42nd Annual Prairie Dog Advanced Criminal Law Seminar

Texas Criminal Defense Lawyers Association & Lubbock Criminal Defense Lawyers Association

- 42nd AnnualPrairie Dog Advanced Criminal Law Seminar

Date January 6-7, 2023

Location Texas Tech Law School, 1802 Hartford Avenue, Lubbock, Texas 79409

Course Director Charles Chambers, Rachael Etheridge, and Matt Morrow

Total CLE Hours 12.25 Ethics: 1.5

Friday, January 6, 2023

Daily CLE Hours: 7.25 Ethics: .75

Time CLE Topic Speaker

8:00 am Continental Breakfast and Yoga

8:45 am Opening Remarks

Charles Chambers, Rachael Etheridge, and Matt Morrow

9:00 am 1.0 Opening Statements Frank Sellers

10:00 am 1.0 DWI Mark Thiessen

11:00 am Break

11:15 am 1.0 Federal Practice

12:15 pm Lunch Line

12:30 pm .75

Kristen Ayers, Sarah Gunter, & Hon. Wesley Hendrix

Lunch Presentation: Self Defense: The Law of Jury Dynamics Dan Hurley

1:15 pm Break

1:30 pm .75 Ethics Lawyer Wellness

2:15 pm .75 Appellate Update

3:00 pm 1.0 Defending Sexual Assault Cases

4:00 pm 1.0 Cannabis Roundtable

5:00 pm Adjourn

7:00 pm Prairie Dog Party (Ticket Required)

Erica Grigg & Texas Lawyers’ Assistance Program

Hon. Mark Hocker

Jesse Mendez, Troy Nicholson, Audie Reese, & Afshin Zand

Jim Moore, Matt Morrow, & Chris Wanner

Date January 6-7, 2023

Location Texas Tech Law School, 1802 Hartford Avenue, Lubbock, Texas 79409

Course Director Charles Chambers, Rachael Etheridge, and Matt Morrow

Total CLE Hours 12.25 Ethics: 1.5

Saturday, January 7, 2022

Daily CLE Hours: 5.0 Ethics: .75

Time CLE Topic Speaker

8:00 am Continental Breakfast and Yoga

8:45 am Opening Remarks Matt Morrow

9:00 am 1.0 TCDLA Legislative Update and Parole Law Refresher Allen Place

10:00 am .75 Combatting Confessions David Guinn Jr.

10:45 am .75 Mitigation Rachael Etheridge

11:15 pm Lunch Line

11:30 am 1.0 Lunch Presentation: Why We Do What We Do Tyrone Moncriffe

12:30 pm Break

12:45 pm .75 Ethics Ethical Considerations in Representing Indigent Clients Lynn Richardson

1:30 pm .75 Mental Health Nicky Boatwright & Robert Sullivan

2:15 pm Adjourn

Texas Criminal Defense Lawyers Association

42nd Annual Prairie Dog Lawyers Seminar Co-Sponsored with LCDLA Table of Contents

speakers topic

Friday, January 6, 2023

Frank Sellers Blinks to David Ball on Criminal Defense

Erica Grigg & Texas Lawyers’ Assistance Program Wellness and the Practice of Law: Rebuilding Resiliency After a Pandemic

Hon. Mark Hocker Appellate Update

Saturday, January 7, 2023

Allen Place TCDLA Legislative Update and Parole Law Refresher

Tyrone Moncriffe Developing a Trial Story

Lynn Richardson Ethical Considerations in Representing Indigent Defendants

Robert Sullivan Basics of Mental Health and the Law

Nicky Boatwright & Robert Sullivan

A quick Guide to Incompetency Under Texas CCP, Chapter 46B

Texas Criminal Defense Lawyers Association

Co-Sponsored with LCDLA

January 6-7, 2023 Texas Tech School of Law Lubbock, TX

Topic: Blinks to David Ball on Criminal Defense

Speaker: Frank Sellers

Westfall Sellers

1701 River Run, Ste 801 Fort Worth, TX 76107 817.928.4222 phone 817.385.6715 fax frank@westfallsellers.com email www.westfallsellers.com website

Co-Author: Weston Mumme

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Blinks to David Ball on Criminal Defense1

Frank Sellers & Weston Mumme

I. INTRODUCTION

In David Ball on Criminal Defense, David Ball, Don Keenan, and their team seek to reshape the way criminal defense attorneys approach trial. They begin by addressing some of the common problems with defense attorneys’ methodologies. Next, they outline a better approach: the “Rule Out” principle. Lastly, they suggests ways to implement the Rule Out principle at each phase of trial. The following seeks to summarize David Ball’s principles in hopes that you might incorporate them into your trial strategies.

II. PRINCIPLES TO AVOID

The initial pages of Ball’s book diagnose some flaws in the ways we currently approach trial. The book focuses on two main issues: undertaking unnecessary burdens and engaging in tug-of-war battles with the prosecution.

A. Avoid the “Fatal Defense Error” of Undertaking a Burden

The fatal defense error is appearing to jurors as though you have a burden. Jurors will generally assume you are trying to prove something, and telling them you are not accomplishes nothing. Nevertheless, we confirm their suspicions all the time and lead them to believe we have to prove our theory is more viable than the prosecution’s.

1 Full text available for purchase for $35 at https://reptilekeenanball.com/David-Ball-on-CriminalDefense_p_43.html (last visited Feb. 9, 2018).

We say things like “… however, we’ll show you the defendant was not in New York on the evening in question.” Statements like this suggest to the jury you are going to prove something, even though your only job is to create reasonable doubt as to whether the defendant was in New York. Worse, if you fail to prove the defendant was not in New York, you’ve deceived the jury and lost credibility.

There’s a better way, however, toavoid this pitfall entirely. Instead of resolving to prove certain facts, say, “The prosecution cannot rule out the possibility the defendant might have been elsewhere.”2 This is the Rule Out principle.

B. Avoid Tug-of-War with Prosecutors: You Don’t Have to Prove Anything

Another mistake defense attorneys frequently make is engaging in tug-of-war with the prosecution: “Trial is not a tug of war between who’s right and who’s wrong. It’s only about whether the Prosecutor can logically rule out every possible reasonable doubt, even the smallest.” 3 Despite widespread use, statements like, “My client did not do it” quickly create “an indelible tug-of-war, instantly and needlessly plummeting your chances of winning down to the pathetic current national averages.”4 Your chances of success will skyrocket if you avoid statements that encourage tug-ofwar. Consider the following example:

[Y]ou say, “Two witnesses will say he was not in New York but Boston.” So jurors think you’re trying (and thus required) to prove he was in

2

3 Id. at 8.

4 Id. at 3.

(2016).

DAVID BALL ET AL, DAVID BALL ON CRIMINAL DEFENSE 3

Boston when you only need show that the state can’t logically rule out the possibility he was somewhere other than New York. So instead say, “Two witnesses say he was in Boston. The Prosecutor cannot rule out that possibility ”5

III. PRINCIPLES TO ADOPT

Instead of engaging in tug-of-war and taking on unnecessary burdens of proof, Ball suggests defense attorneys stick totheir only job: “toshow that the Prosecutor cannot rule out reasonable doubt(s).”6

A. First, Explain the History of Reasonable Doubt

Like many states, since the turn of the millennium, Texas has prohibited explicit definitions of reasonable doubt. 7 Jurors don’t like it, but by examining the historical origin of reasonable doubt, not having a definition works as much for us as it does against us. Historically, reasonable doubt was a demanding burden:

“Reasonable doubt” was instituted in the Middle Ages and firmly established by the 18th century to provide the highest possible barrier to wrongful convictions. It initially arose because any trier-of-fact (all of whom were church clerics) who wrongfully convicted even inadvertently was going to hell. So 5 Id. 6 Id.

7 Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (“We specifically overrule that portion of Geesa which requires trial courts to instruct juries on the definition of “beyond a reasonable doubt.”).

“reasonable doubt” obviously did not mean “moderate”; the clerics needed far greater than moderate protection. Further, the primary meaning of “reasonable” back then was “using reason,” not “moderate.” Today, “using reason” remains the first or second definition in almost all dictionaries.8

Our standard is “the highest standard known to any judicial system in the world,” and a historical analysis helps jurors understand that it was designed that was on purpose.9

B. Next, Put Reasonable Doubt into Practical Terms

What does reasonable doubt mean? According to Ball, “A reasonable doubt means: (1) that a juror using reason (logic) (2) could believe (3) the doubt might be true.”10 Therefore, a doubt is a reasonable one as long as it is based on reason or logic, and is not vain or fanciful.11

A usable reasonable doubt, however, must also be case determinative: “If the state can convict whether the crime happened at 1 p.m. or at 2 p.m., reasonable doubt that it was at 1 p.m. is irrelevant.”12 Referring to non-case-determinative reasonable doubts as reasonable doubts has the devastating

8 DAVID BALL, supra note 2, at 5 (citing James Q. Whitman, The Origins of “Reasonable Doubt”, FACULTY SCHOLARSHIP SERIES, Mar. 1, 2005, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1000&co ntext=fss_papers).

9 Id. at 54.

10 Id. at 4.

11 See Williams v. State, 804 S.W.2d (Tex. Crim. App. 1991); See also Mathis v. State, 576 S.W.2d 835 (Tex. Crim. App. 1979); See also Wappler v. State, 183 S.W.3d 765 (Tex. App. Houston [1st Dist.] 2005, pet. ref’d).

12 DAVID BALL, supra note 2, at 4.

effect of misleading “jurors into thinking they can have reasonable doubts and still convict.” 13 However, as the Tylenol analogy explains below, the size of the reasonable doubt is irrelevant

From opening to closing, your entire goal should be suggesting reasonable doubts and explaining that the prosecutor cannot rule them out. Never let the jurors focus on anything else. Reasonable doubts can come from the evidence itself, an insufficiency of evidence, or from the minds of the jurors themselves. It’s the Prosecutor’s job to rule out every such doubt. Consider the following example:

For all we know, the assailant could have been the bartender or anyone else in the bar, or the valet parking attendant from outside, or a passing pedestrian or motorist, or anyone else you can think of who could possibly have been in that neighborhood that night. The assailant might be who the Prosecutor says, but the Prosecutor does not win by showing just one version when other possibilities favor the defendant.

Folks, whenever you can say, “For all we know it could maybe have been different from what the Prosecutor says,” it’s a reasonable doubt. The Prosecutor has to rule out every possible “for all we know.”14

So every time there is a legitimate reasonable doubt either because of an insufficiency of evidence or due to the evidence 13 Id. 14 Id. at 5.

itself, say, “’for all we know …’ and plug ‘em all in. And encourage jurors to add more of their own.”15

Practice Tip: When you know of a reasonable doubt the state has not dealt with, consider saying nothing about it until closing, when it’s too late for the state to rule it out.16

C. Tylenol: It’s Not the Size that Matters

Even the smallest reasonable doubt can win a trial because “reasonable doubt is about logic, not weight.”17 Regardless of size, jurors must accept all reasonable doubts until the Prosecutor proves there is “no logical way for the reasonable doubt to exist.”18 Consider Ball’s Tylenol analogy:

If a bottle of one thousand Tylenol capsules might just maybe contain one arsenic capsule, you don’t put that bottle in your family’s medicine cabinet, because the one capsule theytakecould, logically, be arsenic. No way based on reason to rule it out. Would any odds make the danger small enough? One in 10,000 capsules? Or 25,000? Or does it stay a reasonable doubt no matter how many capsules the bottle holds? The arsenic capsule (the reasonable doubt about whether the next capsule you take is safe) does not disappear just

15 Id. at 4.

16 Id. at 8.

17 Id. at 5. 18 Id.

because the chance of randomly picking it is tiny.19

The Tylenol analogy illustrates why size does not matter in an approachable way that helps jurors grasp the concept of reasonable doubt.

D. Affirmative Defenses

The Rule Out principle can be used in place of affirmative defenses as well. The merementioning of affirmative defenses can elicit biases from jurors. When they hear “’defense by reason of insanity’ or ‘intoxication’ or even ‘self-defense,’ they mainly hear its negative connotations.”20 Instead of allowing the burden to shift to you to prove self-defense, use the evidence to show reasonable doubt about an element of the offense such as intent. Explain to the jurors, “There’s reasonable doubt in twoplaces: first, that he didit, andsecond, that whoever did it had any wrongful intent.”21

E. Definitions of Burdens

Sometimes you cannot avoid taking the burden. In such cases, “you need an accurate and plain-language definition for the jury of whichever burden you have.”22 If your burden is preponderance, try the following:

Explain that it means, “More likely right than wrong,” or whatever similar wording the court allows. “More likely right than wrong” has been thoroughly tested and shown to be the most

19 Id. at 5-6. 20 Id. at 10. 21 Id. 22 Id. at 11.

effective possible description, so don’t mess with it unless you have to. … every time throughout trial you mention “more likely right than wrong” (it will be often), place your hands side by side palms up, one hand just a bit higher than the other.23

In the alternative, if your burden is clear and convincing, “[e]xplain that it means, ‘Probable but with reasonable doubts.’ The court should allow this explanation because it accurately differentiates clear and convincing from beyond reasonable doubt.”24

Having a solid, plain-language definition of your burden, however, is only half the battle. You must also mention your burden frequently “or jurors will default to beyond reasonable doubt.”25 Regardless of your burden, the goal is to keep the defining phrase at the forefront of the jurors’ minds throughout the trial.

IV. IMPLEMENTING THE RULE OUT PRINCIPLE

Implementing the Rule Out principle may be difficult at various stages of trial as judges often resist new principles and methods. They will likely continue to resist“until enough lawyers generate well-researched motions and other arguments to diminish judge resistance.”26

In addition to the critical parts above, try using the following, additional principles and methods when allowed. 23 Id. 24 Id. 25 Id. at 12. 26 Id. at 13.

They have been condensed down into bulleted lists for each stage of trial.

A. Voir Dire

• Tug-of-war. Be certain the wording of your questions never implies you’re required to prove anything.27

• Follow-up questions. The all-purpose and best followup question is, “Please tell me about that.” And then, “Please tell me more about that.” You rarely learn much about the nature and strength of any juror attitude until the juror answers at least your second follow-up about it.

• Never express approval of a juror’s opinion. Doing so makes other jurors with opposing opinions hide them.

• Never disagree with any voir dire answer. It can make that juror and others feel less forthcoming.

• Never interrupt a juror.

• Never reword a juror’s answer. It’s okay to repeat a juror’s answer to make sure you’ve gotten it right and toshow that you’ve listened carefully, but do not reword it even slightly.28

• Pay close attention. Zero in on the juror you’re listening to and don’t be distracted by anything.

