THL_JanFeb_2014

Significant Changes to the Texas Criminal Discovery Statute Junk Science and the New Habeas Law The State of Texas Youth What Every Sober Driver Needs to Know About Driving in Texas: The Truth about DWI Noncitizens Suffering from Criminal Convictions: An Overview of Habeas Options 64th Harvest Celebration

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THE HOUSTON

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Volume 51 – Number 4

January/February 2014

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contents Volume 51 Number 4

January/February 2014

10

16

FEATURES Changes to the Texas 10 Significant Criminal Discovery Statute

By Jessica A. Caird

Science and the 16 Junk New Habeas Law

By Jani Jo Maselli Wood

State of Texas Youth: 20 The Legislative Changes in Juvenile

Justice and the Houston Juvenile Case Manager Program Model

By Catherine Klier

20

24

Suffering from 24 Noncitizens Criminal Convictions:

An Overview of Habeas Options

By Peyton Z. Peebles, III

Every Sober Driver Needs 30 What to Know About Driving in Texas: The Truth about DWI

By Gary Trichter and Doug Murphy

You Ready for Your Close-Up? 34 Are A Criminal Practitioner’s Primer on Dealing with the Electronic Media

30

36

By Brian Wice

Harvest Celebration 36 64th Raises Record $619,750 for

The Houston Lawyer

Houston Bar Foundation

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonTHLy by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715.

Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ŠThe Houston Bar Association, 2014. All rights reserved.

2

January/February 2014

thehoustonlawyer.com

contents Volume 51 Number 4

January/February 2014

34 39

40

departments Message 6 President’s Coming Together on Immigration

By David A. Chaumette the Editor 8 From Criminal Law Issues Abound

By Robert Painter Lawyers Who Made a Difference 39 Houston Helen Johnston

By The Hon. Mark Davidson Profile in Professionalism 40 AJudge Brock Thomas

41

42

338th Criminal District Court

THE BAR 41 ATJudicial Investitures and

Star Courtroom Dedication

the Record 42 Off Bringing Up Bucking Bulls

By Bridget O’Toole Purdie SPOTLIGHT 43 COMMITTEE Building Bridges Between

the Bench and the Bar

By Joe W. Bailey II and Phillip L. Sampson, Jr.

46

Trends 44 Legal Claims Against Perpetual Care

Cemeteries: An Exclusive Remedy

By Darren P. Lindamood and Brett J. Young

The U.S. Supreme Court Holds that Forum Selection Clauses Must Be Strictly Enforced

By Richard Sheehy Reviews 46 Media Federal Criminal Procedure

Litigation Manual 2013 Reviewed by Don Rogers

The Houston Lawyer

Shaping Our Nation: How Surges of Migration Transformed America and Its Politics Reviewed by Taunya Painter

Crosstown Park Reviewed by Tara Shockley

48 Litigation MarketPlace 4

January/February 2014

thehoustonlawyer.com

Join the Houston Bar Association’s 100 Club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Adair & Myers PLLC Ajamie LLP Andrews Myers, P.C. Bair Hilty, P.C. Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Barrett Daffin Frappier Turner & Engel, LLP Bateman | Pugh | Chambers, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & House Blank Rome LLP Brewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, P.L.L.C. Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell Harrison & Dagley LLP Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Ebanks Horne Rota Moos LLP Edison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLC Faubus Keller LLP Fernelius Alvarez PLLC Fibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk Funderburk Courtois, LLP Galloway Johnson Tompkins Burr & Smith Germer PLLC Givens & Johnston PLLC Godwin Lewis, P.C. Goldstein Law PLLC Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay, P.C. Harberg Huvard Jacobs Wadler LLP Harris, Hilburn & Sherer Harrison, Bettis, Staff, McFarland & Weems, L.L.P. Hartline Dacus Barger Dreyer LLP

Hays McConn Rice & Pickering, P.C. Henke Law Firm, LLP Hicks Thomas LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Holmes, Diggs & Eames, PLLC Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P. Jones Walker LLP Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C. Kroger | Burrus LeBlanc Bland P.L.L.C. Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre, McCulloch, Stanfield & Young LLP McGinnis Lochridge & Kilgore LLP McGuireWoods LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C. Murray | Lobb PLLC Nathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Pagel Davis & Hill PC Parrott Sims & McInnis, PLLC Perdue Brandon Fielder Collins & Mott Perdue Kidd & Vickery Phelps Dunbar LLP Phillips, Akers & Womac, PC Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PC Reynolds, Frizzell, Black, Doyle, Allen & Oldham L.L.P. Roach & Newton, L.L.P. Ross, Banks, May, Cron & Cavin, P.C. Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Moore, Jackson & Echols, P.C. Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Shannon, Martin, Finkelstein & Alvarado, P.C. Shepherd, Scott, Clawater & Houston, L.L.P. Shipley Snell Montgomery LLP Short Carter Morris, LLP

Singleton Cooksey PLLC Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Stuart & Associates P.C. Sutton McAughan Deaver, PLLC Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Tucker Vaughan Gardner & Barnes, P.C. The Ward Law Firm Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson Henneman & Sullivan LLP Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wright Abshire, Attorneys, PC Wright & Close, L.L.P. Yetter Coleman LLP Ytterberg Deery Knull LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zimmermann, Lavine, Zimmermann, & Sampson, P.C. Zukowski, Bresenhan, Sinex & Petry LLP Firms of 25-49 Attorneys Adams & Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Akin Gump Strauss Hauer & Feld LLP Baker & McKenzie LLP Beck I Redden LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain Hrdlicka White Williams & Aughtry Coats I Rose Cokinos Bosien & Young Gibbs & Bruns LLP Greenberg Traurig, LLP Hoover Slovacek LLP Jones Day Littler Mendelson, PC Martin, Disiere, Jefferson & Wisdom, L.L.P. Olson & Olson LLP Roberts Markel Weinberg Butler Hailey PC Seyfarth Shaw LLP Firms of 50-100 Attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Jackson Walker L.L.P.

Morgan, Lewis & Bockius LLP Porter Hedges LLP Thompson & Knight LLP Winstead PC Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski LLP Haynes and Boone LLP Locke Lord LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell Industries MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University S & B Engineers and Constructors, Ltd Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County Texas

president’s message

By David A. Chaumette Chaumette, PLLC

Coming Together on Immigration

The Houston Lawyer

A

s I write this, I am quietly sitting in the back of a

these issues are everywhere and, as 21st century practitioners, we

Boy Scout meeting. My younger son is reaching

all need to be aware of the scope and severity of immigration law.

the age where he and his friends run the meet-

Also, in line with this, this year, for the first time ever, the

ings, which is clearly a learned skill. Boy Scouts,

three Houston law schools and the HBA are co-sponsoring a CLE

and Cub Scouts before that, have taught me some

on immigration issues on March 20 and 21, 2014, at Thurgood

important lessons, although not

Marshall School of Law. This seminar will pro-

the ones you think. You see, today’s Boy Scouts

vide practitioners information on the pressing

have last names like Virani, Flores, Lee, Chan,

immigration issues across all areas of practice.

and, of course, Chaumette. They reflect who

In some ways, this builds on President Brent

we are as a people and a country, independent

Benoit’s efforts last year to bring more attention

of the ideological immigration debate in Wash-

to the issue of human trafficking. More impor-

ington.

tantly, I hope that this seminar will reflect the

Here in Houston, recognized as the most di-

growing understanding of these issues among

verse city in the United States, immigration and

our city’s legal community and the need to work

the related issues are an important part of our

together building our city.

city’s fabric. It is the source of growth and cul-

The HBA is also looking beyond the legal

ture, but also represents significant challenges

community on these issues. Across Houston,

for our city. As the bar, we can help with those

there are numerous groups who work on im-

challenges. For years, the HBA has worked to provide informa-

migration issues. We have begun exploring those issues to see if

tion to Houstonians on issues from consumer fraud to elder law

there is a way for us to work with these groups while remaining

issues. Similarly, there is a need to provide additional informa-

true to our mission of improving our lawyers and getting our

tion in the immigration arena.

members opportunities for meaningful community service.

Over the past year, each issue of The Houston Lawyer has

In the end, we are working to build a better Houston and a bet-

touched on immigration issues as they impact the specific sub-

ter HBA. Our organization must remain responsive to the needs

stantive practice area focus of that issue. Last month, John Nech-

of our members, from providing the best training and informa-

man’s article on protecting immigrant children in the probate sys-

tion we can to helping those same members find the right op-

tem touched on these issues, and this month the focus is criminal

portunity to give back a little to their community. I hope that you

law. Peyton Peebles’ article on noncitizen criminal convictions

will take the time to get involved in one of those opportunities.

and habeas corpus shows that immigration issues can be signifi-

No matter the time you can spare, you will find the rewards to

cant in this practice area as well. Our intent here is to show that

be significant.

6

January/February 2014

thehoustonlawyer.com

Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett

Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017

713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com

January/Februay 2014

7

from the editor

By Robert Painter Painter Law Firm PLLC

Associate Editors

Julie Barry Attorney at Law

Angela L. Dixon Attorney at Law

M

Criminal Law Issues Abound

any laypeople think that any lawyer is competent to practice in all of the major areas of the law. In the reality of the modern legal system, most attorneys focus one or a few specialized areas.

In my legal career, I have always been a civil litigator. I represent plaintiffs in medical malpractice, large personal injury and products matters, and also do a good amount of commercial litigation. Even though I spend my time in the civil courthouse, from time to time I am confronted with criminal issues while representing my civil clients.

For instance, once I was representing a family in a medical malpractice case where a minor had suffered a brain injury.

The damages were well over $10 million and both sides were thoroughly developing their cases in the discovery stage. In the middle of the case, one of the well-educated parents ended up charged with felony harboring a fugitive—in a factual situation that sounded like it was straight from a first year law school exam.

I quickly retained a criminal lawyer for my client. I was convinced that my client was innocent, and wanted to avoid a felony conviction that would be admissible in the pending civil case. The other side found out about the criminal

“

case very quickly and dispatched an associate to speak with the assistant district attorney assigned to the case, and then monitor every hearing in the criminal court. Fortunately, the competent work of the criminal attorney that I had hired resulted in a dismissal, and I could turn my undivided attention back to the civil case.

No matter how you would describe your legal practice, one day or another you will probably have to deal with a criminal law matter. This issue of The Houston Lawyer will inform you about some recent developments in criminal law and may help hone your awareness of criminal issues that could arise in your daily legal work.

Jani Jo Maselli Wood’s article discusses junk science and the new habeas corpus law. This legislative session ended with significant changes to the Texas criminal discovery statute, which is analyzed in Jessica Caird’s article. Peyton Z. Peebles, III wrote about immigration issues after some U.S. Supreme Court game-changing decisions.

Catherine Klier explains the Juvenile Case Manager Program and how it keeps young people out of the criminal system. Brice Wice offers some advice for dealing with the media, based on his experiences. And Gary Trichter and Doug Murphy address Texas law for sober and drunk driving.

No matter

how you would describe your

Farrah Martinez Harris County District Clerk’s Office

legal practice,

one day or another you will probably

Don Rogers Harris County District Attorney’s Office

have to deal with a criminal law

”

The Houston Lawyer

matter.

Jill Yaziji Yaziji Law Firm

8

January/February 2014

thehoustonlawyer.com

BOARD OF DIRECTORS President

Secretary

David A. Chaumette

Neil D. Kelly

President-Elect

Treasurer

M. Carter Crow

Laura Gibson

First Vice President

Past President

Todd M. Frankfort

Brent Benoit

Second Vice President

Benny Agosto, Jr.

DIRECTORS (2012-2014)

Alistair B. Dawson Brent C. Perry

Warren W. Harris John Spiller

Hon. David O. Fraga Bill Kroger

DIRECTORS (2013-2015) Jennifer A. Hasley Daniella D. Landers

editorial staff Editor in Chief

Robert Painter Associate Editors

Julie Barry Farrah Martinez Jill Yaziji

Angela Dixon Don Rogers Editorial Board

Keri Brown Stacey Burke Suzanne Chauvin Alan Curry Britt Davis Eric Davis Jonathan C.C. Day Todd Dupont Sammy Ford Kelly Fritsch Jason Goff Polly Graham John Gray Amy Hargis Al Harrison Preston Hutson Tammy Manning Chance McMillan Judy Ney Anjali Nigam Angie Olalde Jeff Oldham Taunya Painter Bridget Purdie Aaron Reimer Hon. Josefina Rendon Timothy Riley James Stafford Hon. Jeff Work

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim

Administrative/ Financial Assistant

Ron Riojas

Ashley G. Steininger Project Coordinators

Membership Assistant

Ariana Ochoa

Rocio Rubio Bonnie Simmons

Continuing Legal EducationAssistant

Receptionist/ Resource Secretary

Director of Education

Lucia Valdez

Lucy Fisher Cain

Communications Director

Communications/ Web Designer

Tara Shockley

Amelia Burt

Brooke Benefield

Advertising sales Design & production QUANTUM/SUR

12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher

Leonel E. Mejía Production Manager

Marta M. Mejía Advertising

Mary Chavoustie

thehoustonlawyer.com

January/Februay 2014

9

By Jessica A. Caird

Significant H Changes to the Texas Criminal Discovery Statute

opefully most criminal practitioners now know about the massive changes the 2013 Legislature made to Article 39.14, the main discovery provision in the Texas Code of Criminal Procedure, by enacting Senate Bill 1611, entitled “the Michael Morton Act,” which significantly expands Article 39.14 by amending the first section and adding twelve more sections to it.1 Those changes occurred after the Legislature heard from Michael Morton about the wrongful conviction and imprisonment he suffered for his wife’s murder. The Legislature’s apparent purpose in enacting Senate Bill 1611 is to avoid another such miscarriage of justice by mandating much more expansive discovery of items in the possession, custody, or control of the State or persons under contract with the State.

From a historical perspective, Article 39.14 became effective with only one section in 1966, and a second section was added allowing for reciprocal discovery of expert witnesses in 1999. As originally enacted, Article 39.14 left discovery in criminal cases completely to the trial court’s discretion. In 2005, the Legislature amended the statute and mandated that upon a motion of the defendant showing good cause, the trial court “shall” order the prosecution to produce and permit the defense to inspect, copy, or photograph “[a]ny designated documents, papers, written statement of the defendant, ...books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action” in the possession or control of the State or its agents.2 The trial court specified the time, place, and manner of inspection, copying, or photographing.3 The amended article continued to exempt from disclosure written witness statements, work product of counsel, their investigators, and any reports or notes created by them, and prohibited the trial court from ordering disclosure of the writ-

ten communications between the State and its agents, representatives, or employees.4 It also expressly did not authorize the removal of any evidence from the State’s possession, and instead required inspection in the presence of a State representative.5 The only other provision of Article 39.14 that criminal practitioners previously had to consider was the reciprocal expert witness discovery permitted by the second section of the statute, which is the only part of Article 39.14 that currently remains unchanged.6 Under that provision, the trial court can, upon timely motion, order the State or the defense to provide pretrial notice of the name and address of any witness expected to give expert testimony under Texas Rules of Evidence 702, 703, or 705.7 With that background, let us go through the new additions and deletions that apply for all offenses occurring on or after January 1, 2014.8 The Legislature greatly enlarged the first section. No longer must the defendant show good cause. Instead, production of discoverable items is mandatory with only a few exceptions upon a “timely request from the defendant.” And that production includes electronic duplication, copying, and photographing.

Another change to Article 39.14(a) requires for the first time production of police offense reports, which were long considered exempt from pretrial discovery under the work product doctrine.9 In addition to offense reports, the State must provide copies of designated documents, papers, written or recorded statements of the defendant, books, accounts, letters, photographs, objects or tangible things not otherwise privileged that contain material evidence and are in the possession of the State or any person under contract with the State. Now, rather than courts being required to address the question of whether someone was an agent of the State, the Legislature has expanded the class of people considered part of the State for discovery purposes to include anyone under contract with the State.10 The new section (a) also includes the

requirement that the State provide the written and recorded statements of all witnesses, “[i]ncluding witness statements of law enforcement officers.”11 This change is monumental because the prior version of the statute expressly exempted from discovery “the written statements of witnesses.”12 In the past, it seemed to group witness statements with the provision barring the trial court from ordering disclosure of work product or investigator reports.13 The revised statute still precludes discovery of the work product of the prosecutors and their investigators, including their notes or reports, but categorizes offense reports as outside the scope of the work product privilege. The Texas Court of Criminal Appeals defined the work product doctrine as protecting the communications of the parties, attorneys and agents. It did not, however, protect the underlying factual information they used, such as the descriptions of potential witnesses or their statements.14 Rather, if counsel’s efforts do not create or enhance the substantive information, that information and the form in which it is preserved are not work product.15 With this narrowly tailored definition of work product, it will leave open to future litigation the amount of discovery available from notes made by prosecutors or their investigators while interviewing potential witnesses.16 Nevertheless, despite the amount of material now exposed to discovery, the Legislature included a few key exemptions. In addition to work product, the trial court may not compel the State to release privileged items. But the Legislature did not define what items it considered privileged, and the determination of what is privileged for the purpose of the statute will likely also be the subject of litigation.

