing by a specific court order, he cannot beguilty of knowingly and intentionally violating that court or der.”Id. at 256. Further, in reversing the conviction, the court in Smallnoted that “aside from indicating that the appellant was servedwith notice of the hearing on the protective order, there [was]no evidence in [that] record that the appellant agreed to a protectiveorder, attended any hearing or in any way participated,that he was ever served with a copy of the protective order, orthat he in any way received notice, formal or informal, of theis suance or existence of the court order in question prior to”his violating it. Id. at 256–57.In Ramos v. State, 923 S.W.2d 196 (Tex.App.—Austin 1996),the conviction for violating the protective order was affirmedeven though there was no proof of actual service of the protectiveor der on the defendant. In that particular case, the defendanthad previously pled guilty to violating the same order prior tocom mit ting the new offense that was the basis of his appeal.The State did not have to prove that he had actually received acopy of the protective order, only that he knew of the existenceof the order before he violated it.In Harvey v. State, the Defendant was convicted in the331st Judicial District Court, Travis County, Bob Perkins, J., ofviolating a family protective order. The Court of Appeals foundthe indictment alleged that defendant acted intentionally andknow ingly but not that he knew or intended to violate a protective order. The Court of Appeals reversed, saying that thein dict ment and subsequent jury charge omitted the elementthat the Defendant knowingly and intentionally vio lated thepro tec tive order. Harvey v. State, 48 S.W.3d 847 (Tex.App.—Austin2001).The Court of Criminal Appeals re versed that holding inHarvey v. State, 78 S.W.3d 368 (2002). The Court con cludedthat the charge was sufficient when it stated “a person commitsthe offense of violation of a protective order if, in violation ofa protective order issued af ter notice and hearing, the personknow ingly or in ten tion ally commits family violence.” The Courtput a lot of emphasis on the fact that the defendant did not objectto the charge or request a different charge. The Court heldthat the defendant must know of the existence of the order butneed not know all its provisions.Forgetful State’s WitnessIn this case, we find that the trial court erred in allowingStern to testify in front of the jury. When Stern responded,‘I don’t remember,’ to every substantive question askedon voir dire, the State was put on notice that his trialtes ti mony would likely be the same. It is well-settled thata party may not call a witness pri marily for the purposeof impeaching the proposed witness with evidence thatwould otherwise be inadmissible.See Barley v. State, 906 S.W.2d 27, 37 n. 11 (Tex.Crim.App. 1995),cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217(1996); Pruitt v. State, 770 S.W.2d 909, 910–11 (Tex.App.—FortWorth 1989, pet. ref’d). “We find, therefore, that it was improperfor the State to call Stern as a witness, knowing that he wouldfeign a memory loss only to introduce facts into evidence by askinglead ing questions.” See Sills v. State, 846 S.W.2d 392,396–97(Tex.App.—Houston [14th Dist.] 1992, pet. ref’d); Gannaway v.State, 823 S.W.2d 675, 678 (Tex.App.—Dallas 1991, pet. ref’d).These excerpts are from Arm stead v. State, 977 S.W.2d 791 (Tex.App.—Fort Worth 1998).In another similar case, Sills v. State, the State called a witnessnamed Cham bers, who testified to his name and the fact28 VOICE FOR THE DEFENSE October 2009

he was residing in jail on charges not related to this case. Here fused to answer any other questions. The trial court questionedCham bers outside the jury’s presence. Chambers persisted in hisre fusal to answer the prosecutor’s questions even under threatof contempt.He did not claim the Fifth Amendment privilege. The prosecu tor informed the court that Chambers refused to testify becausesomeone had threatened Chambers that if he testified hismother would die. Chambers refused to confirm or deny thisre port. The trial court recalled the jury to the court room.The prosecutor then questioned Chambers by reading eachsen tence from the written statement. The prosecutorpref aced the reading of each sentence by askingChambers “isn’t it true you told police,” “isn’tit true your state ment reads,” or “isn’t it trueyou further stated.” The prosecutor readaloud all of Chambers’ statement. Thewit ness re fused to agree or disagree withany of the statements. Chambers’ an swerswere consistently, “I refuse to an swer.” Oncross-examination, Chambers was asked ifhe thought the shooting was ac ci den tal or onpur pose. The State ob jected on grounds of spec u lation.The court asked Cham bers if he was planning to answer theques tion. Cham bers responded that he did not believe ap pel lantdid it on purpose. There were no further objections by the Statenor did the State attempt to impeach Chambers be cause of thisan swer. The State did not ask Chambers any fur ther questionsaf ter defense counsel com pleted his cross-examination. Sillsv. State, 846 S.W.2d 392, 395–396 (Tex.App.—Houston [14thDist.] 1992), pet. ref’d.Sills was convicted of murder. The Court of Appeals reversedthe case, holding that the witness’ prior statement to police wasnot admissible to impeach the witness after the witness refusedto tes tify at trial; that the witness was not subject to hatred,rid i cule, or dis grace at time of making the prior statement topo lice so that the statement was not admissible as a statementagainst interest; and that the admission of witness’ prior statementto police to impeach the witness constituted reversibleer ror. Sills, supra.In Gannaway v. State, the trial court allowed the State toin tro duce Rice’s statement implicating appellant in the murderalthough Rice did not say the statement was wholly true,did not fully testify, and was not fully cross-examined aboutthe statement. “We hold this too was error.” Admitting Rice’sstate ment was a “back-door” way for the State to get facts intoevi dence which Rice refused to testify about at trial. “We can notfind beyond a reasonable doubt that appellant was not harmed.”[I]f theonly evidence ofguilt is objected-to hearsayim peach ment of thecomplaining witness, whois denying a crime occurred,the evidence isinsufficient.Gannaway v. State, 823 S.W.2d 675, 678 (Tex.App.—Dallas1991).These cases are based on an old Court of Criminal Appealscase, Wall v. State, 417 S.W.2d 59 (Tex.Crim.App. 1967), whichheld that if the only evidence of guilt is objected-to hearsay impeachment of the complaining witness, who is denying a crimeoccurred, the evidence is insufficient. In Wall, a daughter wastape-recorded saying her father raped her; she later changed herstory to say she didn’t know who raped her. The tape re cord ingand the impeachment of her was the only evidence the fatherhad committed a crime. The Court reversed and ren dered anacquit tal. The legal premises of Wall have been se verelyques tioned by subsequent decisions of the Courtof Crim i nal Appeals.Defensive IssuesWho Is the AggressorMany issues in family violence cases arethe same as those in any other assault ormur der case. The violent character of thevic tim is admissible under 404(a)(2) of theRules of Evidence to establish that the vic tim wasthe first ag gres sor. Extraneous acts of the victim for violence mayalso go to show the state of mind of the defendant, Rule 404 (b).Mozon v. State, 991 S.W.2d 841 (Tex.Crim.App. 1999).In a murder case, the Court of Criminal Appeals held thatwhen the defendant raises self-defense, he may introduce evidenceof the deceased’s violent character. Rule 404(a)(2). “Thede fen dant may offer opinion or reputation testimony to provethe deceased acted in conformity with his violent nature, 404(a)(2) and 405(a). Specific, violent acts of misconduct may bead mit ted to show the reasonableness of the defendant’s fear ofdan ger or to show the deceased was the first aggressor.” Thesedo not have to be violent acts against the defendant in orderto be admissible. The Court of Criminal Appeals reversed thelower court’s holding that this evidence was only “charactercon for mity” evidence and therefore inadmissible. Torres v. State,71 S.W.3d 758 (Tex.Crim.App. 2002).In Lopez v. State, 18 S.W.3d 220 (Tex.Crim.App. 2000), thetrial court refused to admit testimony that the victim in this sexualassault case had falsely accused his mother of physically abusinghim. The intermediate appellate court reversed and the casereached the Court of Criminal Ap peals. A divided court held thatthe evidence could not come in under Rule 608(b). Judge Kel ler,in a concurring opinion, held that the confrontation clause allowsthe evidence of prior false allegations. “I think that it is insex cases that juries will most often be asked to reach a verdictOctober 2009 VOICE FOR THE DEFENSE 29

