The San Antonio Defender

THE SAN ANTONI0

DEFENDER A Publication of the San Antonio Criminal Defense Lawyers Association

VOL. XIV ISS. II | NOV./DEC. 2013

THE NEW DISCOVERY RULES & DWI BREATH TEST EVIDENCE THE NEED FOR THE PRESERVATION & PRODUCTION INFORMATION IN BREATH TEST CASES.

by George Scharmen & Ray McMains

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The San Antonio Criminal Defense Lawyers Association P.O. Box 831206 San Antonio, Texas 78283-1206 (210) 501-2916 | sacdla.com

OFFICERS VOl. XIV ISS. II NOV./DEC. 2013

Jorge Aristotelidis President Robert Featherston Vice President Warren Wolf Secretary Patricia Jay Treasurer

FEATURES

Christopher Simpkins Editor, The Defender Trisha Morales Padia Executive Director

PAST PRESIDENTS Jay Norton Michael Gross Jeff Mulliner John “Bud” Ritenour Adam Kobs George Taylor Stephanie Stevens Jim Greenfield Michael S. Raign John A. Convery Ernest Acevedo, III Ronald P. Guyer Mark Stevens George Scharmen Cynthia Hujar-Orr

DIRECTORS EMERITUS

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THE NEW DISCOVERY RULES & DWI BREATH TEST EVIDENCE George Scharmen & Ray McMains

MOTION FOR DISCOVERY OF BREATH TEST RECORDS COURT COSTS AND ATTORNEY FEES IN BEXAR COUNTY Richard B. Dulany, Jr.

COLUMNS

Charles Butts Anthony Nicholas

BOARD OF DIRECTORS Anne Burnham Robert Barrera Edward A. Bartolomei Stephanie Boyd Philip Bozzo, Jr. John F. Carroll Kerrisa Chelkowski David Christian Andrew DelCueto Mario Del Prado Loraine Efron Joseph Esparza Don Flanary John J. Fox Paul Goeke Julie K. Hasdorff Nicholas “Nico” LaHood John Longoria Michael McCrum Pat Montgomery Jefferson Moore Joel Perez Robin Teague Aissa Strickland

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HOME RUNS Adam Kobs

LETTER FROM THE EDITOR Christopher Simpkins

PRESIDENT'S MESSAGE Jorge Aristotelidis

SACDLA'S UPCOMING CLEs

OUT & ABOUT Photos by Patricia Jay

Statements and opinions expressed in The San Antonio Defender are those of the authors and are not necessarily those of SACDLA.

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Homeruns

handled pre-sentencing prep, drafting of the sentencing memorandum, and the sentencing hearing itself. The hearing was conducted before the Honorable Chief Judge Fred Biery.

Adam

Kobs On October 4, 2013, in U.S. v. Andrew Vidaurri, the defendant received a 4 year sentence with credit for 2+ years for Racketeering for Drug Distribution and Possession after representation by Michael Gross and Joseph Esparza. A Rule 11(c)(1)(C) plea agreement regarding the drug charge was obtained after negotiations by Michael Gross and called for a sentence of up to 15 years in exchange for the defendant's plea. Originally, this defendant was facing Racketeering and murder charges for three individuals and the government was deciding whether or not to seek the death penalty against him.

Michael Gross and Joseph Esparza worked up the case, eventually getting the government to drop all three murder charges and Racketeering for same. Joseph Esparza

On September 18, 2013, Joseph Esparza won a murder appeal with the Fourth Court of Appeals in the case of Vanessa Cameron v. State of Texas. In a published opinion, the Court found reversible error in the first point of error regarding a violation of Ms. Cameron's constitutional right to a public trial during voir dire and remanded the case for a new trial. No other points of error were discussed. Joseph Esparza was the previous defense counsel at trial for Ms. Cameron as well and stayed with it for the appeal to include oral argument.

Warren Wolf won a TCCP 17.151 (Release because of Delay) hearing on an Aggravated Sexual Assault case. Indictment on 91st day. Judge Carruthers granted relief despite DA's good faith argument.

John Bustamante recently won a DWI 1st on a Motion to Suppress that was carried with trial.

Juan Carlos Hernández and Jon Moroz got a not guilty verdict on a DWI in CC 1.

Their client was coming back from a KISS concert and was pulled over for speeding and weaving. Client failed all FST's and was reportedly showing all the typical clues and signs of intoxication. Jury came back in 35 minutes in disagreement with the States evidence.

Stephen Gordon and co-counsel Allen Lowe got a not guilty on a DWI case in County Court 11 back in August. The jury came back in less than 30 minutes.

Anton Hajek was the recipient of a dismissal on his client’s DWI 2nd case based on a speedy trial violation. The police report said his client was under arrest, taken to hospital. Report and case not filed for 6 months while on DWI-1st probation, 22 months go bye until arrest. State cleverly asked his client if he wanted a trial and told judge they were ready that day (Friday).

Jared Clayton won his first contested MTS on a court appointed client. She was charged with DWI. Jared handled the case from the beginning to the end and was very prepared. Great job!

letter from the Editor

Christopher

Simpkins

As Editor-in-Chief of the Defender, it was a relief to learn that our re-launch of the magazine was well received and served as another reminder to our members and others within the San Antonio legal community of the immense value that SACDLA provides as an organization. The Defender is the product of the hard work and dedication of many committed and extremely knowledgeable local criminal defense attorney’s who take time out of their busy lives and practices to provide the insightful and informative content upon which the magazine depends. To that end I would like to personally thank all those who have authored content for the Defender, as well as those who have reached out with offers to write a future article, help acquire content for future editions, or otherwise help with the Defender. Also, I need to take this opportunity to thank and express my gratitude to Adam Kobs, Bob Featherston, Warren Wolf and Loraine Efron who serve as associate editors, as they have expended their time and energy to help make the re-vamped magazine a success thus far.

Hopefully, this edition of the magazine will be equally well received by our readers and will serve to remind those who are inter-

ested in getting involved with the magazine and SACDLA to let us know of your interest. I encourage you to thoroughly review the articles contained in this edition and the materials that accompany them, as they are both contain excellent information that will aide our readers in better understanding these important issues.

It is an exciting time to be a member of SACDLA and many great developments have recently occurred within the organization, and if you want to discuss authoring an article to be considered for publication in an upcoming issue of the Defender, or if you want to discuss how to become an associate editor and member of the editorial board, then speak up and let me know, or at least send me an email at chris@ csimpkinslaw.com.

Christopher Simpkins Editor-in-Chief, The San Antonio Defender chris@csimpkinslaw.com Associate Editors: Adam Kobs Robert Featherston Warren Wolf Loraine Efron

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President’s Message

Let me begin by wishing you all the best holiday experience. Here’s to good health and continued success in all of your endeavors.

Jorge

Aristotelidis

Our year is capped by awesome involvement by our members with of the events that we’ve scheduled so far, including our CLE related presentations, such as our annual Nuts & Bolts which drew almost 200 attendees, one of the best showings for SACDLA. Also, we had a great time getting to know our young members of the bar at the First Annual Newby Bash, held at the Beethoven Mannerchor, and more recently, our Christmas/ Holiday Party, at which a large number of our general membership attended, which was held at the brand new “Taps y Tapas,” near downtown.

I want to remind our members of the upcoming A.A. Semaan Seminar, which is brought to you via partnership effort between the San Antonio Bar Association (SABA) and SACDLA, due to be scheduled for late March, early April 2014. Specific dates will be announced in the coming weeks.

We are resuming our monthly, and very free CLE’s beginning in January, on a topic soon to be aired in our listserv. Last update is that our redesigned website should be up within weeks, including the ability to pay online via credit card for any upcoming CLE’s and events that require it. Lastly, be aware that at this time, we scratched the idea of a facebook account, after a full discussion of all collateral issues of concern with this type media. We do, however, have a twitter account.

How good are San Antonio criminal defense lawyers? Check out our homerun section to find out.

Jorge G. Aristotelidis SACDLA President

SACDLA'S UPCOMING CLES Watch for the more monthly ClE luncheon's starting again the January, 2014! Stay tuned for the details.