• Never take notes, and don’t watch other jurors to see their reactions. That’s for someone at your table to do. Pay narrow, strict attention to whichever specific juror you’re listening to.29

27 Id. at 16.

28 Id. 29 Id.

• “Not Prying.” Don’t tell jurors you’re not going to pry. You’re going to pry.30

• Ask three types of questions. Keep voir dire questions to three categories: 1) attitude questions, 2) personal experience questions (“Golden Rule” questions), and 3) “which way do you lean?” questions. 31 Here are a couple that should never be left out:

• Attitude questions. “Ladies and gentlemen, it’s 2 a.m., and you’re going home a little later than you want to be, and you get lost. And you’re not drunk, you’re not doing drugs, you’re just lost. You weren’t paying attention and you’re in a strange neighborhood and all of a sudden the blue lights of a police cruiser come on behind you. Well, some people have an immediate reaction of fear and some people have an immediate reaction of protection. Talk to me a little bit about the first thing that comes to your mind under those circumstances.” It’s a good attitude question. It tells you what’s on the juror’s blackboard, and how each juror views the government and law enforcement.32

• “Which way do you lean” questions. “Some people believe that Constitutional protections of our rights are absolute and guaranteed, and if police violate those protections then an innocent defendant might be convicted and the guy who actually did it will get off. Other people believe that sometimes Constitutional protections have to give way to keep a guilty defendant from going free. Which way do you lean?”33

30 Id. at 17.

31 Id. at 51.

32 Id. at 52.

33 Id. at 53.

B. Opening Statements

• Tug-of-war. [N]ever say at any point, much less in opening “John Riley is innocent” or, “We’re here for truth and justice.” Such thoughts zap jurors right into tug-of-war mode.34

• Use easel, not PowerPoint. PowerPoint goes away, easels do not. “Use Velcro or a magnetic board so you can attach each new point. Or have the entire chart in front of the jury and reveal each new part as you go.”35

• Start of opening: no blather. Cut to the chase. Except for “good morning,” say no words of introduction.36

• “Mr. Prosecutor and I agree.” Start your opening with by saying, “Good morning. Let’s look at some reasonable doubts Mr. Prosecutor and I agree he must rule out as logical possibilities.” “Jurors accept without question what you both agree on. It also gets juror attention (it’s a “grabber”) because jurors don’t expect agreement.”37

• List reasonable doubts. Cut to the chase. Start listing reasonable doubts. Keep them as short as possible. “Don’t yet discuss these reasonable doubts. Just create the list. Jurors pay more attention and learn and remember better when you provide one layer at a time.”38

34 Id. at 27.

35 Id. 36 Id. at 26.

37 Id. at 27. 38 Id. at 28.

• Discuss reasonable doubts. With the completed chart in place, start discussing each doubt. If the first reasonable doubt is “Maybe taxi driver saw someone else,” say the following: “Now let’s look at reasonable doubt number one. The taxi driver will say he saw John take the money. You’ll hear four reasonable doubts about whether he’s right. First, he’d never seen John before. Second, he saw whoever it was for just a few seconds. Third, the taxi driver hesitated saying it was John in the lineup. Fourth, the lighting was bad.”39

• “The evidence will show.” Don’t say things like, “The evidence will show reasonable doubts.” Use “the evidence will show” only when followed by a specific: “The evidence will show it was dark.” Better yet, omit “The evidence will show” altogether. It’s pointless. Instead, tell us where the evidence comes from: “The bus driver says it was dark.”40

• Remind jurors that reasonable doubt remains unless the juror must abandon reason to think it could maybe be true.41

• When allowed, end with, “As you hear and see each piece of the Prosecutor’s evidence during trial, your job will be to view it with skepticism. None of it is true until the Prosecutor rules out every reasonable doubt that it is true. As you hear each piece of evidence we show you on behalf of the defendant, your job is totake it as true. None of it is false unless the Prosecutor rules out every reasonable doubt that it is false. In other words, you have tointerpret every piece of evidence in the defendant’s favor as long as it is logically possible

39 Id. at 29.

40 Id. at 27.

41 Id. at 30.

to doso. If you apply that simple test, your verdict will be easy.”42

C. Testimony

• Tug-of-war. By default, jurors think you’re required to prove your witnesses right and the state’s wrong. That’s a tug-of-war: Don’t go there. Nor is there need to show that the state’s witnesses are wrong. It’s enough to show they could be wrong. Maybe wrong.43

• Bottom line. Make sure the jury understands that the verdict must be not guilty when 1) there’s reasonable doubt about anything a state’s witness says that is in itself case- or count-determinative, or 2) when there’s reasonable doubt about anything count- or casedeterminative that a defense witness says. In other words, when a defense witness says something that, if true, would mean innocence, and there’s reasonable doubt that he’s wrong, the jury must take the statement in the best light for the defendant. That means a not-guilty verdict.44

• Expert Witnesses. Regarding experts, the rules of evidence require “(b) The testimony is based on sufficient facts or data; (c) The testimony is the product of reliable principles and methods; and (d) The expert has reliably applied the principles and methods to the facts of the case.” The statemust rule out all reasonable doubt about each phrase as it applies to their experts. 42 Id. 43 Id. at 31. 44 Id.

Otherwise their experts automatically have reasonable doubt.45

• Defense Experts. As with all our witnesses, when the state cannot prove beyond reasonable doubt that our expert is wrong, then maybe our expert might be right. Make sure the jury understands this is all we need.46

• Neutral frame of mind. The expert must place himself in a neutral frame of mind. This is neither option nor minor. And alone, this makes it pretty much impossible for state-employed forensics experts to come to reliable conclusions. Make sure your expert has a good answer to your question: “What did you do to ensure your neutrality?” and “How can we trust your neutrality?” Use the same questions on the state’s experts when you can show flaws, because each flaw creates a reasonable doubt.47

• Creating expectation. The police and D.A. often create scientifically impermissible expectations on the expert’s part by telling her in advance what they want her to find: “See if this is heroin.” “See if this is the defendant’s blood.” These statements tell the expert what to expect (introducing expectation bias).48

• Reproducibility. Reproducibility of research or analytic result is a hallmark of science and among its most important requirements. Without it, there’s no science and the state should not be allowed to claim it’s science. Scientifically speaking, until the state’s expert’s result is reproduced by an outside analyst, 45 Id. at 32. 46 Id. 47 Id. at 33. 48 Id. at 34.

there’s reasonable doubt. Make sure the judge understands that the defendant must not be disadvantaged just because the state won’t spend the money for scientifically required reproducibility by an outside analyst.49

• Proprietary software. Some courts have refused defense requests to see and analyze the software to be sure it is reliable. Not being able to examine the software creates an automatic reasonable doubt: By a wide margin, the market for these devices is the police. So the manufacturers are motivated to please their potential buyers the police by cheating in their favor. It’s basic science: a conclusion reached without transparent methodology and technology is never reliable.50

D. Closing

• Say, “Your work is done the minute you decide a reasonable doubt might exist.”51

• Listening in closing. Research confirms that during closing, jurors rarely move in either direction. They almost all think they’ve made up their minds. So they tend not to listen. So at the start of closing, get them listening. “Good morning. During deliberation, you’ll have three jobs.” This makes jurors listen, because they think they have only one job.52

49 Id. at 35.

50 Id. at 36-37.

51 Id. at 37.

52 Id. at 38.

• Job one. “Make decision(s) about the case.”53

• Job two. “Make sure everyone follows the law the judge gives you. No other juror has the right toask you to go home having been on a jury that stepped outside that law in making its decisions.”54

• Job three. “Explain to each other why you feel the way you do about how to decide the case. I’d like to suggest some ways to help you do that.”55

• Assigning their task. Let the jurors know that it all comes down to one question: “Did the Prosecution logically rule out all the reasonable doubts the possibilities based on reason that favor John on Count 1? The Prosecutor either did or did not rule them all out, and that is all you need to decide.” Repeat for each additional count.56

• Arming your jurors. After trial, jurors who were left unarmed often say, “I knew your side was right but I didn’t know how to say why. So I had to go along with the others.” Build a running display chart of your arming points. Try to limit each arming point to 20 words, fewer when possible. Cut to the chase: “If someone says New York, remind them the Prosecutor never ruled out John might have been elsewhere. Never ruled out elsewhere.”57 53 Id. 54 Id. 55 Id. 56 Id. 57 Id. at 38-39.

• Marshalling. Never marshal the evidence. Jurors already know the evidence or they think they do so when you marshal they stop listening.58

• Explaining (i.e., massaging) the instructions. Do not rely on the judge’s reading of the instructions. They’re usually unclear and always too many … For each instruction that you need jurors to understand, do the following to “massage” it:

1. Select the crucial part of the instruction.

2. Put each selection on its own slide or board.

3. With each instruction, doall of the following before going on to the next one:

a. Read it aloud.

b. Explain it in plain English.

c. Apply the facts to it. Jurors are told to “apply the facts tothe law,” but they’re rarely told what that means. So instead of explaining it, show them how the facts apply to each instruction to reveal reasonable doubt.

• Display a blow-up of the verdict form. As you “massage” tothe point of showing reasonable doubt, place an X in the not-guilty box. Add an X to that box for each additional reasonable doubt.59

• “Presumption of innocence.” The meaning of the word presumption is paper thin. Instead, drop presumption and say, “Under the law, my client is innocent unless …”60

58 Id. at 40.

59 Id. 60 Id. at 55.

•

“Alleged.” Try to use the word claim instead of allege. “They claim to have been hit.” “They claim there was a rape.” “So on cross we ask, ‘Is that what you’re claiming?’ Claim is a bad word for Prosecutors and a good word for the defense.”61 61 Id.

January 6-7, 2023

Texas Tech School of Law Lubbock, TX

Topic: Wellness and the Practice of Law: Rebuilding Resiliency After a Pandemic

Speaker:

Erica Grigg

JD, Texas Lawyers Assistance Program Director 1414 Colorado St Austin, TX 78701 512.474.6061 phone Erics.grigg@tlaphelps.org email https://www.tlaphelps.org/ website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Presentedby EricaGrigg,JD,TLAPDirector

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•Upto$3,000foroutpatientcounseling andmedication;

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Texas Criminal Defense Lawyers Association

January 6-7, 2023 Texas Tech School of Law Lubbock, TX

Topic: 2022 Criminal Law Case Updates

Speaker: Hon. Mark Hocker

Lubbock County Court at Law no. 1 904 Broadway Lubbock, TX 79401 806.775.1305 phone 806.775.7996 fax mhocker@lubbockcounty.gov email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

2022 Criminal Law Case Update

T.C.D.L.A./L.C.D.L.A. Prairie Dog Conference January 6, 2023 Lubbock, Texas

First Amendment

Freedom of Speech, Expression, Assembly, Religion, and to Protest

Ramirez v. Collier, 142 S. Ct. 1264 (3/24/22) [8-1] 2022 Tex. Crim. App. LEXIS 1670; 2022 WL 867311

TOPIC: Free Exercise of Religion

NOTE: Not a criminal case, but death penalty related

FACTS: Ramirez was sentenced to death in Texas for a brutal murder. He does not challenge his conviction or punishment. He simply asks that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. Texas law permits the Pastor to enter the death chamber, but not to touch the condemned, sing, pray aloud, or read scripture while he dies.

State laws differ as to whether, and to what extent, spiritual advisers may be present in the execution chamber. In 2019, the Court upheld Alabama’s refusal to allow an Imam at the execution of a Muslim man, even though that state allowed a Christian Chaplain to be present. However, that same year, the Court prohibited Texas from executing a Buddhist without his Buddhist Priest present. In response, Texas prohibited all spiritual advisors from entering the execution chamber, but that law was overturned on legal challenge Finally, the Court recently prevented Alabama executing a prisoner without his spiritual advisor being present. Alabama relented and allowed the pastor to be present for the execution, and even allowed him to pray aloud and touch the condemned while he died.

ISSUE: Should a condemned man’s spiritual advisor be allowed to enter the death chamber, touch the man, and pray aloud over him during the execution? YES.

OPINION by Chief Justice John Roberts: The federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq., protects inmate’s religious rights. This Texas law burdens religious exercise, and Texas officials should be able to accommodate the request for the “laying of hands” by the pastor without interfering with the lethal injection process. Monitoring Ramirez’s condition

and preventing disruptions are important, but Texas failed to show its refusal to allow the Pastor to lay on hands and pray is the least restrictive means.

CONCURRANCE by Justice Brett Kavanaugh: States must treat all religions equally. It is difficult under RLUIPA to determine whether a State interest is compelling and whether a particular rule is the least restrictive means. States should clarify their processes to ensure efficient executions in the future.

DISSENT by Justice Clarence Thomas: Ramirez was just seeking to delay his execution. His claims do not warrant equitable relief or are procedurally barred.

Harassment by Repeated Electronic Communications

A brief history followed by two new cases: Ex parte Sanders and Ex parte Barton

Texas Penal Code 42.07 – Harassment: (a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person: (4) causes the telephone of another to ring repeatedly, or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass another.

2010: Scott v. State, 322 S.W.3d 662 (Tex.Crim.App. 2010) cert. denied.

In 2010, the CCA determined that telephone harassment, “by its plain text, is directed only at persons who, with the specific intent to inflict emotional distress, repeatedly use the telephone to invade another’s personal privacy.” Because Scott’s sole-intent was to cause emotional distress, the calls were “essentially non-communicative” for First Amendment purposes. Further, telephone calls to a person’s home reach a “captive audience” entitled to special privacy protection.

Presiding Judge Sharon Keller, in a long and well-reasoned dissent which shaped later challenges, said parts of the statute do implicate First Amendment freedoms:

• The term “repeated” is ambiguous (as opposed to “on one or more occasions”) and constitutes an improper judicial rewriting of the statute to save it;

• The “sole-intent” reasoning may be appropriate to apply to conduct that carries greater emotional intensity (e.g., harassing, abusing, and tormenting), but is problematic when applied to conduct that is less emotionally intent (e.g., annoying, alarming, embarrassing, or offensive).

• Moreover, while the majority talks about a “captive audience” at home and thus being entitled to special privacy protection, the statute is not so limited. Subsequently, many Texas COA’s followed Scott’s “sole-intent” reasoning to strike down facial challenges to the statute.

2014: Wilson v. State, 448 S.W.3d 418 (Tex.Crim.App. 2014)

In 2014, the CCA revisited Harassment and limited its prior holding in Scott in two ways:

(1) “Repeated telephone communications” are no longer required to be in close temporal proximity; and

(2) Facially-legitimate reasons for the communications do not necessarily make them lawful (implicating Presiding Judge Keller’s concerns about the “sole intent” reasoning)

2017: Packingham v. North Carolina, 137 S. Ct. 1730 (2017)

In 2017, the US Supreme Court addressed a North Carolina statute limiting convicted sex offenders access to the internet. The Court noted how rapidly the internet is changing how we communicate, and warned that courts must “exercise extreme caution before suggesting that the First Amendment provides scant protection” to online access and communication.

Ex parte Nathan Sanders, No. PD-0469-19 (Tex.Crim.App. 4/6/22) [5-4]

2022 Tex. Crim. App. LEXIS 236; 2022 WL 1021055; published

TOPIC: Harassment by Repeated-Electronic-Communications

FACTS: Nathan Sanders was charged with committing Harassment by sending numerous text message, making many phone calls, sending repeated social-media messages, sending repeated hand-written letters, and making repeated in-person communications.

ISSUE: Is the repeated-electronic-communications section of the Harassment statute facially overbroad because it regulates speech, in violation of the First Amendment? NO.

OPINION by Judge Scott Walker: Scott did not create a new category of speech outside the protection of the First Amendment. The repeated-phone-calls and repeated-electroniccommunications sections implicate non-speech conduct.

Whether either section could implicate the First Amendment on an as-applied basis, and whether such application is permissible, are questions for another day. The gravamen of the offense here is conduct (i.e., the sending of repeated electronic communications in a manner reasonably likely to harass), not the content of the messages.

DISSENT by Presiding Judge Sharon Keller, joined by Judge Mary Lou Keel: Strongly disagrees; the statute punishes a substantial amount of protected speech.

NOTE: This case is a companion case to Ex Parte Barton (the next case in this paper).

COMMENT: Ex parte Nathan Sanders arose out of my court.

Ex parte Charles Barton, No. PD-1123-19 (Tex.Crim.App. 4/6/2022) [5-4] 2022 Tex. Crim. App. LEXIS 235; 2022 WL 1021061; published

TOPIC: Harassment by Repeated Electronic Communications

FACTS: As in Ex parte Sanders, Barton was also charged with committing Harassment via repeated electronic communications.

ISSUE: As in Ex parte Sanders, is the repeated-electronic-communications section of the Harassment statute facially overbroad because it regulates speech? NO.

OPINION by Judge Scott Walker: As in Ex parte Sanders, the Harassment statute’s prohibition against repeated electronic communications is not facially unconstitutional. It does not regulate speech and therefore does not implicate the free-speech guarantee of the First Amendment and is not susceptible to an over-breadth challenge. As to regulation of non-speech conduct, it is not facially-unconstitutional because it is rationally related to a legitimate governmental interest. The question of whether the statute is vague will have to wait for a proper as-applied challenge.

DISSENT by Presiding Judge Sharon Keller, joined by Judge Mary Lou Keel: as in Ex parte Sanders, P.J. Keller strongly disagreed, arguing the statute punishes a substantial amount of protected speech. Under this holding, a citizen who sends repeated emails to a group of like-minded citizens about a political issue will have committed a crime. "At the risk of being prosecuted myself, . . . let me say here that the people of Texas should be alarmed by this holding." She also strongly disagreed that the statute does not proscribe speech nor that the “rational basis test” was the appropriate framework for analysis.