It certainly seems reasonable to conclude that the privileges outlined in Article V of the Texas Rules of Evidence that apply in criminal prosecutions, such as the State’s general privilege not to disclose the identity of a confidential informant unless certain qualifications are met, would be exempt from disclosure.17 But it leaves open the question of the discoverability for oth-

er confidential documents. For example, Texas Code of Criminal Procedure Article 56.03 states that victim impact statements are not subject to pretrial disclosure unless they contain exculpatory material, but they could be subject to disclosure during trial if they impeach the complainant’s testimony.18 Another question raised is whether medical or psychiatric records of the complainant or a witness are subject to duplication and release under the new discovery provisions. Texas Rule of Evidence 509(b) confines the physician-patient privilege in criminal cases to only those communications involving someone voluntarily submitting to treatment or examination for alcohol or drug abuse. The Court of Criminal Appeals and lower appellate courts concluded from the elimination of the physician-patient privilege in criminal proceedings that other legislative attempts at confidentiality did not bar disclosure in criminal prosecutions.19 Likewise, Rule 510 addresses only the confidentiality of mental health information in civil cases.

Based on these provisions and the precedents flowing from them, it would seem that medical and mental health records that do not involve substance abuse admission or treatment would not qualify as “privileged” within the exemption described in Article 39.14(a).

Yet, the Legislature did attempt to place restrictions on the release of, but not the inspection of, statements and evidence of child abuse. The new section (a) begins by confining the general release of discovery to the restrictions of Texas Code of Criminal Procedure Article 39.15 and Texas Family Code Section 264.408. Both provisions have clear procedures on review of material describing or depicting child abuse, and bar duplication for the defense of items such as child pornography or the videotaped statement of a child victim.20 Fear not though, rather than merely assuming that there are no protections for sensitive, albeit not privileged, items that require duplication under the new statute, it creates obligations on the part of defense counsel and his agents to protect that in-

thehoustonlawyer.com

January/Februay 2014

11

formation. With only a few limited exceptions, the defendant, his attorney, investigator, expert, consulting legal counsel, or agents may not disclose the material received under Article 39.14 to a third party unless ordered by the court upon a showing of good cause, and after notice and a hearing in which the court must consider the security and privacy interests of the victim or witness. Material may also be disclosed to a third party when it has already been publicly disclosed. And an at-

12

January/February 2014

torney may communicate the information gleaned with others as long as he complies with the Texas Disciplinary Rules of Professional Conduct, and refrains from releasing any identifying information, such as the name of the victim or witness.21 The attorney or his agents may also give a witness a copy of that witness’s own statement.

While defense counsel cannot give the defendant or a witness a copy of someone else’s statement, he or his agents may

thehoustonlawyer.com

permit the defendant, a witness, or even a potential witness to view information provided under Article 39.14 after redacting “[t]he address, telephone number, date of birth, and any bank account or other identifying numbers contained” in the item. And, for any defendant hoping to be clever enough to get around the identifying information redactions, the statute specifically prohibits a defendant from being considered an agent of the attorney.22 These protections will hopefully limit the exposure of the victims and witnesses to identity fraud, but for particularly sensitive disclosures, the State may consider seeking a protective order from the trial court directing defense counsel to keep the information confidential.

Section (c) permits the prosecutor to release an item in a redacted form, but he must inform defense counsel that he redacted a portion of the document. Defense counsel may then request that the trial court decide if the redaction was justified.

Based on the wording of section (c), which refers to “this article,” a justified redaction will most likely have to meet the requirement that it redact only the “privileged” information specified in section (a). The new statute controls over other confidentiality protections in the public information sections of the Texas Government Code.23 In short, to the extent certain information in police and prosecutors records remained exempt from disclosure under the Public Information Act, they are now subject to release to the defense under Article 39.14, but they are still subject to the restrictions from disclosure to third parties.24 You may ask, with such an extensive amount of duplication necessary to comply with these changes, who will foot the bill? Section (l) permits the court to order the defendant to pay the costs related to discovery under this article, including duplication costs, but the costs may not exceed the charges provided for under the release of public information as described in Subchapter F of Texas Government Code Chapter 552.25 Section 552.267 permits waiver or reduction of the fee when “in the public’s interest,” which might translate to

record in open court” everything disclosed and received.31 How this will work with the enlarged amount of discovery the act requires is yet to be seen. At the very least, prosecutors must keep extensive notes of all disclosures made to the defense with written acknowledgements or other evidence of receipt by the defense. Some Texas counties are considering moving to electronic forms of disclosure that will be less labor intensive on prosecutors, but the short turnaround time between the enact-

ment and implementation of Senate Bill 1611 means that those types of changes are not likely to be available in most counties when the statute takes effect. Yet, the new law certainly creates an incentive for prosecutors to simplify the process for disclosure while increasing the ability to prove receipt by the defense, a problem computers may solve in the future.

In conclusion, although major changes to discovery in Texas criminal cases are afoot, in the end they should improve the

Season Sponsor

PHOTO OF DANIELLE WADE BY CYLLA VON TIEDEMANN

waiving the fee for indigent defendants.26 Yet, the use of the Public Information Act statutes does not seem a good fit for application to the average indigent defendant.

But based on other provisions in the Code of Criminal Procedure, the trial court may waive or simply refuse to tax the cost of discovery on an indigent defendant, leaving that cost to be footed by the prosecutor’s office.27 Despite the increased release of information to the defense under the new Article 39.14, the Legislature recognized that a pro se defendant must be treated differently. In a pro se case, the State must still comply with disclosure, but not duplication.28 Moreover, it remains to be seen whether the ability to redact information will be interpreted more expansively in a pro se defendant’s case when that defendant might use the information to harass the victims or witnesses to the crime.

Since defense counsel must redact victim or witness identifying information before showing discovery products to the defendant, it seems likely that the State should be allowed to redact such information from discoverable material shown to an unrepresented defendant.

Last on the disclosure front, the Legislature codified the State’s Brady obligation to disclose all exculpatory, mitigating, and impeaching evidence within its control to the defendant or the court. It includes all three, but with the slight caveat that the information must either tend to negate the guilt of the defendant or tend to reduce the punishment for the offense charged.29 This statutory right continues after conviction for any evidence or item later discovered for which disclosure would have been required under section (h).30 Now, how did the Legislature intend to enforce these new rules and establish compliance? New burdens were placed on the prosecution to document all the items it discloses to the defense. Section (i) requires the State to electronically record “or otherwise document” what is released under the article. Then, before accepting a plea or before trial, the State and defense “[s]hall acknowledge in writing or on the

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13

process. Article 39.14 may face a few more changes in the next legislative session if any issues develop. But it is still a big step in the right direction to increase the fairness of criminal prosecutions by ensuring that lapses in discovery do not result in any other defendants facing the injustice Michael Morton experienced.

Jessica A. Caird is an assistant district attorney with the Harris County District Attorney’s Office, where she has served both as a trial and appellate prosecutor for over 15 years. She is currently assigned to the Appellate Division.

Endnotes 1. Michael Morton Act, 83rd Leg., R.S., ch. 49, 2013 Tex. Sess. Law Serv. 106-108 (West 2013).

2. TEX. CODE CRIM. PROC. ANN. ART. 39.14(a) (West Supp. 2012).

3. Id. 4. Id. 5. Id. 6. TEX. CODE CRIM. PROC. ANN. ART. 39.14(b) (West Supp. 2012); Michael Morton Act, 83rd Leg., R.S., ch.

49, § 2, 2013 Tex. Sess. Law Serv. 106 (West 2013).

7. TEX. CODE CRIM. PROC. ANN. ART. 39.14(b) (West Supp. 2012).

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8. Michael Morton Act, 83rd Leg., R.S., ch. 49, §§ 3 & 4, 2013 Tex. Sess. Law Serv. 108 (West 2013).

9. See Brem v. State, 571 S.W.2d 314, 322 (Tex. Crim.

App. 1978) (holding police offense reports were work product exempt from pretrial discovery under Article 39.14 as files and papers of the prosecutor). See also Ex parte Miles, 359 S.W.3d 647, 670 (Tex. Crim. App. 2012) (relying on Brem to support the conclusion that Article 39.14 generally protects offense and investigative reports from discovery as work product unless they contain exculpatory evidence).

10. Compare TEX. CODE CRIM. PROC. ANN. ART. 39.14(a) (West Supp. 2012) (“[i]n the possession, custody, or control of the State or any of its agencies”) with Michael Morton Act, 83rd Leg., R.S., ch. 49, § 2(a), 2013 Tex. Sess. Law Serv. 106-107 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ART. 39.14(a)) (“[i]n the possession, custody, or control of the state or any person under contract with the state”).

11. Michael Morton Act, 83rd Leg., R.S., ch. 49, § 2(a), 2013 Tex. Sess. Law Serv. 106-107 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ART. 39.14(a)).

12. TEX. CRIM. CODE PROC. ANN. ART. 39.14(a) (West Supp. 2012).

13. See id.

14. Pope v. State, 207 S.W.3d 352, 358 (Tex. Crim. App. 2006).

15. Id. (quoting 42 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 22.14 at 13 (2d ed.

2001)).

16. See id. See also Michael Morton Act, 83rd Leg., R.S., ch.

49, 2013 Tex. Sess. Law Serv. 106-108 (West 2013).

17. See TEX. R. EVID. 508.

18. TEX. CRIM. CODE PROC. ANN. ART. 56.03(g) (West Supp. 2012). See also Harm v. State, 183 S.W.3d 403,

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408 (Tex. Crim. App. 2006) (defining favorable evidence for purposes of a Brady violation to include impeachment evidence, as well as exculpatory evidence, but holding third-hand hearsay insufficient to meet the admissibility prong for a Brady violation).

19. State v. Hardy, 936 S.W.2d 516 (Tex. Crim. App. 1997) (holding that the societal interest in safeguarding the privacy of medical records does not require protection of blood-alcohol test results taken for medical purposes, nor did the state legislation for medical record confidentiality overcome Rule 509 which limited the privilege in criminal courts); Murray v. State, 245 S.W.3d 37 (Tex. App.—Austin 2008, pet. ref’d) (holding pursuant to Hardy that HIPAA did not create a greater expectation to privacy in medical records, which could circumvent the lack of a privilege expressed in criminal proceedings under Rule 509(b)).

20. TEX. CRIM. CODE PROC. ANN. ART. 39.15 (West Supp. 2012) (providing procedure to allow inspection but not duplication of child pornography or statements taken under TEX. CRIM. CODE PROC. ANN. ART. 38.071, §§ 2 & 5); TEX. FAM. CODE ANN. § 264.408 (West Supp. 2013) (addressing the confidentiality and ownership of files, records, communications, working papers, and a child’s statement through a Child Advocacy Center). See also TEX. FAM. CODE ANN. § 261.201 (West 2012) (addressing when a court may order disclosure of confidential information).

21. Michael Morton Act, 83rd Leg., R.S., ch. 49, §§ 2(e) & 2(f), 2013 Tex. Sess. Law Serv. 107 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ARTS. 39.14(e) & 39.14(f)).

22. Michael Morton Act, 83rd Leg., R.S., ch. 49, § 2(f), 2013 Tex. Sess. Law Serv. 107 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ART. 39.14(f)).

23. See TEX. GOV’T CODE ANN. Ch. 552 (West 2013).

24. Compare TEX. GOV’T CODE ANN. Chp. 552 (West 2013) (addressing the information available through public information requests and including exceptions for certain information of law enforcement and prosecutors) with Michael Morton Act, 83rd Leg., R.S., ch.

49, § 2(a), 2013 Tex. Sess. Law Serv. 106-107 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ART. 39.14(a)) (requiring disclosure of all information material to the matter).

25. Michael Morton Act, 83rd Leg., R.S., ch. 49, § 2(l), 2013 Tex. Sess. Law Serv. 108 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ART. 39.14(l)).

26. See TEX. GOV’T CODE ANN. § 552.267 (West 2013) (waiving or reducing charge for public information when in the public’s interest). See also TEX. CRIM. CODE PROC. ANN. ART. 26.05(g) (West 2006) (requiring reimbursement for court expenses and costs only when the defendant has the financial resources to pay them).

27. See id.

28. Michael Morton Act, 83rd Leg., R.S., ch. 49, § 2(d), 2013 Tex. Sess. Law Serv. 107 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ART. 39.14(d)).

29. Michael Morton Act, 83rd Leg., R.S., ch. 49, § 2(h), 2013 Tex. Sess. Law Serv. 107 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ART. 39.14(h)).

30. Michael Morton Act, 83rd Leg., R.S., ch. 49, § 2(k), 2013 Tex. Sess. Law Serv. 107-108 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ART. 39.14(k)).

31. Michael Morton Act, 83rd Leg., R.S., ch. 49, § 2(j), 2013 Tex. Sess. Law Serv. 107 (West 2013) (to be codified at TEX. CODE CRIM. PROC. ANN. ART. 39.14(j)).

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January/Februay1/6/14 20142:33 PM 15

By Jani Jo Maselli Wood

Junk Science and the New Habeas Law C

hanging science has reshaped the world of habeas corpus in the State of Texas.

This past legislative session, Senate Bill 344 was passed and codified as Article 11.073 of the Code of Criminal Procedure to create an avenue for relief for people who were wrongfully convicted as a result of unavailable or erroneous scientific evidence.

The statute, which took effect on September 1, 2013, allows for a writ or successive writ of habeas corpus to be brought concerning relevant scientific evidence that: “(1) was not available to be offered in evidence by a convicted person at the convicted person’s trial; or (2) contradicts scientific evidence relied on by the state at

trial.”1 Additionally, in order to consider new advances in science, the statute directs the trial court to make a finding to “[c]onsider whether the scientific knowledge or method on which the relevant scientific evidence is based has changed since” the trial date or the date that the original or a previously-considered application for writ of habeas corpus was filed.2 Prior to the passage of this bill, under the strict limitations of the Code of Criminal Procedure, the convicted were only allowed to advance one writ of habeas corpus, absent strict procedural hurdles.3 The result was that when scientific principles were undermined by advancing science, those convictions could not be challenged. The tipping point in the passage

of the statute was most likely the procedurally-complex case of Neal Hampton Robbins.

In Ex parte Robbins, Mr. Robbins sought relief from his 1999 Montgomery County capital murder conviction, which had been based largely upon the testimony of the medical examiner.4 The medical examiner testified that the death of the complainant child was the result of asphyxia from compression.5 Years after her testimony, the medical examiner stated that she could no longer stand by her prior testimony that the death of the complainant was homicide.6 She “[c]ould no longer testify within a reasonable degree of medical certainty that the complainant’s death in this case was the result of compression asphyxia” or “[t]hat the [manner] of death in this case was homicide.”7 After hearing from numerous experts and witnesses, the trial court recommended that Mr. Robbins be granted a new trial “[b]ecause his due process and due course of law rights were violated, as was his right to an impartial jury.”8 Despite the typical deference given to trial court’s findings, the Court of Criminal Appeals denied relief, determining that at the time the medical examiner gave her testimony it was not “false.”9 The Court’s rationale was based largely on the fact that Mr. Robbins had not unquestionably established his innocence.10 In dissent, Judge Cochran expressed the difficulties with the result of this case as follows: When scientific experts honestly and sincerely thought “X” was true at the time they testified, but the science has changed or the experts’ understanding of the science has changed and their opinions have changed, what cognizance of that change should the criminal justice system take long after a person has been convicted?11 To put Robbins in context, a review of Ex parte Henderson is helpful.12 In Henderson, a child’s death was again the offense, but the crucial issue was whether the short-distance fall that resulted in the death could have been an accident.