Watch for details about the upcoming A.A. Semaan Annual Criminal Defense Seminar.

Also, do not forget about SACDlA’s bi-monthly Trial Strategies lunch meetings, which are held at liberty Bar on the first and third Friday’s of each month.

San Antonio Riverwalk photo by Mike Sherman.

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The New Discovery Rules & DWI Breath Test Evidence The Need For Preservation Of Information In Breath Test Cases

law for cases prosecuted after the effective date of the new Article.

A PROPOSED MOTION FOR DISCOVERy FOllOWS THIS INTRODUCTORy MATERIAl. George

Scharmen

Ray

McMains

This paper deals with breath testing and the discovery which may be required in a given breath test case under the new law.

These suggestions are not exhaustive.

However, the comments and the appended motion provide the items the authors recommend to be requested as well as the reasons and authority for them (when available) under the Standard Operating Guidelines for breath testing in Texas.

Much work previously has been provided to the authors of this article by Troy McKinney of Houston and Doug Wilder of Dallas for which we are grateful.

report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.

COMMENT

GENERAl COMMENTS Article 39.14 of the Texas Code of Criminal Procedure in its new form adopted by Senate Bill 1611 (eff. 1/1/14) provides for expanded discovery in criminal cases. The new discovery rules represent a significant change in the trial of criminal cases in Texas, including DWI. There are other provisions for mutual discovery and production certification procedures as well as for sanctions that may apply to both the prosecution and the defense under the new statute. These features are important to the defense bar because they impose new duties on criminal defense counsel, but they are not discussed in this paper.

Therefore, it is necessary that the practitioner familiarize her/himself with the new

Art. 39.14 of the Texas Code of Criminal Procedure provides in relevant part: (a) Subject to the restrictions provided

by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or

This italicized phrase “evidence material to any matter involved in the action� may be the broadest provision for discovery in criminal cases in the history of Texas jurisprudence. Brady v. Maryland1 was certainly a landmark decision, but its application and enforcement over the years since its advent have been difficult for defense lawyers to say the least.2 The new statute is broad enough to include evidence which may be used on cross examination to demonstrate things such as the invalidity of the test results, the invalid procedures used prior obtaining the results, faulty machinery, lack of proper certification, lack of proper evidential maintenance procedure, fraud, incompetence, destruction of evidence or other issues related to the technical super-

visor’s work or the work of his trainees or supervisors.

The preceding emphasized language of paragraph (a) is broad enough to include the work of contracting technical supervisors who are not employees of the Texas Department of Public Safety. These independent business people will face a significant increase in their photocopying and record keeping expense and labor. The State must provide …tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

As will be shown below, the prosecutors of this State can do two things to make certain that their record-keeping job is simple: make the “Black Mamba” database available to the public in the useable form which the Office of the Scientific Director uses daily, and force the Scientific Director to stop hiding his maintenance records from the database. Nevertheless, this language is broad enough that to place the duty upon the District and County Attorney to maintain records for compliance with discovery of breath test data in DWI cases. Again, compliance is simple if the Office of the Scientific Director makes the “Black Mamba” database available to the public in the useable form which the Office of the Scientific Director uses daily and if the OSD ceases to hide the maintenance records.

Although the breath test slip in a given DWI case may be a public record3 and available to the public through the database, it may not be evidential. Under the SOG’s there are certain mandatory steps that must be taken by the technical supervisor in order the make the intoxylizer’s results admissible as scientific evidence.4 Some reasons a test that appears to be valid but which actually would be inadmissible are: putting an instrument into service without an embossed seal Evidential Instrument Certificate or an embossed seal

instrument certification letter; putting an instrument into the field without properly performing the calibration procedure described in The Standard Operating Guidelines Evidential Breath Alcohol Instrument Calibration (OSD-CAL-01) or adjusting the calibration without following said procedure. According to the SOGs, maintenance records shall be organized and detailed enough to allow another Technical Supervisor to render an opinion in potential litigation concerning the maintenance history of any instrument, so when this is found not to be the case, the test slips should not be admissible. (h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or informa-

There is no “trust me” in science.

– Justin McShanE

tion in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

COMMENT This paragraph covers the technical supervisor and the defense expert. It is so broad that it may cover things like emails which are done in the ordinary course of research or supervision between experts or agency personnel. However, it clearly would not cover work product of defense counsel and the expert.5 Use of in camera hearings may be advisable when production of this type of evidence is requested. The language is broad enough to require production of most of the requests in the attached motion.

(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

COMMENT Again this language appears to place the duty upon the State to provide on-going access to data specifically related to the case as well as to the quality of the breath testing program generally as it relates to the case. This duty includes updates in SOG’s, internal memoranda on the application of the SOG’s, disciplinary records of technical supervisors and their supervisors and auditors, emails related to professional performance of personnel or changes in maintenance procedures relevant to a particular case, certification of operators and their performance records including their certification exam results. Some of these things could be viewed on the Black Mamba database, but for reasons known only to OSD they have not been made publicly available. (a) … the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of… any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

If for any reason the District or County Attorney fail to comply with the discovery rule which requires the technical supervisor or the Office of the Scientific Director to provide data which “constitute[s] or contain[s] evidence material to any matter in \volved in the action,” the technical supervisors themselves can be held responsible for producing the required discovery.

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THE NEED FOR PRESERVATION OF INFORMATION IN BREATH TEST CASES While the Standard Operating Guidelines (SOG’s) are not in compliance with Brady v Maryland, they nevertheless provide a template for discovery of the workings of what has been a somewhat amorphous and clandestine breath alcohol testing program in Texas. However, a database6 exists which is connected to every Intoxilyzer in the State of Texas, and it uploads every subject test, practice test, lab test and inspection test which is recorded by each machine on site.

The Office of the Scientific Director (OSD) appears to be attempting to determine in advance what information in his program is to be used as evidence and what is not to be used. To this end there is an exception to machine recording during routine maintenance on site as well as during off-site lab work or calibration/recalibration.7 In those circumstances the SOG’s require that the technical supervisor turn off the recording feature and that he or she manually print test or other records which reflect the stated work done on the machine as well as the machine’s stated performance during the unrecorded procedure.8 During this time a technical supervisor can alter dates, times, test record numbers and other data that would ordinarily be uploaded to the database in the machine’s regular subject, practice, inspection or lab modes. Only that which the intoxilyzer records in its memory is uploaded to the database and ultimately becomes public. The printed records are separately scanned and uploaded into different files.

This off-line requirement is a new procedure brought into effect by the SOG’s which were adopted on March 1, 2011.

Prior to that date, all maintenance could have been recorded and retained in the database. After March 1, 2011 it’s only available in the database if a Technical Supervisor elects to go outside the requirements of the SOG. The machines have not changed, but the rules have changed. It is now mandatory that the Department and its employees hide their maintenance records from the database until copies of them are requested under the proce-

dures set out in the SOG’s. To that end the SOG’s dictate that the electronic data as well as every written or printed document concerning the intoxilyzers and their simulators (reference sample devices) are public records, and that they can be located on the internet or requested from the Office of the Scientific Director of the Texas Department of Public Safety in a Freedom of Information Act request, a subpoena duces tecum or a court order.9 Thus, one may request hard copies or electronic versions of the printed reports of the procedures and the machine’s performance during the procedures, and these copies will be produced.

The intoxilyzer’s memory records actions taken on a chronological and sequential basis. Recorded actions can be compared to printed records for clarity or to notice any inconsistencies. However, when the recording feature is turned off there is no assurance that the records which are produced will accurately reflect what procedures were performed or what the machine’s responses were to those procedures during that time because both the database and the documents can be altered.10 Additionally, the documents themselves may be falsified, lost or destroyed.11 If the recording feature is on, it is more difficult to falsify, lose or destroy records. Therefore, it is curious that the OSD has placed a provision in the Guidelines that the database is not evidence because it can be altered.12 Thus, there is no certainty during discovery that the technical supervisors or the Office of the Scientific Director will be complying with Brady since there is no longer a database for comparison of work done on the machine to the printed material produced during maintenance in order that one may be assured that the records which are produced are true. Sadly, this statement is as true for the Office of the Scientific Director as it is for defense counsel and prosecutors. Prior to March 1, 2011 the Director could go on-line and review the work of his field personnel. Now he must travel, for example, to El Paso to look at the technical supervisor’s files in order to determine whether he is doing his job.

