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attentionlocaldefensebarsThanks to E. G. “Gerry” Morris and Sam Bassett, course directors for the Defending SexCrimes Involving Children seminar held in Austin in March. We had 175 attendees, and thetopic was well received. We may keep this seminar as one to do every two years.The second edition of the Texas Trial Notebook is now available. In the next two months,the following TCDLA manuals will be released; Punishment Manual, Search and SeizureManual, Capital Murder (8th ed.) and the Study Guide for Specialization Exam. Please bewatching for announcements on availability.The San Antonio Criminal Defense Lawyers Association (SACDLA) has announced theirplans to sponsor 50 new TCDLA memberships for their members. SACDLA has more than500 members. We thank Jim Greenfield, current president, Stephanie Stevens, president-elect,John Convery, SADLA and TCDLA board member, and George Sharmen, SACDLA boardmember and TCDLA executive committee member, for their leadership and support.Joseph A. MartinezExecutiveDirector’sPerspectiveWe are looking for local defense bars to help co-sponsor seminars. If yours is interested,please call Joseph Martinez at the home office, 512.478.2514.If you are interested in starting a local defense bar, TCDLA can help provide support forgetting started. If you would like to rejuvenate your local defense bar, TCDLA can helpprovide support to get restarted. Please call Joseph Martinez at the home office for moreinformation.We are looking for sponsors and exhibitors for this year’s 19th Annual Rusty Duncan AdvancedCriminal Law Short Course, June 15-17, 2006. Please call Melissa Schank at 478.2514ext. 24 if you know of a business that may be interested being a sponsor or exhibitor at thisyear’s event.We are looking for members who want to speak at the CDLP seminars. Please call RickHagen at 940.566.1001 or Joseph Martinez at 512.478.2514 for more information.We are looking for articles for Voice for the Defense. Please call David Richards, GeorgeSharmen, Cynthia Hampton or Marisol Valdez for more information.Good verdicts to all!8 VOICE FOR THE DEFENSE April 2006

April 20-21, 2006CDLP: Capital, Mental Health and HabeasDallasMay 2, 2006CDLP: Indigent DefenseEl PasoMay 5, 2006CDLP: Indigent DefenseDallasMay 12, 2006CDLP: Indigent Defense - Houstonco-sponsored with the Harris CountyCriminal Lawyers AssociationHoustonMay 18, 2006CDLP: Phone SeminarTopic TBDJune 15-17, 2006TCDLA: 19th Annual Rusty DuncanAdvanced Criminal Law Short CourseAnnual Membership PartyTCDLA, CDLP, TCDLEI Annual Board MeetingsConvention Center, San AntonioJuly 19-20, 2006CDLP: Boot Camp for Criminal Defense AttorneysSouth Padre IslandJuly 21, 2006TCDLA/CDLP Board OrientationSouth Padre IslandJuly 28-29, 2006TCDLA: President’s TripMonterrey, MexicoAugust 11, 2006CDLP: EvidenceAustinAugust 17, 2006CDLP: Phone SeminarTopic TBDAugust 18, 2006TCDLA: Top Gun DWI — Advanced SobrietyTesting and Drug RecognitionHoustonSeptember 7-8, 2006TCDLA: Federal Law Dual TrackState Drug/DWIAustin (Lakeway)September 9, 2006TCDLA, CDLP, TCDLEI Board MeetingsAustin (Lakeway)September 20-21, 2006CDLP: 4th Annual ForensicsDallasOctober 9, 2006CDLP: Nuts and Boltsco-sponsored with SACDLASan AntonioOctober 13, 2006CDLP: Boot Camp for Criminal Defense AttorneysAmarilloOctober 27-28, 2006El Paso Criminal Law SeminarTCDLA, TCDLEI and El Paso Criminal Law GroupRuidoso, New MexicoNovember 2-3, 2006TCDLA: Advanced DWI Seminar: Gary TrichterCross-Examination of the Arresting Officerand Expert: Lecture and DemonstrationSan AntonioDecember 7-8, 2006TCDLA: TBDTBDDecember 9, 2006TCDLA, CDLP, TCDLEI Board MeetingsTBDJanuary 19, 2007CDLP: Boot Camp for Criminal Defense AttorneysWacoNote: Schedule and dates subject to change. Visit our website at www.tcdla.com for the most up to date information.April 2006 VOICE FOR THE DEFENSE 9

Th e Po s t-Bo o k e rREASONABLESENTENCEThose of us who were admitted to practice in the United States Courts before November1, 1987, remember that date. All sentences imposed for offenses occurring on or after thatdate had to comport with the United States Sentencing Guidelines.Individuals who would have surely received probation for pre-Guideline offenses began tobe sent to federal correctional facilities — and there was nothing that good defense lawyerscould do about it. In our frustration, we began to forget that the Guidelines often provideda cap on punishment that significantly benefited some of our clients; e.g., for a lady whohad embezzled 4.6 million dollars but had a Guideline range of 51-63 months.F.R. “Buck” Files, Jr.FEDERALCornerThen along came United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621(2005). Even with the constraints of Booker, we were almost back to the pre-Guidelines daysof judges being able to consider all relevant evidence having to do with the offense and theoffender in deciding what an appropriate sentence should be. Unfortunately, everythingdidn’t come up roses. That’s what Jamold Smith found out when he was captured by NewOrleans police officers and indicted on one count of illegal possession of a firearm as a convictedfelon. United States v. Jamold Smith, ___ F.3d ___, 2006 WL 367011 (5th Cir. 2006).Smith pleaded guilty to the indictment. The pre-sentence investigation report which UnitedStates District Judge Lance M. Africk found to be “accurate and uncontested” calculatedSmith’s Guideline range to be 21-27 months imprisonment.Judge Africk determined, though, that the sentencing range did not adequately reflectSmith’s criminal history or parole status at the time of the offense, deviated from the Guidelines,and sentenced him to 60 months imprisonment. Judge Africk specifically found that“the Guideline range did not adequately take into account Smith’s (1) release on parole lessthan one month before the offense, (2) three narcotics convictions, and (3) three juvenileconvictions: theft at age nine, trespass at age twelve, and possession of crack cocaine atage fourteen.” Smith objected to the sentence, claiming that it was unreasonable, and gavenotice of appeal.A panel of the Circuit, Benavides, Reavley and Garza (concurring), reviewed — de novo— Judge Africk’s sentence to determine whether or not the sentence was unreasonable. Inan opinion affirming the district court’s sentence, Judge Benavides — writing for the Court12 VOICE FOR THE DEFENSE April 2006

— provides us with an excellent analysis of what a district judgemust do to justify, post-Booker, a non-Guideline sentence:Our post-Booker case law has recognized three differenttypes of sentences under the advisory Guidelinesregime. First, a sentencing court may exercise itsdiscretion to impose a sentence within a properlycalculated Guidelines range. In such a situation, wewill ‘infer that the judge has considered all the factorsfor a fair sentence ... , and it will be rare for a reviewingcourt to say such a sentence is “unreasonable.”’ UnitedStates v. Mares, 402 F.3d 511, 519 (5th Cir.2005). InUnited States v. Alonzo, this Court further clarified thedeferential standard for reviewing sentences within aproperly calculated Guideline range. 2006 WL 39119,at *2, 435 F.3d 551, ---- (5th Cir.2005). Alonzo held thatsuch a sentence is afforded a rebuttable presumptionof reasonableness. Id. at *2, at ----.Second, a sentencing court may impose a sentencethat includes an upward or downward departure asallowed by the Guidelines. Because the court’s authorityto depart derives from the Guidelines themselves, asentence supported by a departure is also a ‘Guidelinesentence.’ Mares, 402 F.3d at 519 n. 7. In evaluatingboth a decision to depart and the extent of the departure,we review for ‘abuse of discretion.’ UnitedStates v. Saldana, 427 F.3d 298, 308 (5th Cir.2005).In assessing the extent of a departure, we continue tolook to our pre-Booker case law for guidance. See id.at 312; United States v. Simkanin, 420 F.3d 397, 419(5th Cir.2005); United States v. Smith, 417 F.3d 483,492-93 (5th Cir.2005).The district court in the instant case elected a thirdoption. After Booker, a court may impose a non-Guideline sentence — a sentence either higher or lowerthan the relevant Guideline sentence. Before imposinga non-Guideline sentence, however, the court mustconsider the Sentencing Guidelines. In light of thisduty, ‘a district court is still required to calculate theguideline range and consider it advisory.’ United Statesv. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir.2005)(emphasis in original). Consequently, if it decides toimpose a non-Guideline sentence, the court shouldutilize the appropriate Guideline range as a ‘frame ofreference.’ See United States v. Fagans, 406 F.3d 138,141 (2d Cir.2005); United States v. Jackson, 408 F.3d301, 305 (6th Cir.2005).Additionally, the district court must more thoroughlyarticulate its reasons when it imposes a non-Guidelinesentence than when it imposes a sentence under authorityof the Sentencing Guidelines. Mares, 402 F.3d at519. These reasons should be fact-specific and consistentwith the sentencing factors enumerated in section3553(a). Id. The farther a sentence varies from theapplicable Guideline sentence, ‘the more compellingthe justification based on factors in section 3553(a)’must be. United States v. Dean, 414 F.3d 725, 729 (7thCir.2005); see Jackson, 408 F.3d at 305. The court, however,need not engage in ‘robotic incantations that eachstatutory factor has been considered.’ United States v.Lamoreaux, 422 F.3d 750, 756 (8th Cir.2005) (internalquotation marks omitted); see United States v. Simpson,430 F.3d 1177, 1186-87 (D.C.Cir.2005) (findingno requirement for the district court to ‘specificallyrefer to each [section 3553(a)] factor’) (emphasisin original). Congress never intended sentencing ‘tobecome a hyper-technical exercise devoid of commonsense.’ United States v. Gonzalez, 250 F.3d 923, 930 (5thCir.2001). Thus, a checklist recitation of the section3553(a) factors is neither necessary nor sufficient for asentence to be reasonable. See Dean, 414 F.3d at 729.The purpose of the district court’s statement ofreasons is to enable the reviewing court to determinewhether, as a matter of substance, the sentencing factorsin section 3553(a) support the sentence. UnitedStates v. Long Soldier, 431 F.3d 1120, 1122-23 (8thCir.2005); see United States v. McBride, 434 F.3d 470,474 (6th Cir.2006) (holding that ‘a sentence shouldreflect the considerations listed in §3553(a)’). We agreewith the framework articulated by the 8th Circuit inassessing the reasonableness of a court’s statutorysupport. See United States v. Haack, 403 F.3d 997, 1004(8th Cir.2005). A non-Guideline sentence unreasonablyfails to reflect the statutory sentencing factorswhere it (1) does not account for a factor that shouldhave received significant weight, (2) gives significantweight to an irrelevant or improper factor, or (3)represents a clear error of judgment in balancing thesentencing factors. See id.; Long Soldier, 431 F.3d at1123-24 (applying the ‘Haack test for reasonableness’to a non-Guidelines sentence).* * *The court properly calculated the Guideline range sentence,and Smith does not object to that calculation. In addition, thecourt used the Guideline range as a frame of reference andcarefully explained why it would impose a non-Guidelinesentence:I’ve looked at your background. You have a 7th gradeeducation, you’re a convicted felon ... . [T]he grip ofcontinued on page 29April 2006 VOICE FOR THE DEFENSE 13

Constructive Waiver and CompelledDefendant Interviews:Understanding the Lagrone Doctrineand Implementing Strategies forLimiting its Effectpart twoBy Dexter E. GilfordII. Practical Considerations For Defense Counsel in Addressing A CourtOrdered Lagrone ExaminationA. IntroductionThe State’s ability to invoke Lagrone’s compelled examination procedure is of critical importance to the criminal defense practitionerin any case in which defense counsel is considering the presentation of expert testimony based in, any part, on a personalexamination of the defendant. Indeed, strictly construed, Lagrone’s sweeping rationale appears applicable to any testimony — notjust expert testimony — sponsored by the defendant that is “based” upon a personal examination of the defendant. No longersimply a concern to defense counsel in capital murder cases, Lagrone’s rationale could be read to apply with equal force to a widevariety of expert testimony for which an interview of the defendant may be a fairly customary and routine matter to which notmuch consideration is given. 1 In this regard, Lagrone may well be applicable to any criminal case and render what is normally adecision of routine trial strategy whether to present expert testimony one attendant with significant additional risks.Given the considerations engendered by Lagrone and its progeny, in some circumstances the better decision may be to completelyforego presenting expert testimony if a sound and defensible opinion may not be rendered without a personal interviewof the defendant. The lack of procedural safeguards attending a Lagrone compelled examination and the lack of examinationstandardization within the expert’s respective discipline may well dictate that such testimony be foregone completely. In somecases, depending on the issue, defense counsel may have a choice between presenting lay or expert testimony, such as is the casewith the insanity defense. 2 However, in other cases, there may not be any alternative to presenting expert testimony. 3 In somecases, a sound and defensible expert opinion cannot be rendered without a personal interview of the defendant. 4 In these cases,defense counsel must consider means of addressing the unique challenges posed by Lagrone including the implementation ofstrategies that limit its impact.14 VOICE FOR THE DEFENSE April 2006

court-ordered examination to which the defendant submits ispossible consistent with the professional standards governingthe given discipline.1. The Trial Court’s Supervisory Authority and the Fashioningof Procedural Safeguards: Defense Input in ImplementingLagroneAs far as implementing Lagrone, the Court of Criminal Appealsleft open to the trial courts the specifics of implementingthe compelled examination procedure. In Soria v. State, in announcingits remedy, the Court of Criminal Appeals did notprohibit the trial court from fashioning procedural safeguardsto implement the compelled examination procedure. 16 Rather,it upheld the trial court’s remedy of conditioning admissionof the defendant’s expert testimony on his participation in anexamination by the State’s expert, leaving open the question ofthe trial court’s authority to implement procedural safeguardsto govern the examination. 17To the extent Soria implied that trial courts retained authorityto implement procedural safeguards in implementingcompelled examinations, Lagrone expressly assumed that suchauthority existed and, in fact, encouraged the exercise of suchauthority. Further, Lagrone encouraged trial courts to exercisethis authority with a view towards safeguarding the defendant’sprivilege against self-incrimination from any undue diminutionoccasioned by the compelled examination procedure ithad sanctioned.In Lagrone v. State, the trial court required the defendantsubmit to a compelled examination, but it fashioned and implementedvarious procedural safeguards. 18 While characterizingthe trial court’s procedural safeguards as “rather stringent”and stopping short of requiring such procedural safeguards,the Court of Criminal Appeals praised the trial court’s effortsto protect the privilege from undue diminution and encouragedtrial courts invoking the compelled examination to do thesame. 19 Indeed, in this regard, Lagrone endorses the view thatin implementing the compelled examination procedure, trialcourts should act with an eye towards protecting the privilegeagainst self-incrimination from any further diminution thanis necessary to ensure parity and fairness to the State. 20 Thus,far from Lagrone having been fashioned as a limitless license tointerview and examine the defendant, the Court of Criminal Appealshas indicated that trial courts possess and should exerciseauthority to implement the compelled examination procedurewith an eye towards protecting the defendant’s privilege againstself-incrimination from undue diminution. The wide latitudethe Court left to the trial courts is where defense counsel shoulddirect the most effort and attention in limiting the impact ofLagrone’s compelled examination doctrine.Convincing trial courts to implement reasonable proceduralsafeguards is necessary to ensure that Lagrone’s compelled examinationprocedure is not overly expansive. In urging suchsafeguards on the trial court, it is important to emphasizethat Lagrone can be fully implemented along with safeguardsthat protect the privilege from unwarranted diminution whilefurthering the “fair state-individual balance” that Lagrone wasimplemented to ensure. 21 That is, implementing reasonableprocedural safeguards will protect the privilege against selfincriminationfrom undue diminution while ensuring the defendanthaving “elect[ed] to testify,... [obtaining] an immunityfrom cross-examination on the matters he has himself put indispute.” 22 Further, given the Court of Criminal Appeals’ stronglanguage encouraging trial courts to safeguard the privilegeagainst self-incrimination from unnecessary diminution occasionedby compelled examinations, trial courts are likely tobe receptive to defense counsel’s sound (and creative) recommendedprocedural safeguards.The discretion left to the trial courts in implementing Lagroneprovides the opportunity for defense counsel to limit itsimpact. In addition to leaving open procedural matters governingimplementing Lagrone, the Court of Criminal Appeals left totrial courts authority to determine the scope of any compelledexamination. 23 Defense counsel must both educate and persuadethe trial judge in order to limit the scope of any examinationordered and implement procedural safeguards sufficient tosafeguard the privilege from further intrusions than are warrantedby the specific facts of the case. 24The goals of any procedural safeguards urged and implementedwill be to:1. Prevent the interview altogether by not having thedefendant interviewed or not presenting the testimony;2. If an examination and testimony are necessary, limitthe examination in terms of subject matter coveredand responses provided to the extent consistent withavoiding criticism of non-cooperation and commensuratewith the professionally recognized standardsapplicable to the particular field of expertise;3. Control the prosecutor’s use of information in termsof time of receipt, preparation, and derivative use inorder to ensure that derivative use is not made of theexamination (or any use at all if the defense experttestimony is not presented);4. Gain and preserve information concerning specificdetails of course of interview and responses of defen‐16 VOICE FOR THE DEFENSE April 2006