“The single contested issue in the 1995

capital-murder trial was whether applicant intended to kill [the complainant] or whether she recklessly, negligently, or accidentally caused his death.”13 At the original trial, the medical examiner “[t]estified that it was ‘impossible’ for [the complainant’s] extensive brain injuries to have occurred in the way that applicant stated. He testified that her story was false and ‘incredible.’”14 The medical examiner opined it was an “intentional murder,” and further declared, “[I] would say the baby was caught up with the hands by the arms along the body and then swung and slammed very hard against a flat surface.”15 The science of biomechanics had advanced rapidly between Henderson’s trial and 2007, when she sought a stay of execution. At that time, and after considering the new scientific reports, the medical examiner stated: Since 1995, when I testified at Cathy Henderson’s trial, the medical profession has gained a greater understanding of pediatric head trauma and the extent of injuries that can occur in infants as a result of relatively short distance falls, based in part on the application of principles of physics and biomechanics. Specifically, and as shown in the reports that I have read, even a fall of a relatively short distance onto a hard surface can cause the degree of injury that Brandon Baugh experienced. If this new scientific information had been available to me in 1995, I would have taken it into account before attempting to formulate an opinion about the circumstances leading to the injury.16 The Court of Criminal Appeals, in a per curiam, one-page opinion, did “[n]ot accept the trial court’s conclusions concerning actual innocence,” but accepted “[t]he court’s recommendation to grant relief and remand for a new trial.”17 The opinion did not distinguish Robbins. Interestingly, Judge Cochran concurred in the granting of the new trial, but noted that “[t]his case raises the same novel and difficult issue for the criminal-justice system that this Court faced, and, I maintain,

fumbled in Ex parte Robbins.”18 In trying to explain the distinction between the two cases, Judge Alcala wrote in a concurring opinion that “[t]his trial court finds that new scientific evidence is the basis for ordering a new trial, whereas the Robbins trial court found that use of false evidence was the basis for ordering a new trial.”19 A distinction without a difference could best describe the disparate results between the two cases. Mr. Robbins has now filed an original application for habeas corpus relief under Article 11.073, and it has been filed and set for consideration.20 This case will probably be the seminal decision addressing the new statute, which may be applicable to the following situations.

“Junk Science” There is little doubt that some convictions result from testimony or other evidence that is based upon dubious scientific principles. Article 11.073 will give those convicted under scientific principles that are no longer valid a proper vehicle to obtain postconviction relief.

Dog Scent Lineups Article 11.073 may be useful for the purpose of seeking postconviction relief from convictions resulting from dog scent lineups. In Winfrey, the Court of Criminal Appeals explained what this type of lineup entails: A scent lineup is a forensic tool where dogs use their enhanced sense of smell to match scents. Using a gauze pad, scent exemplars are obtained from the crime scene or from an object found at the crime scene, as well as from a suspect. The gauze pad with the suspect’s scent is then placed in a “lineup” with several other scents. Before doing the lineup, the dog sniffs the gauze pad from the crime scene. The dog then walks the lineup and alerts if it recognizes any of the scents.21 In reversing Winfrey’s capital murder conviction, the Court of Criminal Appeals held “[t]hat scent-discrimination lineups, whether conducted with individuals or

inanimate objects, [are] to be separate and distinct from dog-scent tracking evidence,” and that “[s]tanding alone, it is insufficient to establish a person’s guilt beyond a reasonable doubt.”22 The Court noted that dogs have successfully been used for crime management, such as narcotics and bomb sniffing as well as for tracking, but said that “[d]espite this success, we acknowledge the invariable truth espoused by Justice Souter that ‘[t]he infallible dog, however, is a creature of legal fiction.’”23 There is no way to determine exactly how many convictions rest upon the use of dog scent lineups. Deputy Keith Pikett, the investigator in the Winfrey case, “[e]stimated that his pack of bloodhounds has indicted over 1,000 suspects, including burglars, rapists, and killers.”24 Arson Cases The State Fire Marshal, along with the Innocence Project of Texas, began a “[g]roundbreaking partnership... to conduct a retroactive review of arson convictions in Texas in the fall of 2011.”25 The genesis of this collaboration can be traced to the Texas Forensic Science Commission’s review of the science of arson in the capital case of Cameron Todd Willingham.26 Despite jurisdictional challenges, the Forensic Science Commission has made important observations and recommendations regarding the state of arson investigation in Texas in its April report, “[i]ncluding a recommendation that the [Texas State Fire Marshal] develop a method for alerting the criminal justice system when advances in fire science impact the outcome in criminal cases.”27 Additionally, the report explained that prior to 1992, there was “[n]o single document describing the standard of practice in fire investigation.”28 The report explains in some depth the tension “[b]etween the scientists and engineers who study principles underlying fire indicators, and the state and local professionals who respond to and investigate fires.”29 With the advances in the study of fire, Article 11.073 may provide

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those convicted of arson based primarily on the testimony of an investigator with an opportunity for a new evaluation of the scientific principles utilized.

Sexual Assault Article 11.073 may enable some to have convictions for sexual assault or similar crimes set aside. As recently as November 2013, three Bexar County women who had been convicted of sexual assault and served over 17 years in prison were released on bail after the district attorney recommended they be granted a new trial because recent scientific advances undermined expert testimony that contributed to their convictions.30 The convictions

were based in large part on the expert testimony of a doctor regarding a scarred hymen.31 The doctor later disavowed her testimony in their cases, and affirmed “[t]hat her testimony was inaccurate and it is contradicted by a 2007 American Academy of Pediatrics study which concludes that hymen injuries do not leave scars.”32 That same month, a husband and wife who were convicted of sexual assault in Travis County over 21 years earlier were also released on bail pending final approval by the Court of Criminal Appeals after the emergency room doctor who testified at their original trial subsequently testified that what he had believed were sexual assault injuries to the child-complainant’s hymen and vagina were not injuries but “[w]ere in fact ‘normal variants’ of female genetalia.”33 To his credit, the doctor stated that “[h]e was not qualified in 1991 to conduct a pediatric sexual assault exam or to draw any conclusions about whether abuse had taken place” when he testified at the original criminal proceeding.34 Hair Sample Comparisons Article 11.073 may also be useful for challenging convictions that resulted from hair sample comparisons. The Forensic Science Commission currently “[i] s surveying crime labs large and small to learn the methods used to

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conduct hair analysis that did not involve verification with DNA.”35 It is an effort by the commission to determine “[w]hether anyone has been wrongly imprisoned by identifying older criminal cases in which microscopic hair fibers were used to convict people of rape, murder, robbery and lesser crimes.”36 The Future In 2001, the Texas Legislature recognized the impact of changing science when it enacted Chapter 64 of the Code of Criminal Procedure, which in limited situations allows convicted persons to file a motion requesting forensic DNA testing of evidence containing biological material. DNA testing is now routine, but was relatively groundbreaking in 2001. The recent and well-known case of Michael Morton exemplifies why postconviction review using advanced science is absolutely necessary; Morton fought valiantly for the right to DNA testing and it ultimately exonerated him.37 The Morton, Winfrey and Bexar County cases are not anomalies. But we can take heart as practitioners that the Legislature has passed this new law to authorize judicial review of convictions based on faulty scientific principles.

Jani Jo Maselli Wood is an assistant public defender for Harris County.

Endnotes 1. Act of June 14, 2013, 83rd Leg., R.S., ch. 412, 2013 Tex. Sess. Law Serv. 1197 (West 2013) (to be codified at Tex. Code Crim.

Proc. Ann. art. 11.073).

2. Act of June 14, 2013, 83rd Leg., R.S., ch. 412, 2013 Tex. Sess. Law Serv. 1197 (West 2013) (to be codified at Tex. Code Crim. Proc. Ann. art. 11.073(d)).

3. TEX. CODE CRIM. PROC. arts. 11.04 § 4, 11.071 § 5.

4. Ex Parte Robbins, 360 S.W.3d 446, 448 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 2374 (2012).

5. Id. at 460.

6. Id. at 449.

7. Id. at 460.

8. Id. at 457.

9. Id. at 463.

10. Id. at 463.

11. Id. at 469 (Cochran, J., dissenting).

12. Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012).

13. Id. at 838.

14. Ex parte Henderson, 246 S.W.3d 690, 691 (Tex. Crim. App. 2007) 15. Id. at 691.

16. Henderson, 384 S.W.3d at 839.

17. Id. at 834.

18. Id. at 837 (Cochran, J., concurring).

19. Id. at 851 (Alcala, J., concurring).

20. On November 27, 2013, the Court of Criminal Appeals entered the following order: The parties shall brief the following issues: (1) whether Article 11.073 is a new legal or factual basis under Article 11.07, § 4(a)(1); (2) whether an “original application or a previously

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

considered application,” as set out in Article 11.073(c),(d)(2), means an application filed on or after September 1, 2013; (3) whether “the scientific knowledge or method on which the relevant scientific evidence is based,” as set out in Article 11.073(d), applies to an individual expert’s knowledge and method; (4) whether relevant scientific evidence is “currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of due diligence,” as set out in Article 11.073(b) (1)(A), if an expert witness for the State no longer stands by his opinion testimony at trial and the jury heard testimony from the defense that is consistent with the State’s expert’s new, post-trial opinion; (5) whether “changed,” as set out in Article 11.073(d), applies to cases in which an expert witness changes his opinion after trial; and (6) whether Applicant is entitled to relief under Article 11.073(b).

The parties shall brief these issues. The parties may also brief any other issue they deem relevant to the construction of Article 11.073.

Ex parte Robbins, No. WR-73484-02, 2013 WL 6212218, at *1 (Tex. Crim. App. Nov. 27, 2013, order) (not designated for publication).

Winfrey v. State, 323 S.W.3d 875, 881 (Tex. Crim. App. 2010).

Id. at 883, 885.

Id. at 883, citing Illinois v. Caballes, 543 U.S. 405, 411 (2005) (Souter J., dissenting). http://www.ipoftexas.org/Websites/ipot/images/IPOT_Dog_Scent_ Report.pdf, page 4, n. 16. http://www.ipoftexas.org/statewide-arson-review http://www.fsc.state.tx.us/documents/FINAL.pdf http://www.fsc.state.tx.us/documents/WillinghamWillis01911.pdf, page 4. http://www.fsc.state.tx.us/documents/FINAL.pdf, p. 13-14. http://www.fsc.state.tx.us/documents/FINAL.pdf, p. 15 h t t p : / / u s n e w s . n b c n e w s . c o m /_ n e w s / 2 01 3 / 11 / 2 0 / 21540535-san-antonio-4-speak-out-after-prison-release-were-actually-innocent http://www.theguardian.com/world/2013/nov/18/san-antonio-fourgranted-bail-free Id. http://www.austinchronicle.com/daily/news/2013-11-26/fran-kellerreleased-from-prison/ Id. http://www.star-telegram.com/2013/08/11/5072242/forensic-science-commission-to.html?rh=1 Id. http://www.cnn.com/2013/12/04/justice/exonerated-prisoner-update-michael-morton/

a

No judge, no jury, no apel late court Y O U determine t he value of your case.

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By Catherine Klier

I The State of

Texas Youth: Legislative Changes in Juvenile Justice and the Houston Juvenile Case Manager Program Model

Judge David Fraga and his staff in Municipal Court #12.

Catherine Klier, Judge Barbara Hartle, Lillie Warden and case managers.

n the sweltering heat of a Houston summer, juvenile case managers from the City of Houston Municipal Courts Department, armed with flyers, pamphlets and hope, conduct home visits to students and their families to discuss a very important topic: truancy. They pursue this endeavor tirelessly, despite the many doors slammed in their faces, wild goose chases and ferocious family pets, because they know their mission. The mission at hand is vital: helping students return to school. The case managers battle the brutal sun for the three months of summer vacation, seeking one child, one family, who, because of this meeting, will alter their pattern of behavior and return to school.

In Texas, failure to attend school is a criminal offense. Under that “criminal” surface, what fuels poor school attendance is turmoil within the home, school or community environment. According to the Rochester Youth Development Study (1999), “[w]eak school commitment and poor school performance [a]re associated with increased involvement in delinquency...”1 It is absolutely essential to target truancy and stop the problem at the source, as truancy is one predictor of future involvement in the criminal justice system.

The City of Houston Juvenile Case Manager Program The Juvenile Case Managers’ mission is not complete after the summer months. Once the school year begins, they resume their posts at 21 school campuses across the City of Houston to provide comprehensive truancy prevention, intervention and case management services to middle and high school students and their families. Case managers are responsible for diagnosing the circumstances of truant behavior as well as providing the connection to needed social services and campus support to reduce the frequency by which juveniles enter into the criminal justice system and increase school attendance. When asked about the greatest benefits of the Juvenile

Case Manager Program, Presiding Judge and Director of the Municipal Courts Department, Hon. Barbara E. Hartle said that “our program intervenes before a citation is written and... our knowledge and ability to link the student and their family with local community services is extremely important.” The program works in collaboration with the Houston Independent School District and Spring Branch Independent School District. All services provided to the school campuses enrolled in programming are at no cost to the campus or school districts.

From January 2009 through June 2013, the campus-based operations received 4,756 referrals and were responsible for eliminating $929,429 in court fines and fees for juveniles and their parents through avoidance of referral to court.2 The campus-based operations report a compliance rate of 98 percent from 2009 to 2013.3 In addition to the essential campusbased operations, the Juvenile Case Manager Program has also implemented a second level of programming designed to target juveniles who have already entered the municipal court system. The Hon. David O. Fraga, Evening Associate Presiding Judge, oversees juvenile dockets and affairs for the Houston Municipal Court. He works closely with the Juvenile Case Managers to apply creative sanctions designed to mitigate the conditions that brought the child into the courtroom. A wide variety of sanctions is typically imposed and can include community service hours, in-house workshops on bullying and positive choices, tutorials, tobacco/alcohol awareness courses, as well as referrals to communitybased groups for counseling, substance abuse and mental health services. All sanctions are agreed upon by the parent, juvenile and judge, serve the child’s best interests and seek to reduce recidivism.

From September 2011 to February 2013, Juvenile Case Manager Program court operations provided supervision and services to 1,844 juvenile cases and maintained an 89 percent compliance rate.5 The City of Houston Juvenile Case Manager Program employs a holistic approach

to target the juvenile population that often is overlooked in the criminal justice system. The program is the largest and one of the most highly developed programs of its kind in the state of Texas because of the considerable need of Houston children and families for these types of services. Lillian Warden, Assistant Director, Houston Municipal Court, oversees the Juvenile Case Manager Program. She firmly believes the Juvenile Case Manager Program has influenced the way courts approach juvenile justice across Texas, noting that “[o]ther municipalities... look to Houston’s Program for guidance and as a blueprint [for] success.” Without the commitment, support and vision of Judge Barbara Hartle, Judge David Fraga, and Lillian Warden, the Houston model would not be successful.

Municipal and justice courts have an incredible opportunity to make a difference in the life path of a child by exercising therapeutic jurisprudence via the Juvenile Case Manager.

From the Schoolhouse to the Courthouse Twenty-five years ago, it was unimaginable to think that children would be referred to court for minor delinquent behavior. Five years ago, it was unimaginable to think that children would not be referred to court for minor delinquent behavior. School discipline transitioned from the schoolhouse to the courthouse with the emergence of “zero tolerance” in the late 1980s and early 1990s. Municipal and justice courts increasingly became the primary venue for school-related and status offenses. This approach was reflected by legislation passed during that time, which made it possible for children to end up in criminal court venues for minor delinquency. Municipal and justice courts are considered gateways by which youth first gain exposure to the criminal justice system. In 2009, data from the Office of Court Administration indicated that more than 420,000 juveniles were adjudicated in municipal and justice courts.5 83rd Texas Legislature—The State of Texas Youth The remainder of this article addresses pending and recently-passed legislation.

The 83rd Texas Legislature highlighted

the topics of juvenile justice and education.

For example, 18 bills targeted dropouts and at-risk students, 36 bills addressed academic performance, 41 bills related to primary and secondary education-discipline and 33 bills were classified under the heading “Juvenile Crimes.”6 Under the four subject headings listed, 128 bills related to juvenile justice and education. This signals a change in the priorities of lawmakers in a state known for harsh penalties against juvenile offenders.