If an auditor’s presence is announced in

advance, a technical supervisor can use this off-line mode to clean up his paper work.

The OSD requires lawyers, judges, jurors and the public generally to trust that his personnel are doing their jobs honestly and correctly. Nevertheless, the past performance of several technical supervisors who have been imprisoned, suspended or had to resign because of fraudulent or incompetent record keeping and destruction of maintenance records leads one to believe that trust is a poor substitute for proper documentation in science. Currently, disciplinary actions taken against technical supervisors are not disclosed voluntarily by the OSD. For example, if a technical supervisor is suspended or ordered to re-take the supervisor exam, that fact should be made public and disclosed during discovery. The fact that this type of suspension has happened at least twice in Texas over the past year will probably be news to those who read this paper. The OSD should be required to publish all disciplinary actions taken against its personnel in a way similar to the State Bar, the Medical Board and other State agencies.

If the work of the technical supervisors is public record, the Office of the Scientific Director must make it available on the database so that their work and the machines’ performance can be verified. In this way the vehicle of breath test science can be used by both parties in the DWI trial to convey their views of the case, and the science will no longer take a back seat to law enforcement.

1. 373 U.S. 83 (1963) 2. Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) [“…to find reversible error under Brady, an appellant must show that (1) the state failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the undisclosed evidence constitutes exculpatory or impeachment evidence that is favorable to him, that is, if disclosed and used effectively, the evidence may make a difference between conviction and acquittal; and (3) the evidence is material, that is, it presents a reasonable

probability that had the evidence been disclosed, the outcome of the proceeding would have been different.”]

3. The opinion in Boutang v. State, 402 S.W.3d 782 (Tex. App.-San Antonio 2013, pet. ref’d) displays ignorance of the realities of breath test science as well as of the Texas program, and it does a great disservice to justice in DWI cases. Intoxilyzer monitoring, maintenance and repair and strict adherence to science by the technical supervisor are the only assurances that the breath test slip is accurate enough to be called evidence. The Intoxilyzer is a tool; it is not the witness. Thus, any technical supervisor who was responsible for its maintenance and calibration during the relevant time must be available to be cross examined since Texas technical supervisor documents and work have been intentionally hidden, destroyed and falsified.

4. OSD-TST-01 (1) States that “These procedures were adapted for accreditation purposes”. So, if they are not followed, then the resulting test(s) were not generated using the scientifically accredited procedure.

Furthermore, 19.4a of the Administrative code states “(a) All breath alcohol testing techniques, methods and programs to be used for evidential purposes must have the approval of the scientific director.” The SOG’s are the testing techniques and methods that have the approval of the scientific director and “(f) Approval of any breath alcohol testing program is contingent upon the applying agency or laboratory's agreement to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program”. For example, SOG 4A1 states “The capability of the instrument to detect and subtract the effect of acetone shall be tested. A Technical Supervisor shall conduct a printed ACA test and introduce acetone sufficient to cause the instrument to flag the test as an interferent while producing a reference result of 0.000.”(During Technical Supervisor Training the SOG’s were described as the Minimum Standards, a Technical Supervisor could do more than the SOG’s required as long as all the Directives were followed.)

5. Rule 503(b), Texas Rules of Criminal Evidence 6. The ‘database’ is technically divided into three parts, “Black Mamba” which every Technical Supervisor Area has a copy of, “Back Mamba” which OSD uses, it retrieves all the records from all the copies of Black Mamba in use and “Op Mamba” or the “Operator Administrator” which contains records relating to Operator certifications including written test scores.

7. OSD-TST-01 4.A.1 & OSD-TST-01 5.C.4 & OSD-CAL-01 3.3.C.11 which doesn’t specifically say to use ACA mode, but it is implied in that OSD-CAL-01 3.3.E states that one should affix labels to the resulting Calibration Check Printout. If done in Subject Mode that would be 20 pages as opposed to one printout.

8. OSD-TST-01 4.A.1 & OSD-CAL-01 3.3.C.11 which doesn’t specifically say to use ACA mode, but it is implied in that OSD-CAL-01 3.3.E states that one should affix labels to the resulting Calibration Check Printout. If done in Subject Mode that would be 20 pages as opposed to one printout.

9. OSD-TST-01 7.B 10. SOG (eff. 1/30/2012) 4.3.1; SOG-TST016.a SOG says that the electronic copies are not as reliable as printed ones, when in fact the reverse is probably true due the extensive time stamping, sequential Test Record Numbers and the saving of raw data in places unknown to probably all Technical Supervisors.

11. One example is that of Detriece Wallace, a former Brazoria County technical supervisor, who was imprisoned for falsification of intoxylizer maintenance records. One other example is where a failed inspection in the electronic data of Al McDougall’s doesn’t exist in the ‘hard copy’ form, however another passing inspection exists with the exact same test record number as the failed inspection.

authors believe are completely disingenuous and misleading. For instance, the statement that “Air Blank data is not stored.”

Although true, the statement is irrelevant since all Air Blanks are programmed to be 0.000, thus by looking at the electronic record one can tell what the Air Blanks are.

If the electronic version shows it as a valid test, all Air Blanks on the printed copy will be 0.000, but if the electronic version shows it as an invalid test NO Air Blanks will be on the printed copy. Additionally the SOG’s say “ the electronic data may be altered or fabricated entirely.” Although this statement is true, the language are implies here that printed copies cannot be fabricated when, in fact, printed copies are more easily fabricated and/or altered and/ or discarded.

Ray McMains Co-Founder, of F.I.S.S. (Forensic Information Solution Services) was with the Texas Breath Test Program for 17 years as a certified Technical Supervisor. In 2009, he was honored with the Medal of Merit award for his development of the State's Black Mamba software system. This is the system that acquires and retains the data from all the Intoxilizers used statewide. Prior to working with DPS, Ray served in the United States Army as a Cryptologic Intercepter and was stationed in Korea where he intercepted and analyzed foreign communication signals.

George Scharmen George Scharmen has been a member of TCDLA for over thirty years, and he has served on the Board and various committee for twenty-five years. He is board-certified in Criminal Law by the Texas Board of Legal Specialization, and he is board-certified in Criminal Trial Advocacy by the National Board of Trial Advocacy. He has been responsible for several appellate cases such as Hartman v. State, Mata v. State, and Bagheri v. State, which have helped to protect criminal defendants in DWI trials by creating a scientific protections which are binding on the prosecution. George is Married to Allision, and they have two children: Carter and Roxanne.

12. OSD-TST-01 6.A & OSD-TST-01 7.C Additionally, 7.C contains statements that the 9

SAN ANTONIO DEFENDER

CAUSE NO:

THE STATE OF TEXAS

IN THE

VS.

COURT

COUNTY, TEXAS

MOTION FOR DISCOVERY OF BREATH TEST RECORDS TO THE HONORABLE JUDGE OF SAID COURT: Defendant files this Motion for Discovery of Breath Test Records pursuant to United States Constitution, Amendments IV, V and VI, Texas Constitution, Article I §§10, 19 and Article 39.14 of the Texas Code of Criminal Procedure and requests that the State produce the following items in the possession of the breath test technical supervisor and the Office of the Scientific Director of the Texas Department of Public Safety Breath Testing Laboratory: 1. An electronic copy of any and all items contained and maintained in the “Instrument Certificate File” as required by the Standard Operating Guidelines for Technical Supervisors (OSD-TST-01 5.A ) for the Intoxilyzer used for the test in this case.