solely on the basis of the un cor rob o rated testimony of a victim,and therefore I think that it is in sex cases that the balancingap proach will most often ren der such evidence admissible.” Thecourt specifically held that the Confrontation Clause—and duepro cess clause re quir ing fundamental fairness in a trial—willpre vail if there is a conflict between the Constitution and theRules of Evidence.Criminal Record of the “Victim”In Arroyo v. State, 117 S.W.3d 796 (Tex. Crim. App. 2003), theCourt reviewed a misdemeanor conviction for assault. In thatcase, the victim did not testify. The defendant wished to impeachher credibility with certified copies of judgments of convictionsin several criminal cases. The Court notes in a footnote that Rule806 and 609 of the Rules of Evidence would allow the in troduction of this evidence. However, the state successfully ar guedthat the defendant could not show that this was the same per sonalleged as the victim, and the trial court refused to allow thein tro duc tion of the evidence. The Court of Criminal Appealsre versed this holding. The State had previously provided the defendant with the victim’s rap sheet pursuant to the defendant’sBrady motion. The State was now stopped from asserting thatthe exhibits were inadmissible on the ground of identity. Thecase was remanded to the court of appeals to see if there wasany other legal theory to exclude the documents.Bias of the WitnessThe defendant is entitled to attack the motive that a witnessmay have for testifying. “The exposure of a witness’s motivationin testifying is a proper and important function of the right ofcross-examination.” Specific acts may be admissible in spite ofthe Rule of Evidence if they are necessary to show the bias or motivefor the witness to testify untruthfully. Thomas v. State, 897S.W.2d 539 (Tex.App.—Ft. Worth 1995). In Thomas the de fendant,charged with sexual assault, wanted to bolster his consentdefense by showing that the victim’s boyfriend was violent andjeal ous and that she would lie to avoid him finding out that shehad consented to sex with the defendant. The Court of Appealsre versed the trial court decision to exclude this evidence.Evidence of the Defendant’s Good CharacterThe defendant has the right to introduce evidence of his goodcharacter at the guilt/innocence stage of the trial. Failure to al lowsuch evidence has been held to be reversible error. Green v. State,700 S.W.2d 760 (Tex.App.—Houston [14th Dist.] 1985)Practice TipsMotions to FileThe motion to quash is an important tool in most assault cases.The State is entitled to allege that the acts occurred “recklessly.”Assault is a result-oriented crime. Therefore, “recklessly” shouldbe defined in the jury charge as:A person acts recklessly or is reck less with respect to there sult of his conduct when he is aware of but consciouslydis re gards a substantial and unjustifiable risk that there sult will occur. The risk must be of such a nature andde gree that its disregard constitutes a gross deviationfrom the stan dard of care that an ordinary person wouldex er cise under all the circumstances as viewed from theac tor’s standpoint.Tex. Pe nal Code 6.03(c). Article 21.15 of the Code of CriminalPro ce dure requires that if recklessness is alleged, in order for thein for ma tion or indictment to be sufficient, it must allege, withrea son able certainty, the act or acts relied upon to constitute thereck less ness, and in no event shall it be sufficient to allege merelythat the accused, in committing the offense, acted recklessly.The motion for discovery is important in order to determineif there is a 911 tape-recorded call, who the witnesses will be,and whether there are any photographs of any injuries available.Also, it includes the statutory right to be told of any statementmade by the defendant. Tex. Code Crim. Proc. Art. 39.14.The motion to suppress the warrantless arrest is very important. Most arrests will fall under Article 14.03, which allowsan arrest without a warrant. However, the burden is always uponthe State to prove an exception to the warrant requirement.This might give the defendant a pretrial hearing on the legalityof the arrest. Included in this motion is the request to suppressall state ments made by the defendant. This gives the attorneythe op por tunity to litigate whether the statements meet Tex.Code Crim. Proc. Art. 38.22 and whether the statements willbe admissible at trial.The request for notice under 404(b) and 609 of the Rulesof Evidence and Tex. Code Crim. Proc. Art. 39.14 (b) of expertwit nesses and Tex. Code Crim. Proc. Art. 37.07 are extremelyim por tant in family violence cases. Ex tra ne ous offenses needto be learned about in advance of trial. Prior convictions of theState’s witnesses must be disclosed if re quested. Many of theState’s counselors want to testify as “ex perts” concerning thebattered-person syndrome. This in for ma tion must be disclosedor it is not admissible.30 VOICE FOR THE DEFENSE October 2009

Ethical DilemmasConflict of InterestCan the lawyer give advice to both the husband and wife (orboth parties)?Rule 1.06 of the Disciplinary Rules states: A lawyer shallnot represent opposing parties to the same litigation. Thelaw yer may represent both parties with full disclosureand consent and the lawyer believes the clients will notbe materially affected.Rule 4.03 Dealing with unrepresented persons.When the lawyer knows that the unrepresented personmis understands the lawyer’s role, the lawyer shall makethe effort to correct the misunderstanding.What Is a Valid Subpoena?Article 24.04 of the Code of Criminal Procedure sets out howa subpoena may be served. It now includes:1. Reading the subpoena in the hearing of the witness;2. Delivering a copy of the subpoena to the witness;3. Electronically transmitting a copy of the subpoena, receiptrequested, to the last known electronic address of the witness;or4. Mailing a copy of the subpoena by certified mail, returnre ceipt requested, to the last known address of the witness(un less the subpoena is mailed within seven days of thepro ceeding or the applicant for the subpoena requests inwrit ing that he/she not be served by mail).Fear of False TestimonyWhat does the lawyer do if he fears the victim is going to lie tohelp her husband avoid conviction?Rule 3.03 states the lawyer shall not offer or use evidencethat is false. Rule 3.04 states the lawyer shall not obstructevidence or assist another in doing so or acquiesce inthe offer of payment to a witness or assist a witness totestify falsely.Rule 1.15 Terminating Representation. The lawyer mustter minate his representation if (1) the client persists inaction the lawyer believes may be criminal or fraudulent,(2) or client uses the lawyer’s service to perpetrate acrime.Avoiding a SubpoenaCan the lawyer discuss whether the State’s witness shouldappear in court?There is a federal crime of obstruction of justice and thestate crime of tampering with a witness, Tex. Penal Code 36.05.A person commits an offense if he coerces a witness or pro spectivewitness in an official proceeding:1. to testify falsely;2. to withhold any testimony . . .3. to elude legal process summoning him to testify or supplyevidence;4. to absent himself from an official proceeding to which hehas been legally summoned; or5. to abstain from, discontinue, or delay the prosecution ofan other.ConclusionFamily Violence Assault cases come with a lot of baggage. Ifyou are not willing or able to handle all aspects of the situationbrought about in the context of a family violence allegation,work closely with a family law attorney to maximize the impactcon current proceedings can have on the outcome of the criminalcase. Be careful when representing someone in this contextbecause attorneys can become the focal point of pre-existingan ger. There are complex psychological dynamics at work inthese cases that sometimes are not easily controlled or easilyrec og nized.Sam is a 1988 graduate of the Universityof Texas School of Law. He practicesprimarily criminal and family law incourts throughout Texas. Currentlyserving on the TCDLA Board ofDirectors, Sam was voted by his peers to beincluded in The Best Lawyers in America(2010) and holds the highest rating possible by Martindale-Hubbell. In 2005, the Texas Governor appointed Sam to theTexas Forensic Science Commission, where he served withdistinction as its Presiding Officer. Sam is a frequent instructorat continuing education events for trial lawyers and currentlyserves on the State Bar of Texas Grievance Committee forDistrict 9.October 2009 VOICE FOR THE DEFENSE 31