Education Code Modifications Senate Bill 393, effective September 1, 2013, is an omnibus bill that encompasses changes and additions to the Code of Criminal Procedure, Penal Code, Family Code and Education Code.

Subchapter E-1, Chapter 37, of the Texas Education Code was created and relates to criminal procedures of children charged with school offenses. Under this Subchapter, a “school offense” is any fine-only (class C) misdemeanor, excluding traffic, that occurs on property controlled by a school or school district. A peace officer is prohibited from issuing a citation to a child for a “school offense.” To prosecute alleged school offenses, a complaint may be filed in municipal, justice or juvenile court and must sworn to by an individual with personal knowledge of the facts giving rise to probable cause and accompanied by a statement from the school indicating whether the child receives special education services (under Subchapter A, Chapter 29, Education Code).

SB 393 and SB 1114 (effective September 1, 2013) added subsection (c) to Section 25.0915, Education Code, relating to Truancy Prevention Measures. Subsection (c) mandates that a court shall dismiss a complaint or referral made by a school district that is not in compliance with section 25.0915(b). School districts or peace officers employed by school districts are required to maintain an investigative record on each compulsory attendance violation, conduct a home visit or contact the parent of a child in violation of compulsory attendance and review the attendance records

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of each student investigated for a violation of compulsory attendance prior to filing a complaint. The complaint must be accompanied by a statement indicating that the school applied the truancy prevention measures and that these measures failed to “meaningfully address” the child’s school attendance and specify whether the child is eligible for special education services.

Juvenile Case Managers Section 7 of Senate Bill 393 modified Article 45.056, Code of Criminal Procedure, relating to Juvenile Case Managers. Prior to the passage of SB 393, Juvenile Case Managers were neither prohibited nor explicitly authorized to provide services prior to a juvenile’s referral to court. Amendments made to subsection (a)(1) authorize Juvenile Case Managers, in addition to providing in-court services to juvenile offenders, to provide services prior to a case being filed, if a school administrator (or designee) refers the case to the case manager with the consent of the juvenile and the juvenile’s parent.

Juvenile Confidentiality SB 393 amends Articles 44.2811 and 45.0217, Code of Criminal Procedure by providing an expansion of the conditional confidentiality already in place for juvenile records because of the passage of HB 961 in 2011. Under new legislation, juveniles who successfully complete deferred disposition are entitled to confidentiality of their records (for fine-only, non-traffic misdemeanors only).

HB 528, effective January 1, 2014, amends Articles 44.2811 and 45.0217, Code of Criminal Procedure and Section 58.00711 of the Family Code and further expands juvenile confidentiality of records to grant “absolute” confidentiality of fineonly, non-traffic records from the moment the juvenile is charged with an offense.

At this time, SB 393 and HB 528 are in conflict and the Office of Court Administration submitted a request for opinion to the Texas Office of the Attorney General to reconcile the two pieces of legislation. The opinion is still pending.

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January/February 2014

Juvenile Moral Blameworthiness SB 393 amends Section 8.07, Penal Code, by adding Subsections (d) and (e). Subsection (d) mandates that a person may not be prosecuted or convicted of an offense under Section 8.07(a)(4), which pertains to fine-only misdemeanors, or Section 8.07(a)(5), relating to penal ordinance of a political subdivision, when under 10 years of age.

Subsection (e) stipulates that a person between the ages of 10-14 is presumed “incapable” of committing an offense under Sections 8.07(a)(4) and 8.07(a)(5) of the Penal Code. To refute this presumption, the prosecutor must first, based upon the preponderance of evidence, prove that the actor had the capacity to understand that the action was wrong at the time of the offense.

Mental Competency of Juveniles Section 8.08 was added to the Penal Code

by Senate Bill 393. This statute empowers municipal and justice courts to dismiss a juvenile complaint if it is believed that the juvenile lacks the capacity to understand the proceedings or assist in their own defense, or if it is believed that the juvenile cannot appreciate the wrongfulness of their action or conform to the conduct that is required by law. These cases must be referred to juvenile court if the child is charged with the same offense after a dismissal under Section 8.08.

Disorderly Conduct Penal Code Section 42.01, relating to disorderly conduct, was amended by SB 393 and SB 1114. Through the addition of Subsection (a-1), the definition of a “public place” was expanded to include a public school campus or grounds. Subsection (f) was modified to state that children under 12 years old cannot be charged with disorderly conduct. Prior to 2013, children in the sixth grade or below could not be charged with disorderly conduct. This was problematic in that legislators did not account for overage students when applying grade level language.

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Disruption of School and Disruption of Transportation SB 1114 practically eliminated complaints filed in municipal and justice courts alleging disruption of school and disruption of transportation by amending Section 37.124(a), Education Code. The statute now indicates that a person “other than a primary or secondary grade student enrolled in the school” has the ability to commit the offense. Prior to the effective date of this bill, disruption of school and disruption of transportation cases were frequently referred to municipal and justice courts.

Court Fines and Costs One new court cost was enacted this past legislative session. SB 1419 created Article 102.015, Code of Criminal Procedure, which mandates that municipal and justice courts impose an additional $2.00 court cost upon defendants convicted of fine-only misdemeanors (excluding pedestrian and parking violations). Fifty percent ($1.00) of the funds collected will remain with the jurisdiction collecting the fee in order to establish or continue existing Juvenile Case Manager Programs. The remainder ($1.00) is to be sent to the Office of the Governor to establish a grant fund to assist jurisdictions in hiring Juvenile Case Managers or continuation of an existing program. This statute became effective on September 1, 2013, and fee collection began on January 1, 2014.

Articles 43.091 and 45.0491, Code of Criminal Procedure, were amended by adding language to include children as eligible defendants to receive payment waivers. The court may waive court costs and/ or fines of children if the child was indigent at the time of the offense or if discharging the fine would create “undue hardship.”

Juvenile Complaints In addition to the requirements of Subchapter E-1, Chapter 37, Education Code, SB 1114 imposed additional requirements for law enforcement officers who issue a citation or file a complaint for conduct by a child 12 years and older alleged to have

occurred on school property. Officers must submit to the court an offense report, witness statement and victim statement.

Conclusions Shifting juvenile school discipline from the courthouse to the schoolhouse for primary resolution of minor juvenile violations should yield substantial results in reducing the number of juvenile defendants entering the system. When juvenile justice agencies, community groups, school districts, lawmakers and other stakeholders join together to solve the dilemma of juvenile delinquency prevention, the results are more substantial. The City of Houston Municipal Courts Department has adopted this philosophy and implemented a paradigm shift that enables children and families to achieve lasting success.

Despite changes in legislation, at the end of the school year, the Houston Juvenile Case Managers will begin their summertime ritual of trading khakis and air-conditioned offices for sneakers and humidity, knocking on stranger’s doors and educating children and parents about truancy.

Catherine Klier is an Administration Manager with the City of Houston Municipal Courts Department and currently manages the Juvenile Case Manager Program. She is a graduate of the University of Texas at Austin and has over 13 years’ experience in criminal justice and juvenile social services.

Endnotes 1. Browning, K., Porter, P., Thornberry, T. 1999, April.

Highlights of Findings from the Rochester Youth Development Study. Office of Juvenile Justice Delinquency Prevention. Retrieved September 26, 2013, available at https://www.ncjrs.gov/pdffiles1/fs99103.pdf .

2. Klier, Catherine A. Report: Juvenile Case Manager Program 2009-2013. City of Houston Municipal Courts Department.

3. Id. 4. Garcia, Rene M. Report: Juvenile Case Manager Court Program Compliance Data: September 2011-May 2013.

City of Houston Municipal Courts Department.

5. Turner, Ryan K. 2012, March. Juvenile Case Managers in Texas: The First Decade. The Recorder, Vol. 21, No. 2, available at http://www.tmcec.com/public/files/File/ The%20Recorder/2012/Recorder%20Vol.%2021%20 No%202.pdf .

6. Texas Legislature Online. N.d. Texas Legislature Online: Bills by Subject, available at http://www.capitol.state. tx.us/Reports/BillsBySubject.aspx?ID=subject&LegSes s=83R&Cat=I.

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By Peyton Z. Peebles, III

Noncitizens C Suffering from Criminal Convictions:

riminal law and immigration law often intersect. To perform at a constitutionally adequate level, criminal lawyers must educate themselves on basic immigration law and advise clients with pending cases accordingly.1 Noncitizens, however, often call criminal lawyers for assistance in obtaining relief from prior convictions that cause current immigration problems. The situation almost always stems from a guilty plea and negotiated sentence where the defendant failed to understand the attendant immigration risks or consequences. This article offers an overview for evaluating whether state habeas corpus relief might resolve such immigration problems.

An Overview of Habeas Options

A. Criminal lawyers should advise clients about immigration consequences, and a failure to do so implicates the Sixth Amendment under Padilla.

Habeas corpus petitions frequently challenge whether a prior lawyer’s performance was constitutionally adequate.

The Padilla opinion recognized that prevailing professional norms have long required criminal lawyers to advise their clients about immigration concerns.2 Its novelty was in officially recognizing same as a duty required by the Sixth Amendment, thereby expanding the target pool for Strickland ineffective assistance of counsel claims to include insufficient advice about immigration risks or consequences.3 Under Strickland, a defendant’s constitutional right to counsel is violated in situations where: (1) counsel unstrategically errs by performing at a level below that expected of reasonably competent counsel; and (2) there exists a substantial likelihood that the outcome of the case would have been different but for the error.4 Thus, Padilla clarified that noncitizen defendants could bring ineffective assistance claims where their lawyers failed to sufficiently advise them

about the immigration consequences stemming from their plea bargain.

Applying this framework to immigration advice, counsel errs by not advising his or her client that a particular plea bargain carries a risk of deportation.5 The nature of the required advice depends on the immigration consequence’s certainty.6 Moreover, the duty to advise falls on the lawyer, and not the court, rendering boilerplate plea bargain admonishments by the court insufficient to satisfy the lawyer’s duty in situations where deportation is reasonably certain.7 Thus, previous counsel erred under Strickland by failing to provide the defendant with correct, available advice that the plea bargain (1) will result in deportation in situations where that result is reasonably certain; or (2) might so result in situations where the consequences are not easily determined or clear.8 Presuming that the client’s situation falls within this scenario, whether the error warrants relief depends on its effect on the client’s decision-making. In the context of a plea bargain, the outcome of the case would have been different, and, therefore, satisfy Strickland’s second prong, if a reasonable probability exists that the client would have rejected the plea bargain and exercised his or her right to a trial upon proper advice.9 The client must convince the court by a preponderance of the evidence that he or she would not have waived a trial and pled guilty if he or she had received correct immigration advice. Current counsel must look beyond the mere fact that the client did not understand the immigration consequences. It usually requires more than the client simply stating, “I wouldn’t have pled guilty if I had known.”

To satisfy the prejudice prong, habeas counsel must fully investigate the client and the previous case. Proof of prejudice can be difficult for at least two reasons.

First, the client almost always signed guilty plea admonishments advising him that he or she might suffer the consequences now being faced. The client must be prepared to show why he or she

would have rejected the plea bargain if the prior attorney had provided information that the consequences were certain.

Second, although the client does not have to prove that he or she would have prevailed at trial,10 there must be proof that the client would have wanted a trial if his or her lawyer had provided proper advice. The court can consider how reasonable that position is in light of any evidence showing the strength of the State’s case and the defendant’s probable thoughts about same at the time of the plea. The defendant can more easily meet the burden if he or she can show any of the following: (a) the State’s case was weak; (b) a plausible defense to the charge; (c) the option of seeking conviction for a lesser-included offense; or (d) a guilty verdict would likely have resulted in a sentence similar to the plea bargain.

To overcome these hurdles, habeas counsel must fully investigate the State’s case and the client’s living situation at the time of the guilty plea. Where possible, counsel should present evidence tending to show that the client’s current position that he or she would not have waived the right to a jury trial is reasonable, such as evidence showing that: (1) the client had been living in the United States for years with no remaining family in his or her home country, and, therefore, had nowhere to go if deported; (2) the client was married with children, and would never have voluntarily uprooted his or her family; or (3) the client’s children required medical care only available in the United States, and the client would easily risk his or her liberty for any chance that they might remain.

Finally, habeas counsel must remember that a successful habeas action merely reopens the underlying case. In that event, the State might dismiss the case or might retry it. If there is a retrial, the prosecutor will likely use any of the client’s prior testimony against him or her.

Habeas counsel must therefore be strategic when drafting affidavits, and must thoroughly prepare the client for crossexamination by the State if the court or-

ders an evidentiary hearing in the habeas corpus proceeding.

B. If a valid Padilla argument exists, can the client raise it? (How Chaidez and De Los Reyes limit Padilla) The Court issued its opinion in Padilla on March 31, 2010, and any noncitizen whose case was pending on or after that date can raise a Padilla claim. But the question of whether defendants who pled guilty before March 31, 2010, can raise such claims has fueled many debates.

The Supreme Court answered the question last year in Chaidez. Applying established retroactivity principles,11 the Court recognized that Padilla was novel, and therefore announced a “new rule,” because it was the first time it considered whether immigration advice fell within the standards for lawyer performance mandated by the Sixth Amendment.12 The Court accordingly held that Padilla’s rule was not retroactive as to convictions that were final on March 31, 2010.14 Subsequently, in De Los Reyes, the Court of Criminal Appeals of Texas wholly adopted Chaidez’s analysis.14 In doing so, the Court specifically declined to give retroactive effect to Padilla under Texas habeas corpus law.15 As a result of Chaidez and De Los Reyes, noncitizen defendants who pled guilty to a crime and received some sort of punishment prior to March 31, 2010, have an initial hurdle to presenting their claims’ merits. Habeas counsel should consider the following when deciding whether a Padilla claim can be brought in those cases.

1. Was the conviction actually final, thereby barring a Padilla claim under Teague?

A conviction is “final” for retroactivity purposes where “[t]he judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before [the date of the opinion announcing a new rule].”16 Texas Rule of Appellate Proce-

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dure 26.2(a) allows a defendant 30 days to file a notice of appeal, and that period is extended to 90 days upon timely filing a motion for new trial. Rule 26.3 also allows a notice of appeal to be filed up to 15 days late with permission from the Court.17 Thus, in situations where the defendant pled guilty and did not file a notice of appeal, habeas counsel can arguably raise a Padilla claim if the defendant either (1) was sentenced on or after February 5, 2010, and did not file a motion for new trial; or (2) was sentenced on December 16, 2009, and filed a timely motion for new trial.

If the defendant appealed a conviction or sentence, then the date of finality depends on whether he or she sought discretionary review in the Court of Criminal Appeals. If not, then the conviction became final when the availability of appeal exhausted itself, i.e., when the deadline for seeking further review expired, giving consideration for any applicable extensions for time. If so, then the conviction became final when the opportu-

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January/February 2014

nity to file a petition for writ of certiorari expired—90 days after the Court of Criminal Appeals issued its decision or denied PDR.18 2. If the conviction was final, was the defendant denied his right to appeal?

If the defendant’s conviction was final on March 31, 2010, then habeas counsel should inquire whether the defendant enjoyed a right to a direct appeal, and, if so, whether the prior lawyer informed the client of that right. Failure to advise a client about the right to appeal is an independent violation of the Sixth Amendment’s guarantee of effective representation.19 So is the failure to advise a client of the right to file a pro se petition for discretionary review.20 If the defendant did not waive the right to appeal, or was otherwise able to appeal and was not informed of the right to file a pro se petition for discretionary review, habeas counsel can file a writ to reinstate the direct appeal. If successful, such an action will not operate to bar a subsequent writ, and

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should further establish that the defendant’s conviction was not final on March 31, 2010.

C. Affirmative, incorrect advice arguably falls outside the restrictions of Chaidez and De Los Reyes Padilla involved a noncitizen whose lawyer affirmatively misadvised him that his guilty plea would not result in adverse immigration consequences.21 Subsequent Padilla claims fell into two general categories: (1) claims that the lawyer affirmatively misadvised the client about immigration consequences; and (2) claims that the lawyer simply failed to advise the client about immigration consequences.