Ex parte Nuncio, No. PD-0478-19 (Tex.Crim.App. 4/6/22) [9-0]

2022 Tex. Crim. App. LEXIS 234; 2022 WL 1021276; published

TOPIC: Harassment by Obscene Communication

FACTS: Nuncio was charged with Harassment by initiating an obscene communication. “Obscene” means containing a patently offensive description of, or a solicitation to, commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function. PC § 42.07.

TWO ISSUES:

(1) Does the Obscene Harassment restrict content of speech? YES.

(2) Is it facially unconstitutional or unconstitutionally vague? NO.

OPINION by Judge Scott Walker:

(1) The statute is a content-based restriction of speech implicating the First Amendment because it restricted both obscene and other speech. But, Nuncio failed to carry his burden to show that the amount of protected speech prohibited by the statute was substantial relative to the statute’s plainly-legitimate sweep.

(2) The statute is not facially unconstitutional nor unconstitutionally vague, because it provides examples of what constitutes ultimate sex acts, and because “patently offensive” was derived from the Miller standard and defined by PC § 43.12(a)(4). Miller v. California, 413 U.S. 15 (1973) (speech that, taken as a whole, lacks serious literary, artistic, political, or scientific value). Moreover, regardless of whether a person knows his conduct is annoying, he unquestionably knows whether he intended it to be.

Second Amendment

Right to Keep and Bear Arms

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (6/23/2022) [6-3]; 2022 U.S. LEXIS 3055; 2022 WL 2251305

TOPIC: Restrictions on the Right to Keep and Bear Arms

NOTE: Not a criminal case, but it implicates the Second Amendment.

FACTS: New York State outlawed possessing a firearm without a license. An individual who wanted to carry outside the home could obtain a license if he could prove a “proper cause exists,” by demonstrating a “special need for self-protection distinguishable from

that of the general community.” New York government officials had discretion to decide who has such “proper cause,” and they rarely found it to exist.

ISSUE: Does the Constitution protect an ordinary individual’s right to carry a handgun for selfdefense outside the home, and did New York’s denial of petitioner’s application for a concealed carry license violate the Second Amendment? YES.

OPINION by Justice Clarence Thomas, joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett: New York’s “propercause” requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

D.C. v. Heller, 554 U.S. 570 (2008) held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. The court now rejects means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. History can be difficult and nuanced, but reliance on history is more legitimate and administrable than asking judges to make difficult empirical judgments about the costs and benefits of firearms restrictions.

The Second Amendment is the very product on an interest balancing by the people, and it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.

The test that applies today is to assess whether modern firearms are consistent with the Second Amendment’s text and historical understanding. Two relevant metrics: (1) do modern and historical regulations impose a comparable burden on the right of armed self-defense; and (2) whether that regulatory burden is justified. Regarding New York’s “proper-cause” requirement, there is no historical basis to declare the island of Manhattan a “sensitive place” simply because it is crowded and protected by police. Here, petitioners are ordinary, law-abiding adults – part of “the people” whom the Second Amendment protects. From the historical record, the Court cannot conclude that, at the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection. Neither do the three Colonial and early-Republic laws cited by New York suffice to show a tradition of public-carry regulation. Moreover, none of the public-carry restrictions passed after ratification of the Second Amendment in 1791 imposed a substantial burden analogous the New York law here.

Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for self-

defense, nor generally required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community.”

The right to bear arms in public for self-defense is not a second class right subject to different rules than other Bill of Rights guarantees and does not require individuals to demonstrate to government officers some special need.

CONCURRANCE by Justice Samuel Alito: The effect of guns on American society is irrelevant

CONCURRANCE by Justice Brett Kavanaugh, joined by Chief Justice John Roberts: Many state restrictions requiring background checks, firearms training, a check of mental health records, and fingerprinting, are still permissible because they are objective, in contrast to the discretionary nature of New York’s law.

CONCURRANCE by Justice Amy Coney Barrett: Highlighting two methodological points of constitutional interpretation left unresolved: (1) how post-ratification practice may bear on the original meaning of the Constitution; and (2) whether “individual rights” should be understood as they were when the Bill of Rights was ratified in 1791, or when the Fourteenth Amendment was ratified in 1868. Ultimately she says, “today’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights,” and she cautions “against giving post-enactment history more weight than it can rightly bear.”

DISSENT by Justice Steven Breyer, joined by Justices Sonia Sotomayor and Elena Kagan: States should be able to pass restrictions in an effort to curb the number of deaths caused by gun violence, and the Court’s decision here “severely burdens the States’ efforts.”

NOTE: Felons are not “ordinary, law-abiding citizens” and Bruen should not be read to confer a right to the convicted felon to carry a handgun outside the home for self-defense. As the Court said in Heller, “the Second Amendment is not unlimited” and “nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons.” D.C. v. Heller, 554 U.S. 570 (2008).

COMMENT: The majority opinion recites a detailed history of firearm laws from ancient English times to present which, interestingly, includes an 1871 Texas law restricting the carry of pistols to only those who had reasonable grounds for fearing an attack on their person. The Court found this actually supported New York’s position, but was an outlier.

Fourth

Amendment

Search and Seizure

Patterson v. State, No. PD-0322-21 (Tex.Crim.App. 3/30/22) [9-0]

2022 Tex. Crim. App. LEXIS 187; 2022 WL 946355; published

TOPIC: Describing the “Suspected Place”

FACTS: An affidavit for a search warrant described the “suspected place” to be searched simply as the Sigma Nu fraternity house at Texas A&M University, including its outside appearance. In another part of the affidavit, Patterson’s room was described by room number, and that it contained “two small plastic baggies with white colored residue, white powdery substance arranged in a line.” The search warrant that issued did not include the particularized room to be searched.

ISSUE: To satisfy the particularity requirement of the Fourth Amendment, must the room to be searched appear or be particularly described in the “suspected place” portion of the affidavit and/or the search warrant? NO.

OPINION by Presiding Judge Sharon Keller: When an affidavit is incorporated into a search warrant, it becomes a part of the warrant and can be used to aid in the description contained therein. The affidavit’s language controls over the warrant’s, because affidavits are generally more specific and precise. Look at the four-corners of the affidavit, and give great deference to the Magistrate’s decision. Here, the affidavit described Patterson’s room with sufficient particularity to establish probable. To invalidate this search by focusing solely on the “suspected place” sections of the affidavit and warrant would constitute a hyper-technical reading and would be contrary to the common-sense approach the law requires.

State v. Baldwin, No. PD-0027-21 (Tex.Crim.App. 5/11/22) [5-4]

2022 Tex. Crim. App. LEXIS 321; published

TOPIC: Boilerplate Language in Search Warrant Affidavits

FACTS: During a capital murder investigation, police obtained a search warrant for the contents of a cell phone with an affidavit which contain merely generic statements about the use of cell phones by criminals and no facts specific to this case.

ISSUE: Can generic boilerplate statements about the use of cell phones by criminals, without more, be sufficient to support a finding of probable cause for issuance of a warrant to search a cell phone? NO.

OPINION by Judge Jesse McClure: Boilerplate language may be used in an affidavit for a warrant to search a cell phone, but it must be coupled with other facts and reasonable inferences that establish a nexus between the device and the offense in order to support probable cause. The affidavit should contain particularized facts demonstrating a fair probability that evidence relating to the crime will be located on the phone. Generic, boilerplate language about cell phone use among criminals is not sufficient. To hold otherwise would condone the search of a phone merely because a person is suspected to have committed a crime with another person, and all suspected parties to an offense would be subject to having their cell phones searched merely because they owned cell phones and not because they used them in the commission of the crime.

DISSENT by Presiding Judge Sharon Keller, joined by Judges Kevin Yeary, Mary Lou Keel and Michelle Slaughter: Where a crime is committed by two or more people, acting together over the course of multiple days, and requiring coordination, cell phone use would be expected, and such would justify the search of a phone.

DISSENT by Judge Kevin Yeary: In addition to agreeing with the dissent of Presiding Judge Keller, Judge Yeary is troubled by the seeming wholesale exclusion of all evidence that might have been gathered from the phone without first considering whether the facts in the affidavit were sufficient to search at least certain unique apps on the phone.

Parker v. State, No. PD-0388-21 (Tex.Crim.App. 7/27/22) [9-0] 2022 Tex. Crim. App. LEXIS 470; published

TOPIC: Anticipatory Search Warrants

FACTS: Parker shipped himself “magic mushrooms” (psilocybin) from Oregon to Texas. He told the USPS the two packages contained chanterelle mushrooms. However, because the package smelled like marihuana to the postal worker, the USPS opened the packages and discovered the psilocybin. USPS contacted law enforcement and together they arranged for the package to go on to its destination. Police in Texas sought a search warrant in anticipation of delivery of the package by USPS to Parker. When the package was delivered, police executed the warrant and searched Parker’s home, finding and seizing the packages. They then sought a warrant for Parker’s phone data to prove he was in Oregon on the date the packages were shipped. Parker sought to suppress both searches.

ISSUE: Are all anticipatory search warrants prohibited by Texas CCP Art. 18.02; i.e., must contraband sought by a warrant be at the suspected place when the affidavit is submitted to get the warrant? NO.

OPINION by Judge Jesse McClure: Anticipatory warrants are based upon a showing that, at some future time, certain evidence of a crime will be located at a specific place, and most subject their execution to a triggering condition/event – here that would be the delivery of the package to Parker by USPS. Such are not prohibited by the Fourth Amendment nor by Texas law.

Art. 18.02’s requirement that “probable cause does in fact exist” is not a present possession requirement that must exist when the warrant issues. When magistrates make probable cause determinations, they are dealing with probabilities and not hard certainties. Therefore, all warrants are, in a sense, anticipatory because there is a prediction that the items sought will still be there when the warrant is executed. While Art. 18.01(b) does not have a present possession requirement, Art. 18.01(c) does. Thus, the Legislature could have created such a requirement if they had wanted to.

CONCURRANCE by Judge Kevin Yeary: It is not clear that Art. 18.01(c) bars anticipatory search warrants.

Failure to Maintain a Single Lane of Traffic

Tex. Transp. Code § 545.060 provides:

(a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) Shall drive as nearly as practical entirely within a single lane; and (2) May not move from the lane unless that movement can be made safely.

THE ISSUE: Is departure from the lane enough for the offense, or must it also be unsafe?

In 1998, the Austin COA concluded that safety was an essential element of the offense because of the use of the conjunction “and” between the subsections. Hernandez v. State, 983 SW2d 867 (pet. Ref’d), However, since 1998, the COAs are split

In 2016, the CCA, in a plurality opinion, held that departure from the single lane was enough to establish the offense, regardless of whether it was unsafe Leming v. State, 493 S.W.3d 552 (Tex.Crim.App. 2016). Subsequently, most courts followed Leming, but not all.

In 2021, the Beaumont COA found a compromise. Holding that since there is a split among the COA’s post-Leming, a police officer could have interpreted the statute to not require the departure to be unsafe; if that was a mistake, it was objectively reasonable; and the Fourth Amendment tolerates reasonable mistakes, whether of law or fact. Dugar v. State, 629 S.W.3d 494 (Tex.App.–Beaumont 4/7/2021) pet. ref’d. (citing Heien v. North Carolina, 574 U.S. 54 (2014), wherein the U.S. Supreme Court found an officer’s mistaken understanding of whether North Carolina law required one or two working

rear tail lamps justifiable due to the state’s two conflicting and confusing statutes on the issue). As the CCA declined review, Dugar seemed a workable resolution. However, at the end of 2021, the Austin COA doubled-down on their position that a traffic violation occurs only when the vehicle’s departure from the single lane is also unsafe. They said they have never reversed their position in Hernandez; Leming being a plurality did not make it binding precedent; and therefore no officer in the Austin COA’s jurisdiction could reasonably be mistaken about what their court requires. Daniel v. State, No. 03-20-00519-CR (Tex.App.–Austin 12/23/21) pub.

This year, the CCA weighed in with a 6-3 decision that finally resolves the question . . .

State v Hardin, No. PD-0799-19 (Tex.Crim.App. 11/2/22) [6-3] 2022 Tex. Crim. App. LEXIS 757; 2022 WL 16635303; published

TOPIC: Failure to Maintain a Single Lane of Traffic

FACTS: Corpus Christi police were on the lookout for a U-Haul suspected in several burglaries. After spotting it, and observing it straddle the lane divider shortly after rounding a curve, they stopped it for the offense at issue, despite that it was not unsafe to depart from the lane when the driver did so.

ISSUE: Does Failure to Maintain a Single Lane of Traffic require that departure from the lane be unsafe in order to be considered an offense? NO.

OPINION by Judge David Newell: At the heart of this case is construction of the statute, whose key words are:

• “And” (between the two subsections);

• “A single lane” (subsection (a)(1));

• “The lane” (subsection (a)(2));

• “Nearly” means “almost but not quite; ”

• “Practical” means “having or displaying good judgment;” and

• “Safe” means “free from harm or risk.”

A motorist is required to almost, but not quite stay within a single lane Departure from the lane and while unsafe violates the statute; but weaving without creating a safety risk does not, because incidental weaving is still staying as nearly as practical entirely within a single lane.

CONCURRANCE by Judge Michelle Slaughter: She would have followed the mistake of law reasoning espoused in Heien had the State raised such in the trial court.

DISSENT by Presiding Judge Sharon Keller, joined by Judges Kevin Yeary and Mary Lou Keel: The majority gets their statutory construction wrong by failing to give effect to the “and” joining the two statutory subsections.

DISSENT by Judge Kevin Yeary, joined by Presiding Judge Sharon Keller and Judge Mary Lou Keel: The “and” should be read as an “or,” as this Court’s plurality opined in Leming, because the Transportation Code is structured differently than the Penal Code, and the majority’s reasoning here may produce problems with interpretation of other statutes in the Transportation Code. For example, the prohibition against Passing a School Bus receiving or discharging students [TX Transp. Code § 545.066(a)] is structured the same as the statute in question here, to contain a requirement and a prohibition joined by “and.” The absurd result could be that, as long as the operator comes to a complete stop, proceeding in violation of the second subsection (prohibiting proceeding until the bus resumes motion, the operator is signaled by the bus driver to proceed, or the bus’s visual signal is no longer actuated) cannot be an offense.

COMMENTS: Though Judge Slaughter does not mention Dugar in her concurrence, her rationale abides. She and the Beaumont COA both comport with Heien.

Massey v. State, 649 S.W.3d 500 (Tex.App.—Fort Worth 3/3/22) pet. granted 2022 Tex. App. LEXIS 1521; 2022 WL 623491;

TOPIC: Attenuation of the Taint

FACTS: After a lawful stop, but unlawful frisk, Massey broke from the officer’s grip, resisted the illegal frisk, and then ran on foot, evading detention, and slid behind an air compressor and fished something from his pocket. After the officer tased and subdued Massey, he found methamphetamine on the ground where Massey just stood, and where there had been none before.

ISSUE: Can subsequent but petty and predictable criminality – here, resisting search and evading detention – attenuate the taint of the official misconduct, thereby breaking the connection between the illegal search and discovery of the contraband? NO.

OPINION by Justice Wade Birdwell: The Attenuation Doctrine provides that evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, such that the Constitutional interest protected by the Exclusionary Rule would not be served by suppression. Three factors: (1) temporal proximity between the unconstitutional conduct and discovery of the evidence; (2) presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

Courts are split as to whether subsequent criminal conduct after an illegal search will operate as an intervening circumstance, but the disparity in decisions appears to have much to do with the gravity of the subsequent offense and the degree to which it is an expectable result of police misconduct. The more serious and unforeseeable the subsequent offense, the more likely it will be considered an intervening circumstance. Here, Massey’s subsequent offenses of resisting an illegal search and running away from it are neither serious nor unforeseeable. He was not violent, had no weapon, and merely tried to free himself from the grip of an illegal search. Though regrettable, these actions are not a severe departure from the common range of responses to unlawful frisks and thus do not constitute intervening circumstances.

NOTE: The court also held that, because the officer’s violated the Fourth Amendment on the way to finding the contraband, the State may not avail itself of the Plain-View Doctrine.