dant in order to prepare an effective cross-examinationor rebuttal;5. To the extent possible, develop positive evidencefrom any such court-ordered examination; and6. Preserve issues for later appellate consideration thatcan further identify the various theoretical problemsof the doctrine in terms of over breadth of scope andother issues under-analyzed in the case law.C. Specific Strategies and Procedural Safeguards1. Prevent the State’s Interview Altogether.The most obvious means of addressing Lagrone is by preventingany compelled examination altogether by foregoingthe presentation of expert testimony based on the defendant’sexamination. This would require the abandonment of any intentto present such testimony. 25 In this way, Lagrone’s rationale ofconstructive testimony and waiver — whether actual or anticipatory— is undermined such that the court cannot compelsuch an examination without violating a defendant’s privilegeagainst self-incrimination. 262. Make Appropriate Objections Concerning the Applicabilityof Lagrone to the Particular Facts of the CaseAs discussed earlier, in the case of testimony that is based onan examination conducted by a neutral witness for purposesother than preparation for trial, the unfairness engendered whensuch testimony is developed by a defense expert for trial preparationis simply not present. In such cases, although Lagrone andits progeny appear to be applicable equally in both cases, defensecounsel should ensure that appropriate objections emphasizingthis distinction are developed, argued and ruled upon. Theseobjections should emphasize the lack of any advantage of accessor opportunity enjoyed by the defendant and denied the State.Though these objections are likely to be overruled, they mayprovide the basis for appellate consideration of these criticalyet unexamined issues.3. Structuring the Examination to Limit the Scope of the State’sExamination: Preliminary ConsiderationsIf counsel must have the defendant examined for purposesof presenting forensic expert testimony, considerable attentionmust be given to (1) the specific type of expert (especially inthe context of mental health) needed to form the opinion, (2)the specific information that the expert must consider to formthe opinion, (3) in the case of mental health testimony, thespecific psychometric tests necessary to formulate the opinion,(4) the extent to which clinical interviews (and their content)are necessary to form the opinion, (5) the extent to which anynecessary clinical interviews are standardized, and (6) the extentto which any required psychometric and clinical interviews maybe memorialized without affecting their efficacy. Additional attentionshould be given to the particular ethical standards andguidelines that govern the particular field of expertise. Suchstandards often provide specific procedural guidelines that areto govern specific testing procedures and clinical interviewsthat are employed. 27Defense counsel should start by reading topical articlesconcerning the specific forensic issue involved. These articlesgenerally will discuss the various testing techniques and courseof examination accepted in the field for addressing the issue.Such articles can easily be located on the internet. A good sourceare the websites of the various forensic and mental health associationswhich will likely cite the association’s publishedarticles, statements, and position papers concerning specifictopics. 28 Additionally, as a prerequisite to locating an expertand, indeed, of identifying the specific forensic issue, there area number of good, accessible texts that provide an overviewof the various forensic issues which can be addressed, thetechniques commonly utilized to do so, and the limitations ofthose techniques. 29Once a potential expert is located, in the initial consultation,determine the expert’s familiarity and experience with thevarious testing procedures discussed in the articles and treatisesconsulted. The preliminary research will have prepared you fora much more meaningful discussion with the prospective expertwitness than would have otherwise been possible. However, thegoal of the preliminary research is to seek to initially utilize thisexpert as a consultant for two main purposes: (1) assist in theinitial determination of whether defense expert testimony isnecessary for the opinion 30 and (2) if an examination is necessary,provide advice on how the examination’s scope may belimited to that which is absolutely essential for the purposes ofrendering the opinion. With respect to the latter, if the defenseexpert’s examination is limited, a trial court inclined to ensureparity may well limit the State’s examination to those tests andinterviews utilized by the defense expert. In sum, by controllingthe scope (and adequately memorializing the defense examinationto provide the template for the scope of the State’s examination),the defendant is better suited to argue that the fairness andparity stressed in Lagrone requires that the State’s examinationbe no more expansive and intrusive than the defendant’s. In viewof the Court of Criminal Appeals’ admonition to trial courtsthat they should protect the privilege against self-incriminationfrom undue diminution, 31 urging and obtaining proceduralsafeguards which ensure parity in the scope of any compelledexamination should not be difficult.April 2006 VOICE FOR THE DEFENSE 17

For purposes of limiting the impact of Lagrone, to the extentthat the expert’s opinion may be arrived at consistent with professionaland ethical standards governing the field of expertise,the goal of the defense interview of the defendant is to (1) limitthe amount of clinical interviewing to a minimum, (2) in bothclinical interviews and with psychometric testing, limit theinformation provided by the defendant to ensure to the extentpossible that “facts” of the offense are not related, (3) limit, tothe extent possible given the dictates of the particular field,the use of psychometric testing that relies heavily (or at all) onthe subject’s description of the “facts” of the offense, (4) to theextent possible, choose a subject of inquiry for which there islittle disagreement amongst experts in the field concerning thebattery of testing (psychological or otherwise) necessary to formthe particular opinion, choose a subject of inquiry for whichthere is not much disagreement within the field concerning acceptableinterview and psychometric testing techniques, (5) limitpsychological testing to those for which reliability and validitytesting have been conducted, published, reviewed and for whichthere is general acceptance in the field and (6) memorialize theinterview. Taking these steps can assist in helping to ensure thatthe State expert’s otherwise unregulated interview can be limitedin scope and inquiry as much as is possible commensurate withthe defendant’s examination.4. Limit the Subject Matter to Be Covered in the ExaminationOne of the most significant problems associated with givingthe State’s expert a carte blanche ticket to interview the defendantis the fact that the case law does not impose any limitationson the subject matter that the State’s expert may cover in theexamination of the defendant. Although it seems obvious thatthe State’s examination must be limited to that of the defenseexamination, this does not serve as a significant restriction becausethe expert’s may have very divergent ideas of what specificmatters should be covered within the examination to addressthe general subject. 32 It is useful to remember that the Courtof Criminal Appeals has indicated only that the State’s rebuttaltestimony is limited to the issues raised by the defense expertbut has not set any limitations on the scope of the examinationitself or the direct or derivative uses to which the State may makeof the examination results. 33Consideration of the insanity defense highlights the problemwell. Efforts to standardize the specific forensic examinationemployed by forensic psychiatrists to address the question ofinsanity have only recently been undertaken. 34 For many yearsthere has been no discipline-wide standardization concerningwhich of the various psychological and personality testsshould be employed, the role of the clinical interview, the roleof opinions based on anecdotal experience as opposed to theuse of tests for which validity and reliability testing had beenconducted, of either the psychometric testing techniques orthe course that clinical interviews should take was left to thediscretion of the individual forensic psychiatrist. In the contextof insanity evaluations, without discipline-wide standards,forensic psychiatrists have had available psychological examinations— some of which are standardized, others for whichthere have been reliability and validity testing; others for whichthere have not. 35Consequently, expert opinion can be arrived at by vastlydifferent methods and examinations varying significantly inscope making regulation of such examinations to ensure parityin scope difficult. For example, in the context of insanityevaluations, defense counsel’s expert may choose to rely onwitness reports of the defendant’s behavior before, at or afterthe time of offense in lieu of specific questions concerning theoffense. However, because of Lagrone’s lack of standards, ina compelled Lagrone hearing, the State’s expert may seek thedefendant’s description of facts relating to the offense on thegrounds that such an inquiry is necessary to formulate thesame opinion that the defense expert formed without resortto such an inquiry. 36 Under Lagrone, the State’s expert wouldbe justified in making such inquiries because under the Courtof Criminal Appeals’ doctrine of constructive testimony, oncethe defendant has presented testimony based on a personalinterview, no more inquiry is required and he is said to havesubjected himself to cross-examination “in the same manneras would the defendant’s election to testify at trial.” 37Given this possibility, the challenge for defense counsel is tolimit the issues for expert inquiry to those for which examinationsemploy only standardized testing and interviews such thatthe trial court may be in a better position to institute proceduraland substantive safeguards ensure the state’s Lagrone examinationis no more expansive in scope than the defendant’s.5. Control the Information ProvidedObvious benefit can be gained from controlling the informationthe defendant provides in a compelled Lagrone examination.However, any such testimony must be consistent withthe needs of the defense expert’s ability to make a full inquirynecessary to formulate the particular opinion sought. By pursuinga strategy of limiting the defense examination, defensecounsel is attempting to fashion a template to which a trialcourt may limit a State’s examination. The watchword, however,is to ensure that any attempt to limit the defense examinationand, in turn the State’s, is that it must be done consistent withthe professional standards applicable to the particular forensicissue involved: one would not want to limit the examinationand obtain an expert opinion that is not soundly based onprinciples in the particular field. One way this can be done is to18 VOICE FOR THE DEFENSE April 2006

prepare the defendant for the examination. However, preparingcannot be undertaken unless defense counsel has some idea ofwhat the examination will entail and when the examinationwill occur. Determining what the examination will entail is amatter of determining, to the extent possible, its scope in termsof various testing techniques employed in determining the issueand, if possible, discussing with the State’s expert the tests andtechniques she intends to employ.One safeguard defense counsel should ask the court to orderis notice concerning when the State’s examination will occur.In this regard, counsel must move the court to order the Stateto provide notice of its Lagrone examination, for example, 48hours in advance so counsel can confer with the defendant priorto the examination in order to prepare him for the examination.38 The specifics of the preparation are best decided afterconferring with any defense consulting or testifying expert,bearing in mind that in some cases, advance preparation, mayinterfere with the State’s examination and, in such cases, suchpreparation should not be undertaken.Moreover, counsel should ask the court for her expert’s presenceat the interview. 39 This request will almost absolutely bedenied. However, commensurate with other contexts involvingcompelled testimony, defense counsel should insist that thedefendant be permitted to break the interview upon demandand consult with counsel. 40 When the interview is concluded,counsel should interview the defendant as soon as possible todetermine the specific matters covered, the type of tests administeredand the defendant’s responses while these matters arelikely to still be fresh in the defendant’s memory.6. Control Prosecutor’s Use of the Testimony: Lagrone’s AnticipatoryWaiver DoctrineOnce the examination has been conducted, under Lagrone,nothing prohibits the State from making immediate use of theinformation beyond preparation of its own experts for director rebuttal testimony; indeed, there are no such limits. NeitherLagrone nor its progeny prevents the State from makingderivative use of the information provided by the defendant;instead, Lagrone only limited the scope of the testimony thatthe State may present based on its examination of the defendant.41 Lagrone’s doctrine of anticipatory waiver means theState may compel the defendant to submit to a court-orderedexamination well before any trial occurs and provides it withample opportunity to develop derivative evidence or testimonybased on the defendant’s compelled responses. Given the lackof any guidance as to what actually constitutes intent to presentexpert testimony, defense counsel may be faced with a compelledLagrone examination well before trial. 42Thus, this possibility further warrants defense counsel’sefforts to control not only the information made available tothe prosecution through a Lagrone compelled examinationprocedure, but also when the State will get the information andwhat uses and can be made of the testimony. In Lagrone, the trialcourt implemented an important safeguard that attempted todo by prohibiting the State’s expert from disclosing his reportto the prosecutor until after the defendant had presented hisown expert’s testimony. 43 However, defense counsel should alsoconsider urging the following on the trial court:(1) That the State’s interview be memorialized insome way, by recording–audio or visual;(2) That the examination be reduced to writing anda report generated setting forth the standardized testsadministered, results from clinical interviews, etc.;(3) That the State’s expert be prohibited from revealingthe information to the State until a date later orthe report;(4) That no derivative or direct use of the testimonycould be made by the State beyond forensic use; and(5) Ask the trial court to release only the findings andnot the report itself. 447. Memorializing the State’s Examination: Statutory ReportRequirements as Template for Minimal Guidelines of StateExpert’s ReportIn the event that the trial court requires the State’s expertto memorialize the examination in some way, defense counselmay seek as detailed a memorialization as creativity permits.However, at a minimum, any court-ordered memorializationof the State expert’s examination should meet the statutorilyenumeratedrequirements governing expert reports for courtorderedcompetence and sanity evaluations. 45 By statute, theexpert’s report on competency must include the following:(1) A statement indicating that the expert explainedto the defendant the purpose of the evaluation, thepersons to whom a report on the evaluation is provided,and the limits on rules of confidentiality applyingto the relationship between the expert and thedefendant;(2) A statement in general terms describing the procedures,techniques, and tests used in the examinationand the purpose of each procedure, technique, or test;and(3) A statement of the expert’s clinical observations,April 2006 VOICE FOR THE DEFENSE 19

findings, and opinions on each specific issue referred tothe expert by the court, and State specifically any issueson which the expert could not provide an opinion. 46The requirements governing sanity examination reports arefewer but do require the expert “include a description of theprocedures used in the examination and the examiner’s observationsand findings pertaining to the insanity defense.”Given the general nature of these requirements, there is somelatitude for argument concerning how specific a descriptionshould be provided of the procedures used and the observationsmade. For example, observations made may very well includethe factual basis and data underlying the findings. This maydepend upon the specific type of examinations and proceduresinvolved. Defense counsel should consult with experts in theparticular field in providing the trial court with sufficient informationto determine how specific the report requirementsshould be in order to be meaningful given the particular fieldof expertise.Finally, obtaining these reports as early as possible prior totrial is important. In the case of competence and sanity examinations,these reports are to be furnished to the court “within30 days of the order” authorizing the examination. 48 The courtis then directed to “furnish copies of the report to the defensecounsel and prosecuting attorney.” 49 No specific time period isprovided within which the copies are to be provided leavingthis within the court’s discretion.8. Discovery of Matters Addressed in the ExaminationGiven that defense counsel will not have the opportunity toparticipate in the State’s examination, 50 defense counsel shouldstrongly urge safeguards that provide her with access to theinquiries made of the defendant, tests employed, responsesgiven, opinions (formal and informal) and the uses made of theexamination responses. Although such efforts are likely to beresisted, the Court of Criminal Appeals encouraged trial courtsto consider taking steps to protect the privilege against unduediminution by the Lagrone compelled examination procedure. 51In this regard, defense counsel should seek discovery of theState’s examination, both its course and the responses given, byemploying both formal and informal means including:(1) Interview the defendant as soon as possible followingthe examination to determine specific testsemployed, questions asked, responses given, etc.(2) Seek memorialization of the examination byrecording, audio, video or stenography. One meansof ensuring State’s work product privileges are maintainedis to have the State’s expert’s report submittedto the court for safekeeping as a court’s exhibit and forin camera inspection for those matters that constitutediscoverable evidence under existing discovery caselaw construing article 39.14 (a).(3) At a minimum, it may be useful to request the courtto require discovery be provided of the specific statementsand responses made by the defendant duringthe examination procedure on the grounds that theyshould be treated as any other statement made by thedefendant and thus discoverable. 52(4) Obtaining all records or notes from the examinationbased on the rationale that because the defendantis considered to have constructively testified andwaived his privilege against self-incrimination, thedefendant’s own statements, irrespective of whichparty has them, are discoverable. 53(5) Submission of all records for in camera inspectionfor Brady information and material which might besignificant if mental health issues are involved.9. Develop Helpful Defense TestimonySeeking discovery of the scope of the State’s examination,information gained during such examination (and uses madeof the information), and opinions formed is not solely for thepurpose of preventing derivative use of the information butalso to identify and develop helpful evidence. A consulting expertmay be able to identify potentially favorable observationsor findings made by the State’s expert. Again, early discoveryof the examination is important in being able to develop suchtestimony.Moreover, in addition to the informal means of discoveringsuch information outlined above, Brady v. Maryland 54 mayimpose some requirements that the State provide notice of anyfavorable or exculpatory opinions provided pursuant to theinterview or other derivative exculpatory evidence discoveredas a result of the defendant’s responses. Getting a trial courtorder for provision of favorable evidence should not be difficult.Indeed, as noted earlier, Lagrone required that the State’s expertfurnish its report to the court so that the court could make anindependent in camera examination for Brady information thatwould be released to both the defendant and the State. 5510. Invite Dialogue between State and Defense ExpertsDefense counsel often overlooks inviting and encouragingdialogue between the defense and State experts. In the contextof a compelled Lagrone examination, there are good reasonsto consider doing so. On the one hand, the risks of disclosing20 VOICE FOR THE DEFENSE April 2006