RememberingJudge Mace Thurman(1918–2009)“In 1972, when any amount of marijuana went from up to life in prison to the sentencing structure we have now,a very cute coed from San Antonio came blowing up I-35 through San Marcos at about 100 mph. A SMPD gavechase, but soon burned up his engine. Another SMPD gave chase with the same result. Then a third burned up. (Ithink that may have been all the SMPD’s cars at the time.) Someone radioed ahead and asked APD to make thestop. The coed was stopped around Riverside and IH-35 and held there until SMPD showed up. Probably becauseit took them a while to find an operable car, they didn’t show up at the scene until maybe an hour after the stop.Of course, they found a couple of joints and filed felony POM charges. At the suppression hearing we arguedunreasonable detention. To our utter amazement, Thurman granted the Motion to Suppress (perhaps the first andonly time?).32 VOICE FOR THE DEFENSE October 2009

Not long thereafter, a couple of guys from New Jersey with vowels at the end of their names were stoppedon I-35 with a U-Haul full of marijuana.For reasons I can no longer remember, they were detained on the side of the road for a very long time (no sniffdogs then—perhaps they were seeking a warrant?). Anyway, at the suppression hearing we made the sameunreasonable detention argument. Motion to Suppress denied.In the hallway behind the courtroom, this still-naïve baby lawyer said, “But judge, don’t you rememberthe cute coed’s case from just a few months back?”Thurman’s response, and I quote, “Can’t you just see the Headlines: Thurman Turns Dopers Loose!””Thus marked the end of my age of innocence.Ken Houp“About 20 years ago I’d taken the morning off to prune a peach tree in my back yard. Bill White, my law partnerat the time, said he was out of town, which could have meant anywhere doing anything other than practicinglaw. White was the one who had a case on Mace’s docket that needed resetting, so he sent our law clerk, SamBassett, over to reset the case. Mace was holding his usual morning get-together with Brittain, Edwards, maybeRip Collins or Laird Palmer—anyone who had a penchant for being a serial liar and got past Joy (whose desk wasjust outside Mace’s chambers). They were simply rehashing the very hyperbolic stories they’d told each other theday before. Sam stuck his head in the door and meekly said he was there to get a case reset for Mr. White. Maceopined that he did not know Mr. Bassett, or that White and I had a new lawyer and he thought it rude that we hadnot brought Sam by to introduce him. Sam then told Mace that he was actually only a law clerk, still in school.Mace, relying on his well-practiced histrionics, told Sam that this would simply not do, that a law clerkcould not carry out this type of important business. And his Greek chorus of coffee-stained lawyers chimed inabout the terrible breach of decorum that all had just witnessed. Mace then said that Mr. Bassett would needto get Mr. Allison over there to handle the case. I was pissed, so I just came to court in blue jeans and a dirtyT-shirt because I was mad at Mace. He proceeded to make me sit in the jury box for the next four hours under thewatchful eye of the bailiff. He finally had the bailiff go get me his sports coat and granted the continuance.Steve “Hollywood” Edwards had a very similar experience—sitting in the box and finally being givenMace’s coat. The issue then was about the payment of some fine or fees from one of Steve’s clients. Mace had lefthis checkbook in his jacket coat, so Hollywood, without missing a beat, pulled Mace’s checkbook out of his coatand told him that the costs would be no problem, then proceeded to write him a check on his own checkbook.According to Edwards, one of Austin’s better legal raconteurs, Mace was speechless. Wish I’d been there. I doubtI could have pulled that one off, but Edwards apparently did it without so much as a smile, until both of them”finally dissolved in giggles. I’m sure the ADA standing there was absolutely terrified.Bill Allison“April 26, 1978, was not a good day for two Travis County District Judges in the Supreme Court of Texas. MaceThurman was maced in Strobel v. Thurman, 565 S.W. 2d 238 (Tex. 1978), and Judge Jim Dear’s ruling onessentially the same issue in the family law area also was looked upon with disfavor by a unanimous SupremeCourt a few pages earlier in the Southwestern Reporter. Trader v. Dear, 565 S.W. 2d. 233 (Tex. 1978). Inthat era, Judge Blackwell and Judge Thurman also heard civil cases. Both life and the law were simpler, or so itseemed.October 2009 VOICE FOR THE DEFENSE 33

In any event, the lawyer who lost in Judge Dear’s court said to the guy who had lost in Judge Thurman’scourt—me—that he had heard that certain judges didn’t like it one bit if they got overruled on appeal and tookit out on the lawyers. Come to find that it really wasn’t true, but it really put the fear of Mace Thurman in me.Although I was mostly doing workers comp, personal injury, and family law in those days, I had a hearing comingup in about a week or so in the 147th on a motion in a west campus marijuana bust. For the life of me, I can’trecall the name of the lawyer whom I told about my fear of reprisal, but it began with a “Z” and his office was nextto Paul Holt’s, where the constable’s office is now, across the street from the old courthouse on the east side ofGuadalupe. I suspect that either he or Paul Holt then told Judge Thurman, because he began calling me “Sir” inthe courthouse hallways, although I see by his obituary that he was 18 years old than I, and he didn’t pour meout on the motion to suppress but delayed ruling. That sent a signal to the DA’s office to offer probation. They just”don’t make ’em like Mace Thurman and Tom Blackwell anymore.Dave Shapiro“I am out of the country and can’t believe that I am going to miss Judge Thurman’s funeral. I have been contemplatingmy best Judge Thurman story. In the 1970s he would routinely bust plea deals. He often said that justbecause someone hadn’t been arrested before did not guarantee them probation. He would sternly tell my clientthat he was seriously thinking of putting him in prison. Then the judge would motion to his probation officer (Ican’t remember his name) and say, if client is one minute late to a probation meeting, you file a warrant for hisarrest. Then he would make the PO stand up so the defendant knew who he was. Then just as the PO sat down,the judge would say, client if you are one minute late with any payment, Mr. PO—again the judge would say—stand up, Mr. PO—I want you to file on him. The PO spent the whole sentencing jumping up and down.He would always end his tirade with, “If you work all day and sleep all night, you stay out of my court.”Then he would point at a lawyer sitting in the courtroom and say Mr. Brandes worked two jobs to get through lawschool. Didn’t you, Mr. Brandes? (Chosen lawyer would of course nod yes.)I learned years later that if I would go into his office before court, he would tell me whether he was goingto accept the plea agreement. Then the only one sweating in the courtroom during all the above drama was myclient—and not me.”He was an amazing man and he will be missed.Betty BlackwellSeminars spon sored by CDLP are funded by a state grant administered by the Texas Court of Criminal Appeals.34 VOICE FOR THE DEFENSE October 2009

SurvivorTrialTacticsHow to Keepthe Tribe fromBanishing Your ClientOctober 29, 2009 ComstockOctober 30, 2009 UvaldeNovember 20, 2009 GranburyDecember 11, 2009 LongviewJanuary 15, 2010 LaredoJanuary 22, 2010 TempleFebruary 12, 2010 Wichita FallsApril 9, 2010 AmarilloJuly 8–9, 2010 South Padre(dates subject to change)October 2009 VOICE FOR THE DEFENSE 35Seminars spon sored by CDLP are funded by a state grant administered by the Texas Court of Criminal Appeals.