Fifth Amendment

Self-Incrimination; Double Jeopardy; Just Compensation; Due Process

Nawaz v. State, No. PD-0408-21 (Tex.Crim.App. 6/22/22) [8-1] 2022 Tex. Crim. App. LEXIS 418; 2022 WL 2233864; published

TOPIC: Double Jeopardy

FACTS: Nawaz was convicted of two counts of Injury to a Child arising out of a single incident involving a single child: Count I – serious bodily injury; Count II – serious mental deficiency, impairment, or injury. Although the specific acts were unknown, the injuries were caused by a “whip-lash type of mechanism” such as violently shaking or slamming the head into a soft surface causing widely diffuse brain bleeding resulting in developmental delays, and retinal bleeding in both eyes rendering her essentially blind. Both offenses fall under TX PC § 22.04(a), but different subsections of (1) and (2) respectively.

ISSUE: When a defendant is charged with two offenses arising out of a single episode, codified by different subsections of the same statute, does the Fifth Amendment’s prohibition against double jeopardy bar two convictions? Not necessarily – we must look at the gravamen of the offenses.

OPINION by Judge Kevin Yeary: In determining how many times a defendant may be punished for violating a single statute, as here, we focus not on Blockburger’s “same-elements” test [Blockburger v. U.S., 284 U.S. 299 (1932)], but rather on the “allowable units of prosecution,” the best indicator of which is the “gravamen of the offense.” TX PC § 22.04(a)(1)&(2) are both result-of-conduct offenses. It matters not how the offense was committed; the focus is on the harm sought to be avoided. Here, two different harms (serious mental deficiency in the form of brain bleeding that caused developmental delay, and blindness), thus two different offenses and no double jeopardy.

Ex parte Cedric Richardson, No. PD-0284-21 (Tex.Crim.App. 8/24/22) [9-0]

UNPUBLISHED

TOPIC: Double Jeopardy and Collateral Estoppel

FACTS: In a convoluted set of facts, two men were shot by Richardson’s co-defendant on the same day in two connected circumstances, but at different locations (though the first victim may have been shot at both locations). Richardson was present for both shootings. The jury convicted the co-defendant, but acquitted Richardson of shooting the first victim. Richardson now argues the State should be collaterally estopped from prosecuting him for the shooting of the second victim.

ISSUE: Does collateral estoppel precluded the State from prosecuting Richardson as a party to the second shooting, after he was acquitted on the first? NO.

OPINION by Judge Kevin Yeary: Under the doctrine of collateral estoppel, the government may not litigate a specific elemental fact to a competent factfinder (judge or jury), receive an adverse finding on that specific fact, learn from its mistakes, hone its prosecutorial performance, and relitigate the same factual element. This doctrine is applied in criminal cases with realism and rationality, and the test is demanding. The mere possibility that a fact may have been determined in a former trial is insufficient to bar re-litigation of the same fact in the second trial, and the burden is on Richardson to show that fact was actually decided in the first proceeding.

Ashe v. Swenson, 397 U.S. 436 (1970), is distinguishable. There, the issue was the identity of the man who robbed several players at a poker game. As Ashe had been acquitted of robbing the first victim, and the issue at the trial for robbing the second victim was the same question (Was Ashe one of the robbers?), the State was collaterally estopped. But this case is different, for the reason that in the first trial, the jury could have convicted under any theory of the crime. The first victim may have been shot at

two different times, in two different locations, with either shot possibly being fatal. Those were not the same facts as the shooting of the second victim.

COMMENT: From the opinion at footnote 14 – “Perhaps [Richardson’s] defense counsel said it best during his closing argument at the first trail: ‘Yall are not here to answer the question did [the co-defendant] or did [Richardson] commit a crime against [the second victim]? . . . That’s for another jury for another day.’”

Ex parte Woods, No. WR-93,208-01 (Tex.Crim.App. 9/28/22) [8-1] 2022 Tex. Crim. App. LEXIS 643; 2022 WL 4490358; published

TOPIC: Double Jeopardy

FACTS: Woods, a felon, possessed two different firearms at the same time. He was also a habitual offender and enhanced to 25-99 years or life. He plead to 18 years, and then appealed.

ISSUE: If a felon possesses two firearms, has he committed one offense or two? ONE.

OPINION by Presiding Judge Sharon Keller: Absent explicit legislative direction, the focus of the offense is the best indicator of the unit of prosecution: (1) result of conduct; (2) nature of conduct; or (3) circumstances surrounding conduct. Being a felon in possession of a firearm is a status offense, because it is that status as a felon that makes the conduct of possessing a firearm criminal. Status offenses are ordinarily “circumstances surrounding conduct” offenses. The status only happened once, so there should be only one conviction. Possessing more than one firearm seems more serious, but that is for the trier of fact to consider in punishment.

DISSENT by Judge Kevin Yeary: Woods’ appeal was not cognizable because he waived his right to appeal in his plea in return for the State waiving enhancement.

Sixth Amendment

Right to Counsel; Speedy & Public Trial; Confront Witnesses; Impartial Jury

Hemphill v. New York, 142 S. Ct. 681 (1/20/22) [8-1] 2022 U.S. LEXIS 590; 2022 WL 174223

TOPIC: Right to Confront and Cross-Examine Witnesses

FACTS: In 2006, A stray 9 mm bullet from a street fight in the Bronx, NY, killed a 2-yr-old child. Eyewitnesses described the shooter as wearing a blue shirt or sweater. Police were lead to Gilliam’s home, where they found a 9 mm cartridge and three .357 caliber bullets. Gilliam initially identified Morris as the shooter, but subsequently said Gilliam’s cousin, Hemphill, was the shooter. The State initially charged Morris with murder and possession of a 9 mm handgun, but later agreed to drop the murder charge against Morris in return for a plea to illegal possession of a .357 revolver. Years later, when Hemphill’s DNA matched a blue sweater found in Gilliam’s apartment shortly after the murder, the State charged Hemphill.

At Hemphill’s trial, Morris was unavailable to testify as he was out of the country. Over Hemphill’s objection, the trial court admitted portions of Morris’s plea allocution even though it had not been subject to cross-examination, under the theory that Hemphill had opened the door to it by creating a misleading impression.

ISSUE: Can a defendant forfeit the right to confront and cross-examine a witness who is not otherwise available to testify, by presenting a theory of defense? NO.

OPINION by Justice Sonia Sotomayor: The Sixth Amendment was designed to prevent the use of ex parte examinations as evidence against an accused. Moreover, the court rejected the former “reliability or credibility approach” to testimonial hearsay evidence in Crawford v. Washington, 541 U.S. 36 (2004), holding the right to confront and crossexamine witnesses against oneself to be a bedrock right. A defendant cannot open the door to this impermissible evidence.

CONCURRANCE by Justice Samuel Alito, joined by Justice Brett Kavanaugh: A defendant can impliedly waive Sixth Amendment rights by: failing to timely object; or by acting so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom. In addition, the Rule of Optional Completeness could apply where a defendant introduces all or part of a declarant’s statement, though it did not here.

DISSENT by Justice Clarence Thomas: as Hemphill did not raise this Sixth Amendment claim in the New York Court of Appeals, this Court should not take up this issue.

Williams v. State, No. PD-0504-20 (Tex.Crim.App. 9/28/22) [8-1] 2022 Tex. Crim. App. LEXIS 647; 2022 WL 4490406; published

TOPIC: Right to a Public Trial

FACTS: Police made a “controlled buy” of drugs from Williams. At his trial, before the State called the confidential informant (C.I.), it requested that Williams’s brother be temporarily excluded from the courtroom, as it had “credible and reliable information” that the brother’s presence would intimidate the C.I. and affect his testimony. To minimize the effects of the “closure,” a live video feed was set up in another room of the courthouse so the brother could watch the C.I.'s testimony in real time.

ISSUE: Did this temporary physical exclusion from the courtroom of Williams’s family member, for just the testimony of one witness, violate Williams’s Sixth Amendment right to a public trial, where the family member was virtually included via live video feed from a neighboring courtroom? Cautiously, NO.

OPINION by Judge Michelle Slaughter: The Sixth Amendment’s right to a public trial is for the benefit of the accused: that the public may see that he is fairly dealt with and not unjustly condemned; and that the presence of spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. It also encourages witnesses to come forward, and discourages perjury. But it is not an absolute right and may be outweighed by other competing rights or interest, including security, preventing disclosure of nonpublic information, or ensuring defendant a fair trial.

The balance of these interest must be struck with special care, and a violation of the right to a public trial is structural error, not subject to harm analysis. Waller v. Georgia, 467 U.S. 39 (1984). Waller analysis is a two-step process:

(1) Has the defendant shown there was a closing?

(2) Was the closing proper? – a four part test:

a. Substantial reason for closure;

b. No broader than necessary;

c. Reasonable alternatives considered; and d. Factual findings in the record adequate to support closure. Partial closuresare less impactful. Seeking to prevent witness intimidation is a substantial reason. This partial closure was limited (not broad) and a reasonable alternative (accommodation via live video feed) was accomplished. Any closure was so trivial or de minimis that it did not infringe on the Sixth Amendment.

CONCURRANCE by Judge Kevin Newell, joined by Presiding Judge Sharon Keller and Judge Barbara Hervey: The rational for “virtual inclusion” by live streaming proceedings to excluded members of the public “will turn the de minimis exception into a de maximus one that will swallow the Waller standard as a whole.”

DISSENT by Judge Scott Walker: Excluding someone on the State merely saying “take my word for it” does not pass Constitutional muster and should be considered structural error.

COMMENT: Unfortunately, the CCA here does not set out a standard or create a test for what is sufficient to exclude someone from the courtroom.

State v. Moreno, 651 S.W.3d 399 (Tex.App. Houston [1st Dist.] 2/21/22) 2022 Tex. App. LEXIS 1056

TOPIC: Speedy Trial

FACTS: Moreno was indicted but not tried for Agg. Assault. During the next seven years, he: had a jury trial on competency; had a subsequent jury trial for a felony drug charge; he unsuccessfully appealed the drug conviction; he served part of the 33 year sentence; and he made parole. The Agg. Assault charge remained pending throughout all of the foregoing events, and after than seven years since indictment without being brought to trial, Moreno moved to set aside the indictment, with prejudice, for want of speedy trial. He alleged he was prejudiced by the anxiety he suffered due to worrying he could go back to prison. The trial court dismissed the indictment and the State appealed.

ISSUE: In this fact-specific case, did the trial court properly assess and balance the Barker v. Wingo factors in its speedy trial analysis before dismissing the indictment? YES.

OPINION by Justice Amparo Guerra: Speedy trial claims are tested by weighing the conduct of the State and the defense on an ad hoc basis, considering four factors: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of the right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514 (1972). The greater the State’s bad faith or official negligence, and the longer its actions cause delay, the less a defendant must show actual prejudice or prove diligence in asserting his right. The analyzing court weighs the strength of each factor and then balances their relative weights in light of the conduct of the parties. It is a difficult and sensitive process in each individual case. Here, (1) the length was six-years longer than the one-year generally considered unreasonable enough to trigger a full analysis; (2) while the first two or three years could be justified by competency proceedings and the drug trial, there was no good reason for delay thereafter; (3) Moreno did not timely assert his speedy trial right, and

did not seek a speedy trial before demanding dismissal (this does weigh against him); and (4) as to prejudice, anxiety is at least some evidence of prejudice, and the most compelling evidence of prejudice here.

This is a close case because of Moreno’s tardy assertion of his right to a speedy trial, and dismissal is a radical remedy. But, giving deference to the trial court’s decision to dismiss, three of the four Barker factors favor Moreno, and the balance supports concluding he was denied his right to a speedy trial.

COMMENT: Detailed analysis of how to apply the Barker v. Wingo speedy trial factors.

Hughes v. State, 651 S.W.3d 461 (Tex.App. Houston [14th Dist.] 3/15/22) pet. granted. 2022 Tex. App. LEXIS 1725; 2022 WL 778980; published

TOPIC: Confrontation of Witnesses

FACTS: Hughes’s Motion to Proceed with Adjudication of Guilt (MPAG) hearing was conducted via Zoom during the COVID-19 pandemic (in August of 2020) His counsel was present in the courtroom, but Hughes, the State, and all witnesses appeared by Zoom. Hughes did not waive his right to be physically present in the courtroom – he was remote because had been exposed to COVID-19 and may have tested positive – and due to his remoteness, Hughes was unable to visit with his counsel during the hearing. He was involuntarily muted by the court when he tried to speak or interject during witness testimony and closing arguments. The only time he was allowed to be heard was when he testified in his own defense.

ISSUE: Do the Sixth Amendment’s Confrontation and Due Process protections apply to revocation of community supervision hearings? YES.

OPINION by Justice Meagan Hassan: Community-supervision revocation proceedings are judicial, not merely administrative (as in federal court). Because they can result in a loss of liberty, Due Process applies. Because Hughes did not waive his right to be present, he did not procedurally default and can challenge it on appeal (different from a mandatorily-enforced right or one subject to forfeiture)

Because Hughes was in a separate break-out room with no ability to speak to his counsel in confidence during the hearing, he was not truly present. Rather, he was relegated to being a distant observer with no ability to confront or cross-examine as envisioned by the Confrontation Clause. This is Constitutional error, and the appellate court must reverse unless it can determine beyond a reasonable doubt that the error did not contribute to the judgment.

Here, Hughes was unable to tell his counsel in confidence if the witnesses against him were lying, if the events occurred differently than claimed, or point out inconsistencies or inaccuracies in testimony. The error here was harmful. Reversed.

DISSENT by Justice Ken Wise: As Hughes was on deferred adjudication, rather than probation, it was unnecessary to undermine Trevino v. State, 218 S.W.3d 234 (Tex.App. Houston [14th Dist.] 2007) (holding that admission of a witness’s out-of-court testimonial statement does not violate the Confrontation Clause for a probationer on postconviction community supervision).

COMMENT: There is now a split among the Texas COA’s regarding whether the Confrontation Clause applies to probation-revocation proceedings, and some courts are continuing to conduct Zoom hearings, even post-pandemic. The CCA granted PDR, so stay tuned.

Eighth Amendment

Bars Excessive Bail and Fines, and Cruel & Unusual Punishment

Garcia v. State, No. PD-0025-21 (Tex.Crim.App. 3/2/22) [8-1]

2022 Tex. Crim. App. LEXIS 129; 2022 WL 610983; published

TOPIC: Restitution (quasi-excessive fine/punishment complaint)

FACTS: A jury convicted Garcia of Agg. Sex. Assault and sentenced him to 12 years TDCJ and ordered him to pay $1,000 in restitution to the Office of the Attorney General for the victim’s forensic exam. Garcia failed to object.

ISSUE: Must a defendant object to preserve a factual-basis challenge to a restitution order?

YES.

OPINION by Judge Mary Lou Keel: Factual-basis challenges to restitution orders must be raised in the trial court to preserve them for appellate review. A timely objection allows opposing counsel a fair opportunity to respond and the trial court to correct error, if any, and promotes the orderly and effective presentation of the case to the trier of fact

DISSENT by Judge Kevin Yeary: This case should be remanded to the COA to address the issue of procedural default, as such is ordinary practice.

Anastassov v. State, No. PD-0848-20 (Tex.Crim.App. 10/5/22) [9-0]

2022 Tex. Crim. App. LEXIS 678; published

TOPIC: Excessive Fines

FACTS: Anastassov was convicted by a jury of two separate Indecency With a Child cases (one for touching breasts and one for touching genitals, occurring on the same day with the same victim) arising out of a single criminal episode and tried together in one proceeding. The jury assessed prison time plus a $10,000 fine in each case, with the sentences to run concurrent. The Dallas COA denied Anastassov’s appeal on all grounds, but sua sponte held that imposition of duplicate fines was “inconsistent with various statutes governing multiple offenses tried together in a single proceeding” and would amount to an “illegal sentence” in one of the cases. The State appealed.

ISSUE: Under these circumstances, should only one judgment include a fine? NO.