[This is being requested because its properly completed presence is a requirement of the Texas Breath Alcohol Testing Program as one can see from the SOG’s. No time frames are included as there are no time intervals that regulate the information therein. In other words, there is no date range for the requirement for calibration or certification. It makes no sense to put a time limit on this request. If you put a date range on it, you will miss some calibration (especially unsuccessful ones), and the only place you can get the Uncertainty for an instrument is through its Calibration. One may also miss situations where an instrument failed one or two (or passed but broke soon after), but the technical supervisor or the Department will give you that last one, the one that shows that it passed. In the past this information was simple to produce as they put all of these in one PDF file. If part of the new SOG change is that they no longer put all this in one PDF but can only print them individually, then the Department has created its own problem. If the State has chosen to make this more difficult for themselves by making it harder for them to provide this material, then no sense for the Department to be rewarded for this choice and defendants to be denied material discovery. It is not fair to the defendant if the Department uses the failure to properly maintain records as an excuse for failure to comply with discovery.]

2. An electronic copy of any and all items contained and maintained in the “Solution File” as required by the OSD-TST-01 5.B, for the Intoxilyzer solution used for the test in this case.

[This is being requested because its properly completed presence is a requirement of the Texas Breath Alcohol Testing Program as one can see from the SOG’s. Once again, considering that a solution has a expiration date greater than 6 months means that the Solution Paperwork for the solution in the Solution File could easily be over 6 months old. Rather than put in a time frame that technically the solution is outside of, dispense with the timeframe so one can be sure to get the solution paperwork for the

solution that was used in the case, regardless of when that paperwork was completed. Once again, the solution paperwork is the only paperwork that furnishes you the uncertainty values for that solution. If the Department had a time frame for using solution (for instance, every inspection has to be a different solution lot) then 6 months would be more than enough of a time bracket. However since a technical supervisor can easily use the same solution for 2 years, six months or even a year is not enough time for discovery purposes.

This information was online in PDF format. If DPS has chosen not to continue that practice and have chosen only to give paper copies in a digital world, the problem is with DPS and not the courts. The right of a defendant to evidence surrounding his case is not restricted by the fact that it may be difficult for the State has made it difficult for Itself to produce it. The Office of the Scientific Director has chosen to use NIST traceable solutions and the accompanying documentation. It can be scanned and maintained with assistance from the database with other documents such as the calibration certificates which are maintained in digital form.]

3. An electronic copy of any and all items contained and maintained in the “Subject File” as required by the OSD-TST-01 5.C, for the Intoxilyzer used for the test in this case.

[Choosing a date range is difficult as one does not necessarily know what date range is relevant until he/she views the electronic data. Six months before and after would encompass most of what is needed.

This request is the same as the previous one in that it is a requirement of the Breath Testing Program to keep this information and, it is directly relevant to proving whether or not the instrument is working and/or the forensic scientists overseeing the program are competent.]

4. An electronic copy of any and all items contained and maintained in the “Maintenance File” as required by OSD-TST-01 5.D, for the Intoxilyzer used for the test in this case.

[The maintenance file has records which could indicate a calibration adjustment. Considering that the SOG’s state that a calibration adjustment must be followed by a calibration (no reference to time frame), it is difficult to arrive at a time frame for discovery purposes. However the technical supervisors know their instruments, and they may choose to set a time limit which excludes relevant information. When I worked for the State, I scanned the documents in my area, Maintenance, Subject Files, Solution Files, Calibrations and Certificates, and put them in PDFs, and put them in a folder for that Instrument. If anyone were to request the items, I simply copied and pasted ALL the items in the folder to disk. It can be done easily.]

5. An electronic Copy of any and all Monthly Activity Reports for the technical supervisor area overseeing Intoxilyzer used for the test in this case as required by the OSD-TST-01 6.B. [Monthly Activity Reports are not instrument specific, and culling out all instruments not used in this case from the report would be very tedious for someone, even the technical supervisor. The time frame should be six months before and after the test in this case. In most cases this request would encompass about 12 pieces of paper. This record documents when the time/date/download time and upload times that the technical supervisor sent to OSD to document his/her activity in regards to the minimum standards for some aspects of testing site supervision.]

6. An electronic copy of the full database report as provided by the Standard Operating Guidelines for Technical Supervisors OSD-TST-01 6.A for the Intoxilyzer used for the test in this case.

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SAN ANTONIO DEFENDER

[It will be much easier to use a database export than a database report. The database export could simply be copied and pasted from the hard drive rather than having to print out several pages of text that would then need to be scanned and sent as electronic documents. This request is much easier if there are no restrictions as to timeframe and instrument as it is much easier to copy and paste everything rather than to hunt for a specific timeframe and instrument thus creating complicated queries. The request is important not only due to its SOG requirement but also due to ISO 17025 5.9.1(Short for International Organization for Standardization) which states “The laboratory shall have quality control procedures for monitoring the validity of tests and calibrations undertaken. The resulting data shall be recorded in such a way that trends are detectable and where practicable, statistical techniques shall be applied to the reviewing of the results.” This task is easy with a database export, but it is not easy with hard copy subject records. Additionally, hard copy subject records do not have all of the information retrieved by the Intoxilyzer, most notably information gathered during Invalid Tests which can be indicators that the Intoxilyzer is not working something of particular interest to the Defense.]

7. An electronic copy of any and all Calibration Analyst Worksheets as required by the OSD-CAL-01 4.2 for the Intoxilyzer used for the test in this case.

[For most technical supervisors, this should be in the Instrument Certificate File (number one above), and this request should require no extra work for most technical supervisors. All arguments for this request are explained in number one above. This request is included as a separate item because some technical supervisors are culling the Calibration Analyst Worksheets from the Instrument Certificate File leaving Certificates but not the actual documentation of the work required to generate the Certificates.]

8. An electronic dopy of any and all documents provided or required by the OSD-CAL-01 3.2.H relating to NIST traceability, unbiased estimate, nominal value and combined uncertainty of the reference solutions used to perform instrument calibrations on the Intoxilyzer used for the test in this case. “Documents” includes items that are maintained either in paper or electronic form and specifically includes emails.

[This request is essentially the same as number 2 above except that it requests the solution paperwork for the solutions used to calibrate the instrument used in this case instead of the solution used in the test in this case. In addition is specifies e-mails. Besides the similarities in its importance that mimic number 2, this request is important in that the instrument was calibrated with these solutions, and this request is seeking the documentation that those solutions were in fact NIST traceable as the SOG’s require. (Short for the National Institute of Standards and Technology, NIST is a non-regulatory federal agency within the U.S. Department of Commerce.) The timeframe would include only the documents from the most recent calibration conducted prior to this test. The e-mail request is made because the infection of certain solutions was announced via e-mail.]

9. An electronic copy of the spreadsheets containing the documents referenced in OSDCAL-01 4.2.K that were submitted for technical and administrative review related to the Intoxilyzer used for the test in this case. “Documents” includes items that are maintained either in paper or electronic form and specifically includes e-mails.

[This request should be included in the Instrument Certificate File (number 1), but some technical supervisors may cull these out. So this request is constructed to make sure that doesn’t happen in this case.

The addition of e-mails to disclose correspondence between reviewer and person submitting paperwork, especially when things are not found to be in order.]

10. An electronic copy of any and all Technical and Administrative Review Checklists for

the documents in item 9 above, as well as documents sufficient to identify the reviewing technical supervisor as required by the OSD-CAL-01 4.3 for the Intoxilyzer used for the test in this case. “Documents” includes items that are maintained either in paper or electronic form and specifically includes e-mails.

[This item is exactly like number 9 above, but it is a different piece of the required paperwork that should be in the Instrument Certificate File (number 1). It may be culled out by some technical supervisors.]

11. In any instance in which the technical supervisor who issued the Calibration Certificate was not the technical supervisor who performed the calibration as provided in OSD-CAL-01 4.4, documents sufficient to identify the technical supervisor who actually perform the calibration on the Intoxilyzer used for the test in this case. “Documents” includes items that are maintained either in paper or electronic form and specifically includes e-mails.

[Once again, this request is like numbers 9 and 10 in that it should already be included in number 1, the Instrument Certificate File, but some technical supervisors cull out the actual paperwork that is not a certificate. This request is to prevent them from culling that required piece of the calibration paperwork.]