Significant Decisions ReportPlease do not rely solely on the summaries set forth below. The reader is advised to read thefull text of each opinion in addition to the brief synopses provided.The Significant Decisions Report is published in Voice for the Defense thanks to a stategrant from the Judicial and Courts Personnel Training Fund, administered by the Texas Court ofCriminal Appeals.No Supreme Court Decisions as of this writingSupreme CourtFifth CircuitUnited States v. Tirado-Tirado, 563 F.3d 117 (5th Cir. 2009)In prosecution for encouraging and inducing an alien to unlawfully enter the United States (invio lation of 18 U.S.C. §1324(a)(1)(A)), district court violated defendant’s rights under the Confrontation Clause and reversibly erred when it admitted, over defendant’s objection, the videotaped deposition of the alien in question in lieu of his live testimony; under Crawford v. Washington, 541 U.S. 36(2004), out-of-court statements that are “testimonial” may not be admitted at trial unless the declarantis unavailable to testify and the defendant had a prior opportunity for cross-examination; here, thegov ern ment did not carry its burden of showing that the alien was unavailable for trial because thegov ern ment did not make a reasonable good-faith effort to secure the physical presence of the alienat trial; because the error was not harmless beyond a reasonable doubt, the Fifth Circuit vacated defendant’s conviction and remanded for a new trial.Cynthia (_!llrlilLll1LIlIJ1-.dUll HamptonTim CrooksUnited States v. Willis, 563 F.3d 168 (5th Cir. 2009)Where defendant’s original two convictions for simultaneous possession of firearms were multiplicitous,it was plainly unreasonable for the district court, upon revocation of defendant’s supervisedrelease for those two convictions, to impose consecutive 24-month sentences (for a total sentence of 48months); although the multiplicity (which was not challenged in the original proceeding or on directap peal) did not render the second revocation sentence illegal, the fact of two consecutive sentencesfor what was, legally speaking, a single offense rendered the sentence plainly unreasonable.United States v. Fields, 565 F.3d 290 (5th Cir. 2009)Defense counsel did not render ineffective assistance of counsel by failing to object to the enhancementof defendant’s sentence under the Federal Sentencing Guidelines on the basis of judge-madefact-findings; at the time of the sentencing, Fifth Circuit law had squarely rejected such a challenge,and defendant’s sentence occurred before Blakely v. Washington, 542 U.S. 296 (2004), suggested, orUnited States v. Booker, 543 U.S. 220 (2006), held, that such a procedure was unconstitutional; especiallyin light of the Fifth Circuit’s prior holdings that there is no general duty on the part of defensecoun sel to anticipate changes in the law, the Fifth Circuit refused to hold defense counsel ineffectivefor failing to predict the absolute sea-change in federal sentencing wrought by Booker.United States v. Ruston, 565 F.3d 892 (5th Cir. 2009)At hearing under 18 U.S.C. §4243(c) (to determine whether an insanity acquittee’s release wouldcre ate a substantial risk of bodily injury to another due to a present mental disease or defect), the districtcourt abused its discretion when it did not sua sponte hold a competency hearing upon observingthe erratic behavior of defendant; the district court was on notice of defendant’s troubled history andhad a duty to ensure that defendant was competent before allowing the §4243(c) proceeding to con‐

tinue; accordingly, the Fifth Circuit reversed the district court’sorder committing defendant pursuant to 18 U.S.C. §4243(c)and remanded for further proceedings.United States v. Theagene, 565 F.3d 911 (5th Cir. 2009)In prosecution for bribing a public official (an IRS revenueof ficer), in violation of 18 U.S. §201(b)(1)(C), district court reversi bly erred in refusing, over defendant’s request, to instructthe jury on entrapment; such an instruction is required whena defendant makes a prima facie showing of (1) his lack of predispo si tion to commit the offense, and (2) some governmentalin volve ment and inducement more substantial than simplypro vid ing an opportunity or facilities to commit the offense;in this case, the evidence, although it did not establish entrapmentas a matter of law, was sufficient to submit the questionof entrapment to the jury; accordingly, the Fifth Circuit vacatedde fen dant’s conviction and remanded for a new trial.Richards v. Quarterman, 556 F.3d 553 (5th Cir. 2009)Federal district court did not abuse its discretion in conducting an evidentiary hearing on the federal habeas petition ofde fen dant (convicted of Texas noncapital murder) who allegedineffective assistance of trial counsel; on the merits, district courtdid not err in concluding that defense counsel provided in ef fectiveassistance of counsel by (1) failing to present exculpa toryevi dence (supporting a self-defense theory), (2) failing to requesta lesser-included-offense instruction for aggravated assault, (3)fail ing to put defendant’s medical records into evidence, and(4) fail ing to interview important witnesses in advance of trial;nor did the district court err in concluding that defendant wasprej u diced by these deficiencies, because it was extremely likelythat, but for these deficiencies, the jury would have convictedde fen dant of, at most, aggravated assault; accordingly, the FifthCir cuit affirmed the district court’s grant of habeas relief.United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009)The Texas offense of evading arrest or detention by useof a vehicle, in violation of Tex. Penal Code §38.04(b)(1), is a“vio lent felony” for purposes of the Armed Career Criminal Act(“ACCA”), 18 U.S.C. §924(e); the offense requires purposeful,vio lent, and aggressive conduct, and is similar in degree of riskto the enumerated “violent felonies” in the ACCA; accordingly,be cause the district court erred in holding that this offense wasnot a “violent felony” under the ACCA, the Fifth Circuit vacatedthe sentence and remanded for resentencing consistent with thisopin ion. (The Fifth Circuit noted that its opinion conflictedwith the opinion of the Eleventh Circuit in United States v.Har rison, 558 F.3d 1280 (11th Cir. 2009), which found that asimilar Florida offense was not a “violent felony” under theACCA.)United States v. Simmons, 568 F.3d 564 (5th Cir. 2009)On remand for resentencing, district court reversibly erredwhen it concluded that, even after Kimbrough v. United States,128 S. Ct. 558 (2007), it had no discretion to disagree with theGuide line policy statement that age is not ordinarily relevant indetermining whether a sentence should be outside the Guidelinerange; after Kimbrough, judges may disagree with any ofthe policies inherent in the Guidelines, not just the policy underlyingthe crack cocaine Guidelines particularly at issue inKim brough; be cause the district court unduly limited its owndiscretion, the Fifth Circuit vacated the sentence and remandedfor resen tencing.PDR OpinionsState’s PDRsCourt of Criminal AppealsMontoya v. State, __S.W.3d__ (Tex.Crim.App. No. 0239-08, 7/1/09) ReversedAppellant claimed that the trial court erred in failing toraise the issue of her competence to stand trial. COA agreedand abated the trial court judgment. The State raised the issueof how much evidence must come to the attention of the trialcourt before the court is required to suggest that the defendantmay be incompetent under Code of Criminal Procedure Article46B.004. CCA granted review to clarify the proper standard underthe amended statute. CCA holds that the bona fide doubtstan dard is still proper. Although COA used the bona fide doubtstan dard, it failed to give proper deference to the trial judge’sde ter mi nation based on his ability to observe the behavior ofthe defendant.Nguyen v. State, __S.W.3d__ (Tex.Crim.App. No. 0888-08, 7/1/09) AffirmedA police officer failed to warn appellant of his rights underSection 3, Article 38.22, Texas Code of Criminal Procedure, whenhe arrested appellant for traffic violations and interrogated him.COA held that the trial judge erred in admitting appellant’s oralstatement, which constituted the crime of hindering apprehension,because the police officer failed to comply with Section 3.CCA affirms, holding that appellant was in custody because afor mal arrest always constitutes “custody” for purposes of Article38.22, regardless of the offense that prompted the arrest. CCAalso rejects the State’s argument that Article 38.22 includes anex cep tion for statements that are not confessions, do not implicate the accused for the offense prosecuted, or constitute anoffense.Sakil v. State, 287 S.W.3d 23 (Tex.Crim.App. 2009)ReversedThe jury found appellant guilty of felony assault. At trial,a psychiatrist testified to appellant’s drug and alcohol use andthe behavioral effects of such use. However, appellant’s wifeOctober 2009 VOICE FOR THE DEFENSE 37