OPINION by Judge Michelle Slaughter: A fine is punitive in nature and is part of the sentence; therefore, it must be included in the written judgment. A defendant convicted of multiple offenses arising from the same criminal episode in a single proceeding must receive a distinct sentence for each offense, and each judgment must include the fine actually imposed.

NOTE: Where multiple fines are assessed in a same-criminal episode prosecution and ordered to be discharged concurrently, they discharge in the same manner as concurrent terms of confinement – the defendant pays the greatest amount of fine but receives credit for satisfying all of the concurrent fines. The largest of the multiple fines becomes the total applicable fine.

Evidence

Pugh v. State, 639 S.W.3d 72 (Tex.Crim.App. 1/26/22) [9-0]

2022 Tex. Crim. App. LEXIS 31; 2022 WL 224275

TOPIC: Use of Demonstrative Computer Animation

FACTS: Pugh was on trial for murder by running over the victim with his truck after an altercation outside a bar. The State’s accident reconstruction expert created computer animations (videos) based on measurements he took at the crime scene. The videos depicted the victim as a faceless form. No physics engine appeared to be employed to depict soft body dynamics as the truck ran over the victim in the animation.

Pugh did not object to the expert’s qualifications, nor claim that his opinion and testimony was scientifically unreliable. But he did move to suppress and objected, among other reasons, that any staged recreation involving human beings is impossible to duplicate in every minute detail, and is, therefore, inherently more prejudicial than probative. The court admitted the animation videos, but instructed the jury that the animation was a visualization of the expert’s opinion, and that it may be considered only to the extent the jury believes beyond a reasonable doubt that other State’s evidence supports the events as depicted in the animation. Pugh was convicted.

ISSUE: Must a trial court suppress a demonstrative computer animation illustrating otherwise reliable expert testimony solely because it potentially involves some depiction of human behavior? NO.

OPINION by Judge David Newell: There is a two-step test for admission of a demonstrative exhibit used to illustrate expert opinion testimony:

(1) It must be based on scientifically reliable testimony based on objective data; and (2) It must be authenticated, relevant, and have probative value not substantially outweighed by danger of unfair prejudice, taking into account that a depiction of human behavior will not capture every minute detail of that behavior.

Though there is no per se prohibition against the depiction of human behavior in demonstrative exhibits, the animations here did not attempt such. The victim’s body was included to demonstrate the path of the truck and the place the strike most likely occurred, not the victim’s actions prior to impact, nor any other behavior. The judge should have also told the jury that the demonstrative exhibits were not evidence themselves, but the absence of such instruction did not render the exhibits themselves inadmissible. Affirmed.

Witcher v. State, 638 S.W.3d 707 (Tex.Crim.App. 1/26/22) [5-4] 2022 Tex. Crim. App. LEXIS 33; 2022 WL 224269

TOPIC: Proving > 30 Days for Continuous Sexual Abuse of a Child

FACTS: In Witcher’s Continuous Sexual Abuse of a Child trial, the victim said the abuse started when her brother went to jail, “around June 10, 2018.” The victim’s sister said the brother went to jail June 10th “give or take,” and the detective confirmed the brother was in jail “around that time.” Everyone agreed the last instance of abuse occurred July 28, 2018. The jury convicted of Continuous Sexual Abuse of a Child

ISSUE: Did the State prove sexual abuse of the victim over 30 days or more? YES.

OPINION by Judge Presiding Judge Sharon Keller: This testimony is sufficient for a rational jury to infer, without speculating, that the brother was incarcerated on June 10th, or at worst a few days afterwards. Given the context, “around” could not have meant sixteen days or more later. “Give or take” means “approximately” – it would mean at most a few days out of the 48-day span; it would not mean 1/3 or more of the relevant time period.

DISSENT by Judge Mary Lou Keel, joined by Judges Bert Richardson, Scott Walker, and Jesse McClure: The testimony of the endpoint was definitive, but the beginning was equivocal – the abuse began “at some point,” “around,” “about,” “maybe,” “as close as possible,” or “give or take” June 10, 2018. Given these equivocations, the jury had to speculate, which will not support a finding beyond a reasonable doubt.

Shumway v. State, No. PD-0108-20 & PD-0109-20 (Tex.Crim.App. 2/2/22) [9-0] 2022 Tex. Crim. App. LEXIS 82; 2022 WL 301737; published

TOPIC: Corpus Delecti

FACTS: Shumway voluntarily and in great detail confessed first to his pastor and then his wife that he had sexually touched the genital region of a seventeen-month old girl. The State’s evidence corroborated the confessions with details showing opportunity, motive, and a guilty conscience, but not the touching itself. Shumway’s confessions were the only evidence sexual touching had occurred.

ISSUE: Does the Corpus Delecti rule prevent conviction where a defendant’s confession is the only evidence of the offense itself (as opposed to surrounding circumstances and collateral matters), where the defendant’s conduct left no physical trace and the victim is unable to communicate? NO.

OPINION by Judge David Newell: In cases where there is an extrajudicial confession, the Corpus Delicti rule generally requires corroborating evidence showing the essential nature of the offense was committed. The corroborating evidence need not independently prove the crime, but must make the occurrence more probable than without it. It is a judicially-created rule of evidence sufficiency, the purpose of which is to prevent convictions based on confessions to imaginary crimes. Analysis focuses only on whether a crime was committed, such that it is not imagined, and not who did it.

When public policy considerations (like the need to protect society’s most innocent victims) outweigh the purpose of the rule, the Court is able to craft an exception. The Court now recognizes a narrow exception for when a child-victim is incapable of outcry

and there is no perceptible harm, so long as the record otherwise reflects the confession to be sufficiently corroborated.

Here, Shumway confessed with great and corroborated detail. That was sufficient. Shumway should not be rewarded with suppression of the evidence because he picked a victim where the only his confession would be the “body of the crime.”

CONCURRANCE by Judge Michelle Slaughter: In certain types of sexual offenses committed against pre-verbal children, the court should abolish the judicially-created Corpus Delicti rule altogether because it no longer serves any legitimate purpose and has never been legislatively adopted.

Valadez v. State, No. PD-0574-19 (Tex.Crim.App. 3/30/22) [7-2] 2022 Tex. Crim. App. LEXIS 217; 2022 WL 946268; published

TOPIC: Admission of Extraneous Offenses at Guilt/Innocence and the Doctrine of Chances

FACTS: Valadez was the backseat passenger in a car stopped for a window-tint violation. The Trooper smelled marihuana, and got the men out of the car. Valadez had been pretending to be sleeping, faked a yawn, avoided eye contact, and took a “felony stretch,” which the Trooper said is a way to expel nervousness. A subsequent search turned up over 18 pounds of marihuana. Valadez claimed he was an innocent passenger, but seemed to relax after the marihuana was found. The Trooper testified that drug mules do not take innocent passengers along for the ride, and that they tend to use multiple drivers because time is money, and, “If the car ain’t moving, they are not making money.” Moreover, due to the strong odor of marihuana, everyone in the car knew or should have known there was criminal activity in the car.

During the guilt/innocence portion of Valadez’s jury trial for Possession of Marihuana, the trial court admitted over his objections, evidence regarding Valadez’s extraneous drug incidents, including:

• A prior conviction for POM 2-4 oz.;

• Testimony that police records – the nature of which was not described – showed six instances where he was “connected with” marihuana; and

• Testimony about a prior incident where the officer caught Valadez with marihuana and 27.6 grams of cocaine (with no test to prove it was cocaine) packaged in one big bag, which signified that Valadez was a dealer.

Valadez called a co-defendant who already pled guilty, to say Valadez didn’t know the marihuana was in the car and was not present when he and the other co-defendant put it there; and, this was the only time he brought an innocent bystander on a drug run.

TWO ISSUES:

(1) Was it erroneous to admit extraneous drug evidence under Tex. R. Evid. 404(b) and Tex. R. Evid. 403, where there was little if any probative value and the danger of unfair prejudice was significant? YES.

(2) Did the Doctrine of Chances apply? NO.

OPINION by Judge Mary Lou Keel:

(1) Extraneous misconduct must be proven beyond a reasonable doubt by competent evidence. Even if it is admissible under Rule 404(b) (e.g. to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident), it must still pass Rule 403 analysis (more probative than prejudicial). Here, the extraneous drug incidents were inadmissible for a variety of reasons (e.g., the prior judgment was not self-authenticating and lacked a sponsoring witness; testimony about the “connections to marihuana” was rank hearsay and the witness lacked personal knowledge; and the cocaine/marihuana arrest was after the charged offense and inadmissible for three other reasons as well. Any weight given to inadmissible evidence is undue; thus, they were misleading under Rule 403. The so-called “connections to marihuana” were also misleading because they were too vague to support any inference. Vagueness invites speculation, which is misleading. Moreover, the probative value of the extraneous drug incidents was slight, the jury was given no instruction about how to consider it, and the State had other compelling evidence to prove its case.

(2) Admissibility of evidence under the Doctrine of Chances depends on a showing of “highly unusual events [that] are unlikely to repeat themselves inadvertently or by happenstance.” De La Paz v. State, 279 S.W.3d 336 (Tex.Crim.App. 2009). Here, the doctrine did not justify admission because the extraneous drug incidents were not highly unusual nor exactly the same as the charged offense.

DISSENT by Judge Kevin Yeary, joined by Judge Michell Slaughter: The majority fails to defer to the trial court’s discretion, which fell within the “zone of reasonable disagreement,” and so was not abused. The police records of the six instances of “connection to marihuana” had probative value to rebut Valadez’s claim of “just being along for the ride.” The only similarity needed was to show he had knowledge of marihuana that the average nonmarihuana-possessing public would have, and that he would have recognized its distinctive odor.

Rule 403 favors admissibility of relevant evidence, and the presumption is that it will be more probative than prejudicial. Once a prosecutor has established that extraneous misconduct evidence has relevance that goes beyond inferences of mere characterconformity, he should be able to rely on that presumption in fashioning his case for the factfinder. Only in the most extreme situations should an appellate court intervene in prosecutorial strategy.

Sholomo David v. State, No. PD-0307-21 (Tex.Crim.App. 5/11/22) [9-0]

2022 Tex. Crim. App. LEXIS 318; 2022 WL 1548023; published

TOPIC: Tampering With Physical Evidence

FACTS: During a police raid of his motel room, David dumped marihuana into a toilet containing water and human waste. He was convicted of third-degree felony Tampering With Physical Evidence and sentenced to 30 years as a habitual offender. He appeals.

ISSUE: Does it matter whether an act to tamper with physical evidence only temporarily alters, conceals, or destroys it? NO.

OPINION by Judge Barbara Hervey: “Alter” can mean to change or modify the thing itself, but according to common usage, it can also mean to make different. Here, a rational juror could have concluded that the marihuana had become inseparably combined with the human waste, changing the nature and quality of it. Whether the tampering permanently or only temporarily diminished its evidentiary value was unimportant. What mattered was that David intended to alter it.

Daryl Joe v. State, No. PD-0268-21 (Tex.Crim.App. 6/22/22) [7-2] 2022 Tex. Crim. App. LEXIS 417; 2022 WL 2233775; published.

TOPIC: Exercising Control Over Goods in Commerce

FACTS: Joe backed a semi-tractor up to a trailer containing mattresses in a nearby, and commonly owned, shipping yard, though not on the mattress factory premises. He was out of the tractor to hook up the brake lines to the trailer when he was interrupted. A State’s witness testified that when a semi-tractor backs up to a trailer, it automatically connects. Joe was convicted by a jury of Theft of Cargo.

TWO ISSUES:

(1) Does moving goods from the point of origin to a shipping yard put them into commerce, as contemplated by the Theft of Cargo statute? YES.

(2) Is backing a semi-tractor up to a trailer, thus automatically connecting it, sufficient to show exercise of control over the property contained in the trailer? YES.

OPINION by Judge Mary Lou Keel:

(1) Theft of cargo requires Joe to have knowingly or intentionally conducted … an activity in which he … possessed … stolen cargo … . TX P.C. § 31.18(b)(1)(A)-(B). “Cargo” means goods that constitute, wholly or partly, a commercial shipment or freight moving in commerce. A shipment is considered to be moving in commerce if the shipment is located at any point between the point of origin and the final point of destination regardless of any temporary stop that is made for the purpose of transshipment or otherwise. TX Bus. & Com. Code § 7.102. The evidence was sufficient for the jury to find the mattresses were “cargo” because they had been shuttled from their point of origin at the factory to a shipping yard. Neither the closeness of the shipping yard to the factory nor the common ownership of both defeated as a matter of law that the factory was the point of origin.

(2) The evidence was sufficient to show Joe possessed them because it showed that when Joe backed his semi-tractor under the trailer and it automatically connected, he had (and thereby exercised) control over the trailer. However, whether such control equates to “an activity,” as contemplated by the statute, is unclear. Remanded to determine whether Joe conducted an activity in which he possessed the stolen cargo.

DISSENT by Judge Scott Walker: The mattresses were not yet "cargo" within the meaning of the statute as they had merely moved to a shipping yard within the same premises as the factory, so they were not yet goods in commerce. The issue on remand should be whether Joe's conviction should be reformed to Att. Theft of Cargo, Theft, or Att. Theft.

Perkins v. State, No. PD-0310-20 (Tex.Crim.App. 9/7/22) [9-0] 2022 Tex. Crim. App. LEXIS 582; 2022 WL 4088529; published

TOPIC: Prior Extraneous Offenses at Guilt/Innocence

FACTS: Perkins was on trial for Agg. Assault domestic violence. The State intended to offer testimony of an un-adjudicated extraneous assault committed by Perkins against a different victim six-months prior. Perkins offered to stipulate to it in exchange for the State’s agreement to not call that victim. The State rejected the offer and the trial court admitted the evidence over Perkins’s objections that the prior victim’s testimony would confuse the jury and be more prejudicial than probative.

NOTE: The State offered the extraneous prior under the Doctrine of Chances (per TX CCP Art. 38.371) and to show motive, intent, absence of mistake, or lack of accident per TX R. Evid. 404(b), as well as to rebut Perkin’s defensive theory, suggested through crossexamination, that the victim had caused her own injuries.

ISSUE: Is the State required to accept a defendant’s stipulation of evidence regarding an unadjudicated extraneous offense offered for non-character conformity purposes, in lieu of proving it up during the State’s case-in-chief? NO, however 403 applies.

OPINION by Judge David Newell: Generally, the State may agree or not to stipulations of evidence, except regarding jurisdictional priors in a felony case. This exception balances TX CCP Art. 36.01’s requirement (that prior convictions used for enhancement only not be read to the jury until punishment) with the U.S. Supreme Court’s holding in Old Chief v. U.S., 519 U.S. 172 (1997) (interpreting Rule 403 to say, where the fact of the prior conviction is an element of the offense, the details of the conviction have very little probative value in the face of an offer to stipulate, and could substantially prejudice the defendant). The CCA previously applied this reasoning to jurisdictional priors in felony DWI cases. Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App. 2000). However, a Rule 403 balancing test must still take place, weighing:

(1) How compellingly does the extraneous serve to make a fact-of-consequence more or less probable?

(2) What is the potential of the extraneous to impress the jury in some irrational, but nevertheless indelible way?

(3) How much time is needed to develop the extraneous, during which the jury may be distracted from consideration of the indicted offense?

(4) What is the proponent’s need for the extraneous evidence? Here, the COA observed that the trial court conducted the Rule 403 balancing test, but did not apply the criteria to the trial court’s ruling. Case remanded for 403 analysis.

CONCURRENCE by Judge Kevin Yeary, joined by Judge Michelle Slaughter: I would prefer that the Court more explicitly say, at least in a case like this, that it is sometimes the details of extraneous offenses themselves, not the mere fact of conviction for misconduct, that makes misconduct evidence relevant and supports the determination that it is indeed more probative than prejudicial, for purposes of Rule 403.

D.W.I.