matters previously unknown to the State are not nearly as greatbecause the State’s expert will have already conducted an examinationof the defendant. On the other hand, because in mostcases both the State and defense expert would be familiar withthe general principles of the forensic interview involved, counselcan quickly identify the specific points in dispute and therebyfocus on specific points for trial preparation. Further, a greatdeal can be learned about the State expert’s testing and clinicalinterview methods employed in order to prepare for direct andcross examination. Of course, the efficacy of any such attemptwill require a candid and open discussion by both experts.IV. Ethical Considerations: Discoveryand Limiting TestimonyThe distinguishing feature of Lagrone and its progeny isthat it justifies a compelled examination of the defendant. Asdiscussed earlier, the case law imposes little, if any, substantiveor procedural limits on the State’s examination, leaving suchmatters to the trial court’s discretion. For all practical purposes,these examinations are unregulated; their scope and subjectmatter are left to the dictates of the prosecutor and State’sexpert. In many fields of expertise, there is simply a lack ofstandardization by which trial courts could ensure that boththe State and defense examinations are commensurate in scope.Further, when the examination includes significant relianceupon factual descriptions by the defendant, a Lagrone hearingeasily equates to a boundless inquiry and is particularly subjectto becoming a limitless discovery expedition. There are fewerareas in which this risk is more palpable and pernicious thanin mental health examinations where there is both widespreadlack of examination standardization and an oft-criticized overrelianceupon the clinical interview, which relies heavily uponsubject descriptions of factual matters.Given the significant role that mental health forensics plays inthe criminal justice system (particularly in the trial of criminalcases), some attention and consideration must be given to variousethical issues specific to forensic mental health assessmentand testimony, which are implicated by the idea (and fact) ofcompelled psycho-legal examinations. Specifically, although theState’s mental health expert conducting the compelled examinationwill be operating in a forensic and advocacy capacity,presumably she will still rely upon principles in the field ofpsychology. As a consequence, as a psychologist relying uponprinciples within the field of psychology, there are certain ethicalstandards and rules that are applicable to her role, the testingmethods employed and the testimony she will offer at trial. Itcould well be that in conducting the compelled examination ortestifying to an opinion based on the examination, the State’sexpert has run afoul of these standards and rules. Though notstrictly a Lagrone legal issue, compelled examinations requireat least some attention be given to the significance and effect,if any, violations of ethical standards and rules should have inthe trial of a criminal case.It could be that such violations will be treated as matters notaffecting the admissibility of the testimony but rather only theweight that the trier of fact is to give such testimony. However,given the Court of Criminal Appeals’ admonishment to trialcourts that in implementing compelled examinations they seekto protect the defendant’s privilege against self-incriminationagainst undue diminution, defense counsel’s identifying, exploringand litigating such ethics-based violations as a meansof challenging the admissibility of the state’s expert is of paramountimportance.A. Ethics-Based Violations as a Means of Affecting Admissibilityof TestimonyIt is beyond argument that an ethics-based violation, muchless one governing mental health experts (as opposed to attorneys),would not be a violation of a “law” for which Article38.23 requires exclusion. 56 That being said, such violations mayform the basis for challenges to the State expert’s testimony intwo basic ways. First, if the ethical violation is so egregious thatit “shocks the conscience,” due process may warrant its exclusion.Second, some ethical standards discourage experts fromacting in certain capacities or offering certain opinions. In suchcases, the ethical standard in fact represents a consensus in thefield that there is no reliable data to support the notion thatsuch opinions can be provided and also be considered reliable.In such cases, the ethical standard embodies the more salientbasis upon which the expert’s testimony may be challenged ina Kelly-Nenno reliability hearing.The significance of any such ethical violations and the meansby which they will be raised in the trial court are left to the creativityof defense counsel in the particular case. Nonetheless, theissue is significant enough to warrant some discussion here.B. Specific Ethical Issues for ConsiderationThere are three general areas to which defense counsel shoulddirect attention for purposes of fashioning ethics-based challengesto the State expert’s testimony: forming opinions forwhich there is insufficient supporting data, acting in mixedforensic and clinical roles, and the use of deception in an examination.1. Professional Standards within the Expert’s Field Discouragingthe Opinion the State’s Expert Will Testify to at TrialApril 2006 VOICE FOR THE DEFENSE 21

The initial question that defense counsel faced with the presentationof any expert testimony (including his own), especiallymental health testimony, is whether the expert’s field of expertisehas promulgated ethical standards that discourage or prohibitits members from offering a particular opinion. For example,it is well known that the American Psychiatric Association hasstated its position discouraging expert forensic opinions on theissue of future dangerousness because they do not believe thatfuture dangerousness can be predicted with any degree of validityor reliability employing any of the available examinationsor tests. 57 However, there is the possibility that such a challengeis not likely to be sustained as trial courts generally view suchviolations as being only a matter of the weight to be accordedthe testimony and one best explored on cross-examination. 58Nonetheless, defense counsel should direct some attentionto violations of such ethical rules because they are generallypremised on intensive investigation by experts in the field asto whether such opinions can be formed with any degree ofreliability and validity.It may be that the lack of supporting data or of the testingmethods employed to form the opinion may be so significantthat the expert may not be able to satisfy the reliability prongof Nenno v. State. 592. Prohibition on Role in Which the Expert Acts: Inherent ConflictBetween the Therapeutic/Clinical and Forensic RolesAs a mental health professional, the State’s expert may actin various capacities. There are two basic roles in which theState’s expert may act: in a therapeutic/clinical role and in aforensic role. There are ethical considerations specifically applicableto each which generally seek to ensure that the two arenot mixed.The therapeutic and forensic roles are inherently in conflict. 60The most obvious differences are in the widely divergent goals.While in a therapeutic or clinical capacity the expert’s goal isensuring the welfare of the subject, in the forensic role, theexpert’s role may be in conflict with the subject’s welfare. Moreover,in the therapeutic role, the expert’s role is ongoing and iscomprehensive in scope while in the forensic role her emphasismay call for a “single cross-sectional determination.” 61Because of these divergent goals, all the leading mental healthprofessional associations have promulgated strict rules prohibitingthe mixing of the roles to ensure that “therapists are [not]employed as forensic experts.” 62 Simply put, these associationshave concluded that “mental health professionals cannot act ina mixed forensic and therapeutic role” competently or ethicallybecause of [the] irreconcilable conflicts” between the two.” 63For defense counsel facing a Lagrone compelled examination,this prohibition is critical. In larger counties there is a likelihoodof the State expert’s having previously acted in a clinicalor therapeutic capacity with respect to the defendant when theState’s expert is one of a few mental health professionals whoroutinely perform mental health services for the county on acontract basis. For example, I represented a defendant in a casein which there were significant mental health issues involved.After giving notice of the intent to raise the insanity defense, theState sought a Lagrone-compelled examination of the defendant,who had an extensive history of mental health treatment bothin and out of jail. Parsing through the voluminous records, Idiscovered the State’s expert, who had now been retained inan adversarial and forensic capacity, had several years beforetreated the defendant in a clinical capacity. Based on this, a motionto “disqualify” this expert was drafted asserting this ethicalviolation. The practical import of the motion was to discouragethe State from using this particularly effective expert at trialby hopefully placing him in the position of having to choosebetween violating the ethical rules of an association of whichhe was a long-standing and respected member, and testifying.Because the insanity defense was never presented at the trial, theissue was never litigated. Nonetheless, defense counsel shouldalways consider the expert’s ethical standards as a means ofchallenging the testimony.3. The State Expert’s Use of Deception in a Compelled Examinationin Order to Discover Facts and Form an OpinionIt has been noted that the definitive feature of a compelledLagrone examination is that it can amount to a practicallylimitless interrogation of the defendant in which there is norequirement for defense counsel’s participation. Because clinicalinterviews tend to be universally relied upon by mental healthprofessionals, the lack of standardization of such interviewsrenders such examinations fraught with the possibility ofabuse. Bearing in mind the goal of the State’s expert is purelyforensic and adversarial, as an agent of the State, there is little,if any, limitations on not only the subject matter covered in theexamination but the means by which information will be soughtfrom the defendant. However, because the Court of CriminalAppeals has not addressed many of the implications of theLagrone compelled examination procedure, there are severalcritical questions which have been left unanswered.One of the most critical areas for which there is the possibilityof abuse is that of the extent to which the State’s expert mayemploy deception and, indeed, even lie to the defendant duringa compelled examination in order to obtain information andresponses. As an advocate and agent of the State, familiar rulesindicate that a State agent may employ deception so long as thedeception is not likely to cause the defendant to speak untruthfully.Applying this rule to the State’s mental health expert would22 VOICE FOR THE DEFENSE April 2006

indicate that she may employ deception to the same extentas is permitted an interrogating police officer. For example,under existing law, the State’s expert might be permitted torepresent to the defendant during a compelled examinationthat he in fact has been retained by defense counsel in order toassist in the defense. In such a case, the State’s expert could wellargue that doing so encourages honesty, the defendant’s whichwould otherwise be lacking if the truth were told that he hadbeen retained by the State. Although deception is discouragedby professional mental health associations, a violation of thisethical rule would not likely require the court to exclude theexpert’s testimony because the ethical rule is not a “law” withinthe meaning of Article 38.23.However, defense counsel could argue that such representationsactually violate other constitutional rights such as the rightto counsel or otherwise undermine the ability to voluntarilywaive the right to remain silent which might warrant exclusionof information gained as a result of the deception. Deceptionsuch as that posited in this example in my estimation might alsorise to the level of “outrageous” government conduct warrantingexclusion of the information gained on independent dueprocess and due course of law grounds.The essential point for consideration is that Lagrone’s compelledexamination procedure does not adequately addresssuch possibilities requiring, defense counsel to be steadfast inensuring that only appropriate means are employed in the State’sexamination of the defendant.IV. ConclusionThis article has attempted to discuss the development of theLagrone constructive waiver doctrine and its compelled examinationprocedure, along with its theoretical underpinnings andshortcomings. By doing so, this article has attempted to identifyareas of significant risk to the defendant and means by whichthese risks may be diminished.For defense counsel who must present expert testimony requiringan examination of the defendant, consideration of thestrategies discussed here is imperative. Only through thoroughfamiliarity with the specific matters for which the expert opinionwill be offered and, in turn, effective education of the trial courtsto the particular unaddressed risks that Lagrone poses to unnecessarydiminution to the privilege against self-incriminationcan Lagrone be effectively managed. The watchword for defensecounsel is that Lagrone can be implemented in such a way tosafeguard parity to the State, with which the Court of CriminalAppeals was concerned, while implementing proceduralsafeguards that do nothing to further parity and only serve todiminish the privilege.endnotes1 See e.g., Pacheco v. State, 757 S.W.2d 729 (Tex.Crim.App. 1988).2 Texas Evidence Rule 701 expressly prohibits lay witnesses from offeringtestimony on matters that would be considered the province of experttestimony, i.e., matters based on “scientific, technical, or other specializedknowledge … ” TEX. EVID. R. 702. See, e.g., In Re I.R.H., 2002WL 1804922 (Tex. App.—Austin 2002, no pet.) (trial court properlyexcluded lay witness’ opinion … where lay witness not qualified by theState as an expert).3 See e.g., S:3 J. AM. ACAD. PSYCHIATRY LAW, 40 (2002).4 TEX. CODE CRIM. PROC. ART. 46.03 §3 (d). As discussed earlier,Lagrone makes no exception for the testimony of such “disinterestedwitnesses” despite the expert’s notes and testimony is accessible to boththe State and the defendant.5 See TEX. CODE CRIM. PROC. ART. 46.03 §3.6 Lay witnesses may testify “to those opinions or inferences which are… rationally based on [their] … perception[s]… and … helpful to aclear understanding of… [their] … testimony on the determinationof a fact in issue”, TEX. EVID. R. 701, as long as the witness is nottestifying as an expert. TEX. EVID. R. 702. The Court of Criminal Appealshas held that lay witnesses may testify on a wide range of topicsthat might otherwise seem to be within the sole province of experts.See e.g., Denham v. State, 574 S.W.2d 129, 131 (Tex.Crim.App. 1978)(sanity, value, handwriting, physical condition, heath and disease, age,size, weight, quantity, time, distance, speed, identity, intoxication, etc.,are all permissible areas for lay opinion). See also Fuller v. State, 423S.W.2d 924, 928-29 (Tex. Crim. App. 1968) (lay testimony concerningwhether a defendant knows right from wrong).7 In Soria v. State, the defense expert testified and the Court of CriminalAppeals noted that the defense expert’s testimony related to factsconcerning “what [he] was doing on or about the time of the allegedoffense.” 933 S.W.2d at 56. In this regard, the Soria court seemed tobe concerned with the emphasis and focus of the defense expert’s testimonyon matters that related directly to factual matters concerningthe issues at the trial, i.e., future dangerousness.8 “The aid of an expert as a consultant in the investigation and preparationof a case may be useful even if the expert is not subsequently usedat trial ... In addition to developing affirmative evidence, the expert canserve an important role in preparing counsel for the expert evidencethat will be presented by the prosecution. The expert can familiarizecounsel with the scientific theory supporting the admissibility of theState’s evidence and with any potential problems associated with applyingthat theory to the defendant’s case ... By utilizing an expert in thismanner, counsel will be better prepared to challenge the admissibilityof the State’s expert evidence.” 2 GEORGE DIX & ROBERT DAWSON,TEXAS CRIMINAL PRACTICE AND PROCEDURE: PRACTICEGUIDE §61.09 (2002).9 S:3 J. AM. ACAD. PSYCHIATRY LAW, 40 (2002).10 For example, in the context of forensic insanity evaluations, somemental health experts look for varying “response styles” of which malingeringand deception are two. See generally, ROGERS & SHUMAN,CONDUCTING INSANITY EVALUATIONS. However, they need notdo so. While some experts may employ specific detection strategies,including traditional interviews, rare symptoms tests, improbablesymptoms test to determine the presence of malingering, others maysimply rely on subjective analyses and anecdotal experience. Moreover,it is well-settled that a particular person’s identification of malingeringor feigning is likely to be a result of the explanatory model of malingeringto which he or she ascribes. The same is true in the diagnoses ofamnesia and dissociation, two features commonly occurring alongsideclaims of insanity. Forensic mental health experts employ a numberof various means for detecting cognitive organic or psychogenic amnesia.Consequently, whether your expert requires an interview forthese inquiries should determine whether and to the extent to whichthe State’s expert can interview your witness according to the Court’sApril 2006 VOICE FOR THE DEFENSE 23