told the 911 operator on the day of the incident that appellantwas not intoxicated. Nevertheless, the trial judge believed thatthe jury might link the evidence of appellant’s odd behavioron the day of the assault and his history of substance abusewith the psychiatrist’s description of drug-induced symptoms.She there fore included an instruction in the jury charge statingthat vol un tary intoxication is not a defense. Appellant assertedthat the trial court erred by including the voluntary intoxicationin struc tion. CCA holds that it was not error to include theinstruction because there was sufficient evidence for a juror tocon clude that intoxication somehow excused appellant’s actions.Moore v. State, 286 S.W.3d 371 (Tex.Crim.App. 2009)Dismissed (improvident grant)Appellant was convicted of capital murder and sentencedto life in prison. Appellant claimed that the trial court erredin denying his Batson challenges to seven African-Americanju rors. COA agreed that appellant met his burden to establisha Batson violation with respect to one juror, reversed the judgmentof the trial court, and remanded the case. CCA grantedthe State’s PDR to determine whether COA “erred in holdingthat the trial court was required to find that the trial prosecutoren gaged in purposeful racial discrimination when she exerciseda peremptory challenge.” Having examined the record and briefsin this case, CCA concludes that its decision to grant review wasim provident.Moore v. State, __S.W.3d__ (Tex.Crim.App. No. 1340-08, 7/1/09) ReversedAppellant pled guilty to manufacturing methamphetamine.During the taking of the plea, the trial court added conditions tothe State’s plea bargain, including a requirement that appellantap pear in court on a future sentencing date. When appellantfailed to appear for sentencing, he violated those additional conditions, and for that reason, the trial court converted appellant’splea-bargain agreement into an open plea and sentenced himto 40 years’ imprisonment. COA reversed the conviction andre manded to the trial court because of the additional conditions.CCA affirms the judgment of the trial court because appellantfailed to preserve error for review by not raising the error atei ther the plea hearing or the sentencing hearing.Appellants’ PDRsMenefee v. Texas, 287 S.W.3d 9 (Tex.Crim.App. 2009)Vacated and Remanded to COAAppellant pled guilty to possession of cocaine with intentto deliver, enhanced to a first-degree felony. The trial court sentencedhim to 56 years’ imprisonment. Appellant contendedthe evidence was insufficient to support his guilty plea. COAdis agreed, holding that notwithstanding a defect in the writtenstip u la tion of evidence that the appellant entered in support ofthe plea, his sworn responses during the plea colloquy providedsuf fi cient support for his plea. CCA declares that COA erred tohold that the deficiency in the written stipulation was remediedby appellant’s plea colloquy.Freeman v. State, 286 S.W.3d 370 (Tex.Crim.App. 2009)Vacated and Remanded to COAAt appellant’s DWI trial, it came to light that the police videotape of appellant’s stop and field sobriety tests was recordedover. At the close of evidence, appellant requested a spoliationin struction regarding the video. Appellant did not cite any constitutionalauthority. The State argued that the federal standardunder Arizona v. Youngblood, 408 U.S. 51 (1988), applied. There quested instruction was denied. COA held that appellant adequatelypreserved his claim under the Texas due course of lawpro vision by requesting the instruction. The court then appliedits holding from Pena v. State, 226 S.W.3d 634 (Tex. App.—Waco2007), which held that the Texas due course of law provisionpro vides a greater level of protection than the Due Process Clauseof the Fourteenth Amendment. COA held that appellant’s duecourse of law rights were not violated. CCA has since reversedPena, holding that Pena failed to preserve his complaint thatthe Texas due course of law provides greater protection than thefed eral provision. Based on its decision in Pena, CCA vacates thejudg ment of COA and remands this case to reconsider whetherthe issue was preserved.Death Penalty OpinionDirect AppealRusseau v. State, __S.W.3d__ (Tex.Crim.App. No.74,466, 7/1/09) AffirmedFacts: In 2002, a jury found appellant guilty of capital murder.That same jury answered three statutory special issues insuch a way that the trial court was required to assess appellant’spun ish ment at death. In 2005, CCA affirmed the trial court’scon vic tion, reversed its punishment, and remanded the case tothe trial court for a new punishment hearing. At the conclusionof that hearing, the trial court, in accordance with the jury’san swers to the three special issues, again assessed appellant’spun ish ment at death. On appeal from the second punishmenthear ing, appellant brought the following issues.Rejected Issues:1. On remand, the trial court’s jurisdiction was statutorilylim ited to punishment issues. After remand, appellant’s appealwas limited to issues that arose during remand. That being thecase, appellant’s argument that the evidence at trial was insufficientpresents nothing for CCA to review.2. The evidence was legally sufficient to prove future dangerousness. A jury could have concluded that appellant exhibiteda dangerous aberration of character, that he was a chronicand increasingly dangerous violator of criminal laws, and that38 VOICE FOR THE DEFENSE October 2009