State v. Espinosa, 650 S.W.3d 849 (Tex.App. Houston [14th Dist.]) pet. granted 2022 Tex. Crim. App. LEXIS 3103; 2022 WL 1463953

TOPIC: Sufficiency of Evidence of “Operating” a Motor Vehicle

FACTS: Espinosa was stopped in the far-right lane of lane (though not moving, due to being in a line of cars waiting for elementary school pick-up). She was asleep in the driver’s seat with keys in the ignition, engine running, transmission in park. A bystander called 9-1-1 fearing Espinosa was unconscious and perhaps experiencing a medical emergency. Espinosa later said she was coming from her house on her way to pick up her son. No one actually saw her driving. A DWI investigation revealed signs of intoxication (though she refused SFST’s), and there were four empty wine bottles in the car.The trial court granted Espinosa’s motion to suppress and the State took appeal.

ISSUE: Where no one saw Espinosa drive or drink, nor can they say when such occurred, if at all, and where there was evidence Espinosa did not intend to drive, does probable cause exist to arrest her for DWI? NO.

OPINION by Judge Meg Poissant: “Operating” is not defined in the penal code, but under our law it is sufficient if a person takes action to affect the functioning of the vehicle in a manner that would enable the vehicle’s use, or exerts personal effort to cause the vehicle to function. The temporal link between intoxication and driving can be established by circumstantial evidence. However, here, no one could say when Espinosa drove, nor when she drank. Moreover, the fact that Espinosa asked the bystander to drive her home, coupled with allowing a teacher to move her car to a parking lot, indicated she did not intend to drive.

DISSENT by Judge Kevin Jewell: The question is not legal sufficiency of the evidence to prove Espinosa committed DWI beyond a reasonable doubt, but whether, under these facts and circumstances, a prudent person in the officer’s shoes could believe Espinosa was DWI. The evidence here amounts to more than a bare suspicion, and a prudent person could have believed in the existence of a temporal link between Espinosa’s driving and intoxication.

COMMENTS: The COA reviews the evidence in the light most favorable to the trial court’s decision. It could have been reasonable to infer that she got to the place where she was found – on the roadway, in a lane of traffic, behind the wheel, and while appearing to be intoxicated – by driving there. Had the trial court denied her motion, it is unlikely the COA would have reversed. But pet. granted, so we wait to see what the CCA says

Miscellaneous

Happy Pham v. State, 639 S.W.3d 708 (Tex.Crim.App. 2/9/22) [9-0] 2022 Tex. Crim. App. LEXIS 89

TOPIC: Jury Charge – Self-Defense Instruction; Ineffective Assistance of Counsel (IAC)

FACTS: Pham, a 10-year fugitive and a drug dealer, shot and killed Mai, possibly over a lovetriangle. Pham entered a restaurant he knew Mai to be at, pulled his gun, walked to Mai’s table, and shot him. Pham testified he believed Mai, who was known to carry a gun, was reaching for a gun. Pham claimed he pointed his gun at Mai to “de-escalate the situation,” but when Pham saw Mai fumbling for Mai’s own gun and beginning to point it at Pham, he shot Mai twice, though aimed low not intending to kill. During the 10 years Pham subsequently evaded arrest, he sold marihuana for money.

The trial court granted Pham a jury instruction on the use of deadly force for selfdefense under PC § 9.32, but not Pham’s requested instruction on the law of threats as justifiable non-deadly force under PC § 9.04.

NOTE: The use of non-deadly force, such as threat, is easier to justify than the more onerous self-defense requirements for use of deadly force under TX PC § 9.32.

TWO ISSUES:

(1) Is Pham entitled to a “threat of deadly force” instruction if his purpose is not limited to creating an apprehension that he would use deadly force? NO.

(2) Did Pham establish the prejudice necessary for his ineffective assistance of counsel claim that his lawyer failed to call character witnesses at punishment? NO.

OPINION by Presiding Judge Sharon Keller:

(1) By shooting the victim, Pham acted contrary to the statute’s requirement that his purpose in threatening deadly force be “limited to creating an apprehension that he will use deadly force if necessary.” PC § 9.04 only applies when deadly force is not actually employed, but merely threatened.

(2) As to IAC for failure to call character witnesses at punishment, prejudice was not established because Pham’s status as a fugitive and a drug dealer made such testimony problematic. A positive character assessment by a witness ignorant of Pham’s status would likely be seen as stale or uninformed; and if the witness did know of such, then the testimony would likely be discounted as valueless because

the witness was clearly not a good judge of character, and cross-examination would likely have elicited even more evidence of Pham’s bad character.

CONCURRANCE by Judge Kevin Yeary: Pham did not need the PC § 9.04 instruction to make the argument that Mai was the first aggressor, in rebuttal to the State’s reliance on provoking the difficulty. Thus, any error was, in essence, harmless.

CONCURRANCE by Judge Michelle Slaughter, joined by Judges Bert Richardson and Scott Walker: While the § 9.04 instruction should have been given to clarify the issue of provocation, the error was harmless.

Alcoser v. State, No. PD-0166-20 (Tex.Crim.App. 3/30/22) [9-0]

2022 Tex. Crim. App. LEXIS 186; 2022 WL 947580; published

TOPIC: Jury Charge – Self Defense Instruction

FACTS: Alcoser was on trial for Assault Family Violence with a prior, plus two other charges. He objected to the self-defense instruction in the Jury Charge on the following grounds:

• It erroneously applied the applicable culpable mental states;

• The Self-Defense instruction lacked an application paragraph;

• The Self-Defense instruction lacked a definition of “reasonable belief;” but

His objections were overruled. He was convicted and sentenced to 20 years + $10,000.

The Waco COA found the jury was not properly instructed on any of the offenses and instead “received a hodge-podge of inappropriately defined terms and offenses.” They found egregious harm due to the cumulative errors and reversed all 3 convictions. The State only complains on appeal to the CCA about the reversal of the Assault FV charge.

ISSUE: If a jury charge contains numerous errors, can those errors have a cumulative or synergistic effect that becomes egregious error sufficient to justify reversal of conviction? YES, but not here.

OPINION by Judge Barbara Hervey: Abstract paragraphs in a Jury Charge, such as those on selfdefense, serve as a glossary to help the jury understand the meaning of concepts and terms. Reversible error in the giving of such instructions generally only occurs when there is an incorrect or misleading statement of a law that the jury must understand in order to implement the commands of the application paragraph.

A Jury Charge must include instructions informing the jurors under what circumstances they should convict, or under what circumstances they should acquit. Analyzing jury charge error is a two-step process: (1) is the charge erroneous?; and (2) did it cause harm?

Harm caused from jury charge error has two standards of review: (1) if a timely objection was made, only “some harm” must be shown; but (2) if no timely objection was made, “egregious harm” must be shown Egregious harm must be actual, not theoretical, and must affect the very basis of the case, deprive the accused of a valuable right, or vitally affect a defensive theory. It is a difficult standard to meet and the analysis must be fact-specific.

Degree of harm (“some” or “egregious”) is assessed per the Almanza factors, which require consideration of: (1) the jury charge as a whole; (2) the state of the evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Almanza v. State, 686 S.W.2 157 (Tex.Crim.App. 1984).

Failure to give an abstract instruction is reversible only when it is necessary to a correct or complete understanding of the concepts or terms in the application part of the charge. It is possible that multiple erroneous or omitted instructions, insufficient to individually constitute harm, could have a synergistic or combined effect sufficient to result in harm when taken all-together.

Here, jury charge errors did occur. However, in analyzing the Almanza factors, we find: errors that were harmless; errors on matters contended at trial (thus any risk of harm is merely theoretical); and errors addressed by argument of Alcoser’s counsel (e.g., the presumption of innocence and that the State had to disprove self-defense beyond a reasonable doubt). Thus, no egregious harm because the charge did not vitally affect Alcoser’s defensive theory and no "cumulative effect."

CONCURRANCE by Judge Kevin Yeary, joined by Judge Michelle Slaughter: It was not appropriate for the Court of Appeals "to reach beyond those particular defects in the jury charge about which the appellant himself complained on appeal," and the Court of Appeals' consolidated analysis and cumulative effect conclusion is confusing.

"While there were numerous errors in the jury charge dealing with the family-violence assault and the self-defense instructions, they were either harmless or were not points of contention that were litigated at trial, rendering the risk of egregious harm, as we have mentioned, only a theoretical one. Further, although the jury charge did not contain an instruction that it must acquit Appellant if it found he acted in self-defense, defense counsel argued that the jury should acquit Appellant based on self-defense, and the charge included instructions on the presumption of innocence and informed the jury that the State bore the burden of disproving self-defense beyond a reasonable doubt. On this record, we conclude that Appellant was not egregiously harmed because the erroneous jury charge did not vitally affect his defensive theory"

Wade v. State, PD-0157-20 (Tex.Crim.App. 4/6/22) [5-4]

2022 Tex. Crim. App. LEXIS 220; 2022 WL 1021056; published

TOPIC: Jury Charge – Lessor Included Offense (LIO)

FACTS: Wade bit off his ex-wife’s new boyfriend’s earlobe, and though paramedics located it, doctors were unable to save and reattach it. At his trial for Agg. Assault by causing serious bodily injury, i.e. serious permanent disfigurement, the EMT testified the bleeding had mostly stopped when he arrived, and that they did not “rush” to the hospital; the EMT did not opine on the seriousness of the injury. The victim was discharged from the hospital the same day. Wade admitted to biting the earlobe off, but said he did not think the injury was serious and that, if he did not know the victim, he would be unable to notice any difference between the victim’s two ears. Wade requested a LIO instruction on Assault bodily injury, which was denied. He appeals.

ISSUE: Where there is some evidence of the seriousness of an injury from which a jury could find a valid rational alternative to the greater offense, should the LIO be given? YES.

OPINION: Judge David Newell: There are no wounds that constitute serious bodily injury per se. Even a knife or gunshot wound is not, per se, serious bodily injury. Williams v. State, 696 S.W.2d 896 (Tex.Crim.App. 1985). Whether an injury is “serious” is a fact question for the jury, and distinguishing between “bodily injury” and “serious bodily injury” is a matter of degree. The relevant issue is the damage caused by the wound when inflicted, regardless of subsequent medical treatment.

Lay witness testimony can rationally provide some evidence from which a jury can infer the severity of a particular injury. Here, the victim said it was severe, and Wade said it was not. Evaluation of this injury did not require significant expertise, and lay witnesses can offer opinion testimony rationally based on their perceptions and helpful to the jury’s clear understanding. Therefore, Wade’s testimony was at least some evidence (more than a scintilla) which, combined with other evidence, could have provided the jury with a valid, rational alternative to the greater offense of Agg. Assault. Thus, the LIO should have been given.

DISSENT by Presiding Judge Sharon Keller, joined by Judge Kevin Yeary: The meaning of a statutory element of a criminal offense – here, whether the victim suffered “serious permanent disfigurement” – is a question of law in the context of sufficiency of the evidence, not of fact. As there was no factual dispute about the nature of the injury, Wade was not entitled to the instruction. However, she would “hold that the injury was serious, as a matter of law.”

DISSENT by Judge Michelle Slaughter: Losing an entire named body part due to assault constitutes “serious permanent disfigurement,” per se.

Lang v. State, No. PD-1124-19 (Tex.Crim.App. 8/24/22) [8-1] 2022 Tex. Crim. App. LEXIS 521; 2022 WL 3641007; published

TOPIC: Jury Charge – Lessor Included Offense (LIO)

FACTS: Lang shoplifted $565.59 worth of items from H.E.B. and was charged with Organized Retail Theft (ORT). The indictment did not name the owner of the stolen property, though at trial the State showed it to be H.E.B.. On appeal, the Austin COA considered whether Att. ORT or a LIO Theft should have applied, but acquitted. The State appeals.

ISSUE: Is Theft a lessor-included offense of Organized Retail Theft? YES.

OPINION by Judge Scott Walker: In considering LIO’s, courts may apply the concept of functional equivalence, which examines the elements of the lessor and decides whether they are “functionally the same or less than those required to prove the charged offense.” Although the Theft elements of ‘unlawful appropriation’ and ‘intent to deprive the owner of the property’ are not explicitly included in Lang’s indictment for ORT, they can be deduced therefrom.

ORT required the State to prove Lang handled stolen merchandise, meaning that its appropriation was without the owner’s consent. The cognate-pleadings approach (looking at the facts and elements alleged, not just the statutory elements) is flexible. To prove ORT, the State had to prove Lang handled stolen property. The Theft element requiring ‘intent to deprive the owner of the property’ can be deduced, as the State had to show an owner existed, though not necessarily the identity of the owner (e.g., our law allows for a Theft conviction for appropriation of property stolen by another, without knowing who the other stole it from)

DISSENT by Judge Kevin Yeary: Notice of what the State intends to prove and sufficiency of the evidence may be related, but they are not the same. Facts required to be pled to give notice so a defense can be prepared are not necessarily elements of an offense.

COMMENT: Having to prove an owner existed, though not who that owner was, is somewhat akin to the Corpus Delecti rule requiring proof that someone committed a crime, such that it is not imaginary, but not necessarily who did so.

Chambers v. State, No. PD-0424-19 (Tex.Crim.App. 4/6/22) [9-0]

2022 Tex. Crim. App. LEXIS 221; 2022 WL 1021279; published.

TOPIC: Jury Charge – Art. 38.23 Instruction

FACTS: Chambers was stopped by police for No Rear License Plate; then officers found guns and drugs. At trial, the still photos and dash-cam video definitively showed a paper license plate attached to the back of Chamber’s vehicle. His motion to suppress and request for Art. 38.23 instruction were denied.

ISSUE: Is a defendant entitled to an Art. 38.23 instruction where there is a factual dispute regarding the officer’s credibility, as well as a conflict between the officer’s testimony on both re-direct and cross-examination, photographs, and his dashcam video? YES.

OPINION by Judge Bert Richardson: In order to get an Art. 38.23 instruction, the defendant must show three things:

(1) There was an issue of fact (here, whether he had a license plate and whether the officer could see it);

(2) That the issue was affirmatively contested (here, the officer claimed he could not see it, but the still photos and video showed it was there); and

(3) The issue was material (here, it went to the justification for the stop). The Art. 38.23 instruction should have been given.

Stredic v. State, No. PD-1035-20 (Tex.Crim.App. 5/11/22) [8-1] 2022 Tex. Crim. App. LEXIS 313; 2022 WL 1499518; published

TOPIC: Responding to Jury Questions – Read Testimony Back or Provide the Transcript?

FACTS: During deliberations at Stredic’s murder trial, the jury disagreed about certain testimony and asked to “see the court reporter’s notes.” Instead of reading the testimony back, the court provided the jurors with a written transcript of the disputed testimony.

ISSUE: Was giving the jury a transcript of requested disputed testimony, rather than reading it back or having it repeated, error? YES.

OPINION by Presiding Judge Sharon Keller: CCP Art. 36. 28 provides an explicit alternative to reading testimony back (i.e. having the witness repeat the testimony). It does not authorize the trial court to fashion a different remedy. While reading testimony back draws some attention to it, giving the jury a transcript draws even more, and could

potentially constitute an impermissible comment on the weight of the evidence. It was error to give the jury the transcript.

But as to harm, here there was none. In fact, it is more likely the transcript benefited Stredic, since it was his testimony they asked for. It provided the jury with a memorialization of his testimony and a counterpoint to the video evidence, and reiterated his version of the events, perhaps more than a mere reading-back would have.

CONCURRANCE by Judge Kevin Yeary, joined by Judge Michelle Slaughter: I am less sure than the Court that submitting a transcript was impermissible or constituted a comment on the weight of the evidence, but I agree it was harmless and concur in the result.

DISSENT by Judge Scott Walker: It was structural error (which cannot be evaluated for harm) as there is no way to know if every juror received and reviewed the transcript, if it was read aloud, verbatim, or silently, or if one juror read it silently and then told the others what it meant.

Swinney v. State, No. PD-0216-21 & PD-0217.21 (Tex.Crim.App. 3.2.22) [9-0] 2022 Tex. Crim. App. LEXIS 131; 2022 WL 610977; published

TOPIC: Ineffective Assistance of Counsel (IAC)

FACTS: Facing a jury for Agg. Assault with a Deadly Weapon, Swinney filed an Application for Probation and a hand-written Election for the jury to assess punishment, but the word “jury” was crossed out and “judge” was written above it. After the jury convicted, the trial judge questioned whether he could even consider probation, given the jury’s Deadly Weapon finding; the State pointed out it was not (TX CCP Art. 42A.054(b)). Nevertheless, Swinney’s counsel persisted in going to the judge for. The judge sentenced Swinney to 8 years TDCJ.