Chaidez involved the latter. Chaidez’s lawyer simply failed to inform her that the plea bargain would result in her deportation.22 The Court found this distinction important, and limited its retroactivity holding to “no advice” cases, stating that the “limited rule” for material misrepresentations did not apply in Chaidez’s case.23

The Court found the former category arguably subject to a separate rule, noting that a lawyer may not “[a]ctively mislead his client on any important matter, however related to a criminal prosecution,” or his or her representation falls short of Sixth Amendment standards.24 Courts have long recognized that the Sixth Amendment requires lawyers to be truthful in all matters that would be material to a defendant’s decision to plead guilty or go to trial.25 Misinformation—even regarding a matter about which a defendant is not entitled to be informed—will render a plea involuntary if the defendant shows that the plea was actually induced by the misinformation.26 Thus, Chaidez and De Los Reyes arguably do not foreclose Padilla claims in situations where previous counsel affirmatively misadvised the defendant.

D. Linking Padilla-type claims to traditional habeas allegations If the defendant cannot lodge a Padilla claim, the habeas lawyer must inves-

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tigate more traditional types of relief, some of which might be related to the Padilla argument. For example, criminal lawyers have a duty to effectively negotiate and convey favorable plea bargains.27 Counsel might be found ineffective for failing to negotiate and secure any plea bargain that would likely have been offered to and accepted by the defendant.

E. Friendly territory Finally, habeas lawyers should explore the trial court and its prosecutors. This is especially true in any forum where the judge has jurisdiction to grant or deny relief.28 In heartbreaking situations, prosecutors may be quite cooperative given their duty to see justice done.29 Peyton Peebles has practiced criminal law at the trial, appellate, and habeas levels for nearly 15 years. He has worked as both prosecutor and defense attorney, lobbied at the Texas Legislature, and served on the State Bar Committee for the Rules of Evidence.

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Endnotes 1. Padilla v. Kentucky, 559 U.S. 356 (2010). See also Ex parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013).

2. See Padilla, 559 U.S. at 372. See also Chaidez v. United States, 133 S. Ct. 1103, 1113 n.14 (2013) (citing 1968 American Bar Association standards); Chiadez, 133 S. Ct. at 1116 (Sotomayor, J., dissenting); “Seeking PostConviction Relief under Padilla v. Kentucky after Chaidez v. U.S.” by Immigrant Defense Project and National Immigration Project, available at http://immigrantdefense project.org/wp-content/uploads/2013/03/Chaidezadvisory-FINAL-201302281.pdf.

3. Chaidez, 133 S. Ct. at 1108.

4. Strickland v. Washington, 466 U.S. 668 (1984).

5. Padilla, 559 U.S. at 373-74.

6. See Padilla, 559 U.S. at 369 (“When the law is not succinct and straightforward... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear... the duty to give correct advice is equally clear.”).

7. Marroquin v. United States, 480 Fed. Appx. 294, 298300 (5th Cir. 2012). See also Ex parte Tanklevskaya, 361 S.W.3d 86, 98-99 (Tex. App.—Houston [1st Dist.]

2011), reversed on retroactivity grounds, 393 S.W.3d 787 (Tex. Crim. App. 2013).

8. Padilla, 559 U.S. at 370-71.

9. Hill v. Lockhart, 474 U.S. 52 (1985).

10. Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005).

11. See Teague v. Lane, 489 U.S. 288, 311 (1989) (holding that decisions announcing a “new rule” cannot be applied to convictions that are already final when the rule is announced, absent two exceptions: (1) watershed rules of criminal procedure; and (2) rules placing

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conduct beyond the government’s power to proscribe).

12. Chaidez, 133 S. Ct. at 1108-11.

13. Id. at 1113.

14. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013).

15. Id. 16. See Linkletter v. Walker, 381 U.S. 618, 622 (1965). See also Allen v. Hardy, 478 U.S. 255, 258 n. 1 (1986).

17. TEX. R. APP. P. 26.3.

18. SUP. CT. R. 13.1.

19. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988).

See also Ex parte Owens, 206 S.W.3d 670, 677 (Tex. Crim. App. 2006).

20. Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005).

21. Padilla, 559 U.S. at 360.

22. Chaidez, 133 S. Ct. at 1106.

23. Id. at 1112.

24. Id. 25. See, e.g., U.S. v. Kwan, 407 F.3d 1005, 1015-16 (9th Cir. 2005); United States v. Couto, 311 F.3d 179, 187-88 (2nd Cir. 2002).

26. See Ex Parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012) (parole eligibility); Ex parte Moody, 991 S.W.2d 856, 857 (Tex. Crim. App. 1999) (serving state and federal sentences concurrently); Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991) (probation eligibility); Ex parte Griffin, 679 S.W.2d 15, 17 (Tex. Crim. App. 1984) (plea bargain also resolved a prior case).

27. Missouri v. Frye, 132 S. Ct. 1399, 1406 (2012); Lafler v.

Cooper, 132 S. Ct. 1376, 1384 (2012); Ex parte Wilson, 724 S.W.2d 72, 74 (Tex. Crim. App. 1987).

28. See TEX. CODE CRIM. PROC. ANN. Ch. 11 (West 2005 and Supp. 2013).

29. TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005).

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By Gary Trichter and Doug Murphy

What Every Sober Driver Needs to Know About Driving in Texas:

The Truth about DWI

T

his article is written for the innocent person who both drives and drinks (or takes prescription medication) responsibly and who also believes that he or she will never be wrongly arrested for driving while intoxicated (DWI). You may ask, “Why?” The answer is that there are more innocent people wrongly arrested for DWI than for all other crimes combined.

What is DWI? First, it is a serious crime that, depending on the facts and circumstances, can be either a misdemeanor (lesser crime) or a felony (greater crime). Without a doubt, it always begins as an opinion crime because the arresting officer must guess as to whether or not the suspected driver is intoxicated. A driver is deemed “intoxicated” when he/she has lost the normal use of either mental and/or physical faculties because of ingestion of alcohol, a drug, a controlled substance, or a combination thereof, or, where the driver had an alcohol concentration of 0.08 or more at the time of driving (not at the time of testing) in the breath, blood or urine.1 It is because DWI is an opinion crime that so many innocent people are arrested. Often the arrest decision is based upon the subjective opinion of the arresting officer— not necessarily facts.

What are the penalties?

They are severe and social, administrative and criminal. For a first offense DWI, without an accident or chemical test, the penalty is a Class B Misdemeanor that can yield up to six months in jail, up to a $2,000 fine, a driver’s license suspension of one year and a license surcharge of $1,000 a year for three years.2 In addition, you can tack on court fees, tow truck and storage lot charges, bonding fees, lost wages for missed work, insurance rate hikes and attorney’s fees for the criminal defense of the DWI, the administra-

tive license revocation hearing (ALR) and the obtaining of an occupational license.

The Texas Department of Transportation has posted billboards that say the cost of a DWI is $17,000. That said, because a DWI conviction record is for life, we believe the number to be much higher.

Other Penalties?

For a first-time DWI where there is a breath or blood test result of 0.15 or higher, some penalties jump to a Class A misdemeanor, that is up to a year in jail and up to a $4,000 fine, but the license suspension and surcharge stay the same.3 The same penalties carry over for a second DWI, but the license suspension and surcharge jump to two years and $1,500 a year (for three years) respectively.4 Misdemeanor DWIs, unlike felony DWI-related offenses, are not crimes of moral turpitude or of dishonesty and do not result in a loss of voting privileges or voting rights. A third DWI conviction is a third degree felony (not less than two years nor more than 10 years in prison and/or up to a $10,000 fine).5 An intoxication assault has the same penalty range and occurs where there is a DWI and a serious bodily injury caused by the intoxication.6 Finally, a conviction for intoxication manslaughter (a terrible tragedy for all involved where a death occurred because of intoxication) can bring a penalty up to 20 years in prison.7 Two Separate License Suspension Prosecutions In most DWI arrests, the defendant must understand that there are two separate prosecutions happening at the same time, one for DWI (criminal court) and one for the ALR (administrative court). The latter occurs where the suspect driver, upon proper request after arrest, is asked to submit to a breath or blood test and either declines, or takes a test and fails. In firstoffense cases where proved at the ALR hearing, the suspension period for refusal is 180 days, whereas the penalty for failure is 90 days.8 Here, it is noteworthy that to get a hearing, it must be requested within

15 days of arrest or it is deemed waived— waiver leads to automatic suspension that begins 40 days after the arrest.9 Many defendants prevail at their ALR hearings and do not suffer a driver’s license suspension.

Being an opinion crime, how hard is it on the officer?

A very drunk person is easy to classify. It does not take a rocket scientist to determine that someone is drunk if he or she has an open beer can in a hand, two empty six packs on the floorboard and he or she is passed out behind the wheel. Other drinking drivers are not so easy to classify properly. Here, it must be understood that it is illegal to drive with an open alcoholic container if it contains alcohol (using it for a spittoon would not be) but it is not illegal to drink alcohol and then drive so long as the person did not drink so much to become legally drunk, or intoxicated.

An Officer’s Pre-Arrest Tools Law enforcement officers use sobriety tests to help them determine if a suspected driver is impaired. Routinely, the investigating officer will administer what is called “Standardized Field Sobriety Tests” (SFSTs). There are three such tests: the horizontal nystagmus (HGN) test (looks for jerkiness in the eyes while following a target), walk and turn (W & T) (walking a line nine steps heal to toe, arm to your side, turn at nine, then nine steps back), and the one leg stand (ILS) (lifting a leg up six inches off the ground, holding your arms down by your sides and counting aloud for 30 seconds). To be valid an SFST must be demonstrated, administered and scored in a very controlled manner; otherwise, its reliability and accuracy are compromised.10 Are There Other Pre-Arrest Tests?

Yes. Some include a head tilt, finger count, ABC recitation (without singing and from one specific letter to another, e.g., “F to T”), nose touch and portable breath tester (PBT).

Are these pre-arrest tests good tools?

Although law enforcement would say

“yes,” logic and common sense say “no.”

For example, officers are not eye experts and there are many innocent people who have normal visible nystagmus (involuntary jerking) in their eyes. Nystagmus can be caused by fatigue, by the officer moving the target too fast or too far and by police emergency strobe lights.11 As for the W&T and ILS tests, each test will grade off for sway but does not take into account that the test positions create the very sway the officer is looking for. Moreover, the tests are also questionable because practice is not allowed, the officer does not explain how he is grading the test performance, and fatigue and nervousness have an impact. Speaking of grading, the tests are not graded “A, B, C, D, F.” Rather, they are graded on a negative point basis where you can be deemed intoxicated even though you performed the tests 98 percent correct. Sober people can score all the clues, but the testing criterion scores them as being intoxicated.12 The other non-validated tests are equally prejudicial for many of the reasons noted above. The PBT is particularly bad because it is not scientifically accepted, is susceptible to all kinds of error and does not save the breath sample tested so it can be subsequently rechecked for accuracy and confirmation.13 What about audio/video electronic recording, should I be concerned?

“Yes,” but only if the officer is NOT making one. This recording is the best evidence of sobriety and police prejudice, and yet, many officers do not record or do not record the entire event. Indeed, many will not record the reason for the stop, the post arrest transport to jail or the post arrest breath or blood testing.

Do I have to participate in the audio/video electronic recording?

There is no right to refuse recording, but a citizen has a right to decline participation.

For example, you do need to allow yourself to be recorded, but you need not perform SFSTs or answer questions. Remember, the United States Supreme Court, in

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On the other hand, the machine Texas uses for blood testing is called a “gas chromatograph” (GC). It was not specifically designed or warranted fit for alcohol blood testing. Rather, police testing is an indirect or circumstantial means of testing where the blood itself is not tested, but instead, the air above the specimen is tested. This raises the potential issue of airborne chemicals in the police lab causing contamination.

Contamination can also occur in the What about the post-arrest breath or blood collection (hemolysis (damaging blood tests, should I decline and can I? blood cells causing them to ferment) and The breath tester we use in Texas is storage (fermentation)).15 Moreover, the called an Intoxilyzer 5000 EN. It is of antiquated design, was never warranted GC does not come from its manufacturfit for breath testing, destroys the breath er programmed for blood testing, so the sample it tested so it cannot be rechecked police forensic scientist must do it themto prove it was in error, is no longer beselves. If the police blood testing proceing manufactured, and has been replaced dures and methods were under either elsewhere for being programmed to falseFDA or EPA supervision, they would not ly report breath tests that are artificially be approved. high breath alcohol concentration results And so, we believe that neither breath (saying you are over the limit when you nor blood serve the truth very well. That are really not). said, one should not be quick to volunteer for inaccurate testing. Under Texas law, you do not have to take either IN T H E WO O D L AN D H EI G H T S unless there is a judge’s order to do $869,900 • 2,863 sf • 3 beds, 3 baths • MLS# 37201506 so (a signed search warrant) or you are being charged with a specific offense that legislatively allows the taking of a compelled blood sample: a DWI third offense (or more), a DWI with a child, an intoxiClassic historic living on one of the nicest streets in the cated assault or an Woodland Heights. Zoned to Travis Elementary this intoxicated man1909 home has been updated and expanded over the slaughter,16 but years and is located on an oversized lot with a fully appointed garage apartment. a recent U.S. Supreme Court case requires the State Broker/Owner • 713.862.1600 to procure a warrant for these bill@yourblvd.com • yourblvd.com scenarios unless

its landmark case of Miranda v. Arizona,14 said that we citizens do not need to participate or answer questions while in police custody, and that if we do, “that anything you say can be used against you.” Understanding this, it would be wise to understand that “anything” means “anything”; including what you think is evidence of innocence. As a general rule, the less you say the better off you will be later in court.

520 Omar Street

32

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an exigency exception to the warrant requirement under the Fourth Amendment applies.17 If I am going to choose breath or blood, which one should I take?

In regard to blood, it must be understood that samples are not always taken in a hospital environment or by real medical personnel. Accordingly, there will always be, in those circumstances, a risk of infection (the risk still exists in hospitals, too). Breath testing also, because a common breath inlet tube is used by all, has a possibility for contagious infection (it was reported that breath testers in Florida were taken out of service due to TB contamination). From a police perspective, breath testing is more convenient and less costly than blood testing. From a potential defendant’s perspective, breath testing is also more convenient and guaranteed less painful.

Defense lawyer data discovery process is easier and less expensive in breath test cases than in blood. In breath, there are established guidelines for required record disclosure (called Department of Public Safety Breath Alcohol Standard Operating Guidelines (SOGs)),18 while there are no SOGs in blood test cases. Also, because breath testing has been more prominent in the past, many judges understand breath issues better than blood issues.

Sadly, the same is true with prosecution and defense lawyers. Here, it is critical to remember that, like people in general, all defense lawyers are not equal when it comes to understanding the so-called science of police breath and blood testing.

That said, when interviewing a criminal defense lawyer about DWI representation in a breath and/or blood case, it is wise to make sure that they have an in depth understanding of the area before signing a contract. Finally, quality defense breath test experts are generally less expensive and more available than comparable blood test/GC experts.

What should I do if I responsibly consumed alcohol, I am driving sober

and I am stopped by a police officer who wants to conduct a DWI investigation on me?

First and foremost, remember that you have a right to be presumed innocent and do not have to prove yourself not guilty, have a right to say “NO” to answering questions (remember that even good things can be turned around and used against you) and a right to say “NO” to performing SFSTs (remember, there will not be any practice allowed, they are unfairly graded and that you will be nervous).

Second, remember too, that the officer has an incredibly hard job and to always be polite. Again, always be polite. Being disrespectful or rude will not further anyone’s best interests.

Will I need a lawyer if I am wrongly arrested for DWI? Absolutely. I recommend that you immediately read all paperwork provided by the police, that you interview more than one lawyer (ask hard questions/initial interviews should take a minimum of 6090 minutes), do a DWI general internet research prior to lawyer interviews (try www.texasdwilaw.com) and to quickly result of business globalization and an hire a criminal defense lawyer experiease in our international clientele base, we, enced in DWITaheri, (remember, an ALR request he Law Offices of Marshall a U.S. and must belaw made 15 days of your arrnational litigation firm,within have developed expertise and to handle all restextensive or yourexperience license will automatically go cts of international matters, as follows: into suspension). Indeed, even if a person ERNATIONAL BUSINESS LITIGATION AND feels they had too much to drink, having ITRATION a good lawyer can help prevent an overly ERNATIONAL PERSONAL INJURYand ANDto insure that your harsh punishment ONGFUL DEATH rights were not and will not be abridged.

ERNATIONAL WHITE COLLAR CRIMINAL DEFENSE

EXPORT CONTROLS, AND INTERNATIONAL If I drink OFAC, responsibly, should I still TRADE drive?