if he were allowed to live, there is a probability that he wouldcom mit violent criminal acts in the future, so as to constitutea continuing threat to people and property.3. The trial court did not err by failing to define “probability”in the first special issue. The term is not statutorily defined, andCCA presumes that jurors give it its usual meaning.4. The trial court did not err by failing to define “criminalacts of violence” because the phrase is not unconstitutionallyvague and need not be defined for the jury.5. The trial court did not err by failing to define “militates.”The term is not statutorily defined, and CCA presumes that jurorsgive it its usual meaning. Furthermore, appellant did notask the trial court for the “limiting definition” of “militates” thathe claims is constitutionally required, and nothing suggests thathe suffered harm from the lack of such a definition.6. The trial court did not err by failing to define “continuingthreat to society” because the jury is presumed to understandthe phrase. And, the U.S. Supreme Court has concluded that thisspe cial issue, even without the definition in question, adequatelyguides the jury.7. The trial court’s instructions on the special issues wereproper. CCA cites first that the jury’s deliberations were not limitedto evidence “which a juror might regard as increasing [the]de fen dant’s moral blameworthiness.” The jury could considerany of the evidence submitted at trial. CCA cites second thatap pel lant did not ask the trial court for the instruction that heclaims is constitutionally required, and nothing suggests thathe suffered harm from the lack of such an instruction.8. Appellant argued that the trial court erred by failing toin struct the jury that finding guilt in the first phase of trial didnot foreclose consideration of evidence which they believed reducedmoral blameworthiness. CCA counters that the trial courtin structed the jury that it must consider all evidence admittedat the guilt or innocence and punishment stages, including evidenceof defendant’s background or character or circumstancesof the offense that militate for or mitigate against the deathpen alty. Although the instructions given to the jury did nottrack the language of the instruction that appellant argues isconstitutionally required, they had much the same meaning.9. Appellant argued that the trial court erred by failingto instruct the jury that there is no presumption in favor ofdeath, even if the jury found appellant to be a “future danger”in answer to special issue one, and that special issue three, regarding mitigating circumstances, is to be considered withoutre gard to the jury’s finding on special issue one. CCA countersthat the trial court instructed the jury that if it answered specialis sues one and two in the affirmative, then it would proceed toan swer special issue three either “yes” or “no.” Nothing in ourlaw required the trial court to further instruct the jury that therewas no presumption in favor of death.10. Appellant argued that the trial court erred by failing toinstruct the jury so as to provide a vehicle for a juror to returna life verdict where the juror concludes that the aggravating factors,although established by the evidence, still are not so severeas to call for death as a punishment. CCA concludes that thetrial court’s instructions met the requirements of Article 37.071,which, in turn, met the requirements of the Eighth Amendment.11. The trial court properly refused to preclude the deathpen alty as a sentencing option or, in the alternative, to quashthe indictment because a grand jury had not considered andal leged the facts legally essential to appellant’s conviction anddeath sentence. CCA rejects this argument because appellantfailed to cite the pages in the record where he made the argumentto the trial court and received a ruling thereon.12. The Texas death penalty statute is not unconstitutionalfor its failure to provide for meaningful appellate review of thesuf fi ciency of the evidence to support the jury’s negative answerto the third special issue, the mitigation issue.13. The trial court did not abuse its discretion by readmittingevidence at punishment without first holding a Dauberthear ing and requiring the State to establish predicate for theevi dence. CCA says that a trial court’s admission of evidencewill not be reversed absent a clear abuse of discretion.14. The trial court did not err by instructing the jury thata unanimous vote was required to answer the first and secondspe cial issues in the affirmative and the third special issue in thenegative, and that at least ten jurors were required to answerthe first two special issues in the negative and the third in theaf fir mative. CCA relies on its previous rejection of constitutionalattacks on the “10-12 rule.”15. The Texas capital sentencing statute is not unconstitutionalfor its failure to inform the jury that a single holdout juroron a special issue would result in an automatic life sentence.Court of AppealsDriver’s nervousness combined with his drivingslowly away from a high-crime area did not justifycontinuation of traffic stop beyond the time needed toissue a traffic citationSieffert v. State, __S.W.3d__, 2(Tex.App. No.07-08-0242-CR—Amarillo 6/2/09)“When the driver refused Officer Lewis’ request to searchthe SUV, he had learned nothing new that justified prolongingtheir detention. At that point, it was incumbent upon him toei ther issue a warning or citation to the driver for speeding. Initiatinga drug-related investigation by calling for a drug-sniffingcanine and then removing the passengers from the SUV, questioningthem about their activities, identities, and the SUV’scontents impermissibly prolonged their detention by exceedingthe purpose of the traffic stop.”October 2009 VOICE FOR THE DEFENSE 39

D did not commit criminal trespass because the policereport indicated that the parking lot into which D drovehad open gates, thereby allowing public access, despitethe presence of a restricted-access sign posted at theentrance which read “authorized personnel only”Texas Dept. of Public Safety v. Axt, __S.W.3d__ (Tex.App.No. 02-08-276-CV—Fort Worth 6/25/09)Prosecutor committed Batson error, warranting reversalof conviction. Of the panel of 30 veniremembers, whichincluded eight African-Americans, or 27%, the Stateused 100% of its six strikes against African-Americans,and the State’s convoluted reasons for doing so weredeemed pretextual by the appellate court (see opinion).Greer v. State, __S.W.3d__ (Tex.App. No.05-08-00146-CR—Dallas 6/9/09)Conviction reversed due to police officer’s participationin Grand Jury proceedings in a capacity other than as awitness; “the State’s error . . . could have been avoidedif the State had simply obeyed the law. Something theState requires of its citizens on a daily basis.”Mason v. State, __S.W.3d__ (Tex.App. No.07-07-0383-CR—Amarillo 6/4/09)“Given the extent and duration of the past policy of the PotterCounty District Attorney’s Office to permit law enforcementto indiscriminately attend grand jury proceedings and questionwit nesses despite statutes to the contrary, their present assurancethat unauthorized questioning will not occur in future grandjury proceedings rings hollow. This is particularly so where theState, in argument before the trial court and this Court, appearscon vinced that violations of these statutory procedures willal ways be declared ‘technical’ violations representing no morethan harmless error.”This case essentially holds that when the warrant affidavit’sdescription of the location to be searched isinadequate, then the inadequacy can be magically curedif the officer has a sufficient description “in his head,”even if unstated in the affidavit.Rogers v. State, __S.W.3d__ (Tex.App. No.06-08-00133-CR—Texarkana 6/26/09)“Although we emphasize that an officer’s knowledge ofthe premises cannot be used to entirely replace the descriptionin the warrant and emphasize that the better practice is forthe description in the warrant and affidavit to be sufficientlyde scriptive, we adopt the reasoning of the First District andcon clude the executing officer’s knowledge of the premises tobe searched is relevant to the validity of the search warrant.”Trial court did not err by failing to conduct competencyinquiry, despite D’s past history of mental illness andbizarre behavior, absent evidence raising a bona fidedoubt as to D’s present ability to communicate orunder stand the proceedings.Kostura v. State, __S.W.3d__ (Tex.App. No.14-08-00386-CR—Houston (14th Dist.) 6/30/09)D “disseminated” child porn via his computer, eventhough he did not affirmatively send out any pictures,because the software he used made the files availablefor others to download via the internetWenger v. State, __S.W.3d__ (Tex.App. No.2-07-282-CR—Fort Worth 6/25/09)Regarding tape recordings of D’s Spanish-language jailphone conversations, which the State used as evidencethat D was a member of the Mexican Mafia, the courtrefused to establish a bright line rule prohibiting theadmission of non-translated foreign language taperecordings.Jimenez v. State, __S.W.3d__ (Tex.App. No.04-06-00435-CR—San Antonio 6/24/09)Nor did the court reporter’s failure to transcribe the Spanishphone recording entitle D to a new trial.The below subsections of the harassment statute Tex.Penal Code §42.07 were deemed unconstitutionallyvague.Scott v. State, __S.W.2d__ (Tex.App. No.04-08-00501-CR—San Antonio 6/24/09)“(a) A person commits an offense if, with intent to harass,an noy, alarm, abuse, torment, or embarrass another, he: . . . (4)causes the telephone of another to ring repeatedly or makesre peated telephone communications anonymously or in a mannerreasonably likely to harass, annoy, alarm, abuse, torment,embarrass, or offend another; . . . or (7) sends repeated electroniccom munications in a manner reasonably likely to harass, annoy,alarm, abuse, torment, embarrass, or offend another.” (A state’sPDR was filed on 8/24/09. Look for a grant, as the CCA has recentlyupheld the constitutionality of the harassment statute.)Off-duty officer who, during an altercation, fired hishandgun in the direction of a vehicle as it drove awaywas convicted of deadly conduct.Kacz v. State, 287 S.W.3d 497 (Tex.App.—Houston [14thDist.] 2009)Witnesses told police that the robber had acne on hisface. Yet the photo lineup which only included oneperson with acne (i.e., the defendant) was not improperbecause, during the robbery, the witnesses supposedlygot a good look at the robber in a well-lighted area.Booker v. State, (Tex.App.—Eastland 6/18/09)40 VOICE FOR THE DEFENSE October 2009