12. An electronic copy of any and all items and reports reflecting or evidencing calibration of the NIST traceable thermometers by an approved vendor during the instrument calibration procedure as required by OSD-CAL-01 6 for the Intoxilyzer used for the test in this case.

[This request is similar in nature and importance to number 8, but this requests the required NIST traceable paperwork for the thermometers used as opposed the solutions used. The timeframe is from the most recent calibration conducted prior to this test.]

13. Any and all documents reflecting, evidencing or concerning communications between any technical supervisor having authority over the Intoxilyzer used for the test in this case and any other person or entity relating to calibration, maintenance, repair, or operation of the Intoxilyzer used for the test in this case. “Documents” includes items that are maintained either in paper or electronic form and specifically includes e-mails.

[These items should be already included in number 4, the Maintenance File. However, some technical supervisors rationalize that e-mails documenting instrument problems and repairs do not count as “maintenance,” and they do not put them in the Maintenance File. This request is designed to make sure that those types of “maintenance/calibration” items are included.]

14. A copy of the AutoCal procedure applicable to the Intoxilyzer used for the test in this case.

[This item may or may not exist depending on the technical supervisor area and time of AutoCal in question. The timeframe is the AutoCal done most recently before the test in this case. It is important if this item exists because it is the AutoCal that for lack of a better word sets the DVM voltages to correspond to the different solution values.]

15. A copy of the protocol or instruction for the creation of the solutions used in the AutoCal procedure for the Intoxilyzer used for the test in this case.

13

SAN ANTONIO DEFENDER

[Much like item 14, this item may or may not exist depending on the technical supervisor area and time of AutoCal in question. The timeframe is the AutoCal done most recently before the test in this case. It is important if it exists because it is the AutoCal that for lack of a better word sets the DVM voltages to correspond to the different solution values and this item would document what actual value those solutions were.]

16. A copy of the protocol or instruction for the creation of the simulator solution used in the Intoxilyzer used for the test in this case.

[This may or may not exist based on the technical supervisor area and the date the solutions were made.]

17. A copy of any and all certifications, confirmations or verifications from any source for the AutoCal and simulator solutions that were used in relation to the Intoxilyzer used for the test in this case.

[This may or may not exist based on the technical supervisor area and the date the solutions were made.]

18. All longs, records, or other documents reflecting or concerning the use or consumption of all solutions used in relation to the AutoCal and simulator solutions used in the Intoxilyzer in this case. This specifically includes longs relating to the use of the pure ethanol used to make the batch, AutoCal, ore reference solutions used in the Intoxilyzer used for the test in this case. “Documents” includes items that are maintained either in paper or electronic form and specifically includes emails.

[These items may or may not exist based on the technical supervisor area and the date the activity occurred.]

19. All logs, records, or other documents reflecting the expiration date of the pure ethanol used to create any AutoCal or reference solutions in relation to the Intoxilyzer used for the test in this case. “Documents” includes items that are maintained either in paper or electronic form and specifically includes emails.

[For solutions used on instruments in the field, this information would most likely already be included in item 2 above unless culled out by the technical supervisor. For AutoCal solutions, this may or may not exist based on the technical supervisor area and date the activity occurred.]

20. A copy of the operator’s manual or instruction (and all documents reflecting, evidencing or concerning procedures or instruction) for the software used to collect, store and manage data downloaded from the Intoxilyzer as well as to communicate with the machine remotely. Documents includes items that are maintained either in paper or electronic form and specifically excludes any phone numbers and passwords.

[Most of the instructions for the use of the software are delivered via e-mail.]

21. All documents reflecting or documenting changes to EPROM programming and replacement of the EPROM (or any other programmable chip) used in the Intoxilyzer used for the test in this case.

[Changes to the EPROMs are maintained on one document, so this item is simple to provide. Docu-

mentation of the replacement of the actual EPROM used in the instrument used in this case, should already be included in the Maintenance File in item 4 above or in the database number 6 above.]

22. A copy of the certificate authorizing the Intoxilyzer operator in this case to operate the Intoxilyzer used in this case.

[This request involves a regulatory requirement, and it should be easy to provide.]

23. A copy of the certificate authorizing the technical supervisor(s) to supervise the operator and machine in this case.

[This request involves a regulatory requirement, and it should be easy to provide.]

24. A copy of any document or certificate authorizing the entity supervising, maintaining or controlling the Intoxilyzer used in this case to conduct, have or administer a breath alcohol testing program in the State of Texas.

[This item involves a regulatory requirement, at least for non-DPS technical supervisor areas.]

25. A copy of all policies governing the operation of the Intoxilyzer used in this case not otherwise published or contained in the Texas Administrative Code, a statute of this State or contained in the Standard Operating Guidelines for Technical Supervisors.

[Sometimes directives from the Scientific Director are given out in PowerPoint presentations, memos, e-mails, etc. As “directives” they are requirements, like the SOG’s, for technical supervisors.]

26. All DPS annual Inspection Reports for one year before and after the test in this case.

[Technical supervisors are inspected at least once a year. This report will give the results of that inspection.]

The defendant prays the this motion be set for a hearing at the earliest time prior to the trial of this case and that the Court will rule on each matter requested.

Respectfully Submitted,

GEORGE SCHARMEN 315 Dwyer San Antonio, Texas 78204 Telephone: 2102268021 Facsimile: 2102245722 State Bar No. 17727500

ATTORNEY FOR DEFENDANT

15

SAN ANTONIO DEFENDER

CERTIFICATE OF SERVICE

I hereby certified that a true and correct copy of the foregoing Motion to For Discovery of Breath Test Records has been faxed or hand-delivered/faxed to the office of the prosecuting attorney on this the day of October, 2013.

George Scharmen

CAUSE NO:

THE STATE OF TEXAS

IN THE

VS.

COURT

COUNTY, TEXAS

ORDER On this the day of , 2013 came on to be heard the Motion For Discovery of Breath Test Records filed on behalf of the Defendant by his counsel.

IT IS ORDERED that the defendant's Motion For Discovery of Breath Test Records is hereby 1. GRANTED/DENIED 2. GRANTED/DENIED 3. GRANTED/DENIED 4. GRANTED/DENIED 5. GRANTED/DENIED

6. GRANTED/DENIED 7. GRANTED/DENIED 8. GRANTED/DENIED 9. GRANTED/DENIED 10. GRANTED/DENIED 11. GRANTED/DENIED 12. GRANTED/DENIED 13. GRANTED/DENIED 14. GRANTED/DENIED 15. GRANTED/DENIED 16. GRANTED/DENIED 17. GRANTED/DENIED 18. GRANTED/DENIED 19. GRANTED/DENIED 20. GRANTED/DENIED 21. GRANTED/DENIED 22. GRANTED/DENIED 23. GRANTED/DENIED 24. GRANTED/DENIED 25. GRANTED/DENIED

SIGNED and ORDERED ENTERED this the

day of

, 2014.

JUDGE PRESIDING

17

SAN ANTONIO DEFENDER

Court Costs and Attorney Fees in Bexar County

THIS IS A TEST

Richard B.

Dulany, Jr. Richard Dulany is an appellate attorney with the Bexar County Appellate Public Defender's Office. He was an appellate prosecutor with the District Attorney's Office in El Paso before moving to San Antonio with his wife, Dr. laura de los Santos. He has also been a trial attorney with the State Public Defender Department in New Mexico, and an appellate attorney with the El Paso County Public Defender's Office. He graduated from the University of Texas School of law in 1991. mr. Dulany would like to thank Kevin Yeary for his editorial assistance.

Writing something useful about court costs and attorney fees is an attempt to hit a moving target. The case law is evolving rapidly. So, use this article as a starting point, but don’t neglect to do your own research. With that caveat, let’s first look at the dollar amounts of court costs and attorney fees to put the issue in perspective. During the third quarter of the 2013 fiscal year, the District and County Courts in Bexar County took in $1,097,622.00 in “Court Costs Revenues.” The county spent $2,065,111.66 in “Court-Appointed Attorney Costs” during that same period.1 Obviously, these are significant items in the county budget.