Note: the record here did not show that Swinney would have elected for the jury assess punishment if his trial counsel had correctly advised him.

ISSUE: Where an IAC claim stems from bad advice about probation eligibility, must the defendant show a reasonable likelihood of a different outcome if he had elected for the jury to assess punishment? NO – the correct measure of prejudice focuses on the impact of the bad advice on the defendant’s decision making.

OPINION by Judge Mary Lou Keel: IAC requires showing both deficient performance of counsel and prejudice. Prejudice is typically measured by whether, but for the deficient performance, there would have been a reasonable probability of a different outcome, or a reasonable probability of a different decision by the defendant. But, if the deficient

performance caused the defendant to waive a proceeding he was otherwise entitled to prejudice is established.

Regarding deficient performance, the record must show more than mere mistake – it must show whether and how the mistake influenced the defendant’s decision (here, to waive his right to have the jury assess punishment). Unfortunately, for Swinney, he did not put it on the record that he would have chosen differently but for his trial counsel’s bad advice. Therefore, he failed to show prejudice.

Moreover, the record reveals a valid strategy for choosing the court to punish, to-wit: after the trial judge decided to admit Swinney’s extraneous offenses during guilt/innocence, Swinney’s counsel considered waiving a jury altogether on the grounds that it could be devastating for the jury to hear he had committed another Assault.

Ex parte Dotson, WR-74,562-02 (Tex.Crim.App. 3/16/22) [5-4]

TOPIC: Ineffective Assistance of Counsel (IAC)

FACTS: In 2009, Dotson was convicted of a SJF, pled true to two prior felonies (which raised punishment to the F2 range), and was sentenced to 18 years TDCJ. However, the second of the two priors was actually an SFJ itself, for which the range of punishment had been enhanced to a higher felony; thus it was not properly available to use for enhancement under PC § 12.42(a)(2). Unfortunately, both his trial appellate counsel failed to catch the error. After a decade of proceedings without ever raising the issue, in 2021, Dotson finally raised IAC of trial and appellate counsel for the first time in an amended Writ of Habeas Corpus application.

Note: Though the second prior used for enhancement was defective, Dotson did have other priors that could have been used.

ISSUE: Were trial and appellate counsel impermissibly ineffective for failing to timely raise the issue of an improper sentencing enhancement? YES.

OPINION, per curiam: Trial counsel was ineffective by failing to object to the improper enhancement, appellate counsel was ineffective by failing to raise the issue on direct appeal, and the deficient performance of both counsel prejudiced Dotson. Therefore, he may file an out-of-time appeal.

DISSENT by Presiding Judge Sharon Keller, joined by Judges Kevin Yeary, Mary Lou Keel, and Michelle Slaughter: The majority’s decision gives Dotson an inappropriate windfall. Had trial counsel timely objected to the improper enhancement, the State could have simply substituted one of Dotson’s other prior convictions. Likewise, had appellate counsel

raised the issue on direct appeal, at a new sentencing hearing the State would have done the same. Therefore, Dotson was not prejudiced because he suffered no fundamental unfairness. Lockhart v. Fretwell, 506 U.S. 364 (1993). Dotson’s sentence is supported by his actual criminal history, so he suffered no harm.

DISSENT by Judge Michelle Slaughter, joined by Judge Kevin Yeary: Given that Dotson acknowledges he had other priors that could have supported enhancement, and considering his failure to object at trial and on direct appeal, as well as the absence of precedent in 2009 to show that there would have been reversible error had the complaints then been raised, it was not unreasonable for counsel to fail to raise the issue. Moreover, given the ten-year delay in raising his complaint, this case should be remanded for consideration of laches (unreasonable delay).

COMMENT: This is a close case, with two strong dissents. In fact, Judge Slaughter’s dissent is the longest of the three opinions; the per curiam majority opinion is the shortest

Jefferson v. State, No. PD-0677-21 (Tex.Crim.App. 7/27/22) [9-0] 2022 Tex. Crim. App. LEXIS 469; 2022 WL 2961846; published.

TOPIC: Amending Indictments

FACTS: Jefferson was indicted for Sexual Assault and Indecency With a Child. The State moved to amend the Indictment to add two more counts of Sexual Assault. Whether Jefferson’s counsel objected is unclear (the record does not show an objection, but he claimed during a post-conviction hearing that he did), but he did request ten additional days to prepare for trial. The trial court granted both the amendment and the ten days to prepare.

ISSUE: Did amending the indictment to add two counts constitute adding an additional offense(s) to the indictment sufficient to trigger a grand jury proceeding? YES, but it’s waivable.

OPINION by Presiding Judge Sharon Keller: An indictment may not be amended over the defendant’s objection if it will charge an additional or different offense. TX CCP Art. 28.10. A count is the statutory method of alleging separate offenses in an indictment. Therefore, when the State amended to add counts, it added allegations of separate offenses, and Jefferson had the right to the due process of a grand jury. However, that process may be waived, though whether Jefferson’s counsel knew this is unclear. Remanded for further IAC analysis to clarify.

Ex parte Hicks, No. WR-93,188-01 (Tex.Crim.App. 2/16/22) [7-2] published

TOPIC: Guilty Plea – Voluntariness

FACTS: With the State and Hicks believing Hicks had possessed a counterfeit $100 bill, a plea bargain allowed Hicks to plead guilty to the LIO of Att Forgery of a Government Instrument for 180 days SJF. Post-plea, a report of the analysis of the bill showed it was in fact genuine. Hicks brings this post-conviction Writ.

ISSUE: Does actual, though unknowing, innocence invalidate a guilty plea? YES, but on voluntariness of the plea grounds rather than actual innocence.

OPINION by Judge Jesse McClure: This case presents an unusual nexus of the law on innocence, attempt, fraud, and the defense of factual impossibility. Factual impossibility exists when a person has an objective to commit an offense, but cannot due to a circumstance that is unknown to him. However, factual impossibility is not a defense, even to attempted offenses.

Hicks did not demonstrate actual innocence. The post-plea determination that the bill is genuine does not exculpate him. He admitted he “knew” the bill was fake and he attempted to pass it (at a bonding company). A reasonable juror could have concluded Hicks had a “conscious objective" to engage in the crime, and the circumstance of the bill being actually genuine, though unknown to Hicks, did not negate his intent. But, because Hicks was mistaken is his belief about the bill, his plea was unknowing and involuntary as he lacked “sufficient awareness of the relevant circumstances.” Brady v. United States, 397 U.S. 742 (1970).

This case differs from two recent CCA cases where defendant claimed they had pled guilty under mistaken beliefs, for in both of those cases, the defendant’s misapprehended the nature of an unknown, whereas neither Hicks nor the State questioned the fakeness of Hicks’s $100 bill. In Ex parte Palmberg, the defendant did not know all the drugs were used up in testing and not available for trial, a matter of misapprehending the quality of the State’s case. Ex parte Palmberg, 491 S.W.3d 804 (Tex.Crim.App. 2017). In Ex parte Broussard, the defendant was mistaken about which Penalty Group 1 drug he possessed, a matter of misapprehending the nature of an unknown substance. Ex parte Broussard, S.W.3d 814 (Tex.Crim.App. 2017)

DISSENT by Judge Kevin Yeary, joined only in part II by Presiding Judge Sharon Keller: Part I – Hicks only appealed on "actual innocence." As he is not, that should be the end of it, and the majority should not have sua sponte proceeded to consider voluntariness.

Part II – Hicks failed to show he would not have taken the plea had he known the bill was genuine, especially since by taking the plea he received only 6 months SJF as opposed to a possible 10 years TDCJ.

Ex parte Dennis Castillo, No. WR-90,880-02 (Tex.Crim.App. 10/12/22) [8-1] 2022 Tex. Crim. App. LEXIS 704; 2022 WL 6834494; published

TOPIC: Guilty Plea – Waiver of Appeal

FACTS: Castillo pled guilty pursuant to a plea bargain. On his Notice of Right to Appeal form, which he and his attorney signed, the boxes checked indicated it was a plea bargain case and he had no right to appeal, and that he waived his right to appeal. Subsequently, no notice of appeal was filed. However, on the day of the plea, after the plea, Castillo’s mother messaged his attorney that he wanted to appeal. The attorney emailed the court asking that appellate counsel be appointed (as he did not handle appeals). He did not then file a Notice of Appeal, mistakenly believing his email was sufficient.

ISSUE: If a defendant has waived his right to appeal, or has no such right pursuant to a plea agreement, does he suffer prejudice if his lawyer fails to file a notice of appeal? NO.

OPINION by Presiding Judge Sharon Keller: No waiver of appeal serves as an absolute bar to all appellate claims. Garza v. Idaho, 139 S. Ct. 738 (2019). And, there are only three situations where an appeal is allowed after a plea-bargain: (1) for matters raised by written motion filed and ruled-on prior to trial; (2) where trial court grants permission; and (3) where the specific appeal is expressly authorized by statute. This is an exclusive list, and in any other plea-bargain situation, no appeal is authorized, even for challenges to the jurisdiction or the voluntariness of the plea. Here, Castillo didn’t have a right to appeal which he waived – he just didn’t have a right to appeal at all because it was a plea-bargain. None of the narrow exceptions for appeals after plea-bargains applies here. Therefore, though it is presumed that an attorney who fails to file a Notice of Appeal when directed prejudices his client, here Castillo’s attorney did not prejudice him because Castillo had no right to appeal.

Osorio-Lopez v. State, No.s PD-0354-21 & PD-0344-21 (Tex.Crim.App. 7/29/22) [9-0]. 2022 Tex. Crim. App. LEXIS 446; 2022 WL 2335394; published

TOPIC: Competency and the Right to Represent Oneself

FACTS: After being restored to competence, Osorio-Lopez’s case proceeded to trial, but his counsel moved to withdraw, citing inability to communicate with him. When that failed,

counsel sought a continuance for re-evaluation of Osario-Lopez’s competency to stand trial, which was also denied. Osorio-Lopez was convicted and sentenced to 20 years.

On first appeal, the Texarkana COA found error and remanded for a retrospective competency hearing. The trial court ordered another competency evaluation (which reported he was competent). At the retrospective competency hearing, Osorio-Lopez insisted on representing himself. The trial court found he was competent at the time of the prior jury trial on the merits. The conviction was reinstated and then affirmed.

Osorio-Lopez now complains that he should not have been allowed to represent himself at his retrospective competency hearing, and his waiver of counsel was ineffective because it was not knowing, voluntary, or intelligent.

ISSUE: Do defendants have a right to self-representation at a competency hearing? YES.

OPINION by Judge Barbara Hervey: TX CCP Art. 1.051 and Art. 46B.006 address appointment of counsel, but do not prevent waiver of the right to counsel. The right to selfrepresentation is constitutional. U.S. Constitution Amendment VI; Texas Constitution Art. I § 10; Faretta v. California, 422 U.S. 806 (1975).

Competency to waive the right to counsel is the same as competency to stand trial. The test for competency is whether a person has sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding, and a rational as well as factual understanding of the proceedings against them. Dusky v. U.S., 362 U.S. 402 (1960).

Whether Osorio-Lopez waived his right to counsel knowingly and intelligently, clearly and unequivocally asserting the right to self-representation, depends on whether he was adequately warned of the dangers and disadvantages of self-representation. We must look to the totality of the circumstances including his background, experience, and conduct to determine if such warning was effective.

The trial court must thoroughly admonish a defendant seeking to represent himself, and though there is no script or formula, the defendant must at least be admonished that there are technical rules of evidence and procedure, and he will not be granted any special consideration solely because he asserted his pro se rights. Subsequent analysis must focus on whether the defendant is competent to choose to proceed pro se, not whether he is equipped to do so. He must be competent before he can knowingly and intelligently waive the right to counsel and proceed pro se

A trial judge is in the best position to determine whether a mentally ill defendant is competent to proceed pro se. Case remanded for the trial court to determine whether

Osorio-Lopez was competent to waive counsel, and if so, whether he did so voluntarily, knowingly, and intelligently.

COMMENT: Remember, all persons are presumed competent to stand trial unless previously adjudged incompetent.

Holder v. State, 639 S.W.3d 704 (Tex.Crim.App. 2/2/22) [9-0] 2022 Tex. Crim. App. LEXIS 72

TOPIC: Classification of Error

FACTS: In a prior appeal, the CCA determined Cell Site Location Information (CSLI) was wrongly admitted at Holder’s capital murder trial and remanded to the Dallas COA for harm analysis. Following the holding in Love v. State, 543 S.W.3d 835 (Tex.Crim.App. 2016), the Dallas COA determined the error was Constitutional and, being unable to conclude it was harmless beyond a reasonable doubt, reversed the conviction. The State appealed back to the CCA.

ISSUE: Is error for failure to suppress evidence pursuant to TX CCP Art. 38.23’s exclusionary rule Constitutional error, requiring reversal unless harmless beyond a reasonable doubt? NO.

OPINION by Judge Kevin Yeary: Wrongfully admitting evidence, or failing to suppress it per Art. 38.23, is a violation of State law, not the Constitution. Therefore, it is analyzed as standard non-constitutional error, to include harm analysis. This specifically reverses Love. Remanded again to the COA to conduct harm analysis under TX R. App. P. 44.2(b).

Ratliff v. State, No. PD-0545-20 (Tex.Crim.App. 3/16/22) re’hrng. denied 2022 Tex. Crim. App. LEXIS 165; 2022 WL 791673; published

TOPIC: Police Reports; Hot Pursuit

FACTS: Nutt lived in a RV park, three spaces down from a police officer, with whom he had verbal altercation outside. Shortly thereafter, that officer went to Nutt’s RV to arrest him for Public Intoxication, arising from the prior verbal altercation. By then, Nutt had retreated inside his RV and refused to come to be arrested. A stand-off ensued which lasted more than 10 minutes. Officers ordered Nutt to come outside, and even pointed a taser at Nutt’s groin, but Nutt steadfastly refused. Eventually, officers (including Ratliff, the Chief of Police), entered Nutt’s RV without a warrant and without consent, and arrested him for Public Intoxication. That charge was ultimately dropped.

Nutt subsequently complained about his arrest and the Texas Rangers investigated. They found Ratliff made significant omissions and misrepresentations in his report of Nutt’s arrest, including leaving out: many witness’s names; the pointing of the taser at Nutt’s groin; and that they entered Nutt’s home without a warrant. Ratliff was charged, tried and convicted of Tampering with a Governmental Record and Official Oppression.

TWO ISSUES:

(1) Where a police report contains omissions, but not outright falsehoods, does its use constitute Tampering with a Government Record? NO.

(2) Is it Official Oppression for an officer to knowingly trespass to make an arrest on a Class C misdemeanor? YES.

OPINION by Judge Jesse McClure:

(1) There was no testimony that anything included in Ratliff’s report was actually false or that he knew it to be. The Tampering statute does not create an offense through an omission, nor a duty to include certain information in an offense report. Therefore, this evidence is insufficient here to prove Tampering With a Governmental Record. It is difficult to conceive of a conviction for falsifying a governmental record when nothing in the record is, in fact, false.

(2) Regarding Official Oppression, because Ratliff knew the arrest was going to be for a Class C misdemeanor (Public Intoxication), a rational jury could have found Ratliff intentionally subjected Nutt to an unlawful arrest because Ratliff knowingly trespassed into Nutt’s home to arrest him. Further, there were no exigent circumstances to justify the warrantless entry into Nutt’s home: Ratliff was not there to provide aid; there was no reason to believe Nutt was armed and dangerous, nor a threat; there was no need to preserve blood-alcohol content evidence for Public Intoxication like there might be for DWI; and “hot pursuit” doctrine does not apply because this was for a Class C misdemeanor, and because a break in continuity of the pursuit.

CONCURRANCE and DISSENT by Presiding Judge Sharon Keller, joined by Judges Kevin Yeary and Michelle Slaughter: While there was insufficient evidence of Tampering, the law was unsettled regarding entry into the home at the time this happened. Lange v. California was not decided until after this case. Lange v. California, 141 S. Ct. 2011 (6/23/2021) (holding that flight of a suspected misdemeanant does not always or categorically justify warrantless entry into a home).