limiting language. However, because there is no standardization inthe forensic psychiatry field concerning whether any such inquiresare required and, if so, which tests can be employed, will mean that,in effect, there is no limitation to the evaluation as long as the State’sexpert can claim that they need to test to undertake the inquiry athand.11 TEX. EVID. R. 703 (“The facts or data in the particular case upon whichan expert bases an opinion or inference may be those perceived by,reviewed by, or made known to the expert at or before the hearing.”)See McBride v. State, 862 S.W.2d 600 (Tex.Crim.App. 1993) (expertmay testify to opinion based on hypothetical question if based on thefacts of the case); see also Duckett v. State, 797 S.W.2d 906, 920 n. 17(Tex.Crim.App. 1993) (expert testimony based on facts learned whilelistening to the testimony in the courtroom).12 In criminal cases, the defendant does not enjoy a privilege in his medicalrecords. TEX. EVID. R. 509 (b).13 Some criminal procedure commentators view the privilege against selfincriminationas composed of two constituent parts: one is concernedwith trial (calling the defendant as a witness at trial and prohibitingcomment on the exercise) while the other is concerned with pre-trialinvestigative procedures and prohibiting compelling the defendantto participate in State interviews. See generally Crim. Proc. §6.5 (a)(noting that privilege against self-incrimination was at some pointrecognized to act as “a restraint upon police interrogation practices”in addition to legal compulsion to testify at trial. The Lagrone doctrine,curiously, permits what is compelled in pre-trial investigative aspectby presuming a waiver of the trial aspect.14 Lagrone v. State, 942 S.W.2d at 611.15 Soria v. State, 933 S.W2d at 59.16 Id.17 Id.18 “Indeed, in this case, the trial court deserves commendation for itsefforts in ensuring that the defendant’s 5th Amendment rights wereprotected to the greatest possible extent. Other courts would do wellin the future, in fact, to follow the guidelines adhered to by the trialcourt in this case.” Lagrone v. State, 942 S.W.2d at 610 n.6.19 “Because the defendant has not actually waived the Fifth Amendmentprivilege prior to the presentation at trial of his future dangerousnessexpert testimony, it is crucial for the trial court to protect thedefendant’s 5th amendment rights …” Lagrone v. State, 942 S.W.2d at612 n. 8.20 See Soria v. State, 933 S.W.2d at 54 citing United States v. Byers, 740F.2d at 1113.21 See Soria v. State, 933 S.W.2d at 54 quoting United States v. Byers, 740F.2d 1104 (D.C.Cir. 1984).22 It should be remembered that Lagrone did not place any express limitson the scope of the examination by only placed restrictions on thetestimony the State could present based on any compelled examinationprocedures: the State expert’s testimony must be “limited to the issuesraised by the defense experts.” Lagrone v. State, 942 S.W.2d at 611.23 Id.24 Intent to present expert testimony may be required by statutorydiscovery provisions. Statutes governing procedure or substantivedefense may require the defendant to give notice of intent to presentexpert testimony. For example, article 39.14 requires such notice begiven in written form “not later than 20th day before the date that thetrial begins.” TEX. CODE CRIM. PROC. ART. 39.14 (b); see also TEX.CODE CRIM. PROC. ART. 46.03 § 2 (requiring defendant give notice10 days prior to trial, or if a pre-trial hearing is set before the 10-dayperiod at the pre-trial hearing, or if he raises the issue of competenceto stand trial before the 10 day period, he shall give notice at that time).It is not clear as to whether providing notice of the intent to presentexpert testimony or intent to raise the insanity defense alone is sufficientto implicate a compelled Lagrone examination. At a minimum,giving such notice may at least warrant an inquiry from the State asto whether the prospective defense expert testimony is based on anexamination of the defendant.25 See e.g., Estelle v. Smith, 451 U.S. at 464, 101 S. Ct. at 1873-74 (holdingthat fifth amendment privilege against self-incrimination violated byoffering testimony derived from a court ordered examination of thedefendant not accompanied by warnings).26 See e.g., S:3 J. AM. ACAD. PSYCHIATRY LAW, 40 (2002).27 There are various online databases containing libraries of professionalarticles and journal publications addressing a large number of forensicissues. For example, PubMed is one such database and contains some15 million citations from MedLine and other journals maintained bythe National Library of Medicine. The PubMed web address is www.ncbi.nih.gov.28 See e.g., HEILBRUN, DEMATTEO, MARCZYK, HANDBOOK OFFORENSIC MENTAL HEALTH EXAMINATIONS (2002); see alsoGROTH-MARNAT, HANDBOOK OF PSYCHOLOGICAL ASSESS‐MENT, (2003) (discussing the various psychological and psychometrictesting techniques along with their strengths and weaknesses).29 This question is obviously a function of whether the subject may beone properly testified to by a lay witness. Some subjects may properlybe the subject of expert testimony thus leaving the only question ofwhether to present expert testimony and, if so, how.30 See Lagrone v. State, 942 S.W.2d at 612 n.8.31 This is especially true in the so-called “soft sciences” such as psychology.See Nenno v. State, 670 S.W.2d 549, 562 (Tex. Crim. App. 1998) (coiningthe phrase “soft sciences” to describe fields such as psychology).With respect to many of the “soft sciences” there is often disagreementconcerning which psychological tests are to be employed for a givenforensic issue, and, if they are employed, the significance to be accordedthe role of the clinical interview which, for defense counsel, poses thebiggest risk of abuse by compelled State examinations, given the factthat they are unregulated and non-standardized. See generally, RICH‐ARD ROGERS & DANIEL W. SHUMAN, CONDUCTING INSANITYEVALUATIONS, (2003) 217–42 (discussing various methods use inapproaching insanity evaluations and the role of the clinical interview,the role of the anecdotal opinion as opposed to the uses of tests forwhich validity and reliability studies have been conducted).32 Soria v. State, 933 S.W.2d at 57-58. See also Vardas v. Estelle, 715 F.2d 206(5th Cir. 1983) (testimony derived from the government’s examination“used solely in rebuttal and properly limited to the issue raised by thedefense).33 ROGERS & SHUMAN, CONDUCTING INSANITY EVALUATIONS,217-42.34 One of the leading texts in the field states “[c]lincial interviews constitutethe cornerstone of insanity evaluations” because “[o]nly clinicalinterview have the versatility of systematically collecting backgrounddata and information about the offense itself.” ROGERS & SHUMAN,CONDUCTING INSANITY EVALUATIONS, 151. These authors haveconcluded that the other means of conducting the examination–by useof the standardized testing and structured interview — are the bestmeans of doing so. However, there is no requirement discipline-widethat either of these be utilized if at all in making the determination.35 Although this would seem to violate the rationale of Lagrone — i.e., byrelating “remorse and other feelings...concerning the offense” or whathe was “doing on or about the time of the offense,” it is clear that Lagronewould impose no such limitation on the State’s examination.36 Soria v. State, 933 S.W.2d at 54 quoting Bettie v. Estelle, 655 F.2d at701-02.37 “[A] defendant has a very difficult choice to make: should he waivehis right against self-incrimination on all relevant issues, knowingsome unfavorable evidence might result from cross-examination; orshould he retain that right and yet not put his version of some aspectof the case before the jury ... This difficult decision does not impose animpermissible burden upon the exercise on Fifth Amendment rights.No constitutional violation is presented by the fact of a difficult deci‐24 VOICE FOR THE DEFENSE April 2006

sion for a defendant.” Soria v. State, 933 S.W.2d at 57 quoting Cantuv. State, 738 S.W.2d 249, 256 (Tex.Crim.App.), cert. denied, 484 U.S.872, 108 S. Ct. 203 (1987).38 Id.39 Id. In Lagrone v. State, the Court of Criminal Appeals “commendedthe trial court for implementing procedural safeguards, inter alia, thatincluded providing the defendant notice in advance of the time andplace of the [State’s] examination.” 942 S.W.2d at 610 n. 6.40 Id. at 611; see also Soria v. State, 933 S.W.2d at 58.41 See supra, footnote 126.42 See Lagronev. State, 942 S.W.2d at n.6. There the court ordered theState “not relate by any manner or means his conversations, findings,conclusions and opinions with any State prosecutors or agents ...” andthat the “report shall be turned over to the State” at the time of theactual presentation of testimony.43 Id.44 See TEX. CODE CRIM. PROC. ARTS. 46B.025, 46C.105.45 See TEX. CODE CRIM. PROC. ARTS. 46B.025. The former statutegoverning competency determinations — Article 46.02 — was repealedin 2005 and procedures governing such determinations were codifiedin Article 46C.001, et. seq. With respect to expert’s reports, one of thechanges to the former provisions is that “[a]n expert’s report maynot state the expert’s opinion on the defendant’s sanity at the timeof the alleged offense, if in the opinion of the expert the defendant isincompetent to proceed. 46B.025 (c).46 TEX. CODE CRIM. PROC. ARTS. 46C.105 (b).47 See TEX. CODE CRIM. PROC. ARTS. 46B.026, 46C.105.48 Id.49 Recall that the Lagrone court expressly rejected assertion that thedefendant’s United States and Texas Constitutional right to counselrequired the presence of counsel because such presence could jeopardize“the efficacy of the examination.” 942 S.W.2d at 612.50 Lagronev. State, 942 S.W.2d at 612 n.6.51 A defendant must be “provid[ed] access” to oral statements made asthe result of custodial interrogation at least 20 days before trial in orderto be admissible at trial. TEX. CODE CRIM. PROC. ART. 38.22 §3 (a)(1), (a) (5); see also Lane v. State, 933 S.W.2d 504, 515-17 (Tex. Crim.App. 1998).Written statements by the defendant are also discoverableby statute. See TEX. CODE CRIM. PROC. ART. 39.14 (a). To the extentthat the defendant’s examination responses are “statements”, theirdiscovery should be sought prior to trial. It should be rememberedthat the State is not required to provide discovery for matters not inexistence. Cf., Turpin v. State, 606 S.W.2d 907, 915 (Tex.Crim.App.1980) (State under no duty to produce breathalyzer test ampouleswhich were not in possession of the State or any of its agents). Seealso DIX AND DAWSON, CRIM. PRACTICE & PROC. §22.102 p. 64(West’s 2001). Thus, if the expert does not document the defendant’sresponses, article 39.14 would not create a right to compel the State todraft such a document. However, if the court orders memorializationof the examination including the defendant’s responses, article 39.14may well provide a basis for their pre-trial disclosure.52 If the examination is recorded, the defendant should have an absoluteright to pre-trial discovery of the defendant’s statement. See., Johnsonv. State, 172 S.W.3d 6, 17 (Tex. App.—Austin, rehearing denied, nopet. history) (“A defendant has a broad right to recordings of herown statements” relying on Texas Code of Criminal Procedure Article39.14 (a). See also Quinones v. State, 592 S.W.2d 933, 939 (Tex.Crim.App. 1980) (if the State will introduce a recorded statement at trial, thedefendant has a right to disclosure of the statement); 2 GEORGE DIX& ROBERT DAWSON, TEXAS CRIMINAL. CRIMINAL PRACTICEAND PROCEDURE: PRACTICE GUIDE §622.102.53 Submission of otherwise privileged or confidential matters to the trialcourt for in camera inspect in order to implement Brady is a wellestablishedprocedure having been endorsed in other contexts by theSupreme Court, the Court of Criminal Appeals and several courts ofappeal. See e.g., Pennsylvania v. Richie. 480 U.S. 39, 59-60 (1987); seealso Thomas v. State, 837 S.W.2d 106 (Tex.Crim.App. 1992); Etalons v.State, 983 S.W.2d 853 (Tex. App.—Waco, p.d.r. ref’d.).54 Recall that the Lagronecourt expressly rejected the defendant’s UnitedStates and Texas Constitutional right to counsel required the presenceof counsel because such presence could jeopardize “the efficacy of theexamination.” 942 S.W.2d at 61255 Lagrone v. State, 942 S.W.2d at 610 n.6.56 See Roy v. State, 608 S.W.2d 645 (Tex.Crim.App. 1980)(article 38.23’sexclusionary rule may not be invoked for violations of “law” unrelatedto the purposes of the exclusionary rule).57 See e.g., Amicus Curiae Brief for American Psychiatric Association inBarefoot v. Estelle, 463 U.S. 880 (1963) which can be located at www.psych.org/edu/other_res/. But see THOMAS GRISSO AND PAUL S.APPELBAUM, Is it Unethical to Offer Predictions of Future Violence?16 LAW AND HUMAN BEHAVIOR (1992).58 See e.g., Barefoot v. State, 596 S.W.2d 875, 887 (Tex.Crim.App.1980)(“ThisCourt is well aware that the ability of psychiatrists to predict futurebehavior is the subject of widespread debate. However, we are notinclined to alter our previously stated view that a trial court mayadmit for whatever value it may have to a jury psychiatric testimonyconcerning the defendant’s future behavior at the punishment stageof a capital murder trial.”).59 See generally Nenno v. State, 71 S.W2d at 561-63.60 ROGERS & SHUMAN, CONDUCTING INSANITY EVALUATIONS,30.61 Id. at 30.62 Id. at 32. The American Board of Forensic Psychology, American Academyof Psychiatry and the Law, and American Psychology Associationare but a few of the associations which have promulgated standardsprohibiting or discouraging members from engaging in mixed therapeuticand forensic roles.63 Id. at 32.Dexter E. Gilford is a native of San Antonio, Texas. He has been in privatepractice in Austin, Texas since 1995 where his practice is limited to state andfederal criminal defense. Prior to going into private practice, he served as anassistant district attorney with the Bexar County district attorney’s office.Dexter Gilford has been a board certified specialist in criminal law with theTexas Board of Legal Specialization since 1999 and has been a board certifiedcriminal trial specialist with the National Board of Trial Advocacy since2003. He is currently on the board of directors and a member of the executivecommittee of the Texas Criminal Defense Lawyers Association. He is a pastpresident of the Austin Criminal Defense Lawyers Association.In 2005 he was recognized as Criminal Defense Lawyer of the Year by theCriminal Law Section of the State Bar of Texas.April 2006 VOICE FOR THE DEFENSE 25

CHALLENGINGYOURPROSECUTORWITH AHIPAAVIOLATIONby James W. VolberdingSuppose your client is charged with felony DWI and facingprison. He is an alcoholic but trying to obtain help. While onbond, he goes to a hospital where he is treated for addiction andwithdrawal. He admits to the doctor that he has been unable tostop drinking, even while on bond. The doctor reports this inthe medical chart. The DA gets word that the client has been inthe hospital. The DA’s investigator obtains an ex parte subpoenafrom the district clerk, serves the hospital, and gets your client’srecords. The DA files a motion to revoke your client’s bond andattaches the medical records. The judge promptly issues a capiasfor your client, puts him in jail and triples his bond. The DAupdates his 404(b) notice that he will tell jurors your client hascontinued to drink while on bond. What do you do?26 VOICE FOR THE DEFENSE April 2006

Obviously, you do not want jurors to learn that yourclient has continued to drink while on bond. Youwant to show that he is trying to reform. How canyou challenge the seizure of your client’s medicalrecords and exclude them from the trial, as well as reinstateyour client’s bond?Enter HIPAA.You can argue that the prosecutor violated HIPAA. In fact, yourprosecutor and his investigator probably committed a federalmisdemeanor, risking a $50,000 fine and one year in federal prison.Since the DA obtained the medical records by committinga crime, the records are barred by Code of Criminal Procedurearticle 38.32, which bars illegally obtained evidence.HIPAA refers to the Health Insurance Portability and AccountabilityAct of 1996 (HIPAA), Pub.L. 104-191, 110 Stat. 1936, 42U.S.C. §1320(d) et seq. HIPAA is a 10-year-old federal law whichprotects the privacy of medical records, including from secretseizure by the Government. See Nat’l Abortion Fed’n v. Ashcroft,2004 WL 555701, at *2 (S.D.N.Y. Mar. 19, 2004). HIPAA hasbeen implemented through a series of Rules and Regulations.See 45 C.F.R. §164.500, et seq.The Department of Health and Human Services created certainrules effective April 14, 2003, collectively known as “the PrivacyRule,” which sets forth standards and procedures for the collectionand disclosure of “protected health information” (“PHI”).The Privacy Rule establishes patients’ rights and requires thathealth professionals implement various procedures regardingthe use of and access to health care information. It prohibits“covered entities” from using and disclosing protected healthinformation except as required or permitted by the regulations.45 C.F.R. §164.501 and 45 C.F.R. §160.103.A key provision is 45 C.F.R. §164.512, which you must show yourjudge. This section sets forth how health information may beused and disclosed “for which an authorization or opportunityto agree or object is not required.” Id.There are three categories of “covered entities”: (1) health plans;(2) health care clearinghouses; and (3) health care providers. 45C.F.R. §160.103. Your local hospital and doctors are “coveredentities” to which HIPAA applies. 42 U.S.C. §1320d (2005). Yourclient’s hospital, doctor and insurance company, therefore, arecovered by HIPAA’s Privacy Rule. The Privacy Rule prohibitscovered entities from using or disclosing protected healthinformation in any form oral, written or electronic, except aspermitted under the Privacy Rule. 45 C.F.R. §164.502(a). “Use”and “disclosure” are defined broadly. 45 C.F.R. §164.501.The State Violated HIPAA.HIPAA allows the State to obtain your client’s medical records,but only if the State complies with HIPAA procedures. If theState complies with section 164.512(e), then HIPAA permitshealth care providers and other covered entities to discloseprotected health information without patient consent in judicialproceedings. Northwestern Mem. Hosp. v. Ashcroft, 362 F.3d 923,925 (7th Cir. 2004).When a state prosecutor wants to seize medical records of a defendant,HIPAA requires that the prosecutor take the followingsteps: (1) prepare a subpoena; (2) notify defendant or his lawyerthat the State intends to seek the defendant’s medical records;(3) provide a protective order if one can be agreed; (4) allow sufficienttime for the defendant to file a motion to quash and seeka hearing; (5) if the State serves the subpoena on the hospitalor doctor without notice to you or your client, then the State isrequired to inform the hospital that it has (a) notified you oryour client and obtained permission, or (b) used its best effortsto notify you and your client of the subpoena, and allowed yousufficient time to challenge the subpoena. 45 C.F.R. §164.512(e)(2005). If probable cause exists, the State could also submit anaffidavit to a magistrate and seek a search warrant. Even then,the State, or the hospital or doctor, is required to notify you andyour client that it is obtaining your client’s records.Your Brief.In your motion to suppress, you will argue that the State didnot comply with this HIPAA provision. First, the State did notobtain an order from the court for the records. The State insteadobtained an ex parte subpoena from the district clerk. Second,the State did not notify you or your client that it intended to seekhis medical records or was in the process of doing so. Third, theState did not provide any written assurance to the hospital thatit had tried to reach you or your client to notify him of his rightto challenge the subpoena. The State was aware that your clientwas represented by an attorney who could easily be providedwith notice. Fourth, the State did not seek a protective orderfrom the Court and provide it to the hospital. Fifth, the Statedid not seek a judicial search warrant, showing probable causeand a particularized need for the records, and why the recordswere not protected by existing state statutes.Therefore, the State cannot claim it was entitled to obtain yourclient’s medical records by using a state subpoena because itfailed to comply with the procedures for doing so. See, e.g., Inre Grand Jury Subpoena John Doe No. A01-209, 197 F. Supp.512 (E.D. Va. 2002) (holding that government had properlynotified the defendant as required by HIPAA, but denying motionto suppress because medical records sufficiently related togrand jury investigation). The State neither sought a protectiveorder, nor made reasonable efforts to provide notice to you oryour client. See generally Bayne v. Provost, Civil No. 1:04-CV-44(TJM/RFT) (N.D.N.Y. Jan. 25, 2005) (permitting discovery ofmedical records, but granting protective order).Did our DA Commit a Crime?Moreover, you can explain to the judge that the prosecutor andhis investigator may have violated HIPAA’s civil and criminalprovisions. HIPAA imposes criminal penalties on individualswho obtain medical records in violation of HIPAA’s PrivacyRule. 42 U.S.C. §1320d-6 (2005). An attorney or investigatormay be liable for a federal criminal misdemeanor with aApril 2006 VOICE FOR THE DEFENSE 27