STATUTORy AUTHORITy FOR COURT COSTS Chapter 102 of the Code of Criminal Procedure provides authority for many of the costs and fees that can be assessed against the defendant in a criminal prosecution in Texas.2 Costs and fees are also found elsewhere, including the Transportation Code and the Labor and Government Code.3 A very useful pair of charts listing the various court costs, when they apply, and the statutory authority for imposing them can be found online.4 A specific discussion of individual court costs and fees is beyond the scope of this paper. But the charts are helpful in verifying that your client is actually liable for each cost or fee imposed.

Court-appointed attorney fees are yet another type of court cost. They are ad-

dressed separately in this article because the assessment of attorney fees is almost always contingent on an indigency determination.

WHEN MAy COURT COSTS BE ASSESSED? The clerk of the court is required to keep a record of the fees and costs assessed in a criminal proceeding.5 But the costs do not become payable until a written bill of costs “is produced or is ready to be produced” by the clerk.6 In Bexar County, our District Clerk prepares and signs the written “Bill of Cost” in each case at the same time that the judgment is prepared. An example of a bill of costs is provided as an appendix to this article. Although the total amount of the court costs and attorney fees are routinely included in the judgments prepared in Bexar County, the court costs “need neither be orally pronounced nor incorporated by reference in the judgment to be effective.”7 Thus, once the bill of costs is prepared, the costs and fees may be collected.8

WHAT IF THE DEFENDANT IS INDIGENT? DOES SHE STIll HAVE TO PAy COURT COSTS AND FEES? Yes. A criminal defendant is generally required to pay court costs, except the attorney fees, regardless of her indigence.9 The Due Process Clause of the United States Constitution prohibits a state from denying persons access to its courts because of inability to pay court fees in advance, but

does not prohibit a state from recovering those costs.10 Court costs, unlike fines, are not intended by the Legislature to be punitive, but are instead meant to compensate the state for the cost of the judicial resources expended in connection with prosecution of the case.11 For that reason, “a trial court can order an indigent defendant to pay court costs provided payment is not demanded before the trial court proceedings have concluded.”12 There are two specific court costs that can be waived if a defendant is indigent: The cost of the alcohol evaluation required for a defendant placed on probation after a DWI conviction may waived “if the court determines that the defendant is indigent and unable to pay the cost[.]”13 The trial court may also waive the costs related to DNA testing under Article 102.020 if it makes a similar determination that the defendant is indigent.14

What about courtappointed attorney fees?

Attorney fees, like court costs, are not imposed as part of the sentence. They are “akin to court costs,” and are meant as reimbursement for the cost of the legal services provided by appointed counsel.15 But unlike other types of court costs, indigency matters in assessing attorney fees.

The Court of Criminal Appeals has stated that “the defendant's financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees.”16 Article 26.05(g) of the Code of Criminal Procedure provides that attorney fees may be charged to the defendant: If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.17

But once a defendant has been determined to be indigent, she is not required to pay attorney fees without evidentiary support that her financial circumstances have materially changed.18 In other words, absent evidence of a material change in the defendant’s financial circumstances, she is presumed to remain indigent for the rest of the proceedings in the case and is usually not liable for repaying attorney fees.19 Attorney fees differ from other court costs in another way: they may be charged to the defendant even if she is not convicted.20 So, in theory, a defendant could still be liable for attorney fees after a jury returned a not-guilty verdict. It is also important to note that counsel can be appointed if “the interests of justice require representation in the proceeding” even if the defendant is not indigent.21 The trial court may attempt Supreme Court building photo by Eric E. Johnson. to require repayment of attorney fees if the appointment is made “in the interests of justice.” Repayment orders will be discussed later in this article.

The indigency determination Because indigent defendants are not generally required to repay attorney fees, the indigency determination is obviously of great consequence. Article 26.04(a) of the Code of Criminal Procedure requires the judges of the district and county courts that try criminal cases to “adopt and publish written countywide procedures” for making the initial indigency determination and appointing counsel.22 In Bexar County, those procedures have been set forth in the Bexar County Criminal District Court Rules.

Rule 5.15 of the Bexar County Criminal District Court Rules provides that an arrested person shall be taken before a magistrate within 48 hours of arrest.23 The magistrate shall ask the arrested person if he wants to request the appointment of counsel.24 Counsel should be appointed “as soon as possible,” normally by the end of the first working day after the magistrate receives the defendant’s request for counsel.25

Rule 5.16 provides the procedures and financial standards for determining if a criminal defendant is indigent for purposes of appointing counsel.26 That rule requires the defendant to be interviewed immediately after the magistrate’s hearing, and before the defendant is released if he makes bond.27 Rule 5.16 further provides in relevant part: “If there is a material change in financial circumstances after a determination of indigency or nonindigency is made, the defendant, the defendants [sic] counsel, or the attorney representing the state may move for reconsideration of the determination.”28 Thus, in Bexar County, the indigency determination is usually made immediately after the magistrate’s hearing, and often before the defendant has been released on bond. Bexar County Pretrial Services conducts the indigency interview and prepares the indigency affidavit.29 A defendant in Bexar County will be determined to be indigent if his monthly income is $931.00 or less, after reasonable living expenses are subtracted.30 The indigency determination is limited to a present determination of financial resources and does not allow speculation about possible future resources.31

Challenging court costs and attorney fees in the trial court In Bexar County, the clerk creates the bill of costs at the same time that the judgment is prepared. So, ask to see the bill of costs when your case is concluded. Review it for accuracy­­––the chart that you’ve downloaded and printed from the Texas Courts Online website will be invaluable.32 Remember that “a cost is not payable” until the written bill is produced “containing the items of cost.”33 If you find an error, bring it to the trial court’s attention. Perhaps it can be corrected informally. If not, file a written motion. The trial court retains plenary power to modify a sentence within 30 days of pronouncing sentence, even without filing a motion for new trial.34 So, the trial court could order the bill of costs to be corrected during that period.

19

SAN ANTONIO DEFENDER

Court Costs and Attorney Fees in Bexar County

Article 103.008 of the Code of Criminal Procedure provides a specific procedure for correcting an error in assessing costs.35 Under that article, a motion to correct an error in the costs must be filed in the trial court within one year of the “final disposition” of the case. Article 103.008(b) also requires the movant “to notify each person affected by the correction of costs in the same manner as notice of a similar motion is given in a civil action.”36 There is almost no case law discussing Article 103.008, especially as concerns the “civil” notice requirement. In a recent case, The First Court of Appeals described the procedure authorized by Article 103.008 as a “collateral proceeding” “separate and apart from a direct appeal from the final judgment,” but did not discuss it further.37 The Court of Criminal Appeals granted discretionary review in that case to decide issues including: whether a defendant can make constitutional challenges to court costs under Article 103.008; whether he is entitled to an evidentiary hearing under that article; and, if so, if there is any appeal from that hearing?38 There is one other issue to know about.

The bill of costs (and judgment) will often state that attorney fees are “TBD,” presumably meaning “to be determined.” The Austin Court of Appeals held, “…we find no authority for the proposition that the trial court can postpone the determination of fees owed indefinitely to some time well after the judgment becomes final.”39 The Court of Appeals found that it was error to award repayment of an undetermined amount of attorney fees.40 You may move to strike the “undetermined” attorney fees from the judgment and bill of costs on that basis.

Challenges on direct appeal A claim that there is insufficient evidence to support the assessment of court costs and attorney fees may be made for the first time on direct appeal, without having preserved the issue in the trial court.41 But if the defendant is placed on probation, a claim that the evidence is insufficient to support court costs and fees must be raised

in a direct appeal from the initial judgment imposing probation.42 The claim is procedurally defaulted if it is not raised until after community supervision is revoked.43 Also, effective September 1, 2013, Article 42.12 was amended to state that “[a] defendant remains obligated to pay any unpaid fine or court cost after the expiration of the defendant’s period of community supervision.”44 So be sure to object to any improperly assessed costs when probation is imposed.