Seminars spon sored by CDLP are funded by a state grant administered by the Texas Court of Criminal Appeals.October 2009 VOICE FOR THE DEFENSE 41

Do YOU wont tomake 0 difference?Do OU tomake difference?VOLUNllElElR! O UNTEER!cto ~'-" serve :s2~' v e '-' on __ the ~ __ 2: TCDLA _'-' ______ board '-''-' ......_'-"Any member of TCDLA ,C9_--., in 6G~ good 6k.. standing ,_" 6''''~ who desires _"",'''6 to ~ make ,,~"~ application ~r'p"C

APPLICATION FOR MEMBERSHIP TO BOARD OF DIRECTORSDate: _________Name: _______________________ Date of birth:___________Business address:________________________City: _____________State: _________ Zip:______________Business phone: ______________Office fax:_____________________Business e-mail: __________________College Attended: ________________________________________ To: ____________From:____________ Degree: ____________________Law School Attended: ____________________________________ To: ____________From:____________ Degree: ____________________What percentage of your practice is devoted to Criminal Law? ________State Bar membership number: __________Date admitted to the State Bar of Texas: ________Name of firm, partnership and/or professional association: _________________________________________________________________________Describe your legal career and experience as criminal defense practitioner (Please attach additional sheets, if necessary) : ____________________________________________________________________________________________________________________________________________________During the five years immediately preceding the date of this application, list your criminal law activities to the extent and the capacity indicated:ACTIVITY NUMBER AS LEAD COUNSEL NUMBER AS CO-COUNSELState Felony Jury TrialsState Misdemeanor Jury TrialsFederal Jury TrialsState AppealsFederal AppealsState and Federal Non-Jury TrialsState and Federal Pleas of GuiltyState and Federal Post Conviction RemediesJuvenile ProceedingsDismissalsGrand Jury No-BillsCase Decided on Pre-Trial Motions Where Evidence was PresentedProbation and Parole RevocationsDISCLOSURE OF CONDUCT(circle one)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 anentity in another state which has authority over attorney discipline? Disciplinary sanctions include disbarment,resignation, suspension, reprimand (public or private), order of rehabilitation, or referral to the professionalenhancement program?Yes No (2) Have you received notification from a district grievance committee from the State Bar of Texas or similar entity inanother state that a finding of just cause as defined by Section 1.06(P) of the Texas Rules of Disciplinary Procedurehas been made against you?Yes No (3) Has a criminal indictment or information been filed against you for a felony or misdemeanor involving moralturpitude or other serious crimes as defined in the attorney standards?Yes No (4) Have you been convicted, received probation/community supervision (whether deferred or not), or fined for a felonyor misdemeanor involving moral turpitude or other serious crime as defined in the attorney standards?Yes No (5) Have you been sued for legal malpractice or other private civil actions alleging attorney misconduct, or have similaractions been concluded by settlement, dismissal, or judgment for or against you?Yes No (6) Has a finding of inadequate representation been made against you regarding representation in a criminal case?If any answers are circled “yes”, please provide a full written explanation and supporting documentation.TCDLA PARTICIPATIONPlease state when you first became a member of the TCDLA and describe your participation in TCDLA since that time.________________________________________________________________________________________________________________________________List any articles, writings, outlines or publications that you have authored in connection with substantive or procedural criminal law matters.________________________________________________________________________________________________________________________________List any speaking engagements you have undertaken relating to or addressing substantive or procedural criminal law topics.________________________________________________________________________________________________________________________________Describe briefly the reasons that you wish to become a member of the Board of Directors of the Texas Criminal Defense Lawyers Association.________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Will you accept the obligation as a Director of the Texas Criminal Defense Lawyers Association to regularly attend board meetings (heldquarterly), submit articles to the Voice, participate in legislative efforts, be available for assistance in the Strike Force, participate in the SecondChair (mentor) Program, maintain the highest level of ethical standards, maintain the highest level of competence and support by attendance andparticipation at TCDLA and Criminal Defense Lawyers Project programs and endeavors? Yes _____ No ________.28 VOICE FOR THE DEFENSE October 2003October 2009 VOICE FOR THE DEFENSE 43

Defendant’s Pre-Trial Motion No. 108Motion In LimineConcerning the State’s Entitlement to a Fair Trialby Maxwell C. Peck IIICAUSE NO.STATE OF TEXAS § IN THE DISTRICT COURT§VS. § 31ST JUDICIAL DISTRICT§_______________ § ___________ COUNTY, TEXASTO THE HONORABLE JUDGE OF SAID COURT:COMES NOW _________________, Defendant, and brings this Motion in Limine Concerning theState’s Entitlement to a Fair Trial, and in support thereof shows:1. The District Attorney has repeatedly made statements to veniremen during the voir dire of this casethat the State is entitled to a “fair trial,” the same as the Defendant. The implication of this statement beingthat the rules governing this trial should be applied equally to the State and the Defendant so that neitherside should have any advantage over the other.2. This comment is a misstatement of the law. Unlike the Defendant, the State of Texas is not entitledto due process and due course of law. Collier v. Poe, 732 S.W.2d 332, 343-344 (Tex. Crim. App. 1987)(copy attached hereto); State ex rel. Turner v. McDonald, 676 S.W.2d 371, 373 (Tex.Crim.App. 1984).These fundamental rights are personal rights guaranteed to the individual citizen as protection from theState. Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 846, 92 L. Ed. 1161 (1948). Accordingly, the Defendantwill always have superior rights to the State and, as such, a criminal trial will never be fair to the Stateat the expense of the Defendant. 13. The District Attorney’s repeated statements to veniremen that the State is entitled to a “fair” trialerodes the protection guaranteed Defendant under the Fourteenth Amendment to the United States Constitutionand Article I, §§13 and 19, of the Texas Constitution by implying to the prospective jurors that thepersonal due process rights enjoyed by the Defendant are no more important than the power wielded by1. “Fair” being defined as “conforming with established laws or standards: being in accordance with a person’s rights under thelaw.” Me r r i a m-We b s t e r’s Dictionary o f Law ©1996.44 VOICE FOR THE DEFENSE October 2009

the State (which prosecutors mistakenly refer to as “rights”) when, in fact, the opposite is true. As a result,Defendant respectfully requests that the Court order the State to refrain from commenting or opining toany veniremen or seated juror that the State has a right to a “fair” trial.WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court grant this Motion in LimineConcerning the State’s Entitlement to a Fair Trial.Respectfully submitted,_______________________________MAXWELL C. PECK IIIAttorney and Counselor at LawP.O. Box 310Amarillo, Texas 79105Tel: (806) 359-3413Fax: (806) 371-3433State Bar No. 24034619LAW OFFICE OF JOE MARR WILSON104 West Sixth Avenue, Suite 300Amarillo, Texas 79101Tel: (806) 374 7758Fax: (806) 374 0315By: ____________________________JOE MARR WILSONState Bar No. 21697700Attorneys for ____________________CERTIFICATE OF SERVICEThis is to certify that on July 21, 2009, a true and correct copy of the above and foregoing documentwas served on the 31st District Attorney’s Office, by hand delivery.__________________________________JOE MARR WILSONOctober 2009 VOICE FOR THE DEFENSE 45