CUSTOMS AND IMMIGRATION SOLUTIONS The COMPLEX short answer is generally “no”! If sus-

she will be forced to guess about your sobriety. Lastly, it is far less expensive to be safe and to have a designated driver or take a taxi home than it is to hire a bondsman and a good lawyer.

If arrested for DWI, what type of lawyer do you want?

Clearly you want a lawyer who is very experienced, not only in trial work, but also, one who is intimately familiar with the science of breath and blood testing.

The Texas Criminal Defense Lawyers Association has lots of good DWI lawyers and they can be found through its online directory at www.tcdla.com. Note, however, that the National College for DUI Defense, probably the best training institution for DWI defense also has an online listing for Texas lawyers that are highly educated in DWI defense.

J. Gary Trichter and Doug Murphy are two of only four board-certified DWI specialists in the State of Texas. They are

regents of the National College for DUI Defense, an institution for which Trichter previously served as dean. Trichter is coauthor of the two-volume treatise ‘Texas Drunk Driving Law (4th ed.)’ and has written numerous papers on this topic.

Endnotes 1.

2.

3.

4.

5.

6.

7.

8.

TEX. PEN. CODE § 49.04.

Id. at § 12.22.

Id. at § 49.04(d) & 12.21.

Id. at § 12.21.

Id. at § 49.09(b) & 12.34.

Id. at § 49.07.

Id. at § 49.08.

TEX. TRANSP. CODE § 724.035 (refusal) & § 524.022 (failure).

9. Id. at § 524.021.

10. National Highway Traffic and Safety Administration, DWI Detection, Student Manual.

11. Schultz v. Maryland, 664 A.2d 60 (Md. 1995).

12. Texas Drunk Driving Law (4th ed.).

13. Id. 14. Miranda v. Arizona, 384 U.S. 436 (1966).

15. Texas Drunk Driving Law (4th ed,).

16. TEX. TRANSP. CODE § 724.012.

17. Missouri v. McNeely, ___ U.S. ___ (April 13, 2013).

18. Texas Breath Alcohol Testing Program, Office of the Scientific Director, Directive from the Scientific Director, Standard Operating Guidelines: Evidential Breath Alcohol Instrument Calibration.

“We have a global understanding of law, business, and culture” “We are fully conversant with current U.S.- international bilateral treaties and conventions” www.marshalltaheri.com info@marshalltaheri.com Houston 713.871.0000

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ber ofACT drinks you admit to—even if you EN TORT CLAIMS (ATCA)

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Moreover, since you will be a stranger to the officer, he or she will be guessing about your normal mental and physical being. In our view, because it is an exercise of good judgment to protect yourself and stand on your rights, it is unfair to put the officer in a situation where he or

Los Angeles 310.557.0000 New York 212.247.0000 Washington, DC 202.333.0000 Consultation by appointment only.

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January/Februay 2014

33

By Brian Wice

Are You I Ready for Your Close-Up? A Criminal Practitioner’s Primer on Dealing with the Electronic Media

n a world where noted legal sage Andy Warhol predicted we will all be famous for 15 minutes, sooner or later you’ll land that big case that will put your face on the news at 5, 6 and 10. You don’t have to be a high-powered partner in a huge civil firm, a crime-busting prosecutor or superstar criminal lawyer to suddenly find yourself on the air. Indeed, most lawyers thrust into the spotlight are sole practitioners, unknown and unsung until their phone buzzes with a local reporter or network booker on the line. Of all the things that law school taught us, how to make the most of your fleeting fame by being a compelling guest on television is not among them. To make up for this monumental gap in your learning curve, what follows are some tips on how to make sure that you’re ready for your close-up.

First, and perhaps, sadly, television is a visual medium, less about substance than about style. As Dominique Sachse, a good friend and marquee anchor at KPRC, the NBC affiliate in Houston where I do legal analysis, is fond of saying, “I get more calls and e-mails from viewers about what I wore or how my hair looked than for what I said on the air.” This tenet is no less true for you as a lawyer than for an anchor or reporter. The typical viewer cares less that you were on law review or clerked for a federal judge than about whether your tie was crooked or an unseemly strap was showing. While many female lawyers I know do not ordinarily leave home unless their makeup is flawless, most male lawyers whom I see on the air are sweating like Mike Tyson at a spelling bee and have a shine on their foreheads that could shut down traffic on I-45. Guys, trust me. As funny as you might feel, stop by the makeup counter at the mall and buy some powder and base, and keep it handy. Whatever grief you might get from your buddies will be worth it when your audience doesn’t see the flop sweat on your brow.

Second, nowhere is the maxim “less is more” more compelling than when it

comes to your on-air answers. Because the typical local news story is a whopping 85 seconds, your mandate is to take a complicated legal issue and break it down in plain, unadorned non-legalese, and do so in no more than 25-30 seconds, what’s known in TV as a sound bite. If you don’t, two things are almost certain: your response will wind up on the editing room floor like Kevin Costner in “The Big Chill” or the only sound you’ll hear is the viewer changing the channel.

Third, where you are being interviewed is not unimportant. If you are being interviewed on the street, usually outside the courthouse, there is probably not a lot you can do to keep your hair from blowing, the rain from falling, or the car horns from blaring. Just pretend that you are Christiane Amanpour embedded with the 101st Airborne in Afghanistan. But if you are being interviewed in a studio or your office, things are much more controlled. After you are seated and your microphone is fitted, try to relax, take a deep breath and wet your lips. If you are wearing a jacket or a coat, sit on it to keep it from bunching up.

Make sure your cell phone is off or, better yet, in your glove box or desk drawer.

Some lawyers I have talked to, usually veterans of the profession, are dismissive of television because they feel it demeans the legal profession for lawyers to even be on TV talking about a client’s case. With all due respect, this cadre is unwilling or unable to recognize that television impacts the way potential jurors view our client’s case long before they are ushered into the courtroom for voir dire. Being able to represent your client on the courthouse steps effectively can be every bit as important as representing them inside the courtroom.

As legal legend Rusty Hardin, no stranger to high-profile cases, has remarked in stressing how important it is for a lawyer to be adroit at dealing with an electronic media that is oftentimes adversarial, “I always return their call. I never lie to them. If I can’t talk to them, I explain why.”

While criminal cases usually provide the best opportunity for lawyers to make their mark in TV, there are also high-profile

cases at the local and national levels where expertise in family law, intellectual property, aviation, personal injury and even probate can get you face time. And you don’t need to live in a top 10 TV market like Houston to have your 15 minutes, or at least 30 seconds of on-air fame. In my travels across Texas, I have had news directors and reporters in smaller markets tell me they found their go-to person to comment on legal stories for their stations simply because they were impressed with the way they handled themselves talking about their own clients’ cases. And they have also told me they welcome lawyers who take the initiative to call their stations’ assignment desk to give them a heads-up on one of their cases they feel is worthy of air time.

Few of us are blessed with the good looks of Brad Pitt or Angelina Jolie or the on-air savior faire of Matt Lauer or Katie Couric. But with a little preparation and hard work, your on-air performance will reflect well on you, and by extension, your

client. Besides, appearing on TV is client development—free advertising—that might well yield future business. And you never can tell what that one local, or, with a bit of good fortune, national TV appearance, can do for you or your practice. After all, household names like Greta Van Sustern, Dan Abrams and Nancy Grace were all lawyers before they became TV stars.

Like the good folks who run the lottery love to tell us, “Hey, you never know.” All it takes is one shot, a little luck and a trip to the makeup counter.

Brian Wice has served as a legal analyst for KPRC-TV, the NBC affiliate in Houston since 2004, and has appeared on the Today Show, Good Morning America, Dateline, 48 Hours, the O’Reilly Factor and On the Record with Greta Van Sustern.

He was selected as the 2010 “Attorney of the Year” by the Harris County Criminal Lawyers Association and by the Houston Press as its “Best Criminal Lawyer” and “Best Legal Analyst.”

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January/Februay 2014

35

64 Harvest Celebration Raises Record $619,750 for Houston Bar Foundation th

T

he 64th Harvest Celebration, co-sponsored by the Houston Bar Association, Houston Bar Association Auxiliary and Houston Bar Foundation, raised a record $619,750 in underwriting to benefit the Foundation, the charitable arm of the association. The event was held November 18 at River Oaks Country Club, with more than 1,000 HBA members and their guests in attendance. HBA From left, The Hon. Lee Duggan; Annette Duggan, president of the Houston Bar Association Auxiliary; Glenn A. Ballard, Jr., chair of the Houston Bar Foundation; Treasurer Laura Gibson and Hous- Susan Ballard; and David Chaumette, president of the Houston Bar Association. ton Bar Foundation Chair Glenn A. Ballard, Jr. served as event co-chairs.

As the main fundraising event for the Foundation, the Harvest Celebration got a new name this year and a new focus on celebrating the spirit of giving embodied by members’ contributions, not only financially but also through pro bono service to those less fortunate. The Foundation’s primary beneficiary is the Houston Volunteer Lawyers, which provides thousands of hours of pro bono legal representation to lowincome Harris County residents each year. A number of HBA Ambassadors attended the Harvest Celebration: Photos by Fred Provada Photography 36

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first row, from left, Yvonne Ho, Anna Archer, Diana Perez Gomez, Angelica Hernandez, Nicole Voyles and Clinton Yu; second row: Alex Macias, Sammy Ford and Brian Albrecht; and third row, Tamara Stiner Toomer and Knox Nunnally.

Laura Gibson, HBA secretary and co-chair of the Harvest Celebration, and her husband Bill Ogden.

Carter Crow, president-elect of the Houston Bar Association, and Meredith Crow.

John Eddie and Sheridan Williams

Ed Fernandez and Chris Taylor

Macey and Harry Reasoner

Attorneys from Fulbright & Jaworski LLP turned out to support the Harvest Celebration.

Benny and Nikki Agosto

Brian Fischer, Susan Fischer, Janice Nicholson and Barclay Nicholson thehoustonlawyer.com

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37

2013 Harvest Celebration Underwriters The Houston Bar Association and the Houston Bar Foundation express gratitude to these generous underwriters. One hundred percent of net proceeds raised for the Harvest Celebration directly benefit pro bono efforts in our community through the Houston Bar Foundation.

Pro Bono in Houston… Rebuilds Families… Helps Veterans… Provides Peace of Mind for Seniors $25,000 Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski LLP Locke Lord LLP Marathon Oil Company Vinson & Elkins LLP Williams Kherkher Hart Boundas, LLP

$3,000 Benny & Nikki Agosto HBA Oil, Gas & Mineral Law Section

$5,000 Amegy Bank BP America Inc. Beirne, Maynard & Parsons, LLP Chamberlain Hrdlicka White Williams & Aughtry ConocoPhillips Craig and Penny Glidden DLA Piper Gardere Wynne Sewell LLP Gibbs & Bruns LLP Greenberg Traurig LLP Haynes and Boone, L.L.P. HBA Family Law Section Jones Day Melanie Gray & Mark Wawro Schirrmeister Diaz-Arrastia Brem LLP Shell Oil Company Susman Godfrey L.L.P. Sutton McAughan Deaver PLLC Thompson & Knight LLP Weil, Gotshal & Manges LLP Winstead PC

$2,500 AAbraham Watkins Nichols Sorrels Agosto & Friend Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Anadarko Petroleum Corporation Arnold Knobloch & Saunders, L.L.P. Baker & McKenzie LLP Blank Rome LLP Cadwalader, Wickersham & Taft LLP CenterPoint Energy, Inc. Christian, Smith & Jewell LLP Cokinos, Bosien & Young, P.C. Connelly•Baker•Wotring LLP Energy Transfer Partners L.P. EOG Resources, Inc. Fisher, Boyd, Johnson, Huguenard, L.L.P. FTI Consulting Hagans Burdine Montgomery Rustay, P.C. HBA Labor & Employment Section Hewlett-Packard Co. Hogan Lovells US LLP Hunton & Williams LLP Jackson Walker L.L.P. Legge Farrow Kimmitt McGrath & Brown, LLP Martin, Disiere, Jefferson & Wisdom, L.L.P. McDermott Will & Emery McGuire Woods LLP McKool Smith, PC Noble Energy, Inc. Pam and John Strasburger Pillsbury Winthrop Shaw Pittman LLP Plains All American Pipeline, L.P. ReedSmith LLP Rusty Hardin & Associates, P.C. Schwartz Junell Greenberg & Oathout, L.L.P. Shannon, Martin, Finkelstein & Alvarado, P.C. Skadden, Arps, Slate, Meagher & Flom LLP Strasburger & Price, LLP The Lanier Law Firm

$4,000 HBA Mergers & Acquisitions Section

$2,000 Coats Rose

$10,000 Akin Gump Strauss Hauer & Feld LLP Chevron Exxon Mobil Corporation HBA Juvenile Law Section HBA Litigation Section King & Spalding LLP KoonsFuller, P.C. LyondellBasell Industries Morgan, Lewis & Bockius LLP Sidley Austin LLP Sutherland Asbill & Brennan LLP $7,500 Baker Hostetler LLP Beck Redden LLP Winston & Strawn LLP

David Brinley HBA Federal Practice Section Kay Sim Siegmyer, Oshman & Bissinger, LLP $1,500 Brent and Christy Benoit Munsch Hardt Kopf & Harr, P.C. Neil Kelly and Dana Levy Kelly $1,000 Ajamie LLP Berg & Androphy Cadence Bank Campbell Harrison & Dagley L.L.P. David Chaumette De Leon Law Firm Dobrowski Larkin & Johnson L.L.P. Ebanks Horne Rota Moos LLP Foster Quan LLP Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Frost Bank Germer Gertz, L.L.P. Godwin Lewis PC Hall, Maines & Lugrin, P.C. Hasley Scarano, L.L.P. HBA Alternative Dispute Resolution Section HBA Appellate Section HBA Collaborative Law Section HBA Construction Law Section HBA Corporate Counsel Section HBA International Law Section HBA Real Estate Section Hirsch & Westheimer, P.C. Jane and Doug Bland Jenkins & Kamin, L.L.P. Jim S. Adler & Associates, P.C. John & Denise Scofield Johnson, Trent, West & Taylor, L.L.P. Kelly, Durham & Pittard, LLP Law Office of Brent C. Perry Lighthouse Legal Copy Liskow & Lewis, A PLC Looper Reed & McGraw, P.C. MacIntyre McCulloch Stanfield & Young LLP Mark Elias MehaffyWeber, P.C. Nathan Sommers Jacobs, PC Ogden, Gibson, Broocks, Longoria & Hall, LLP

Olson & Olson LLP Phelps Dunbar LLP Porter Hedges LLP Prosperity Bank Providus Reynolds, Frizzell, Black, Doyle, Allen & Oldham LLP Roach & Newton, LLP Royston, Rayzor, Vickery & Williams, L.L.P. Schiffer Odom Hicks & Johnson PLLC Segment Wealth Management Giving Fund, LLC Shepherd, Scott, Clawater & Houston, L.L.P. Smyser Kaplan & Veselka, L.L.P. South Texas College of Law Sprott, Rigby, Newsom, Robbins, Lunceford & Bell, P.C. Strong Pipkin Bissell & Ledyard LLP Sud Law PC Tekell, Book, Allen & Morris, L.L.P. Todd Frankfort Ware, Jackson, Lee & Chambers, L.L.P. Westlake Chemical Corporation Wright & Close, L.L.P. Yetter Coleman LLP $500 Alistair Dawson Bill Kroger HBA Securities, Litigation & Arbitration Section Hon. David Fraga Houston Bar Association Auxiliary Charitable Fund, Inc. $250 Daniella Landers HBA Health Law Section Hon. Frank Rynd Jackson Lewis Kreindler & Associates $200 Laura Gibson and Bill Ogden $100 HBA Animal Law Section Printing of Harvest Celebration Invitations: Innovative Legal Solutions

Houston Lawyers Who Made a Difference

Helen Johnston

I

By The Hon. Mark Davidson

t is axiomatic that an integral part of every successful real estate investor is a skilled transactional lawyer. On that criterion, one of the greatest transactional attorneys in the history of Harris County is Helen Johnston. She worked behind the scenes, and the glory for her successes is attributed to her client.

Here is the backstory: Johnston graduated from South Texas College of Law in 1949. Like all women attorneys of her era, she was unable to get a job in the law, and worked as a cashier at a downtown bank.