A claim that the evidence is insufficient to support the assessment of court costs and attorney fees can be made if the bill of costs is omitted from the record on appeal.45 But in Bexar County, that type of insufficiency claim will most likely fail. As stated earlier, the trial court clerk routinely prepares the bill of costs when the judgment is produced. By statute, the bill of costs is supposed to be “transferred” to the Court of Appeals when a case is appealed.46 Nevertheless, the bill of costs is often not made part of the clerk’s record on appeal even when it is specifically designated for inclusion.47 But the Fourth Court of Appeals routinely allows the state’s attorney to supplement the appellate record with the bill of costs, thus providing “evidence” to support imposition of court costs.48 It is important to note that the State is not allowed to supplement the record to provide any other evidence of the defendant’s ability to pay attorney fees.49 Unlike court-cost claims, insufficiency claims regarding court-appointed attorney fees are likely to succeed. As discussed above, the indigency determination is normally made near the inception of the criminal proceeding in Bexar County. The defendant will often continue to be represented by court-appointed counsel through plea or trial. Absent evidence of a material change in the defendant’s financial circumstances, he is presumed to remain indigent throughout the proceedings in the case.50 There will normally be no evidence in the record to show a material change in the defendant’s financial circumstances, so the evidence will be insufficient to support the imposition of attorney fees as costs.51 The remedy is to modify the judgment to

delete the attorney fees imposed.52 On appeal, the State often argues that the defendant should be made to pay attorney fees because the initial indigency finding was not made part of the record. The State will claim that the defendant did not “prove” that she was indigent despite the inclusion in the record of the order appointing defense counsel at some point later in the proceeding. But the State’s argument ignores the plain language of Article 26.04(p) that, once found indigent, a defendant is “presumed to remain indigent for the remainder of the proceedings” absent evidence of a change in financial circumstances.53 In reply, defense counsel can also cite Bexar County Criminal District Court Rule 5.16, which provides: “If there is a material change in financial circumstances after a determination of indigency or nonindigency is made, the defendant, the defendants [sic] counsel, or the attorney representing the state may move for reconsideration of the determination.”54 If the State did have evidence that the defendant was no longer indigent, it should have moved for reconsideration of the indigency determination. But the State cannot present that evidence, if it exists, for the first time on appeal.55 The State may also complain that there is no order appointing defense counsel in the record, and so there is no “proof” that the defendant was represented by court-appointed counsel. But if defense counsel was not in fact appointed, then the defendant cannot be made to repay any fees for his representation. See Gray v. Robinson, 744 S.W.2d 604, 607 (Tex.Crim.App. 1988)(“We now hold that state funded attorney fees cannot be awarded for services rendered prior to the date that counsel is appointed to represent an indigent.”). Of course a defendant proceeding pro se cannot be made to pay attorney fees.56

Post-conviction challenges A claim that there is no evidence to support imposition of attorney fees as costs is not cognizable on a writ of habeas corpus.57 But in In re Daniel, the Court of Criminal

Appeals conditionally granted mandamus relief in a challenge to the assessment of attorney fees as costs.58 In that factually unusual case, the Bexar County District Clerk entered a bill of costs––nine years after judgment was entered against the defendant––purporting to assess attorney fees and court costs. The defendant filed a post-conviction application for writ of habeas corpus asserting his indigence and challenging assessment of attorney fees.

The Court of Criminal Appeals refused to grant writ relief, but treated the pleading as an application for writ of mandamus that sought to compel the Clerk to delete the assessment of costs for attorney fees.

The Court found that the applicant had no adequate legal remedy available because he could not challenge court costs in a post-conviction writ of habeas corpus, and found that he had a “clear entitlement” to the relief sought because he was previously found indigent by the trial court and no contrary finding had been entered. For those reasons, the Court conditionally granted mandamus relief. So, mandamus would seem to be the appropriate way to bring a post-conviction challenge to an improper assessment of attorney fees.

Repayment orders Perhaps surprisingly, the Texas Indigent Defense Commission and the Texas Fair Defense Project have jointly (and anonymously) authored a model procedure that allows trial courts to order repayment of fees for court-appointed counsel. The position paper, with model repayment orders, can be found on the Texas Indigent Defense Commission’s website.59 The unnamed authors begin by noting that “the ‘state of Texas has a significant interest in assuring that persons with the financial resources to pay for their own representation do not take a free ride at the expense of its taxpayers.’ Curry v. Wilson, 853 S.W.2d 40, 46 (Tex. Crim. App. 1993).”

They acknowledge that an order to repay attorney fees is “invalid” unless there is a finding by the trial court under Article 26.05(g) that the defendant has financial resources that enable him to pay all or part of the appointed attorney fees. The authors

then set forth a four-step “model procedure” for ordering repayment of fees and costs.

Citing Article 1.051(b) of the Code of Criminal Procedure, the authors state that “indigent” in this context means “a person who is not financially able to employ counsel.”60 Thus, according to the authors, “it is possible for a defendant to be simultaneously ‘indigent’ as that term applies to the right to appointed counsel and also capable of repaying all or part of the amount expended by the county for his or her defense.” This is, the authors explain, because the county pays appointed counsel less than the cost of retained counsel.

The details of the “model procedure” are essentially these: If a flat-fee schedule is used (as for misdemeanor cases in Bexar County), the cost of the legal services is “knowable” in advance. The amount, if any, that the defendant can afford to repay the county during the pendency of the criminal proceeding can then be calculated at the same time as the initial indigency determination is made. A monthly “repayment” order can be entered against the defendant directing him to pay some amount every month to defray the cost of his legal representation while the case is pending against him. But if the cost of representation is not known until the end of the proceeding (as with felony cases in Bexar County), a second review of the defendant’s financial status is required to determine if a “material change” in his financial circumstances has occurred so that he is now able to repay some or all of the costs of his legal representation. An order requiring repayment may then be entered against the defendant if he is no longer determined to be “fully indigent” and is now able to bear part or all of the costs of his legal representation under Article 26.05(g).

In effect, the model repayment procedures set forth by the Texas Indigent Defense Commission and the Texas Fair Defense Project would create a county subsidized and managed “installment plan” for courtappointed attorney fees––at least to the extent defendants would be required to make monthly payments to the county to

recover the cost of their defense. Only the truly destitute would ever take the “free ride” on the backs of the taxpayers that was decried by the Court of Criminal Appeals in Curry.

An unanswered (but obvious) question: if you are “indigent” for purposes of receiving court-appointed counsel, should you be expected to make any amount of monthly repayment at all? In simpler terms, do we accomplish anything worthwhile by making poor people poorer? But if we raise the present indigency threshold of $931.00 per month in anticipation that at least some defendants will have to repay the county for the cost of their legal services, won’t we then capture persons in the court-appointment system that might otherwise have retained counsel? None of those questions are addressed by the authors of the model repayment procedure. Unfortunately, the fundamental message of Gideon seems to have been overlooked. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”61 An indigent defendant is therefore entitled to appointed counsel unless the defendant competently, intelligently, and voluntarily waives the right to counsel.62 The provision of indigent defense services is constitutionally mandated and not necessarily amenable to the application of a cost-benefit analysis.

One County Court judge in Bexar County is already considering a repayment plan.

He proposes to reexamine the financial circumstances of indigent defendants at arraignment, and, if deemed appropriate, have them pay some monthly amount toward the anticipated cost of court-appointed counsel while their cases are still pending in his court. But that proposal has not yet been put in place, and any details (such as the threshold amount of monthly net income that would trigger prospective repayment of attorney fees) have not been disclosed.

Conclusion Court costs and attorney fees are an issue in every criminal proceeding. To be sure, 21

SAN ANTONIO DEFENDER

Court Costs and Attorney Fees in Bexar County

defendants do pay them, especially if they are in prison.63 Verify that the costs assessed are accurate, and object to the imposition of attorney fees in appointed cases unless there has been evidence presented of a “material change” in your client’s financial circumstances. And finally, keep up with the ever changing case law. The Court of Criminal Appeals will likely give us some guidance soon regarding the use of Article 103.008 to correct erroneously imposed court costs and attorney fees.