fine up to $50,000 and up to one year in federal prison if theindividual (1) knowingly, (2) obtains individually identifiablehealth information, (3) relating to an individual, (4) or disclosesindividually identifiable health information to another person.In addition, HIPAA imposes civil penalties. 42 U.S.C. §1320d-5(2005). The fines are $100 per violation, up to a maximum of$25,000.Therefore, if the State is shown to have obtained your client’smedical records in violation of HIPAA, then Texas Code ofCriminal Procedure 38.23 bars introduction of the medicalrecords into evidence.Fourth and Fifth Amendment Arguments.There are other ways to challenge the medical records. In Texas,medical records are considered privileged by state statute, Tex. R.Evid. 509, and protected, Tex. Occ. Code Ann. §159.002 ( 2003),Tex. Health & Safety Code Ann. §241.152 (2005) (note exceptionfor court order at §241.153(19)). Moreover, your client’s medicalrecords constitute both mental health and substance abuse treatmentand are therefore privileged. Tex. R. Evid. 510. In addition,medical records are protected by the Fourth Amendment andthe recognized right of privacy. See Whalen v. Roe, 429 U.S. 589,876-77 (1977). Medical information is inherently intimate andpersonal and “is precisely the sort [of information] intendedto be protected by penumbras of privacy.” Doe v. SoutheasternPennsylvania Trans. Auth. (SEPTA), 72 F.3d 1133, 1138 (3rd Cir.1995)1138 (citing Eisenstadt v. Baird, 405 U.S. 438, 450). “[T]heright not to have intimate facts concerning one’s life disclosedwithout one’s consent” is “a venerable [right] whose constitutionalsignificance we have recognized in the past.” Bartnicki v.Vopper, 200 F.3d 109, 122 (3d Cir. 1999); see C.N. v. RidgewoodBd. of Educ., 430 F.3d 159 (3rd Cir. 2005).The seizure of your client’s medical records constitutes a searchand seizure within the scope of the Fourth Amendment to theUnited States Constitution and article I, section 9 of the TexasConstitution. See Schmerber v. California, 384 U.S. 757, 767, 86S.Ct. 1826 (1966); Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim.App. 1982). The State did not seek a search warrant for the medicalrecords. The State seized private and personal informationwhich belonged to your client and which incriminated him,without complying with the warrant requirement of the FourthAmendment, and in violation of his Fifth Amendment right notto testify against himself. United States v. Hubbell, 5306 U.S. 27(2000). By violating HIPAA, the State cannot claim the goodfaith exception of United States v. Leon, 468 U.S. 897 (1984).There are only two Texas decisions interpreting HIPAA application,and neither are relevant to a State subpoena seizure. Therefore,the application of HIPAA may be an issue of first impression.There are decisions, not relying on HIPAA, which permitthe State to seize blood and alcohol samples from citizens. See,e.g., State v. Kelly, 166 S.W.3d 905 (Tex. App. – Corpus Christi2005) (permitting blood test seizure without consent).not have a legitimate expectation of privacy in medical recordscontaining blood-alcohol test results “taken by hospital personnelsolely for medical purposes after a traffic accident.” State v.Hardy, 963 S.W.2d 516, 527 (Tex. Crim. App. 1998). This ruledoes not apply to your client, however, because your client’smedical records seized by the State were not produced followingan accident. He was not in the hospital as a result of an arrest oran accident, but to seek medical treatment for confidential andprivate medical problems. Moreover, the State did not seek ablood test or alcohol test; it sought his medical records after hisrelease from the hospital. Therefore, there was no law enforcementinterest in seizing his records. He had an overwhelminginterest in the privacy of his medical records. The statementscontained in the medical records are also protected by the FifthAmendment because the statements, whether verbal or as aresult of information obtained from medical readings of hisvital organs or body, constitute statements which the State isattempting to use against him.Rush Limbaugh, the radio commentator, was investigatedby Florida authorities for possible drug abuse. See Limbaughv. State, 887 So.2d 387 (Fla. App.– [4th Dist.] 2004). Floridaofficials served a subpoena to seize his medical records. Theofficials obtained a search warrant, which was not done in yourclient’s case, and obtained the records. Next, after obtaining themedical records, the police sealed them, which the State didnot do in your case. In addition, officials notified Limbaugh’sattorney that they had his medical records and gave him theopportunity to challenge the seizure, which was not done inyour case. Finally, the court ordered a protective order, whichyour DA did not seek. HIPAA was not relevant to the decisionbecause the State complied with the notice requirements. Thecourt of appeals upheld the State’s seizure of Limbaugh’s medicalrecords because the court concluded that it did not implicatehis Fourth Amendment rights.Finally, the State is also required to file the medical recordsbefore trial with a business records or medical records affidavit14 days before trial; otherwise they are inadmissible. Tex. R.Evid. 902(10).Conclusion.When the DA seizes your client’s medical records withoutnotice to you or your client, the DA has probably violated thecivil and criminal provisions of HIPAA and your motion tosuppress should explain HIPAA and argue that Article 38.23and the Fifth and the Fourth Amendments bar the medicalrecords from evidence.James W. “Wes” Volberding is an attorney inprivate practice in Tyler and an officer in theU.S. Army Reserve JAG Corps. He is board certifiedin criminal law by the Texas Board of LegalSpecialization.The Court of Criminal Appeals has held that an accused does28 VOICE FOR THE DEFENSE April 2006

the gun was wrapped with tape .... You have three narcotics convictions ... , you’re on parole but you’re on for less thana month when this occurred. You have three juvenile convictions which were not counted with respect to your criminalhistory. Accordingly, pursuant to the Sentencing Reform Act of 1984, I take into consideration not only the guidelinesbut the need to afford adequate deterrence for criminal conduct and need to protect the public from further crimes ofyou, it’s the judgment of this court that you ... be imprisoned for a term of 60 months .... Again, I state for the recordthat I go above the 27 months [Guideline range for the previously articulated reasons].Accordingly, the court properly followed the procedure for imposing a non-Guideline sentence.* * *continued from page 13Smith was not the only defendant to have had a bad day in February on an unreasonableness issue in an appellate court. InUnited States v. Moreland, ___ F.3d ___, 2006 WL 399691 (4th Cir. 2006), the government cross-appealed a 10-year sentenceimposed by United States District Judge Joseph Robert Goodwin of the Southern District of West Virginia. Moreland had beenconvicted of two counts of possession with intent to distribute cocaine base (21 U.S.C. §841(a)(1). A pre-sentence report wasprepared that recommended sentencing Moreland as a career offender with an advisory Guideline range of 360 months to life.Judge Goodwin accepted Moreland’s argument that the Guideline range “grossly overstate[d] [his] prior criminal conduct” andconcluded that a 360 month sentence would be unreasonable. He then sentenced Moreland to the statutory minimum of 10years imprisonment.A panel of the Circuit, Chief Judge Wilkins, Luttig and Kelly (United States District Judge for the Eastern District of Virginia,sitting by designation) considered whether the extent of the variance between the Guideline range and the sentence imposedby Judge Goodwin was reasonable. Writing for the Court, Chief Judge Wilkins concluded that the district court committed “aclear error of judgment by arriving at a sentence outside the limited range of choice dictated by the facts of the case.” The Courtvacated the sentence and remanded for the imposition of a sentence of no less than 20 years imprisonment.The lesson from Smith and Moreland is simple: When we argue for a sentence less than that contemplated by the Guidelines,we must be prepared to address the issue of reasonableness — both in the trial court and the appellate court. GApril 2006 VOICE FOR THE DEFENSE 29

NO. 22222STATE OF TEXAS § IN THE DISTRICT COURT§vs. § AAA JUDICIAL DISTRICT§JOHN DOE § BBB COUNTY, TEXASDEFENDANT’S MOTION TO CORRECT JUDGMENT AND DELETE CUMULATION ORDERTO THE HONORABLE JUDGE OF SAID COURT:Now comes John Doe, the Defendant in the above styled and numbered cause, and files this Motion to CorrectJudgment, and shows the following:I. BackgroundImmediately after the verdict was read in open court, convicting the Defendant of three counts of aggravatedsexual assault against a child and assessing punishment at 60 years on each count, this Honorable Court inquiredwhether there were any other matters to be taken up. The State replied that it would file a motion asking the courtto consider cumulating the sentences. The defense objected to that. Then the jury was excused, and this Court immediatelyimposed sentence and, under its authority in section 3.03(b) of the Penal Code, ordered the sentences torun consecutively, i.e., a 180-year sentence. Tex. Pen. Code Ann. §3.03(b) (Vernon). The clerk’s record contains a“State’s Motion to Cumulate Sentences” filed the same day as the verdict and judgment. It is not marked as to thetime of filing, and therefore, in light of the State’s statement after verdict that it “would” file the motion, presumablythe motion was filed after verdict and sentencing.II. Violation of Due Process and Due Course of LawDue process under the Fourteenth Amendment to the United States Constitution and due course of law underthe Texas Constitution require that sentences not be cumulated without notice prior to trial of the State’s intentionto seek cumulation. U.S. Const. amend. XIV, §1; Tex. Const. art. IV, §11(a). This conclusion is demanded as a logicalextension of the rules of law that (a) sentences cannot be enhanced under section 12.42 of the Texas Penal Codewithout notice prior to trial of the State’s intention to seek enhancement, and (2) the trial court may not enter adeadly-weapon finding under section 3g of article 42.12 of the Texas Code of Criminal Procedure without noticeprior to trial of the State’s intention to seek the finding. Tex. Pen. Code Ann. §12.42 (Vernon); Tex. Code Crim. Proc.Ann. Art. 42.12, §3g (Vernon). Federal due process and Texas due course of law are analyzed the same under Texaslaw, and will be treated synonymously herein. Luquis v. State, 72 S.W.3d 355, 367 n. 37 (Tex.Crim.App. 2002); Long v.State, 742 S.W.2d 302, 319 (Tex.Crim.App. 1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988),overruled on other grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990).Notice of Sentence EnhancementSince the early days of the state, it has been the law that a defendant must be given notice if the State seeks to havehis sentence enhanced by prior convictions. E.g. Long v. State, 36 Tex. 6, 9-10 (1871); Hollins v. State, 571 S.W.2d 873,875-76 (Tex.Crim.App. 1978) (citing inter alia Morman v. State, 127 Tex. Crim. 264, 75 S.W.2d 886 (1934)). Dueprocess is implicated. Sears v. State, 91 S.W.3d 451, 453 (Tex. App.—Beaumont 2002, no pet.) (Lack of timely noticeis improper notice and violates due process.). Notice of prior convictions for enhancement of punishment must beby written pleading. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App. 1997) (citing Long, 36 Tex. at 10); Chimney v.State, 6 S.W.3d 681, 696 (Tex. App.—Waco 1999, pet. ref’d). Notice need not be contained in the indictment. Id.Notice Regarding Deadly Weapon FindingThe deadly-weapon finding provisions of article 42.12, currently in section 3g, were added in 1977 so that theTexas Department of Criminal Justice, Institutional Division would have a basis in the judgment on which to calculate30 VOICE FOR THE DEFENSE October 2005

parole dates affected by whether the crime involved a deadly weapon. LaFleur v. State, 106 S.W.3d 91, 94 (Tex.Crim.App. 2003). Due course of law requires that the defendant be given written notice that the State will pursue a deadlyweapon finding; the notice need not be contained in the indictment. Ex parte Patterson, 740 S.W.2d 766, 775-76 (Tex.Crim.App. 1987), overruled on other grounds, Ex parte Beck, 769 S.W.2d 525, 528 (Tex.Crim.App. 1989) (indictmentwhich alleges death by a weapon is sufficient notice); see also Brooks, 957 S.W.2d at 32; Chimney, 6 S.W.3d at 696.Application by AnalogyRelevant to the present case, there is no meaningful difference between the cumulation of sentences on the onehand and sentencing enhancements and deadly weapon findings on the other such that prior notice is required ofthe latter but not of the former. Neither section 12.42 nor article section 3 of article 42.12 expressly state that priornotice in writing is required, yet the courts have held that it is. For the same reasons, written notice prior to trialof the State’s intention to seek cumulation of sentences should be required, even though section 3.03(b) does notexpressly require it.For additional support of this argument, there is the Tenth Court of Appeals’ conclusion in Chimney that theconstitution requires the State to provide prior written notice of its intention to seek a finding of bias or prejudicein a hate-crime offense. Chimney, 6 S.W.3d at 696-97; Tex. Code Crim. Proc. Ann. Art. 42.014 (Vernon); Tex. Pen.Code Ann. §12.47 (Vernon) (enhancing punishment for a “hate” crime).III. Violation of Sixth Amendment Right to Jury TrialThe United States Supreme Court recently issued Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d403 (2004). Blakely pled guilty to kidnapping his wife, an offense punishable under statute by no more than 10 yearsin prison. Id. at 2534-35. Under Washington’s sentencing guidelines scheme, the offense carried a base sentencingrange of 49 to 53 months. Id. at 2535. But the trial court, acting under Washington’s sentencing guidelines, foundaggravating factors and increased the sentence. Id. The United States Supreme Court analyzed the case under Apprendiv. New Jersey: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 2536(quoting Apprendi v. New Jersey, 530 U.S. 466, 490,120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Rejecting the government’sargument that the relevant “statutory maximum” was 10 years, the Court stated: “the ‘statutory maximum’ for Apprendipurposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the juryverdict or admitted by the defendant.” (emphasis in original) Id. at 2537. Thus the sentencing-guidelines range, notjust the statutory range, was included within the meaning of “statutory maximum.” The Supreme Court found thesentencing unconstitutional under the Sixth Amendment’s right to a jury trial. Id. at 2538.In the present case, we may assume that this Court implicitly made fact-findings to support its decision to cumulatethe sentences, because otherwise that action would be for no reason which would be an abuse of discretion. Accordingly,applying Apprendi and Blakely, whatever facts this Court found on which it based its decision to cumulatesentences are facts that the jury should have found, because “any fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id.The State may argue that the maximum statutory penalties for each individual count were not exceeded, andtherefore Apprendi and its progeny do not apply. Also, the State may argue that there is no constitutional right tojury assessment of punishment, and that Apprendi and its progeny apply only to jury fact-findings during the guiltinnocencephase. But these are false arguments, because they are based on the wrong question. The proper questionis whether cumulating the sentences exceeds the maximum contemplated by the statute in question. That statute issection 3.03(a), not the individual offense statutes. Section 3.03(a) states that the sentences shall run concurrentlyunless otherwise cumulated; thus it contemplates that, under usual circumstances, sentences shall run concurrently.Therefore “concurrent sentences” is the statutory maximum under Apprendi–Blakely that cannot be exceeded withoutjury findings Tex. Pen. Code Ann. §3.03(a) (Vernon). Cumulation to 180 years exceeds the sentence contemplatedby section 3.03(a), and, without a jury finding as to the reasons supporting cumulation, there is an Apprendi–Blakelyviolation. This is a logical extension of the principles in Apprendi and Blakely. It will require a jury-finding aboutthe factors supporting cumulation, and that may require a new statute listing those factors.October 2005 VOICE FOR THE DEFENSE 31

IV. ConclusionWhether based on lack of notice that sentences may be cumulated, or the trial court’s decision to cumulate sentencesabsent a jury-finding of reasons for doing so, Defendant’s Texas and federal rights to due process of law and duecourse of law, and his Sixth Amendment right to a jury determination of factors affecting the maximum punishment,were violated.WHEREFORE, Defendant moves this Court to correct his judgment and delete that part which cumulates hissentences.Respectfully submitted,_________________________________________Richard G. FergusonOne Liberty Place100 N. 6th Street, Ste. 701Waco, Texas 76701Tel: (254) 296‐0622Fax: (254) 754‐4824By:Richard G. FergusonState Bar No. ___________CERTIFICATE OF SERVICEThis is to certify that on _______________, a true and correct copy of the above and foregoing motion was sentor delivered to __________ at the District Attorney’s Office, __________________.______________________________________Richard G. Ferguson32 VOICE FOR THE DEFENSE October 2005