One of her regular customers was Judge Edwin Suhr, who frequently represented R. E. “Bob” Smith, a local investor and philanthropist. One day, Smith complained to Suhr that his legal bills were high. Suhr

suggested that Smith hire an in-house attorney. When Smith said he couldn’t afford that either, Suhr responded “I know of an attorney who would be willing to work for the wages of a bank teller.” Thus was created a wonderful attorneyclient relationship.

For the next 30 years, whether it was Smith’s purchases or sales of land in what is now the Galleria area, the Astrodome area, or dozens of other successful developments, the legal genius drawing the papers and advising the client of the law was Helen Johnston—a former bank teller. A search of the District Clerk’s index of suits filed

during those years shows no lawsuits filed against Mr. Smith, which is a measure of her skill at draftsmanship. According to a lawyer who met Ms. Johnston near the end of her life, “Smith trusted her advice, skill and judgment more than anyone, and he rewarded her well for 30 years of her professional life.”

To every woman lawyer who is a success today, she is a role model for what intelligence and hard work can accomplish, both in your career and personally. To all of us who love Houston today and benefit from the growth during its most formative years, Helen Johnston made a difference.

The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court.

His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law.

GLAST, PHILLIPS & MURRAY, P.C. is pleased to announce the addition of the following attorneys Harvey J. Heller Commercial Real Estate Board Certified Texas Board of Legal Specialization Commercial and Residential Real Estate Law Formerly with Boyer Short, A Professional Corporation 713-871-2042 David S. Piper General Business Formerly with Boyer Short, A Professional Corporation 713-871-2008

Keith Short Commercial Real Estate Formerly with Boyer Short, A Professional Corporation 713-871-2079 Fred W. Stumpf Commercial Litigation Board Certified Texas Board of Legal Specialization Civil Trial Law Formerly with Boyer Short, A Professional Corporation 713-871-2053

and the relocation of our Houston office to: 9 Greenway Plaza, Suite 3100 Houston, TX 77046-0994 713-237-3111 713-871-2025 DEDICATION. EXPERTISE. EFFICIENCY. Glast, Phillips & Murray, P.C. is a full-service law firm dedicated to providing quality results in a cost effective manner.

DALLAS 14801 Quorum Drive, Suite 500 Dallas, TX 75254-1449 972-419-8300 www.gpm-law.com

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January/Februay 2014

39

A Profile

in pro f e s s io n a l i s m

A

Judge Brock Thomas 338th Criminal District Court

The Houston Lawyer

s attorneys, there are a variety of reasons that have drawn us to this profession.

Whatever the reasons, one thing is true – the license to practice law bestows on an individual the power and the opportunity to make a positive difference in things that matter.

My entire legal career has been spent within the criminal justice system. One does not have to look far or deep to see that what happens every day in our criminal courts matters. The legal implications and real world consequences of criminal proceedings for the accused, victims, and the families of both have a profound impact now and for generations to come.

Unfortunately, too often, the public and attorneys view the legal process as a win—lose situation. As practitioners in the criminal justice system know, in reality there are no winners and losers. The world is far more complicated than a simplistic score sheet.

Having the privilege to previously serve as Judge of one our Felony Drug Rehabilitation Courts (STAR— Success Through Addiction Recovery) and now having the privilege to serve as one of the Judges in our Felony Mental Health Court Program, I have seen 40

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firsthand where dedicated professionals from both sides of the Bar, working together with other treatment professionals, can achieve outcomes where everyone benefits. Oftentimes, these programs, along with the other therapeutic treatment courts within our justice system, provide participants the opportunities and support necessary to rebuild their lives and become productive law-abiding members of the community. The work that takes place within our therapeutic treatment courts is no doubt challenging and in many respects different than the handling of other cases. As the attorneys who practice in these courts see, when it works, the results can be life-saving and life-changing.

Opportunities to make a positive difference in things that matter are certainly not confined to the criminal justice system. There are numerous programs and initiatives throughout the legal profession that provide the chance to employ our education and skills to leave the world a better place than we found it. When we make of the most of the opportunities we have been blessed with, we not only better our profession, we also better our society.

at the bar

The Hon. Kem Frost was sworn in as Chief Justice of the Fourteenth Court of Appeals on November 15, 2013.

The Hon. Grant Dorfman was sworn in as Judge of the 334th District court on January 24, 2014.

Judicial Investitures

The Hon. Catherine Evans was sworn in as Judge of the 180th District Court on December 16.

The Hon. Marc Brown was sworn in as a Justice of the Fourteenth Court of Appeals on December 10, 2013.

The Hon. Ken Wise was sworn in as Justice of the Fourteenth Court of Appeals on January 31, 2014.

STAR Courtroom Dedication

The Hon. Denise Bradley, Judge of the 262nd District Court, and Jim Stafford, chair of the HBA Criminal Law & Procedure Section, unveil a portrait of the Hon. Mike Anderson at a December 17 ceremony re-naming the STAR Drug Court the Mike Anderson Memorial Courtroom. The ceremony honored the late Harris County District Attorney, who was dedicated to helping drug offenders in need of rehabilitation and treatment get second chances through the court.

the

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Enhance your practice Try the HBA advantage.

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January/Februay 2014

41

OFF THE RECORD

Bringing Up Bucking Bulls

By Bridget O’Toole Purdie

The Houston Lawyer

G

eorgia Akers, Associate Judge of Probate Court No. 3, does not look like a cowgirl as she presides over the courtroom in her distinguished black robe – but boy howdy does this lady know her bulls.

Not just any bulls mind you, rather bucking bulls!

Judge Akers discovered her love of bucking bulls and the sport of professional bull riding almost by accident. Ten years ago, while flipping through cable channels, she came across a Professional Bull Riding (“PBR”) program and noticed a bull rider sinking to his knees to pray before his ride (mind you this was way before Tim Tebow).

Judge Akers recounts that she started watching the PBR events regularly and learned about the bulls that are actually considered athletes in their own right. She was quickly hooked and is now both a bull owner and one of PBR’s most enthusiastic Judge George Akers says PBR own personalities. advocates.

After watching the sport for five years and becoming an avid fan, Judge Akers received her first bull as a birthday gift from her husband, Sam. Her husband never dreamed what his gift would evolve into, as she now owns 45 head of cattle. Judge Akers knew she needed a partner who knew the business and how to care for bucking bulls. It took her over a year to find the bull and the partner she wanted, a young man named Cody Hebert of Hebert Bucking Bulls in Oklahoma. The Heberts have become extended family to Judge Akers and her husband, and much more than business partners. She notes, “There is not a harder working, more honest or nicer person I could ever hope to have in my life as a partner. His word is his bond, which is rare these days in a partner.”

The part that fascinated her most about PBR was the bulls.

She describes them as magnificent animals-- very strong, not very tame and with a true presence about them, with each bull

42

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having its own personality. The PBR bulls understand the sport and they enjoy it. The bulls are usually mixed breed cattle that come from bucking bull bloodlines going back decades. The PBR is the NFL of bucking bulls, with the top riders and the top bulls in the world competing to earn $1 million in the Las Vegas finals. The bull riders are professional athletes without the attitude that some sports figures have; they are polite, nice and always available to visit with fans.

As you would imagine, it is a young man’s sport. The riders start out as young as 18 and they usually retire around age 32. A charitable foundation, Rider Relief, was founded to assist bull riders who are injured. Rider Relief steps in with financial assistance to make mortgage payments, car payments, helps with groceries, and other daily living needs. Judge Akers is an active supporter of Rider Relief A common misconception about bulls, like Shane, have their the sport is the belief that the flank strap goes around the genitals or is fitted with sharp objects to make the bull buck. Neither belief is, in fact, true. The flank strap is not too tight, enhances the natural bucking motion of the bull, and encourages the bull to extend its hind legs.

Judge Akers said that becoming involved in the sport was like returning to her roots, as her parents owned a ranch in Tomball and raised beef cattle when she was a young girl. She even competed in junior barrel racing at the Cy Fair and Humble rodeos growing up. Spend a few minutes with the Judge and you are fascinated by the sport, and you realize that PBR has a super fan on its hands. You might just come away thinking that Judge Akers is the new belle of the bull.

Bridget O’Toole Purdie is a partner in the Private Client Services Group of Bracewell & Giuliani LLP. She is a member of The Houston Lawyer Editorial Board.

COMMITTEE SPOTLIGHT

Building Bridges Between the Bench and the Bar

By Joe W. Bailey II and Phillip L. Sampson, Jr.

S

ince 1992, the Houston Bar Association’s Administration of Justice Committee has reviewed the operation of the courts in Harris County, created opportunities for communication between attorneys and judges, and facilitated the administration of justice by organizing the annual Harris County Bench Bar Conference. The attorneys and judges who serve on the Administration of Justice Committee meet regularly to share experiences, discuss current events, and organize the annual Bench Bar Conference.

The focus of the Bench Bar Conference alternates between civil and criminal law each year, and this year’s Criminal/Appellate Bench Bar Conference, scheduled for April 3, 2014, promises to cover the most significant topics in criminal law today. The Conference will begin with an hour-long panel discussion on cell phone searches and seizures, addressing when a warrant is necessary for a phone search and what types of mobile device information are sought in contemporary criminal investigations. In the next morning session, Chief U.S. District Judge Fried Biery of the Western District of Texas will share his thoughts regarding the Confrontation Clause of the Sixth Amendment and how it relates to expert testimony.

After lunch, the afternoon sessions will include more presentations from the judiciary, including a panel discus-

“

The attorneys

and judges who serve on the

Administration of Justice Committee meet regularly to share experiences, discuss current events, and organize the annual Bench Bar

”

Conference.

sion among justices from the First and Fourteenth Court of Appeals (Justice Tracy Christopher, Justice Jane Bland, Justice Terry Jennings, and Justice Brett Busby) which will cover the prevention and preservation of error. Additionally, Judge Denise Collins, together with two other criminal court judges, will lead a panel discussion for new attorneys about what trial judges wish they could

tell you during trial. The last session of the day devotes an hour to a review and analysis of the Michael Morton Act and its impact on discovery of evidence in criminal cases.

In addition to the formal presentations at the Bench Bar Conference, the Administration of Justice Committee will organize breakout groups during the morning and afternoon sessions consisting of approximately 14 lawyers and judges. These groups will encourage informal dialogue about specific concerns of the judiciary and the bar.

Finally, after the formal presentations and informal breakout groups, the Administration of Justice Committee will host a reception at the 1910 Harris County Courthouse from 5:00 p.m. until 6:30 p.m.

More information regarding this year’s Criminal/Appellate Bench Bar Conference or the Houston Bar Association’s Administration of Justice Committee can be obtained by contacting the Houston Bar Association at 713-759-1133.

Joe W. Bailey, Hinton & Bailey, LLP, is Board Certified in Criminal Law. He practices in both state and federal courts.

Phillip L. Sampson, Jr., Bracewell & Giuliani LLP, is partner in the Trial Section. He tries cases for both plaintiffs and defendants in state and federal courts, as well as before arbitration panels, and has been twice recognized in Verdict Search’s “Top Texas Verdicts.”

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January/Februay 2014

43

LEGAL TRENDS

Claims Against Perpetual Care Cemeteries: An Exclusive Remedy

By Darren P. Lindamood and Brett J. Young

The Houston Lawyer

I

n Texas, many cemeteries operate as “Perpetual Care Fund Cemeteries.”

Under this statutory and regulatory scheme, the cemetery must put a portion of proceeds from the sale of each cemetery plot into a trust fund. Revenue from the fund is used for the maintenance, repair and care of the cemetery into perpetuity. The Special Audits Division of the Texas Department of Banking audits this fund.

Occasionally, visitors or plot owners may disapprove of a cemetery’s level of maintenance, repair, or care. Visitors may make a complaint with the Texas Department of Banking, which has the authority to investigate the visitor’s allegations.

Alternatively in 1989, the state legislature created a statutory cause of action permitting plot owners to force a cemetery to properly maintain the cemetery’s perpetual care fund under § 712.026 of the Texas Health and Safety Code.

Entitled Suit by Plot Owners to Maintain Perpetual Care, the Statute provides that, “if the directors of a corporation do not generally care for and maintain the corporation’s perpetual care cemetery, the district court of the county in which the perpetual care cemetery is located may [either] (1) by injunction compel the directors to expend the net income of the corporation’s fund as required by this chapter; or (2) appoint a receiver to take charge of 44

January/February 2014

the fund and expend the net income of the fund as required by this chapter.”

A suit for relief under this Statute must be brought by at least five owners of plots in the perpetual care fund cemetery. Importantly, this is a “loser pays” statute, whereby attorneys’ fees are awarded to the cemetery if it is found that the cemetery is “substantially expending” the available net income of the fund – or – attorneys’ fees are awarded to the plot owners if the cemetery is not “substantially expending” the available net income.

Although no Texas court of appeals has interpreted this Statute yet, legal precedent strongly indicates that the Statute is the mandatory and exclusive remedy.

In other words, the Statute precludes all other causes of action related to the perpetual care fund for breach of contract, fraud, violations of the Texas Deceptive Trade Practices, or any other cause of action relating to the cemetery’s appearance.

The Statute is mandatory and exclusive for two reasons. First, the Texas Supreme Court has stated that “The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable.” Serna v. H.E. Butt Grocery Co., 21 S.W.3d 330, 335–36 (Tex. App.—San Antonio 1999, no pet.) (quoting Mingus v.

Wadley, 285 S.W. 1084, 1087 (Tex. 1926)).

This Statute is very specific. There is no similar cause of action derived from the common law relating to a cemetery’s perpetual care fund. There is also no cause of action for injunctive relief or for a receivership at common law for problems with a perpetual care fund. Because this perpetual care Statute is a part of a statutory and regulatory scheme that has no relationship to the common law, this Statute is mandatory and exclusive.

Second, the legislature’s inclusion of a cost-shifting mechanism requires this

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Statute to be a mandatory and exclusive remedy. No plaintiff would ever elect to plead a statute with cost-shifting mechanism if the plaintiff could obtain the same remedy without subjecting itself to the risk of being liable for attorneys’ fees.

The Texas Supreme Court has acknowledged that the existence of a cost-shifting mechanism is evidence of the legislature’s intent. See, e.g., Edwards Aquifer Authority v. Day, 369 S.W.3d 814, 845 (Tex. 2012).

An interpretation that this Statute is not mandatory and exclusive means that it will never be invoked, which cannot be the legislature’s intent.

Perhaps the most important consequence of this Statute is that plaintiffs are not permitted to conduct any discovery on a cemetery’s perpetual care fund without first pleading the statute. See Dillard Dept.

Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (discovery may not be used to obtain documents on a claim not yet asserted). Plaintiffs cannot have the benefit of discovering information regarding the fund without bearing the risk of the attorneys’ fees cost-shifting mechanism.

The statutory interpretation contained above is the legislature’s intent. It also provides for the most efficient resolution of complaints regarding cemeteries’ maintenance, repair, and care.

Darren P. Lindamood is a litigation associate in the Mass Torts and Products Liability Group at Fulbright & Jaworski LLP (Norton Rose Fulbright). His practice is focused on products and premises liability defense, personal injury defense, and commercial litigation. He also handles death care law matters.

Brett J. Young is a partner in the Disputes Group at Fulbright & Jaworski LLP (Norton Rose Fulbright). In his practice, he directs the defense of significant tort matters, responds to catastrophic events, provides crisis response counseling for clients, and formulates strategy for defending product liability and toxic tort matters across the country.

LEGAL TRENDS

The U.S. Supreme Court Holds that Forum Selection Clauses Must Be Strictly Enforced

By Richard Sheehy

I

n Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas, 134 S. Ct. 568 (2013), the United States Supreme Court clarified the application of forum selection clauses in the context of 28 U.S.C. §1404(a), the federal court system transfer mechanism. The Court emphasized that federal courts must give significant weight to any such contractual clause, stating that “[T]he plaintiff’s choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.”

The case involved a contract for the construction of a child-development center in Fort Hood, Texas. The general contractor, Atlantic Marine Construction Company, a Virginia corporation with its principal place of business in Virginia, was hired by the United States Army Corps of Engineers to build the center. Atlantic Marine subcontracted with J-Crew Management, Inc. a Texas corporation, to work on the project. The contract between Atlantic Marine and J-Crew had a forum selection clause requiring the parties to litigate all disputes in the Circuit Court of the City of Norfolk, Virginia, or the United States District Court for the Eastern District of

Virginia, Norfolk Division.