8. See Tex. Code Crim. Proc. Ann. art.

103.003 (West 2006 & Supp. 2013)(providing a list of persons authorized to collect fees and costs). Bexar County participates in a Collection Improvement Program that conforms with the model developed by the Office of Court Administration. See Tex. Code Crim. Proc. Ann. art. 103.00333 (West 2006 & Supp. 2013). More information about the Collection Improvement Program may be found at: http://www.courts. state.tx.us/oca/collections/collections.asp.

1. Financial information courtesy of the Bexar County Manager’s office.

9. Johnson v. State, 405 S.W.3d 350, 355 (Tex. App.–Tyler 2013, no pet.); Martin v.

State, 405 S.W.3d 944, 947 (Tex. App.–Texarkana 2013, no pet.)(“A defendant's ability to pay is not relevant with respect to legislatively mandated court costs.”).

2. See, e.g. , Tex. Code Crim. Proc. Ann. arts. 102.001-.072 (West 2006 & Supp.

2013).

3. See, e.g. , Tex. Loc. Gov’t Code Ann. § 133.103 (West Supp. 2013) (authorizing collection of a $25 “time payment fee” if court costs are paid in installments); see also Owens v. State, 352 S.W.3d 542, 546 fn.

5 (Tex.App.–Amarillo 2011, no pet.)(providing a lengthy, if not exhaustive, list of legislatively mandated fees and costs).

10. See Allen v. State, — S.W.3d —, 2013 WL 1316965, *3 (Tex. App. – Texarkana April 3, 2013), citing Boddie v. Connecticut, 401 U.S. 371, 374, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

11. Weir, 278 S.W.3d at 365-66.

12. Allen, 2013 WL 1316965, *4.

4. http://www.courts.state.tx.us/oca/pdf/ DC-FelCtCst090113.pdf -- for felony cases. http://www.courts.state.tx.us/oca/pdf/CCMisdCtCst-Orig090113.pdf -- for misdemeanor cases.

13. Tex. Code Crim. Proc. Ann. art.

102.018(b) (West 2006).

5. See Tex. Code Crim. Proc. Ann. art.

103.009 (West 2006).

15. Armstrong, 340 S.W.3d at 767.

6. See Tex. Code Crim. Proc. Ann. art.

103.001 (West 2006). Of course, no cost may be imposed for a service that is not performed. See Tex. Code Crim. Proc. Ann. art. 103.002 (West 2006).

7. Armstrong v. State, 340 S.W.3d 759, 766-67 (Tex. Crim. App. 2011), citing Weir v.

State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009); but see Solomon v. State, 392 S.W.3d 309, 310 (Tex. App. – San Antonio 2012, no pet.), citing Tex. Code Crim. Proc. Ann. art.

42.16 (West 2006) (mandating that judgments imposing punishments other than fines include costs against defendant).

14. Tex. Code Crim. Proc. Ann. art.

102.020(j) (West 2006).

16. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).

17. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West 2009 & Supp. 2013).

18. Tex. Code Crim. Proc. Ann. art. 26.04(p) (West 2009 & Supp. 2013)( “[a] defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs.”); see also Mayer, 309 S.W.3d at 557.

19. See Fulmer v. State, 401 S.W.3d 305, 319 (Tex. App.–San Antonio 2013, pet. ref’d).

20. Armstrong, 340 S.W.3d at 767.

21. Tex. Code Crim. Proc. Ann. art. 26.04(c) (West 2009 & Supp. 2013).

22. Tex. Code Crim. Proc. Ann. art. 26.04(a) (West 2009 & Supp. 2013).

23. Tex. Bexar Cty. Crim. Dist. Ct. Rule 5.15(b) (West Supp. 2013).

24. Tex. Bexar Cty. Crim. Dist. Ct.Rule 5.15(c) (West Supp. 2013).

25. Tex. Bexar Cty. Crim. Dist. Ct. Rule 5.15 (West Supp. 2013).

26. Tex. Bexar Cty. Crim. Dist. Ct. Rule 5.16 (West Supp. 2013).

27. Tex. Bexar Cty. Crim. Dist. Ct. Rule 5.16(b) (West Supp. 2013).

28. Tex. Bexar Cty. Crim. Dist. Ct. Rule 5.16(g) (West Supp. 2013).

29. Tex. Bexar Cty. Crim. Dist. Ct. Rule 5.16(b) & (c) (West Supp. 2013).

30. This indigency threshold amount has been in effect since May 8, 2012. It is revised periodically. See Tex. Bexar Cty. Crim. Dist. Ct. Rule 5.17 (West Supp. 2013).

31. Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). See footnote 4.

32. Tex. Code Crim. Proc. Ann. art. 103.001 (West 2006).

33. See Patterson v. State, 353 S.W.3d 203, 214 (Tex. App.–San Antonio 2011, pet. ref’d).

34. See Tex. Code Crim. Proc. Ann. art.

103.008(a) (West 2006)(“On the filing of a motion by a defendant not later than one year after the date of the final disposition of a case in which costs were imposed, the court in which the case is pending or was last pending shall correct any error in the costs.”).

35. See Tex. Code Crim. Proc. Ann. art.

103.008(b) (West 2006).

36. Cardenas v. State, 403 S.W.3d 377, 389 (Tex. App.–Houston [1st Dist.] 2013, pet. granted August 21, 2013)(op. on reh’g).

37. Case Number PD-13-0733.

38. Cardenas v. State, PD-0733-13, pet. granted August 21, 2013.Id.

50. Id. 51. Tex. Code Crim. Proc. Ann. art. 26.04(p) (West 2009 & Supp. 2013). You should verify that the appointment was made because the defendant is indigent, and not “in the interests of justice.” See Tex. Code Crim. Proc. Ann. art. 26.04(c) (West 2009 & Supp. 2013).

52. Tex. Bexar Cty. Crim. Dist. Ct. Rule 5.16(g) (West Supp. 2013).

39. Mayer, 309 S.W.3d at 555.

53. See footnote 49.

40. Wiley v. State, S.W.3d , No. PD1728-12, 2013 WL 5337093 (Tex. Crim. App. Sept. 25, 2013).

54. In re Kennedy, No. 12-12-00203-CR, 2013 WL 2344472 (Tex. App.–Tyler June 20, 2012)(not designated for publication).

41. Id. 42. Wiley v. State, 410 S.W.3d 313, 320-21 (Tex. Crim. App. 2013).

43. Johnson v. State, 389 S.W.3d 513, 517 (Tex. App.–Houston [14th Dist.] 2012, pet. granted).

44. Tex. Code Crim. Proc. Ann. art. 103.006 (West 2006).

45. See Tex. R. App. P. 34.5.

46. See Ballinger v. State, 405 S.W.3d 346, 348-49 (Tex. App.–Tyler 2013, no pet.) (recognizing that the bill of costs is a compilation of existing records and is not new evidence, so supplementation of the record on appeal does not violate due process).

47. See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010) (rejecting State’s request to remand case to trial court to supplement record with evidence of defendant’s ability to repay court-appointed attorney’s fees because there is no indication that the state had been precluded from presenting evidence on that issue).

48. Fulmer, 401 S.W.3d at 318 citing Tex. Code Crim. Proc. Ann. art. 26.04(p) (West 2009 & Supp. 2013).

49. Fulmer, 401 S.W.3d at 318, citing Mayer, 309 S.W.3d at 555-56.

55. Ex parte Knight, 401 S.W.3d 60, 66 (Tex. Crim. App. 2013).

56. In re Daniel, 396 S.W.3d 545 (Tex. Crim.

App. 2013).

CALL for

SUBMISSIONS

57. http://www.courts.state.tx.us/tidc/pdf/ AttorneyFeeRecoupmentProceduresandOrdersDec2011.pdf 58. See Tex. Code Crim. Proc. Ann. art.

1.051(b) (West 2005 & Supp. 2013).

The san antonio Defender

59. U.S. Const. Amend. VI; Gideon v. Wainwright, 372 U.S. 335, 340–45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

thatservestoinspire,educate,

60. Gideon, 372 U.S. at 340–45 61. Withdrawing funds from inmate accounts is another topic that is beyond the scope of this article. For more information, see: http://www.courts.state.tx.us/oca/collections/list_instr.asp

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