A RESOLUTION BY THE TCDLA BOARD OF DIRECTORSTO ADOPT A STATEMENT RELATING TOATTORNEY TAXATIONWHEREAS the Governor of Texas will convene a Special Session of the Texas Legislature beginningApril 17, 2006;WHEREAS the Special Session will focus on the funding of public education;WHEREAS the Legislature is expected to address the issue of taxation on legal services as one possiblesource of revenue for the funding of public education;WHEREAS the Legislature has not indicated its intent to impose a tax for this purpose on any otherprofession in the state;WHEREAS the State Bar of Texas has released a statement calling for fairness in taxing all professions;WHEREAS the Texas Criminal Defense Lawyers Association agrees with the State Bar of Texas thattaxation should be imposed equitably on all professions;THEREFORE BE IT RESOLVED that the Texas Criminal Defense Lawyers Association adopts the followingStatement:The Texas Criminal Defense Lawyers Association is committed to excellence in thepublic education of Texas children. It remains committed to ensuring that the fundingof that system be fair and encourages the Legislature to treat all professions equitablyand fairly. The Texas Criminal Defense Lawyers Association calls upon other professionsin the state to share that vision and commitment to fairly funding public educationin Texas.Approved this 6th day of March, 2006.Do YOU or someoneyou knowhave a problemwith alcohol?Help is available.Texas Lawyers Assistance Program (TLAP)1.800.343.8527Take the first step ... make the call, get the help.TLAPconfidential

April 2006SUPREME COURTCert. to 9th Circuit – Reversed.Defendant had no right to recall alibi witness to testify at sentencing phase.Oregon v. Guzek, __U.S.__, 163 L.Ed.2d 1112 (2006): Opinion: Breyer; Alito did not participate.Guzek was convicted of capital murder and sentenced to death. He requested that oneof his alibi witnesses testify in person at the sentencing hearing. His request was denied, asOregon law only admits the trial transcript for innocence-related evidence at sentencinghearings. The Oregon State Supreme Court ordered a new sentencing hearing, holdingthe Eighth and Fourteenth Amendments guaranteed the defendant’s right to present newevidence by live testimony.Cynthia HamptonHeld: The Eighth Amendment does not guarantee a defendant the right to recall a trialwitness to present new evidence concerning innocence at sentencing. The Supreme Courtvacated the Oregon Supreme Court decision, holding that a state can set reasonable limitson the evidence a defendant can submit, as well as the manner in which it is submitted.The Eighth Amendment does not require a state to allow live “residual doubt” testimony atsentencing. The Court pointed to three reasons why the Oregon restrictions were permissible.First, sentencing hearings do not deal with whether or not the crime was committed,but rather with how. Second, the issues in question have already been litigated and decidedand the new evidence attacks a matter which, at sentencing, is not at issue. Third, the negativeimpact of the rule not allowing new, live testimony is mitigated by the allowance of thecomplete transcript of all innocence-related evidence presented at trial.Cert. to 10th Circuit (Civil Case) – Affirmed & Remanded.Gov’t must demonstrate compelling interest to bar sacramental religious use of controlledsubstance.Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, __U.S.__, 163 L.Ed.2d 1017(2006): Opinion: Roberts; Alito did not participate.Mike CharltonO Centro Espirita Beneficente Uniao Do Vegetal (UDV) is a religious sect that, as part oftheir communion, drinks a tea (hoasca) containing dimethyltryptamine (DMT), a hallucinogenand a Schedule I substance in the Controlled Substances Act (CSA). Customs inspectorsseized a shipment of hoasca and threatened prosecution. In the District Court of New MexicoUDV sought declaratory and injunctive relief against Attorney General Gonzales, arguingapplication of the CSA violated the Religious Freedom Restoration Act (RFRA). The district34 VOICE FOR THE DEFENSE April 2006

court granted the injunction, enjoining the government frompreventing UDV’s importation of hoasca, and the 10th Circuitaffirmed (both a panel and an en banc majority).Held: The government must demonstrate a compellinginterest, at the preliminary injunction phase, to bar the sacramentalreligious use of a controlled substance. Per RFRA,the government must have a compelling interest and utilizeleast restrictive means where a statute places a substantial burdenon the exercise of religion. The Court held the compellinginterest test is expressly articulated in RFRA, and RFRA putsthe burden on the government. The government failed to provethis burden furthered a compelling interest. The Court rejectedthe government’s general reliance on Schedule I substances andtheir characteristics. The CSA allows the attorney general tomake exceptions and in fact there is a long-standing religiousexception for peyote, also a Schedule I substance. FurthermoreRFRA was a response to denial of a claim to a right to use acontrolled substance for sacramental purposes. The Courtdisagreed with the district court’s rejection of the government’sargument that barring the importation of hoasca was necessaryin order to comply with the United Nations Convention onPsychotropic Substances.FIFTH CIRCUITConditions of supervised release.United States v. Del Barrio, 427 F.3d 280 (5th Cir. 2005).Even though defendant had, upon a previous revocation ofsupervised release, been sentenced to 120 days’ confinement in acommunity corrections facility, his sentence (upon a subsequentrevocation of supervised release) of two years’ imprisonment— the statutory maximum sentence available upon revocationof supervised release for his underlying offense — was not anillegally severe sentence because the 120-day stint in the communitycorrections facility was intended to be a special conditionof supervised release, and not a term of imprisonmentcountable toward the available two-year maximum sentence;along the way, the 5th Circuit rejected the argument that districtcourts lack statutory authorization to order residence at, orparticipation in the program of a community corrections centeras a special condition of supervised release; even though 1996legislation on its face removed this as a permissible condition ofsupervised release, that removal was an inadvertent scrivener’serror resulting from the renumbering of some of the provisionsinvolved, for there was no indication that Congress intendedto remove the authority to order this particular condition ofsupervised release.Final order of deportation equals custody for purpose ofhabeas corpus.Rosales v. BICE, 426 F.3d 723 (5th Cir. 2005), cert. denied, 126S.Ct. 1055 (2006).An alien who is subject to a final order of deportation is“in custody” for purposes of habeas corpus litigation under 28U.S.C. §2241; district court thus erred in denying the petitioner’spetition on the ground that he was not “in custody”; however,whether defendant was “in custody” under §2241 was effectivelynow moot, because the REAL ID Act of 2005 stripped federalcourts of jurisdiction over §2241 petitions attacking removalorders, effective immediately and retroactively, with instructionsfor district courts to transfer pending §2241 actions tothe courts of appeals with instructions to treat them as if theywere petitions for review; 5th Circuit, agreeing with the 3rdand 9th Circuit, held that even pending §2241 appeals (likethis one) were properly converted into petitions for review;treating the case as if it were a petition for review, 5th Circuitfound that petitioner was entitled to no relief and hence deniedthe petition.Sufficiency of evidence in obscenity prosecution.United States v. Ragsdale, 426 F.3d 765 (5th Cir. 2005), cert.denied, 2005 U.S. App. LEXIS 21009 (5th Cir. Tex., 2005).(1) Evidence was sufficient to sustain defendants’ convictionsunder 18 U.S.C. §§1461 and 1463 for mailing obscene materials(either simulated or actual rape videos); the videos themselveswere sufficient proof of obscenity; there was no requirementthat the government produce expert testimony that the materialswere obscene even though a defense expert had testified to thecontrary, nor was the jury required to credit the defense expert’stestimony; court also rejected the argument that, because ofthe small deviant segment of society to which such tapes weretargeted, expert testimony was necessary to show that the tapesdid in fact appeal to the prurient interests of such persons; thematerials at issue were not so far removed from the realm ofrecognizable sexual conduct that the jurors would be incapableof assessing the prurient appeal of the materials; in any event,the defense’s own expert established that the materials wouldarouse certain individuals; finally, exercising its own independentconstitutional judgment as to the obscenity vel non ofthe materials at issue, court concluded that the videotapes inquestion were obscene.(2) In obscenity prosecution, district court did not abuse itsdiscretion in allowing allegedly obscene videotapes in Dutch andJapanese to go to the jury without requiring the governmentfirst to translate those tapes; court approved the reasoning of anIllinois district court’s opinion holding that, where substantial inamount, foreign text should generally be translated in order toallow the jury to make a finding as to obscenity; here, however,the “dialogue” was not so significant in magnitude as to makeit an abuse of discretion for district court to send untranslatedtapes to the jury.(3) District court did not abuse its discretion in excludingallegedly comparable visual materials purchased from a localadult video store chain and mainstream bookstores, or statisticsApril 2006 VOICE FOR THE DEFENSE 35

Booker claim raised after cert petition subject to plain errorreview.United States v. Rodriguez-Gutierrez, 426 F.3d 755 (5th Cir.2005).Because defendant did not raise his claim that he was unconstitutionallysentenced under a mandatory Guidelines regime,in violation of United States v. Booker, 125 S. Ct. 738 (2005),until his petition for certiorari, he could not secure relief onthat claim unless he showed “extraordinary circumstances;”here, however, defendant could not even show an effect on hissubstantial rights under normal plain-error review, much less“extraordinary circumstances,” where sentencing judge imposeda sentence that was the maximum of the applicable Guidelinesrange and made no comments suggesting that the judge wouldhave imposed a lower sentence on defendant under an advisoryscheme; along the way, court discussed in some detail how theplain-error inquiry was affected by the relationship betweenthe sentence imposed and the range provided to the sentencingjudge under the perceived mandatory Guidelines.Claim regarding supervised release condition was not ripefor review.United States v. Riascos-Cuenu, 428 F.3d 1100 (5th Cir. 2005).Defendant’s claim — namely that his supervised releasecondition, mandating his cooperation with the probationofficer’s collection of a DNA sample from him, was not statutorilyauthorized — was not ripe for appellate review; becausethe Bureau of Prisons might well collect a DNA sample fromdefendant during his incarceration, it was conjectural whethera DNA sample would even need to be collected during the supervisedrelease term; this conjecture rendered the claim notripe for review by the courts, and accordingly the claim wasdismissed for lack of appellate jurisdiction.PDR OpinionCOURT OF CRIMINAL APPEALSAppellant’s PDR from Dallas County – Affirmed.In pari materia not cognizable on pretrial writ: The “SMUHazing Case”.Smith v. State, __S.W.3d__ (Tex.Crim.App. No. 262-05, affirmed2/1/06): Opinion: Hervey (9-1).Appellant and his fellow frat-rats forced the victim to drinklarge quantities of water during an initiation ritual. He wascharged with aggravated assault, and this pretrial writ followed.Appellant asserted that, under the in pari materia doctrine, hecould only be convicted of hazing, not aggravated assault. After ahearing, the trial court denied the writ, and COA affirmed, holdingthat in pari materia is not cognizable on pretrial habeas. Exparte Smith, 152 S.W.3d 170, 172 (Tex.App.-Dallas 2004). PDRwas granted to determine whether this ruling was correct.Held: Appellant’s in pari materia claim is not cognizableon a pretrial writ of habeas corpus. In pari materia is a rule ofstatutory construction for determining which statutory provisioncontrols when a general statutory provision and a morespecific statutory provision deal with the same subject matterand they irreconcilably conflict. Even though CCA has previouslyheld a defendant has a due process right to be prosecutedunder a “special” statute that is in pari materia with a broaderstatute when these statutes irreconcilably conflict, Mills v. State,722 S.W.2d 411, 414 (Tex.Cr.App. 1986), and, it is apparent that,if meritorious, the claim presented in Appellant’s pretrial writ ofhabeas corpus “would bar prosecution” for the felony offense ofaggravated assault, CCA nevertheless rejects Appellant’s argument.Not only is the indictment valid on its face, Appellant canpursue his in pari materia claim on appeal if necessary. Finally,the issue is not yet ripe for review:Though we may have a general idea of the facts of thiscase based on [the investigating officer’s] testimony atthe evidentiary hearing and the representations in thedefensive pleadings, which appear to be based in parton newspaper accounts of the incident, we believe itapparent from the portions of the record set out abovethat the State has more evidence to present aboutwhich we can only speculate at this time. See Ex parteCross, 69 S.W.3d 810, 814 (Tex.App.-El Paso 2002, pet.ref’d) (ripeness doctrine examines the timing of a lawsuitand its factual posture at the time of filing). *** Anappellate decision on the in pari materia claim wouldbe premature before the State has had an opportunityto develop a complete factual record during a trial, andwe are not aware of any authority that would requirethe State to prove its case before this time.Deciding the in pari materia claim now on what wouldamount to a hypothetical set of facts that might be presentedat Appellant’s trial would be merely advisory, thus the appealis dismissed.Appellant’s and State’s PDRs from Bexar County – Affirmed.No commitment in asking venire if they believed particularcriminal conduct was wrong.Wingo v. State, __S.W.3d__ (Tex.Crim.App. No. 615-04,2/15/06); Opinion: Womack.Appellant was an officer convicted of tampering with a governmentrecord by falsifying a police report. During voir dire, theprosecutor asked jurors: “Do you believe there’s anything wrongwith putting false information in a police report?” Appellantobjected to this as being an improper commitment question.COA agreed but held the error harmless. Wingo v. State, 143S.W.3d 178 (Tex.App. – San Antonio 2004).Held: The question posed by the prosecutor did not askApril 2006 VOICE FOR THE DEFENSE 37

for a commitment. “Commitment questions are those thatcommit a prospective juror to resolve, or to refrain from resolving,an issue a certain way after learning a particular fact.”Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). A questionmay be proper if it seeks to discover a juror’s views on anissue applicable to the case. An otherwise proper question isimpermissible, however, if it attempts to commit the juror toa particular verdict based on particular facts. In this case, thequestion, “Do you believe there’s anything wrong with puttingfalse information in a police report?” did not ask for a commitment.Jurors are required to follow the law that makes it acrime for officers to tamper with a government record. Askingjurors whether they agree that commission of such a crime iswrong does not commit them to resolve an issue of fact in acertain way. Rather, it inquires into jurors’ general beliefs as tothe wrongness of conduct that the law has made a crime. Suchquestions are common when jurors are assembled for trials of“victimless” or “morals” crimes. This is not to say that a partyhas a right to ask such a question. The issue is whether a trialcourt has discretion to allow such a question. Because CCAholds the question was within the trial court’s discretion toallow, it does not need to address the issue of harm. Judgmentis therefore affirmed.State Prosecuting Attorney’s PDR from Lamar County – Reversed/remanded.COA failed to conduct a proper harm analysis.Marshall v. State, __S.W.3d__ (Tex.Crim.App. No. 2016-04,2/15/06); Opinion: Johnson (9-0).Appellant was convicted of burglary of a habitation withintent to commit theft and assessed a 45-year sentence. Althoughthe indictment contained no enhancement paragraph, the statewas allowed to seek enhancement to a first degree by filing a“notice” of its intent to seek an enhanced penalty because ofAppellant’s two prior convictions from Oklahoma. The state alsogave notice of five additional Oklahoma convictions as evidenceof extraneous offenses. None of the priors were read to the juryuntil the punishment phase. In an unpublished opinion, COAaffirmed the conviction but remanded the case for a new punishmenthearing after finding that evidence of the prior convictionswas procedurally insufficient to support the enhancement ofthe sentence. SPA’s PDR was granted to determine whether thisruling was correct. Appellant’s PDR was refused.Held: Because Appellant failed to object to the alleged errorin the jury charge, he must show egregious harm before reliefmay be granted. Relying on Welch v. State, 645 S.W.2d 284 (Tex.Crim.App. 1983), COA ruled that, because the only evidence insupport of the prior convictions was introduced before boththe reading of the enhancements to the jury and the taking ofAppellant’s pleas as to those convictions, “no issue was joined.”The state was required to either re-offer the evidence or obtaina stipulation from Appellant. The state asserts that “failure toread the enhancement allegations and take [appellant]’s pleaat the beginning of the punishment phase was error, ... but theerror was not preserved for appellate review, it did not resultin insufficient evidence, and it was harmless.” CCA disagreesbecause Appellant had no reason to object to failure to read enhancementsthat were not included in the indictment. However,when the charge was read and the enhancement paragraphs wereincluded, Appellant was required to object. As CCA explains:We observe that appellant had a “reasonable time toexamine” the charge of the court before the charge wasread to the jury. Tex. Code Crim. Proc., Article 36.14.He was then aware that the trial court proposed tosubmit an issue of fact that, in his view, had not beenpleaded properly, i.e. the enhancement allegations thathad not been included within the indictment or timelyread to the jury. At that point, appellant should haveobjected, but he did not.Therefore, COA should have conducted a harm analysis to determinewhether Appellant suffered egregious harm resultingfrom the error. The case is therefore returned to COA for it toconduct the proper analysis. CCA also overrules the SPA’s othertwo grounds for review (that the COA had failed to address thestate’s arguments) as, in effect, frivolous.State Prosecuting Attorney’s PDR from Lamar County – Affirmed.Trial court was correct in suppressing dope found in woman’sunderwear.Dixon v. State, __S.W.3d__ (Tex.Crim.App. No. 077-05,2/15/06); Opinion: Meyers.Appellee was arrested for possession of methamphetaminefound in his female passenger’s underwear after he was stoppedby officers 3.2 miles after the alleged traffic offense occurred.His motion to suppress was granted by the trial court, and COAaffirmed. State v. Dixon, 151 S.W.3d 271 (Tex.App. – Texarkana2004).According to the SPA, COA’s decision improperly focusedon the time and distance between the unsignaled turn and thestop. SPA’s PDR was granted to determine whether a traffic stopmust be effectuated within a reasonable time and distance afterthe alleged traffic violation.Held: The trial court did not abuse its discretion in suppressingthe evidence and COA properly held that the recordsupports the trial court’s decision. CCA first notes the SPA hasmischaracterized the issue in this case. The trial court’s findingsof fact indicate the stop and search were generally unreasonablefor reasons other than the unnecessary delay between the turnsand the stop, including: the turns were lawful; the length ofthe detention and extent of the search were excessive; and theinformation on which the police based the surveillance was notfrom a reliable source. While COA considered limitations onan officer’s ability to delay a stop, a review of the record fromthe hearing indicates the delay between the turns and the stop38 VOICE FOR THE DEFENSE April 2006