When a dispute arose about certain payments, J-Crew filed suit in the United States District Court for the Western District of Texas, invoking that court’s diversity jurisdiction. Atlantic Marine moved to dismiss the suit arguing that the forum selection clause in the contract rendered venue in the Western District of Texas “wrong” under §28 U.S.C. §1406(a) and “improper” under Federal Rule of Civil Procedure 12(b)(3). Alternatively, Atlantic Marine moved to transfer the case to the Eastern District of Virginia pursuant to the forum selection clause.

The District Court denied both motions, holding that §1404(a) was the exclusive mechanism for enforcing forum selection clauses. The District Court also held that Atlantic Marine had the burden of establishing that a transfer would be appropriate under §1404(a), and that the Court would consider a number of public and private interest factors, of which the forum-selection clause would be only one. Atlantic Marine filed a petition for writ of mandamus in the Court of Appeals for the Fifth Circuit, requesting that the Court direct the trial court to dismiss the case pursuant to §1406 as “wrong,” or transfer the case pursuant to §1404(a), as required under the forum selection clause of the contract. The Court of Appeals denied the petition for writ of mandamus on all counts, stating that Atlantic Marine had failed to establish a clear and indisputable right to the relief sought. See In re Atl. Marine Const. Co., Inc. 701 F.3d 736 (5th Cir. 2012) (cert. granted).

The U.S. Supreme Court reversed and held that (1) Rule 12(b)(3) and 28 U.S.C. §1406 are not the proper tools to enforce a forum-selection clause in federal court.

They may be used only when venue is wrong or improper in the federal court where the suit was filed. The forum selection clause does not make venue in a particular court “wrong” or “improper;” rather, the courts should look to the venue statutes to make that determination.

The U.S. Supreme Court also held that (2) the District Court was correct that Section §1404(a) is the proper mechanism to enforce a forum selection clause for venue in another federal court, but the District Court did not apply the statute correctly.

The federal trial court should transfer a case with a forum-selection clause under that section “unless there are extraordinary circumstances unrelated to the convenience of the parties that clearly disfavor a transfer.”

The Court recognized that there are adjustments that must be made to the analysis under Section §1404(a) when the issue is the enforcement of a contractual forum selection clause. Also, while the Court did not outline factors which would support the “extraordinary circumstances” referenced above, the Court did say that the only factors that should be considered would be public factors and not private ones.

The U.S. Supreme Court further held that (3) Section 1404(a) does not allow a federal court to transfer a case to a foreign or state tribunal pursuant to a forum selection clause. To enforce a forum selection clause for a foreign or state forum, a party should use the doctrine of forum non conveniens.

Finally, the U.S. Supreme Court held that (4) in addition to giving nearly all of the weight to the forum selection clause as far as the choice of forum and venue is concerned, the same application of the forum selection clause would apply regarding choice of law. Thus, even though this particular case was originally filed in Texas and then later transferred to Virginia, the forum selection clause would dictate the substantive law to apply, which would be Virginia law. To hold otherwise, the Court reasoned, would encourage plaintiffs to game the system hoping to cement a certain state’s law as the substantive law of the case.

Richard Sheehy is is a founding shareholder of Sheehy, Ware and Pappas, P.C., which was formed in 1985. Mr. Sheehy is the head of the firm’s appellate section.

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45

Media Reviews

Federal Criminal Procedure Litigation Manual 2013

By Stephen A. Saltzburg & David A. Schlueter Juris Publishing, Inc. Reviewed by Don Rogers

T

The Houston Lawyer

his single-volume book provides attorneys and judges who handle federal criminal cases with a compact, concise analysis of the Federal Rules of Criminal Procedure, which govern criminal procedure in the United States district courts and specified territorial district courts, the United States courts of appeals, and the Supreme Court of the United States.

The book is organized in the same order as the rules themselves and essentially sets out the number and official text of each rule followed by (1) a detailed commentary that objectively explains the rule and the key issues presented by the rule; (2) practice tips; and (3) separate lists of related rules, constitutional provisions, federal statutes, federal regulations, leading cases, and/or other additional authorities.

Also, three appendices to the book respectively contain the complete text of the (A) Federal Rules of Criminal Procedure, (B) Federal Rules of Appellate Procedure, and (C) Federal Rules of Evidence.

The book is small enough to be carried to court, and still contains sufficient relevant information about each of the federal rules of criminal procedure to make it a useful reference work for any attorney or judge who handles federal criminal trials and/or appeals.

Don Rogers is an assistant district attorney with the Harris County District Attorney’s Office, and a member of The Houston Lawyer Editorial Board. He received his B.B.A., J.D., and LL.M. degrees from the 46

January/February 2014

University of Houston, and is board certified in criminal law and criminal appellate law by the Texas Board of Legal Specialization.

Shaping Our Nation: How Surges of Migration Transformed America and Its Politics

By Michael Barone Crown Forum, 2013 Crown Publishing Group of Random House LLC. Reviewed by Taunya Painter

A

sk anyone what they think of “immigration,” and you are sure to get an earful. Most of us, however, have views limited by our personal experience, our own lifetime and location, and our business interests or the interests of clients or constituents. Michael Barone, also the coauthor of The Almanac of American Politics, is likely the most authoritative individual on migrations in America and political impact. In this new book, he provides a historical, statistical, and contextual perspective on immigration since America’s founding.

The author starts from the first colonists, but focuses on major immigrant surges: Scots-Irish, 1700s; Irish Catholics and Germans, 1846-55; Ellis Islanders (Italians, Poles, Slavs, Eastern European Jews) 1890-1914; various Asian immigrant surges beginning in the 1800s; and Latin immigration, 1970-2007.

Regarding America’s pressing issues on Latin immigration, the author provides context for the modern-day complexities.

During the 1800s, migration was occasional, multidirectional, and mostly unrecorded, and by the 1929 stock market

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crash, the U.S. government was even deporting Mexicans.

There were multiple changes in the 1960s that prompted an immigration surge, 1980-2007. The Immigration Reform Act of 1965 reversed earlier restrictive provisions. Although Latinos were not expected to benefit from the reversal, the U.S. Attorney General testified: “...there is not much pressure to come to the United States from these countries. There are in a relative sense not many [Latin] people who want to come.” Also, there was a high Latin birth rate, a slowdown in Mexico’s economic growth, and a devaluation of the peso. The officially-recorded legal immigration rates increased exponentially from about 75,000 annually to 300,000 during this timeframe; in addition, it has been estimated that illegal immigration was half these numbers for any given year.

During this Latin surge, the immigrants generally took different paths depending on their origin.

Mexicans, who made up roughly half of the total Latin immigrants, migrated mostly to border cities like Los Angeles and Houston. The author also shows that the other Latin populations (Cubans, Dominicans, Salvadorans, Guatemalans, Hondurans, Nicaraguans, Columbians, Peruvians, Ecuadorians, and Brazilians) immigrated for differing reasons, had varying levels of education and skills, and moved to entirely different states (mostly New York, New Jersey, Florida, Maryland, North Carolina, and Massachusetts).

In 2007, however, there was an unforeseen Latin immigration drop-off. There was a U.S. recession in 2007, a financial crisis in 2008, and cascading home foreclosures 2007-2010, with the author estimating that one-third of those were families of Latin origin. Also, the construction industry plummeted, which was the livelihood of many Latin workers. Conversely, the Mexican economy picked up its growth, and birth rates in Mexico fell. The result — there was no net migration from Mexico into the United States for the five years, 2005-2010.

Continued on page 49

Pro Bono in Houston...

Rebuilds Families…Helps Veterans . . .Provides Peace of Mind for Seniors

Equal Access Champions

The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has signed a five-year commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. For more information contact Kay Sim at (713) 759-1133.

Large Firm Champions Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski LLP Locke Lord LLP Vinson & Elkins LLP

Corporate Champions

Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips Exxon Mobil Corporation Halliburton LyondellBasell Marathon Oil Company Shell Oil Company

Intermediate Firm Champions Gardere Wynne Sewell LLP Haynes and Boone, L.L.P. King & Spalding LLP

Mid-Size Firm Champions

Adams & Reese LLP Akin Gump Strauss Hauer & Feld LLP Baker Hostetler LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain, Hrdlicka, White, Williams & Aughtry Greenberg Traurig, LLP Jackson Walker L.L.P. Jones Day Looper Reed & McGraw, P.C. Morgan, Lewis & Bockius LLP Porter Hedges LLP

Strasburger & Price, L.L.P. Susman Godfrey LLP Weil, Gotshal & Manges LLP Winstead PC

Small Firm Champions

Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck | Redden LLP Gibbs & Bruns LLP Hays, McConn, Rice & Pickering, P.C. Hughes Watters Askanase LLP Johnson DeLuca Kurisky & Gould, P.C. Kroger | Burrus McGuireWoods LLP Schwartz, Junell, Greenberg & Oathout, L.L.P Sidley Austin LLP Sutherland Asbill & Brennan LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Yetter Coleman LLP

Boutique Firm Champions

Blank Rome LLP Coane & Associates Connelly • Baker • Wotring LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Funderburk Funderburk & Courtois, LLP Hicks Thomas LLP Hogan Lovells US LLP Jenkins & Kamin, L.L.P. Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Sutton McAughan Deaver LLP Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C.

Solo Champions

Brian Albrecht Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Law Office of Robbie Gail Charette Chaumette, PLLC Damani Law Firm Helene Dang Law Office of Papa M. Dieye The Ericksen Law Firm Flowers & Frankfort Frye, Steidley, Oaks & Benavidez, PLLC Fuqua & Associates, P.C. Hunton & Williams LLP Law Office of James and Stagg, PLLC Katine & Nechman L.L.P. Kim Ly Law Firm PLLC Gregory S. Lindley Law Office of Maria S. Lowry Alejandro Macias Martin R.G. Marasigan Law Offices Danielle H. Maya The Law Office of Evangeline Mitchell, PLLC Bertrand C. Moser Patel Ervin PLLC Law Office of Brent C. Perry, P.C. Pilgrim Law Office Robert E. Price Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Jeff Skarda Tindall & England, P.C. Travis Torrence Diane C. Treich Norma Levine Trusch Clinton Yu

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The Houston Lawyer

Office Space at 3 Riverway Class “A” Building located off Woodway Drive and 610 West Loop. Law firm is primary tenant.

Several offices available. On-site management and security guard, attached parking garage for tenants and visitors, conference rooms, receptionist services, kitchen, wired for broadband internet access. Contact Lisa DeWild, 713-209-2934.

GALLERIA AREA ST. JAMES PLACE Attorney-size office with secretarial work station for sublease – AV rated firm, Class A build out. Possibility for referrals. Please send inquiries to houstongallerialawfirm@gmail.com 48

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Heights area office sharing - 15 minutes from courthouse. Newly built out space on North Loop near Shepherd with downtown views. Color copier/fax/scanner available on network, internet, full featured phone system, attached covered parking, large offices and room for your files.

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Louisiana, 48th floor. Amazing views. Office-sharing with estabHOUSTON–GREENWAY PLAZA lished lawyers. Partner and AssociAREA Large window office for sub- ate offices available. Includes release in fully furnished suite. In- ceptionist, phone, internet, copiers, cludes lobby area, three conference postage meter, coffee, etc. Shared rooms, kitchen, private bathroom, reception, conference rooms, phone system, internet access, kitchen. Available April 1. Visit copier, fax, scanner and free park- www.fb4800.com for photos, etc. ing. $850.00 per month. Secretarial Call Tyler 713-255-3225. office also available for additional cost. Contact Stephanie or Positions Available Marlene at 713-337-6449. sar@rmanlawfirm.com Litigation firm is seeking expeor marlene@romanlawfirm.com rienced litigation paralegal/legal secretary. Competitive pay and Galleria area suite with great view - benefits. Come work in a friendly offices available for lease. Top floor environment with expanding client of Chase Bank building at Rich- base. Send confidential resume to mond and Sage. Approximately 200 greenwaylawyer@hotmail.com - 225 square feet per office. Well appointed suite includes conference Experienced attorney room, limited library, wet bar, and Law firm is seeking an experienced free parking. Fax, copier, reception/ defensed litigation attorney to join secretary service available at ad- our team. Ideal candidate will have ditional cost. $900.00 per month. at least five years of Texas litigation Dorena 713-961-5555. experience with both jury and bench trial experience. Competitive comMid-size firm in Uptown/Galleria pensation package. We offer a great near Post Oak. Seven offices and working environment with a stable four Secretarial / Paralegal sta- flow of business. This is a permanent tions available. Amenities include full time position. Submit your refiling space, fax, copier, kitchen, sume in complete confidence and conference rooms, internet, re- privacy. Send confidential resume to ceptionist, and covered parkgreenwaylawyer@hotmail.com. ing. For more information, call Nikki Peoples at 713-752-8318, Litigation Attorney npeoples@haysmcconn.com.

Shannon, Gracey, Ratliff & Miller has a position available in its HousGalleria area law firm ton office for an litigation attorney has attorney office for lease. Seek- with 1-3 years of experience in ing tenant with own practice. Re- general civil litigation with some ferrals possible. Base rent $1,000 personal injury experience. Salary per month includes internet, inter- will be commensurate with expenet research, telephone, conference rience. Performance bonus proroom, kitchen; additional services gram and full benefits are available. available. Contact: Send your resume in confidence to John at 713-374-7032. personnel@shannongracey.com.

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For classifieds ads please contact:

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Media Reviews

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From page 46

The author provides great detail to show that mass immigrations into the United States are not anticipated or predicted, last only one to two generations, and stop abruptly contrary to expectations. Furthermore, in almost every instance of an immigrant surge, the public opinion is that immigrants threaten the basic character of our nation, since they generally have arrived with little money, education, or experience with democratic practices. But typically, by the second surge of immigrants or second generation, the immigrants have higher education and skills, often in technology, medicine, and science.

As the author points out — America has never been a homogenous country. We have always had to grapple with cultural, religious, and racial diversity. And we manage to do it.

Taunya Painter is an attorney with the Painter Law Firm, focusing on international law, business law, and litigation. She is a member of The Houston Lawyer Editorial Board.

Crosstown Park

By Melanie Bragg. Koehler Books, an Imprint of Morgan James Publishing.

Reviewed by Tara Shockley

H

ouston attorney Melanie Bragg has written a fun read that also examines the politics and soul-searching involved in many aspects of the practice of law. The heroine is Alex Stockton, a successful young Houston lawyer with aspirations to a juvenile court bench, where she can make a difference in the lives of children who, like her, grew up in the foster care system. She seems well on her way to that goal when a flight from New York to Houston places her next to a minister who runs a foster care facility called Shepherd’s Cottages in the Fifth Ward, across the street from the notorious Crosstown Park. When he finds out Alex is a lawyer, the Reverend confides he is looking for someone to represent Jose Gonzales, one of his house parents who has been accused of molesting a teenage boy living in the home. The Reverend is sure Jose is innocent and that the boy’s accusation is the work of his Uncle Voodoo, a local drug dealer threatened by Shepherd’s Cottages and other community progress that is eating into his base of operations.

After visiting the foster care facility; meeting its residents, staff and board (including a handsome young private investigator and ex-cop); and seeing firsthand how Shepherd’s Cottages is nurturing the damaged children who live there, Alex agrees to take on Jose’s case pro bono.

As Alex prepares for trial, searches for an important witness, and learns more about the connection between Voodoo and the Reverend, she finds her life and career threatened. She also begins questioning her own goals and searching for deeper meaning in her life.

Bragg, who has represented children, the elderly and the mentally disadvantaged throughout her legal career, weaves an entertaining story that is both courtroom drama and spiritual journey. Her knowledge of the Houston legal community may have readers wondering if any characters in the book are based on real people, and the inclusion of Houston locales adds even more flavor. Although Bragg has written a number of legal education programs and books, including HIPAA for the General Practitioner, this is her first novel and is intended to inaugurate a series of legal thrillers based on Alex Stockton. Readers, and Houston attorneys in particular, can look forward to the next story.

mary@quantumsur.com

281.955.2449 ext.13

Tara Shockley is the communications director for the Houston Bar Association and managing editor of The Houston Lawyer. thehoustonlawyer.com

January/Februay 2014

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