CAUSE NO.STATE OF TEXAS § IN THE DISTRICT COURT§VS. § 31ST JUDICIAL DISTRICT§_______________ § ___________ COUNTY, TEXASORDEROn __________________, 2009, came on to be considered ______________’s Motion in Limine Concerningthe State’s Entitlement to a Fair Trial, and said motion is herebyGRANTED ________________________________.DENIED __________________________________.____________________________________JUDGE PRESIDING46 VOICE FOR THE DEFENSE October 2009

..... -' .Must be a licensed Texas attorneyI would like to attend this training and have enclosed my application, letter of intent, two recommendation letters (Texas orfederal judiciary and a criminal defense attorney), and $175 registration fee. Enrollment is limited to 80. You will be notified byFebruary 9, 2010.I applied last year and was not accepted.I have attended a Criminal Trial College in the past. If so, what year? ________________________________________________Trial Experience (participants are grouped according to experience)Please be candid about your trial experience, and do not exaggerate.Number of Trials:#______ Felony Jury #______ Felony Non-Jury #______ Misdemeanor Jury#______ Misdemeanor Non-Jury #______ Civil Jury #______ Non-JuryType of practice and years in practice (general description): __________________________________________________________________________________________________________________________________________________________________________Other Training or Experience:Law school: ________________________________________________ Date graduated: ___________________________________Other trial training courses taken: __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Prosecutor: q Yes q NoIf yes, how long, when did you leave, and what experience did you have? ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Public defender: q Yes q NoIf yes, what office? _______________________________________________________________________________________________________________________________________________________________________________________________________________Please give any additional information you believe would be helpful in explaining your level of experience: ___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Why do you want to attend the College? (You may attach additional pages or other information you feel wil help us evaluate yourapplication.) ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Paymentq Check (payable to TCDLA)q Credit Card (Visa, Mastercard, Amex, or Discover)____________________________________________________________ ______________________________________________________________________________Name on CardSignature____________________________________________________________ ______________________________________________________________________________Credit Card NumberExpiration DateFax: 512-469-0512 or mail to 1717 W. 6th St., Ste. 315 | Austin, TX 78703Seminars spon sored by CDLP are funded by the Court of Criminal Appeals of Texas.Office use only: q Application q New q Letter of intent q Fee q Judge letter q Attorney letter

Join TCDLA Join TCDLA Join TCDLAtcdla.comWhen yoo you join Te TCDLA, you become a part of a long historyof providing outstanding 5ervices services and assistance to criminalldefense lawyers la\l'll}'ers across acrooz the great state ofTe%31S. Texas.Join tOOay today and take advantage of numerous nuf'i"IeI"oos member benefits.Endorse a colleague or friend-encoorage friend—encourage otner.; others to become amember of TCDLA. Te DlA..Member Benefitsg Voice \tbice fur for the Defense Magazine hiagazineA A subscription rubscriptioo to the tile ONLY statewide magazinewritten specifically s()&Cifically for defense lawyers, published publiiShed 10times a year.g Membership ~rsh i p DirectoryA A listing of all TeDLA TCDLA members. 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An applicaJ1t applicant must mtI§t he be endorsed endorwd I:Pj by a TCDLA member. Membml Members ofthe j~diciary judiciary (except honorary members) l'm1rTJbJ.1ro) and those t!OOre regularly K1gt11larly employed in aprosecutorial pl'O!OCutorial office are a!N:l not eligible.Your memlM!t$hip membership will go into effect upon !,llpon approval rJ of application and receiptof annual membership memoorohip 00s. dues. Please Pleare allow a~low 6 to 8 e weeks week:; for confirmation coofirmation andcertificate. g Mr. g Ms. hk. g] Mn. Mrs._______________________________________First Fil'it Name Last Ltit Name Middle Initial__________________________________________________________________Law Firm__________________________________________________________________Mailing Adrlre$s Address__________________________________________________________________CityState Zip__________________________________________________________________TelephoneFax__________________________________________________________________EmailCrnmty County__________________________________________________________________Bar card Card Number NUMber__________________________________________________________________Date of Birth__________________________________________________________________Name Narrm of other local criminal bar association amxiaDJn or section rectionNominating Endorsement (must be completed)N. As a curreaJt current Il1I2moor member ofTCDLA. TCDLA, I believe bElieve this applicant to be a pErron person ofprofessional profei5iool1l1 competency, competmcy, integrity, inWgD'ity, and good moral charactlar. character._________________________________________Signature of Endorser EndMel' (must be 00 current member)______________________________________________________________________Printed Prinred Name ai of Endorser Endorrer (mus\: (must be current rurrem: lMmoor) member)Membership Category (please check one) IJ First-Time First-lime Member- — $75 per year IJ Renewing ReUlewing Membarohip Membership -— $150 per par yeillr year g Voluntary Suztlaoning Sustaining Member -— $300 per year IJ Sustaining §U$li!ining Member MEmbEr -— $200 per year IJ Affiliate Member (E;qlIlJ!rt:Ii (Experts or Legal Leplllzsi$l).arn) Assistant) -— $50 per year g Public PUblic Defender Dafundar -— $50 pElr per year IJ Investigator In'lll5tigaror -— $50 pEr}'Ellr per year IJ Law LOIW Student -— $20 per yearPayment Method (please check one) IJCheck ooclosoo enclosed (payable (payoble to TCDW TCDLA) g Vi" Visa g] Mtitercard Mastercard g] American Express O:preii5 g Discover DiocQOlS1l'__________________________________________________________________Credit CMlit card Card Number N:umberExpiration Date Dare__________________________________________________________________Name NlIma on Card CiIID'dSignatureMail h'lffiil completed ©IDJlIj~lfIlm ffiMm form and _ payment ~ !@ toTexas T~ Criminal Defense Deflmre Lawyers l..awyllrs MrociaOOn Association (TCDLA) rrCDl..A)1717 W. 6th 5t., St., Ste. SW. 315 • 0 M.I~tin, Austin, Texa:; Texas 78703Fax friMw to (if paying ~ItrtO'lWii:J by credit card): ~) ; 512-469-9107TAX NOTICE $36 of your annual dues drl.llE!iii ($19 if a Student Siludan'l. Member) MEmlrer) is for a one-yearsubscription $ubscription to the Voice \t!ice for the rile Defense. Dues to TCDUI. TCDLA are iU(! not dr!ductible deductible asa charitable chalritable contribution coolribullion but may be deducted di:docred a~ as an aln ordinal['( ordinary business ooloneu rezpenfa. expense.The non-deductible portion of regular regulillD' and initial inrual membership memlbenihip dues dQJIe!!i is $39 inaccordance alCCOrdaOO2 with IRC IPC soc sec 6033.Join TCDLA Today!