was not discussed at length, rather it was mentioned only bythe defense attorney at the beginning of the hearing when thecourt asked for an overview of the evidence to be presented.The only other mention of the distance between the turns andthe stop occurred at the beginning of the rescheduled hearing.The issue in this case is not the amount of time or the distancebetween the turns and the traffic stop. It is clear from the hearingthat the trial judge simply did not believe that the driver inthis case committed a traffic offense by making a turn from adesignated turn lane without using a signal. The trial court alsodid not believe the cops when they testified that Appellant hadcommitted an offense. Because the trial court did not believethat an offense had occurred, the evidence was obtained as aresult of an unlawful stop. The record supports the trial court’sconclusion that the search was not conducted pursuant to a validtraffic stop, and the evidence was properly suppressed. COA’sjudgment is therefore affirmedAppellant’s PDR from Harris County – Affirmed.COA correctly held the evidence was sufficient to support theconviction.Poncio v. State, __S.W.3d __ (Tex.Crim.App. No. 386-05,2/15/06); Opinion; Hervey (9-0).Appellant was convicted of burglary of a habitation, duringwhich he stole some guitars which he later pawned. In anunpublished opinion, COA ruled the evidence was legally sufficientto support the conviction because the jury could inferfrom the evidence, including Appellant’s unexplained possessionof the recently stolen guitars, that Appellant was guiltyof the burglary offense beyond a reasonable doubt. PDR wasgranted to determine whether COA ignored the elements ofentry when affirming the case on the basis of legal insufficiencyin a burglary.Held: Appellant’s exclusive and unexplained possessionof property recently stolen in a burglary in conjunction withthe fact that he pawned the property very close to the burgledhome are sufficient to support his burglary of a habitationconviction. Here is the entirety of the CCA’s analysis:The rule in this and most, if not all, jurisdictionsseems well settled that, in cases like this, a defendant’sunexplained possession of property recently stolen ina burglary permits an inference that the defendant isthe one who committed the burglary. See Willis v. State,55 S.W. 829 (Tex.Cr[im].App. 1900) (unexplainedpossession of recently stolen property is sufficient toconnect a defendant with the taking of the propertyfrom the burglarized house, and therefore sufficientto connect the defendant with the burglary); see alsoDove v. State, 402 S.W.2d 913, 915 (Tex.Cr[im].App.1966) (defendant’s unexplained possession of recentlystolen property in apartment that defendant sharedwith someone whom jury could have concluded wasphysically incapable of committing the offense sufficientto support defendant’s burglary conviction);State v. Rice, 144 P. 1016, 1017 (Kan. 1914) (“weight ofauthority is that proof that a burglary was committed,and that goods were then and there stolen, and shortlythereafter found in the possession of the accused, willsustain a conviction”); Wade R. Habeeb, Annotation,What Amounts To “Exclusive” Possession Of StolenGoods To Support Inference Of Burglary Or OtherFelonious Taking, 51 A.L.R. 3d 727 (1973) and at 200(2005 Supp.); compare White v. United States, 300A.2d 716, 718-20 (D.C. 1973) (inference not permittedabsent independent evidence of a burglary).After reaffirming application of the above discussed rule, CCAaffirms the judgment.Writ Opinions:Habeas Corpus Application from Dallas County – Writ Dismissed.Ex Parte Baker, __S.W.3d__ (Tex.Crim.App. No. 7,5196, 2/8/06);Opinion: Womack (9-0).Applicant was convicted of aggravated sexual assault andcompelling prostitution in 1995, and the conviction was affirmed.Baker v. State, No. 05-96-00705-CR & No. 05-96-00706-CR (Tex. App. – Dallas, February 20, 1998, pet. ref’d) (not designatedfor publication). In 2002, Applicant filed a motion forDNA testing under Chapter 64 of the CCP and an attorney wasappointed to represent him in the proceeding. The motion wasoverruled without a hearing, and the appellate court affirmed.Baker v. State, 05-02-01905-CR & 05-02-01906-CR (Tex. App.– Dallas August 19, 2003) (not designated for publication).Question in this writ is whether an art. 11.07 writ is available forcomplaints that counsel performed inadequately on a motionfor forensic DNA testing under Chapter 64 of the Code.Held: Applicant is not entitled to relief because ineffectiveassistance of counsel on a Chapter 64 motion is not cognizableon habeas corpus. Although Applicant is still confinedin prison, the issue is whether the application seeks relief fromconfinement after final felony conviction, which is the particularkind of restraint that may be questioned in a habeas corpusproceeding. After a criminal conviction, a person is confinedby the judgment of a court of competent jurisdiction. But ifthe conviction has been imposed without jurisdiction or byviolation of constitutional protections, or if an innocent personhas been convicted, the collateral procedure of habeas corpuswill lie to free the person from the unlawful confinement.Furthermore:In Ex parte Tuley, [109 S.W.3d 388 (Tex. Crim. App.2002),] we referred to an earlier decision that habeascorpus lay for a claim that an applicant was unlawfullyApril 2006 VOICE FOR THE DEFENSE 39

confined by a judgment of conviction for an offense ofwhich he was actually innocent. We said that a favorableresult of forensic DNA testing under Chapter 64could be evidence to support such a claim for reliefby proving actual innocence. This is no support foran argument that an unfavorable result, or an error inprocedure, under Chapter 64 is itself a confinementfor which habeas corpus lies. A Chapter 64 motion canhelp a convicted person who is confined by a judgmentof conviction, and the statute provides appealto correct an error in the proceeding. But a Chapter64 motion’s failure to help does not impose an independentconfinement. The statutory right to counselunder Chapter 64 does not alter the analysis. If a personis confined by a judgment of conviction, counselcan assist him in seeking relief, but no assistance ofcounsel, however bad, can lead to an independentconfinement. Neither Chapter 64 nor Article 11.07calls for the remedy of habeas corpus.CCA then says that an appeal of the denial of a Chapter 64motion may be an appropriate remedy in some cases. Also,Chapter 64 does not prohibit a second, or successive, motion forforensic DNA testing, and a convicting court may order testingof material that was not previously tested “through no fault ofthe convicted person, for reasons that are of a nature that theinterests of justice require DNA testing.” However, Applicant isnot confined because of any error in his Chapter 64 proceeding.Therefore the post-conviction writ of habeas corpus is notavailable for his claims of ineffective assistance of counsel inthose proceedings. Writ is therefore dismissed.Habeas Corpus Application from Bell County – Writ Dismissed.Ex Parte Suhre, __S.W.3d__ (Tex.Crim.App. No. 75,033, 2/8/06);Opinion: Holcomb (9-0).Applicant was convicted of murder and sentenced to 99 years.His conviction was affirmed on appeal. Suhre v. State, No. 03-96-00438-CR (Tex.App.-Austin, Dec. 19, 1996, pet. ref’d) (notdesignated for publication). In 2001 he filed a pro se motionfor DNA testing under Chapter 64 of the CCP. Counsel wasappointed to represent him, and the motion was overruled.Having received no notification from his attorney that his motionhad been unsuccessful, Applicant filed an untimely noticeof appeal, which was dismissed for want of jurisdiction. In reSuhre, No. 03-03-00066-CR (Tex.App.-Austin, Feb. 13, 2003)(not designated for publication). In this writ he seeks an out oftime appeal based on ineffective assistance of counsel. The trialcourt agreed, and recommended relief be granted.Held: Applicant is not entitled to the effective assistanceof counsel in a Chapter 64 DNA proceeding. As it held in ExParte Baker, discussed above, habeas corpus is not available forclaims of ineffective assistance of counsel in Chapter 64 DNAproceedings. However, “Chapter 64 does not prohibit a second,or successive, motion for forensic DNA testing, and ... a convictingcourt may order testing of material that was not previouslytested through no fault of the convicted person [if] the interestsof justice require DNA testing.” Therefore, it is conceivable thata convicted person who receives ineffective assistance of counselin a DNA proceeding may be entitled to relief by way of a secondDNA proceeding. Writ is therefore dismissed.Capital Murder Opinion: Denial of DNA Testing.Notice of appeal filed a month late was untimely.Swearingen v. State, __S.W.3d__ (Tex.Crim.App. No. 75,203,2/1/06): Opinion: Keller (9-0).After being convicted of capital murder and sentenced todeath, Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App. 2003),Appellant filed a motion for DNA testing pursuant to Chapter64 of the Code of Criminal Procedure. The trial court deniedthe motion without a hearing, and Appellant appealed.Held: Because Appellant’s notice of appeal was filed amonth late, the appeal was untimely and it is dismissed.Chapter 64 requires an appeal from denial of a DNA motionfollow normal appellate procedures. Thus, the notice of appealmust be filed no later than 30 days after the motion was overruledby the trial court. Here, the motion was overruled onApril 7, 2005, thus the notice was due on May 9, 2005, takinginto consideration a weekend. Appellant’s notice of appeal, filedon June 9, 2005, was a month late. It is irrelevant that the trialcourt had overruled some other motions after that time. Thetime for filing was May 9, and the appellate timetable beganto run on that date. The notice of appeal filed on June 9th wasuntimely, thus the appeal is dismissed.Capital Murder Appeal –AffirmedShuffield v. State, __S.W.3d__ (Tex.Crim.App. No. 74,574,2/15/05); Opinion: Price.Facts: Appellant and his brother Billy went over to thevictim’s house, where they drank beer, smoked dope and playeddarts. At some point Appellant killed the victim with a shotgun.He and Billy then made off with the victim’s truck and someof his property. Appellant told the officers that he had beenplanning to kill the victim and steal his truck.Issue 1: Batson error. Trial court erred in finding Appellantfailed to make a prima facie case of discrimination in its strikesagainst four prospective jurors. CCA abated this appeal last yearin an unpublished opinion and remanded the case for a hearingto determine whether the state’s strikes were race neutral. Aftera brief review, CCA determines the strikes were race-neutral.Issue 2: Photos of victim. Gross, close-up photos of thevictim’s corpse were unnecessary because Appellant did notdispute the victim’s death, and other evidence was introduced40 VOICE FOR THE DEFENSE April 2006

egarding its cause. CCA says these photos were not overlygruesome and were probative of the state’s case. Therefore, trialcourt did not err in admitting them.Issue 3: Hearsay. Officer’s testimony that Billy’s statementwas consistent with Appellant’s was inadmissible and violatedhis confrontation rights. Billy’s statement was a product ofpolice interrogation, and CCA therefore presumes it is hearsay.Although the statement itself was not introduced, the arrestingofficer’s (Prince) testimony informed the jury of the generalsubstance of Billy’s statement and how it related to Appellant’sstatement such that Billy’s was used against Appellant withoutgiving him an opportunity to confront the declarant, Billy.Under these circumstances CCA says Appellant’s confrontationrights were arguably violated, and conducts a harm analysis asto its admission. TRAP 44.2(a) requires reversal unless CCAdetermines beyond a reasonable doubt that the error did notcontribute to the jury’s verdict. After reviewing the record, CCAholds the error was harmless. Appellant claims the testimonyharmed him because the central issue in the case, if not the soleissue, was whether Appellant had formed the intent to stealthe victim’s truck before he shot him. Without the reference toBilly’s statement, he was able to discredit Prince’s testimony andundercut the statement in his own confession that he murderedthe victim to steal his truck. CCA rejects this argument. Princefurther testified that police found other property belonging tothe victim and witnesses to the offense. Appellant was chargedwith killing the victim in the course of a robbery or attemptedrobbery. The state was not required to prove that Appellant hadformed the intent to steal the truck, only his property. Becausetheft of the truck was not necessary to prove capital murder,and because the jury could have inferred from this evidence thatAppellant did form the intent to steal either before or contemporaneouslywith the murder, Appellant’s conviction for capitalmurder is supported regardless of the lack of any pre-formedintent to steal the truck. Thus, admission of the testimony didnot materially affect the jury’s deliberations and was harmlessbeyond a reasonable doubt.Issue 4: Exclusion of mitigation evidence. Appellant wantedto introduce evidence that Appellant and other members of hisfamily had been sexually abused by family members. After ahearing, the trial court excluded the evidence relating to anyoneother than Appellant. Evidence that others in Appellant’sfamily were abused does not by itself make Appellant more orless morally culpable for the crime for which he was on trial.Nor does it, by itself, make a jury’s finding of mitigation anymore or less probable than it would be without the evidence.Evidence that Appellant himself was sexually abused is relevantand probative when a jury is considering evidence in mitigationof the death penalty. However, the State made clear that, notonly did it not object to this type of evidence, the substance ofthe relevant evidence came in through other witnesses. Lookingat the entirety of the record, CCA cannot say that the trial courtabused its discretion in excluding the complained-of testimony.Judgment is affirmed.PDR’s granted in February 2006No. 1574-05, Dixon, Anthony, State’s PDR from BrazoriaCounty; Agg. Sex. Assault.1. The Court of Appeals erred in finding harm in the judge’sfailure to require the state to elect where there was no evidencedistinguishing between multiple sexual assaults and no evidencegiving a time frame to the sexual assaults because of the limitationsof child victim.2. The Court of Appeals erred when it improperly used theconstitutional standard for review of harm under 44.2(a) ofthe Rules of Appellate Procedure rather than the non-constitutionalstandard for review under 44.2(b) for failure to requirethe state to elect.No. 1219-05 Milburn, Leland Ray, Appellant’s PDR fromHemphill County; POCS.The Court of Appeals erred in holding that the trial courtproperly refused to instruct the jury on probation.No. 1159-05 Doty, Denise Marie Appellant’s PDR from TravisCounty; Intoxication Manslaughter.1. The Court of Appeals erred in finding admissible testimonypertaining to a charged offense that had been expunged.2. The Court of Appeals erred in finding evidence of Appellant’sacquittal for an offense that was provided to the jury inadmissible.No. 1036-05 Griffin, Adam Troy, Appellant’s PDR from FallsCounty; POCS w/Intent to Deliver.The 10th Court of Appeals erred and [sic] finding the searchand resulting arrest of Appellant were legal.No. 1086-05 Reynolds, Jerry Glenn II, Appellant’s PDR fromLubbock County; DWI.Whether the Court of Appeals erred in holding that the predicatefor admission of a breath test result does not require thatthe breath test operator understand the scientific theory of thebreath test machine.No. 1314-05 Westerman, H. F., Jr., State’s PDR from McLennanCounty; Indecent Exposure.Did the Court of Appeals fail to follow established law when itfound counsel ineffective under both prongs of Strickland forfailing to call one particular witness without regard to counsel’sApril 2006 VOICE FOR THE DEFENSE 41

trial strategy or the totality of the circumstances?No. 1351-05 Cocke, Abner, Lee, State’s PDR from BosqueCounty; Burglary of Habitation.Is a state’s witness who denies complicity in the offense for whichthe accused is on trial and is shown (at worst) to be only anaccessory after the fact, to be considered an accomplice witnessunder Art. 38.14 of the Code of Criminal Procedure?No. 1370-05, Clay, Willie Allen, State’s PDR from HarrisCounty; Capital Murder.1.When conducting a harm analysis, must an appellate courtconsider all the evidence in the record?2. What is the proper test for analyzing harm when consideringthe effects of the erroneous admission of evidence barred byCrawford v. Washington?No. 1443-05, Gillenwaters, David Carrol, Appellant’s PDRfrom Williamson County; Telephone Harrassment.When and how should defense counsel object at trial in orderto preserve an appellate complaint that a penal statute has beenunconstitutionally applied to him?No. 1592-05 Dixon, L. C., Appellant’s PDR from TaylorCounty; POCS.The Court of Appeals’ decision upholding the trial courts’determination that there was probable cause to search Mr.Dixon’s car was not based upon sufficient evidence and was,therefore, so weak as to make its decision, and that of the trialcourt, clearly wrong.No. 1809/1810-05, Fletcher, Tarence, Appellant’s PDR fromDallas County; Delivery & POCS.The Court of Appeals erred in taking judicial notice of a mandateissued in another case.1. Did the 12th Court of Appeals err in holding that the Petitioner’sissue of, under Article XVI §1 of the Texas Constitutionwhich mandates certain constitutional oath requirements forelected officers, did the prosecutor in this case, by failing tosatisfy these constitutional requirements, render the judgmentvoid, as without merit and overruled?2. Did the 12th Court of Appeals erred in Petitioner’s first issuewhen it failed to judicially notice the petitioner’s exhibits fromthe secretary of state for the first time on appeal?3. Did the 12th Court of Appeals err in deciding an importantquestion of state law that has not been, but should be, settledby the Court of Criminal Appeals?No. 1482-05 Wooldridge, Dwayne Heath, SPA’s PDR fromTaylor County; Aggravated Assault.Does an appellant’s double jeopardy privilege prevent theimposition of an increased second sentence after the appellantsuccessfully procures a judgment against him to be set asideon appeal?No. 1633-05 Gutierrez, Ernest M., Appellant’s PDR fromNueces County; POCS w/Intent to Deliver.The 13th Court of Appeals erred in deciding that the intrusioninto the home was allowable under the theory of exigentcircumstances and probable cause.No. 1765-05 Pizzo, Barry Louis, Appellant’s PDR from GrimesCounty; Indecency w/Child.Did the 13th Court of Appeals fail to consider or apply thisCourt’s ruling in Francis v. State, 36 S.W.3d 121 (Tex.Crim.App.2000), in holding that the trial court’s submission of a disjunctivein the court’s charge concerning two different offenses, bothconstituting the offense of indecency with a child, was not adenial of petitioner’s right to a unanimous jury verdict?No. 1184-05 Howell, Patrick, Appellant’s PDR from GreggCounty; DWI.The Court of Appeals has decided an important question of stateand federal law in a way that conflicts with a recent, applicabledecision of the United States Supreme Court; specifically, theCourt of Appeals has determined evidence to be legally sufficientin a manner that conflicts with United States v. Booker, ___ U.S.___, 125 S.Ct. 738, ___ L.Ed ___ (2005).No. 1346-05 Davis, James William, Appellant’s PDRs fromRains County; Organized Criminal Activity; No. 1348-05Burglary of Habitation.42 VOICE FOR THE DEFENSE April 2006

2006.2007 TCDLA Nominating CommitteeNew Slate of Candidatesdirectorsname 1st term ends 2nd term ends county district**Vacant 11 H. Thomas Hirsch 2008 Ector 22 Mark S. Snodgrass 2007 Lubbock 33 Fred Stangl 2009 Lubbock 34 John S. Young 2008 Nolan 45 Lynn Ingalsbe 2009 Taylor 46 Larry M. Moore 2008 Tarrant 57 William Reagan Wynn 2008 Tarrant 58 Bill Ray 2009 Tarrant 59 Paul Conner 2009 Tarrant 510 Michael P. Gibson 2008 Dallas 611 Martin L. LeNoir 2007 Dallas 612 Tom Pappas 2008 Dallas 613 Kenda Culpepper 2008 Dallas 614 Russell Wilson 2009 Dallas 615 Steven R. Green 2008 Henderson 716 John Heath, Jr 2008 Nacogdoches 717 Bobby D. Mims 2008 Smith 718 Kelly Pace 2009 Smith 719 William E. Price 2008 Lampasas 820 Kerri K. Anderson-Donica 2008 Navarro 821 Samuel E. Bassett 2007 Travis 922 John Niland 2009 Travis 923 John F. Carroll 2008 Bexar 1024 Michael C. Gross 2008 Bexar 1025 Warren Wolf 2009 Bexar 1026 Sam Lock 2009 Bexar 1027 Robert Barrera 2009 Bexar 1028 John Convery 2009 Bexar 1029 George Scharmen 2009 Bexar 1030 Ronald Emmett Harris 2007 Uvalde 1131 Constance A. Luedicke 2008 Nueces 1232 Juan Ramon Flores 2008 Webb 1233 Sheldon Weisfeld 2009 Cameron 1234 James Makin 2008 Jefferson 1335 Lydia Clay-Jackson 2009 Montgomery 1336 Jim W. Marcus 2008 Harris 1437 W. Troy McKinney 2008 Harris 1438 Grant M. Scheiner 2008 Harris 1439 Chris Samuelson (unexp. term) 2007 Harris 1440 Mike Charlton 2009 At large 1441 Doug Murphy 2009 Harris 1442 Dan Cogdell 2009 Harris 14associate directorsname 1st or 2nd term county district1. Bluford Sanders 2 El Paso 12. Tip Hargrove (unexpired term) Tom Green 23. Pat Metze 1 Lubbock 34. Jason Butscher 2 Grayson 45. Tony Vitz 1 Collin 56. Shawn Paschall 1 Tarrant 57. Stephen Baer 1 Dallas 68. James Whalen 1 Dallas 69. Jason Cassel 1 Gregg 710. David Moore 1 Gregg 711. Guillermo Gonzalez 2 Travis 912. Harold J. Danford 1 Kerr 1113. Jim Granberry 1 Nueces 1214. Ray Merino 1 Hidalgo 1215. Jarrod Walker 2 Montgomery 1316. Clay Conrad 1 Harris 14*New board members are designated in gray.** No one appointed in this district.2006.2007 officersPresidentRobert “Bobby” LermaPresident-ElectCraig Jett1st Vice-PresidentH.F. “Rick” HagenTreasurerStanley SchneiderSecretaryKeith HamptonEditor, Significant Decisions ReportCynthia HamptonEditor, VOICE for the DefenseDavid RichardsPast-PresidentRandy WilsonApril 2006 VOICE FOR THE DEFENSE 43

Become aFellow or aSuper FellowTCDLEI has created an endowment program to ensure continuing legaleducation for tomorrow’s criminal defense lawyer.Your money will be deposited into a special endowment fund.Your contribution will be used to build a fund for future Texas lawyers.What you can do? Pledge $1,500 and become a Fellow — Pledge $3,000and become a Super Fellow. (Pledge form available on our web site).Help support TCDLEI in its efforts to make funds available for future criminaldefense lawyers in Texas. For more information, contact Joseph Martinez at512.478.2514 extension 26.Make YOUR contribution TODAY!Now, you can learn the Gerry Spence Method ina program designed by and for criminal defenselawyers, investigators and mitigation specialistswho work in the death penalty arena.T RIAL L AWYERS C OLLEGEDEATH PENALTY SEMINARMay 8-14, 2006This program focuses on techniques the trial lawyer, investigator and mitigationspecialist can use to successfully and adequately represent and understanda defendant facing the death penalty and to defeat death and incorporatesa method of teaching that the Trial Lawyers College pioneered and hasrefined over the years.At Trial Lawyers College, you learn by doing.If you attend this seminar, you can learn valuable skills in how to personally survivethe emotional intensity of a death penalty case, to deal with your own issues whilefulfilling your obligations as an attorney and build an effective defense team.You can learn to: help the jury crawlinto the hide of theclient; know and understandthe jury; discover and communicatethe story in anopen, honest andeffective way; and, empower the juryto stand up against theinjustice of the deathpenalty.TUITION IS $1,750including room, board & materialsSPACE IS LIMITED.Application Deadline is May 1, 2006Visit www.TrialLawyersCollege.com for moreinformation and a downloadable application.FACULTYGerry Spence will be in attendance for the entire program.Other invited faculty include:Milton Grimes, Cyndy Short, Dan Williams, RichardKammen, Grover Porter, Ed Stapleton, James Leach, JoshuaKarton, Kaitlin Larimer, John Nolte and Xavier AmadorTrialL awyers C ollegeT hunderhead R anch(800)688-1611 • (760)322-3783 • FAX (760)322-3714 • WWW.TRIALLAWYERSCOLLEGE.COM44 VOICE FOR THE DEFENSE April 2006777 E. Tahquitz Canyon Way, Suite 321 • Palm Springs, CA 92262LCDLAOfficers and Directors for2006-2007Vice President for Court LiaisonChuck LanehartDirectorPat MetzeSecretary-TreasurerDennis ReevesPresidentRobin MatthewsVice President for MembershipLaurie KeyVice President for EducationRusty GunterDirectorsKelly ClarkTrey McClendson

Texas Criminal Defense Lawyers AssociationPublication Order Form (prices good through May 2006)TCDLA PublicationsMANUALS / TABS / CHEAT SHEETS/ CDs / FORMSQuantityOrderingShipping/HandlingMemberPriceNon-MemberPriceNew! Trial Notebook ‘06 $7.00 $25.00 $75.00Appellate Manual ‘04 $10.00 $50.00 $100.00ALR/Occupational License Manual ‘05 $7.00 $20.00 $70.00Cheat Sheets please check cheat sheet(s) ordering1) Texas Rules of Evidence .......................................................................2) Making & Meeting Objections ................................................................3) Common Drug Offenses ........................................................................4) Lesser Included Offenses .....................................................................5) Comparison of Accused’s Federal & State Constitutional Rights ..........6) Expunctions ..........................................................................................7) DWI – Suspension Periods Chart ........................................................8) DWI – Statutes Everyone Should Know ................................................9) Appellate Timetables .............................................................................10) Adult Driver’s License Suspension Periods & Statutes .......................11) Minor Driver’s License Suspension Periods & Statutes ......................1)2)3)4)5)6)7)8)9)10)11)1-5 ...... $2.006-10 .... $3.007-15 .... $4.0016-20 .. $5.00$10eachfull set$90.00$15.00eachFederal Motion Forms – CD $5.00 $25.00 $75.00State Motion Forms – CD $5.00 $25.00 $75.00Texas Code Books Set(TX Code of Criminal Procedures & TX Penal Code)$15.00 $45.00 N/ATexas Code of Criminal Procedure 2005 $10.00 $35.00 $85.00Texas Penal Code 2005 $10.00 $25.00 $75.00Texas Writs ‘06 $10.00 $50.00 $100.00Trial Tabs $5.00 $5.00 or3 for$10.00$10.00TCDLEI Tax ExemptCriminal Evidence Trial Manual for Texas Lawyers by Murl A. Larkin ‘04 $10.00 $75.00 $200.00Criminal Trial Strategy by Charles W. Tessmer ‘03 $5.00 $30.00 $80.00CDLP PublicationsMANUALS/ CDsQuantityOrderingShipping/HandlingMember &Non-Member PriceBasics of Immigration Law ‘04 $7.00 $35.00* Complete payment information on reverse *Please be sure to verify your membership status.If you are not a current member you will be invoiced for the price difference.Tax exempt entities must send a copy of their tax exempt form with order.TCDLA Publication Order Form 1707 Nueces Street , Austin, Texas 78701512.478.2514 p • 512.469.9107 f • www.tcdla.comApril 2006 VOICE Updated FOR THE 3/23/2006 DEFENSE 45voice form

Texas Criminal Defense Lawyers AssociationPublication Order Form (prices good through May 2006)Publication Order Totals (separate checks for TCDLA or CDLP orders)TCDLACDLPTaxable Publication Total: $Shipping & Handling: $taxable subtotal: $Sales Tax (7.25%): $subtotal: $*Austin residents 8.25% sales tax – walk-ins onlyTax ExemptNon-Taxable Publication Total: $Shipping & Handling: $Publication Total: $Shipping & Handling: $taxable subtotal: $Sales Tax (7.25%): $subtotal: $CDLP Total Amount Due: $Please check the appropriate box: Overnight Delivery Requestedtax exempt subtotal: $TCDLA/LEI Tax ExemptTotal Amount Due: $Standard Delivery Requested (3-4 weeks for shipping)In-House – TCDLA Office (no S&H charge)Payment Information (separate checks are REQUIRED for TCDLA and CDLP materials)MasterCard Visa Discover American Express Checkname on cardcard number/check number(s)expiration dateauthorized signature*TCDLA and CDLP materials will be charged separatelyShipping Information (No P.O. Boxes)name phone bar numberaddress city state zip*If you would like for your order to be sent overnight, please call us for a shipping price quote.*Allow 3 - 4 weeks for processing and shippingSend Publication Orders to: TCDLA Publications, 1707 Nueces St., Austin, Texas 78701 or FAX to 512.469.9107FOR INTERNAL USE ONLYpayment received on: amount received: $ shipped by:check/CC approval #: shipped on: rec’d in system:TCDLA Publication Order Form 1707 Nueces Street , Austin, Texas 78701512.478.2514 p • 512.469.9107 f • www.tcdla.comUpdated 3/23/2006voice form

TCDLA Membership DirectoryInformation UpdateCalling all members. It’s time for the 2006.2007 TCDLA Membership Directory.Please review your information from the 2005-2006 Membership Directory.Make any changes to your listing on the membership directory form below andfax to 512.469.9107 or email to mvaldez@tcdla.com by May 8, 2006.Current members as of May 30, 2006 will be included.Questions about your membership status?Email info@tcdla.comNote: If you have updated your address with TCDLA in the past year, we will have theupdate. Some members may have given their new address, but not their new phone/fax.Membership Directory Update Formname___________________________________________________________________________________________firm_____________________________________________________________________________________________address_________________________________________________________________________________________city, state, zip____________________________________________________________________________________office phone_________________________________________ office fax_________________________________email address___________________________________________________________________________________spouse’s name (if applicable)____________________________________________________________________o Please check if you are an investigator.o Please check if you are a member of a local criminal defense bar association.Which one?__________________________________o Please check if you are interested in advertising in the membership directory.An ad kit will be mailed to you.The following questions are optional and are for internal statistics ONLY. They will notbe included in the directory or any other publication or distributed at any time.age____________ sex_______________ethnicity_______________

o i n TCDLA Jo i n TCDLA Jo i n TCDLAJo i n TCDLATo d a y !When you join TCDLA, you become a part of a long historyof providing outstanding services and assistance to criminaldefense lawyers across the great state of Texas.Join today and take advantage of numerous member benefits.Endorse a colleague or friend — encourage others to becomea member of TCDLA.Member Benefits• Voice for the Defense MagazineA subscription to the ONLY state-wide magazine written specifically fordefense lawyers, published 10 times a year.• Membership DirectoryA listing of all TCDLA members. Updated and reprinted annually.• TCDLA DiscountsReceive significant discounts on CLE seminars and TCDLA publications.• Vendor DiscountsReceive discounts on various goods and services provided by numerousvendors.• Strike ForceStrike Force assistance which comes to the aid of lawyers in need.• Listserv AccessAccess to TCDLA listserv where you can exchange legal information andresources with other TCDLA members.• Website - Members Only SectionAccess to the “members only” section of the website which includesinformation on experts, summaries of cases from the state and federalcourts and more.• ExpertsExtensive list of experts for all types of criminal cases.• ResourcesExpansive library of research papers from renowned criminal defenselawyers.• LegislatureOpportunities to be involved in the legislative effort.Resources for Texas Capital Litigators• Capital Litigation UpdatePublished 10 times a year with a “Motion of the Month” enclosed.• Capital Resource ListservAccess to a listserv consisting of Texas-only lawyers, investigators andmitigation specialists who practice in the capital arena.• Motions Bank and ClaimsAccess to a capital-specific motions bank and habeas corpus claims forstate and federal practice.• Experts DatabaseAccess to a database of experts in a wide area of expertise.• CLE OpportunitesComprehensive substantive continuing legal education.• Locating AssistanceAssistance locating capital qualified investigators and mitigationspecialists.w w w .t c d l a.c o mMembership ApplicationTo join TCDLA you must be a member in good standing of the State Bar oTexas engaged in the defense of criminal cases (except law students oraffiliate applicants). An applicant must be endorsed by a TCDLA membeMembers of the judiciary (except honorary members) and those regularlemployed in a prosecutorial office are not eligible.Your membership will go into effect upon approval of application andreceipt of annual membership dues. Please allow 6 to 8 weeks forconfirmation and certificate.q Mr. q Ms. q Mrs.First Name Last Name Middle InitialLaw FirmMailing AddressCity State ZipTelephoneE-mailBar Card NumberDate of BirthFaxCountyName of other local criminal bar association or sectionNo m i na t i n g Endorsement (must be completed)As a current member of TCDLA, I believe this applicant to be a person ofprofessional competency, integrity and good moral character.Signature of Endorser (must be current member)Printed Name of Endorser (must be current member)Membership Ca t e g o r y (please check one)q First Time Member — $75 per yearq Renewing Membership — $150 per yearq Voluntary Sustaining Member — $300 per yearq Sustaining Member — $200 per yearq Affiliate Member (Experts or Legal Assistant) — $50 per yearq Public Defender — $50 per yearq Investigator — $50 per yearq Law Student — $20 per yearPa y m e n t Me t h o d (please check one)q Check enclosed (payable to TCDLA)q Visa q Mastercard q American Express q DiscoverCredit Card NumberName on CardExpiration DateSignatureMa il completed f o r m a n d p a y m e n t toTexas Criminal Defense Lawyers Association (TCDLA)1707 Nueces Street • Austin, Texas 78701Fax to (if paying by credit card): 512.469.9107For office use only: Bar Card Date_________Month_____Year______TAX NOTICE $36 of your annual dues ($19 if a Student Member) is for a one-year subscrto the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contribbut may be deducted as an ordinary business expense. The non-deductible portion of reand initial membership dues is $39 in accordance with IRC sec 6033.