Romo v. State, No. PD-0456-21 (Tex.Crim.App. 6/15/22) [9-0]

2022 Tex. Crim. App. LEXIS 412; published

TOPIC: Who’s Perspective Determines if Ambiguous Material is Child Pornography?

FACTS: Romo was convicted of Possession of Child Pornography after he was caught with a French “nudist” DVD containing images of naked people, including underage boys and girls, though not engaged in sex acts. The video depicted a “Miss Jr. Teen Beauty Competition,” though unlike other “beauty contests,” this one had no talent competition, and the girls were judge only for the appearance of their naked bodies. Romo’s charge was predicated upon the visual material he possessed depicting a child younger than 18 years engaging in sexual conduct, the conduct being “lewd exhibition of the genitals” (which Is not statutorily defined in Texas law). On appeal, he challenges the sufficiency of the evidence.

ISSUE: From who’s perspective must we consider whether depictions (exhibitions) of children’s genitals is “lewd,” the average viewer, or that a pedophile? A pedophile.

OPINION by Presiding Judge Sharon Keller: Though we are not bound by them, the Dost factors are helpful to determine whether depictions of children are “lewd:” (1) whether the focal point is on the child’s genitalia or pubic area; (2) whether the setting is sexually suggestive; (3) whether the child is depicted in an unnatural pose, or inappropriate attire, considering age; (4) whether the child is fully or partially clothed, or nude; (5) whether the depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended to elicit a sexual response in the viewer. U.S. v. Dost, 818 F.2d 1231 (9th Cir. Cal., 1987). It is a case-by-case analysis, and no single factor is dispositive.

The CCA agreed with the COA that none of the first five Dost factors here were problematic. Romo’s video is not, perhaps, what one would normally think of as child pornography: there are no sex acts, no close-ups of genitalia, and it is not overly nasty. But, beauty competition have been seen as objectifying women, and there was no talent competition – the girls were judged only for their naked bodies. And these girls appear to be children who, in America, are too young to make a voluntary choice to appear naked in front of adults. Moreover, they appear uncomfortable at times. This video appears to be intended or designed to elicit a sexual response in a viewer who is specifically looking for videos featuring young, naked girls. In other words, a pedophile. As such, the evidence is sufficient to support the conviction.

CONCURRANCE by Judge Scott Walker: The standard of viewing material through the lens of a pedophile to determine what constitutes “lewd exhibition of genitals” is unnecessarily

difficult to apply, too broad, and unnecessary to resolve this question. The entirety of this video suggests it was designed to elicit a sexual response, especially the labeling, and that it was not intended for educational or documentary purposes.

COMMENT: Just who is this “average viewer” of visual material depicting nude children?

Ex parte Kibler, No. WR-91,197-01 & WR-91,197-02 (Tex.Crim.App. 9/21/22) [5-4] published. (No LEXIS citation available)

TOPIC: Duration of Sex Offender Registration

FACTS: Kibler pled guilty to two charges of Indecency With a Child committed on the same day but against different victims, and was placed deferred adjudication for eight years with a requirement to register as a sex offender. Individually, these offenses would require registration as a sex offender for 10 years. Failing community supervision, Kibler was subsequently adjudicated and sentenced to prison; he did not then appeal. However, after discharging his sentences, he received conflicting information regarding the duration of his duty to register as a sex offender (10 years, or Life), and he filed this Writ.

ISSUE: Does a person convicted of multiple charges of Indecency With a Child (by touching) in the same proceeding receive one reportable conviction “before or after” another, such that they have a duty to register as a sex offender for life? YES.

OPINION by Judge David Newell: TX CCP Art. 62.101(a)(4) establishes when the duty to register as a sex offender expires, and it does not require that one conviction be final before the second conviction is received. Therefore, a sex offender could be required to register for Life if he or she receives two separate convictions for Indecency With a Child by touching, even if they are adjudicated in the same proceeding.

The Legislature’s use of “before” and “after” reflects an understanding of the practical realities of plea practice; it does not require the offense be committed sequentially, that the convictions be in a specific order, or that a certain time pass between convictions. This differs from the enhancement language in Penal Code § 12.42. They can be one “before” another where the judge pronounces judgment on one before the other, even if on the same day in the same hearing.

CONCURRANCE by Judge Kevin Yeary: I do not agree that statutory interpretation should be a matter of judges discerning amorphous legislative intent. We should simply give meaning to the words that are the literal text of the statute. Courts seeking to ascertain legislative intent beyond the plain statutory text risk injecting the judiciary’s estimation

about policy choices into every possible matter involving statutory interpretation, degrading the Legislature’s constitutional prerogative to make the law. We should stop saying that our purpose is to effectuate legislative intent.

DISSENT by Presiding Judge Sharon Keller: The majority concludes that one of the convictions can be “before or after” the other if the judge pronounced judgment on one of them before the other, even if both pronouncements occurred on the same day in the same proceeding. This is at odds with the general principle that judicial acts occurring on the same day are considered to have occurred at the same time, and this ruling will impose an unintended burden on registration authorities to review reporter’s records to determine how long someone is required to register. Further, this is not a priority of one right over another issue, and so we such should not make an exception.

DISSENT by Judge Scott Walker, joined by Presiding Judge Sharon Keller: The majority fails to follow principles of statutory construction by giving meaning to every word in the statute, thereby rendering simultaneous convictions nearly impossible.

Martell v. State, No. PD-1234-20 (Tex.Crim.App. 5/11/22) [9-0] 2022 Tex. Crim. App. LEXIS 320; 2022 WL 1548020; published

TOPIC: “Right Ruling, Wrong Reason” doctrine

FACTS: In 1999, Martell was placed on deferred adjudication for four years for Possession of Marihuana 5-50 lbs. He was allowed to live and work in Juarez, Mexico, but required to report to probation in El Paso, TX, but he quickly stopped reporting. In 2002, the State filed a Motion to Proceed with Adjudication and a capias issued, but Martell was not arrested until 2017. Martell claimed he had moved to El Paso in 2010.

At his revocation hearing, Martell asserted the Due-Diligence Defense (forcing the State to prove it attempted to contact him in-person at his last known residence before filing to revoke him). TX CCP Art. 42A.109. The State averred they were unauthorized to make in-person home visits outside the United States, but they did mail two letters to Martell’s Juarez address and attempted to telephone him. The State argued Martell should not get the benefit of being allowed to live in Mexico, while also using the State’s inability to physically visit him there as a defense. Martell was adjudicated, from which he appealed.

The El Paso COA reversed, holding that the Due-Diligence Defense plainly applied, and as the State admitted to failing to attempt in-person contact at Martell’s last known residence or place of employment, the trial court erred in adjudicating guilt. In so doing, the COA rejected the State’s two arguments: (1) futility or impossibility as to due

diligence; and (2) estoppel – that it would not serve the interest of justice to fault the State for failing to attempt in-person contact when Martell intentionally remained in Mexico beyond the State’s jurisdictional reach. However, it was unclear whether the COA actually considered the State’s estoppel argument.

ISSUE: Where an estoppel argument is not explicitly raised in briefing, but is implicitly raised in both the trial court and on appeal, must the COA address it? YES.

HOLDING by Judge Michelle Slaughter: Under established appellate principles, the State was not required to preserve its estoppel argument by raising it below. The “winner” in the trial court may raise claims in support of the trial court’s ruling for the first time in a petition for discretionary review to the CCA, because: (1) an appellee is not required to file a responsive brief in the COA; nevertheless, (2) the COA must conduct a thorough review of an appellant’s claims, including any subsidiary issues that might result in upholding the trial court’s judgment, which may be upheld if it is correct on any legal theory applicable to the case, even one not mentioned by the trial court or the appellee. This is known as the “Right Ruling, Wrong Reason” doctrine. Case remanded to consider estoppel.

EPILOGUE: On remand, the El Paso COA found that no currently-recognized theory of estoppel, as applied in the criminal context, prevented Martell from asserting the Due-Diligence Defense. The trial court’s judgment was reversed and remanded. Martell v. State, No. 08-18-00180-CR (Tex.App.–El Paso 11/15/22) published. 2022 Tex. App. LEXIS 8375; 2022 WL 16952277.

COMMENT: As of this writing (early December, 2022), the State’s time to file an appeal of the denial of its estopple argument has not yet expired. There could be more to come.

State v. Guilbault, 644 S.W.3d 727 (Tex.App.—Austin 1/13/22)

2022 Tex. Crim. App. LEXIS 219

TOPIC: Motion for New Trial

FACTS: At his jury trial for DWI, cross-examination of the arresting officer demonstrated his lack of familiarity with the limitations of HGN, as exposed by a 2007 study which is cited in the NHTSA manual, and with his obligation to follow traffic laws when operating his squad car in non-emergency situations. After conviction, Guilbault moved for a new trial citing “disingenuous testimony” of the officer and the State’s failure “to correct false and/or misleading testimony.” The trial court, find the officer’s testimony unduly evasive and presenting serious credibility concerns, and granted the motion for new trial.

ISSUE: Can a trial court grant a new trial based on the court’s own opinion of a key witness’s credibility? NO.

OPINION by Justice Darlene Byrne: Whether a witness is credible is a fact question that goes to the weight of the witness’s testimony. The jury is the exclusive judge of the facts, credibility, and weight to be given to the testimony. Grant of motion for new trial reversed.

State v. Heath, 642 S.W.3d 591 (Tex.App. Waco 2/21/22) pet. granted 2022 Tex. App. LEXIS 1110

TOPIC: Exclusion as Sanction for Violation of Discovery Rules (Michael Morton Act)

FACTS: Seven days before the fourth jury trial setting, the State discovered a 9-1-1 recording, which it obtained and produced to Heath six days before trial. Heath moved to suppress on the grounds that the recording was not produced “as soon as practicable” after Heath’s request. Heath argued the State was under a duty to look for the recording, but did not argue bad faith. The State offered a continuance, but Heath did not want it and asserted that such would not resolve the untimely production problem. For the State’s part, the prosecutor said 9-1-1 calls were not as common in these types of cases (injury to a child) and that she did not learn of it until a witness told her about it, after which she immediately sought, obtained, and produced it. The trial court suppressed and the State took interlocutory appeal. Note: there is no dispute that the recording was material and was in the possession of the State, which includes law enforcement and related agencies, even if not in possession of the prosecutor personally. Also, the three prior trial settings were not accomplished due to other cases going first and Heath’s case not being reached; and it is unclear whether the State announced “ready” for those prior trial settings.

ISSUE: Where the State fails to produce evidence “as soon as practicable” after request by the defendant, is a continuance necessary, and is it an abuse of discretion for the trial court to suppress the evidence without continuance? Or as the Waco COA put it here, do the old concepts of “willful violations” and “bad faith” still apply to exclusion of evidence, given the Legislature’s statutory instruction to answer such requests “as soon as practicable,” which arguably infuses an element of timeliness into discovery responses, regardless of willful misconduct? NO, NO, and NO.

OPINION by Chief Justice Tom Gray: The Legislature substantively changed the disclosure process through passage of the Michael Morton Act, by amending CCP Art. 39.14 to require production of discovery “as soon as practicable” after request. This connotes an

affirmative duty of the prosecutor to, upon request, timely search out discovery that may be in the State’s custody, constructive possession, or control, and then provide it to the defense in a timely manner. The State can no longer wait until it gets ready for trial. What previously required proof of a “willful violation” or “bad faith” is now satisfied by a showing that the prosecutor failed to timely inquire about discoverable items in response to a proper request.

Where the State was set for trial three times, was presumably “ready” without the 9-1-1 call three times, and had failed to inquire and produce the 9-1-1 call after Heath’s request, the trial court did not abuse its discretion by fashioning the remedy and sanction of exclusion. And as to continuance, while it could have been an appropriate remedy and within the trial court’s discretion, it was not necessary in this circumstance.

COMMENT: The CCA granted PDR, but if this ruling stands, it may put teeth into the Michael Morton Act by recognizing the State’s duty to timely respond to requests and allowing a consequence for failure to comply. However, as was pointed out in Watkins v. State, 619 S.W.3d 265 (Tex.Crim.App. 2021), the adequacy of discovery requests to trigger the affirmative duty on the part of the State remains untested.

Ex parte Tuan Pham, 640 S.W.3d 645 (Tex.App.—Houston [14th Dist.] 3/1/22) 2022 Tex. App. LEXIS 1400

TOPIC: The Dangers of Self-Representation

FACTS: Pham, who’s license to practice dentistry had been revoked, was subsequently charged with Practicing Dentistry Without a License, a 3rd degree felony. He properly waived his right to counsel and pled “no contest” in exchange for two years deferred adjudication. The trial court did not admonish Pham that his plea could provide grounds for the Texas State Board of Dental Examiners to refuse to issue him a new license, which they did.

On his Writ, the Habeas Court found Pham’s plea was involuntary because he did not know a “no contest” plea was functionally equivalent to a plea of “guilty.”

ISSUE: In accepting a plea, must a trial court sua sponte admonish a pro se defendant about non-punitive consequences? NO.

OPINION: Pham was warned of the dangers and disadvantages of self-representation. By choosing to accept those risks, he assumed responsibility for understanding the law for himself and applying it correctly, and forfeited the right to complain about mistakes he made along the way.

A plea is voluntary if the defendant is fully aware of the direct and punitive consequences, and it is not induced by threat, misrepresentation, or improper premise.

The trial court is required to admonish a defendant only about direct consequences that are punitive in nature or specifically enunciated in the law. It is not required to admonish a defendant about every possible consequence of his plea (e.g. that he would become ineligible for a dental license). Pham’s unawareness of a non-punitive consequence did not render his plea involuntary.

Thetford v. State, 643 S.W.3d 441 (Tex.App. Fort Worth 3/3/22) 2022 Tex. App. LEXIS 1503; published; pet.

filed

TOPIC: Attempt and Acts vs. Omissions

FACTS: Thetford was convicted of Att. Murder of her son by failing to provide adequate food and/or nutrition, an omission. The state presented evidence that Thetford acted to prevent her son from accessing food, requested a sign on his door barring the provision of food, separated him from hospice staff that gave him food, and turned off his feeding pump, in effect killing him slowly each day.

ISSUE: Can failure to provide food and nutrition amount to an affirmative act for criminal attempt purposes? YES.

OPINION by Chief Justice Bonnie Sudderth: On remand from the CCA to address sufficiency of evidence in light of Rodriguez v. State, 454 S.W.3d 503 (Tex.Crim.App. 2014), aka Rodriguez II.

Rodriguez II was a Felony Murder case that turned on the distinction between an act and an omission. Felony Murder requires “an act clearly dangerous to human life that causes death.” Criminal Attempt also requires “an act,” more specifically, “an act – not an omission – that amounts to more than mere preparation and that tends but fails to effect the commission of the offense intended.” But the distinction between Rodriguez II and Thetford’s case is that Rodriguez II only had evidence of an omission. Here, while there was certainly evidence that Thetford omitted to feed her son, there was also evidence that she took identifiable, affirmative steps to deter others from feeding him, and though he was capable of feeding himself, she took steps to prevent him from accessing food. This was sufficient to for the jury to find that she “acted.”

COMMENT: Thankfully, the child recovered after being removed and protected from Thetford. Seems like a case of Munchausen Syndrome by Proxy.

State v. D.D.M., No. 14-20-00426-CV (Tex.App. Houston [14th Dist.] 3/29/22) 2022 Tex. App. LEXIS 2042; 2022 WL 906002; publication not specified

TOPIC: Expunction (a civil matter, but related to criminal law)

FACTS: In March of 2001, D.D.M. was arrested for Delivery of Cocaine < 1 gram; he subsequently plead guilty and was sentenced to 9 months SJF. Fifteen years later, in October of 2016, he was again arrested for Delivery of Cocaine < 1 gram, and he again plead guilty but was sentenced to 180 days SJF. Two years later, in December of 2018, he was again arrested for Delivery of Cocaine < 1 gram. This time he plead not guilty, was tried, and acquitted.

Post-acquittal, D.D.M. sought and obtained expungement of the records related to his 2018 arrest. However, the State filed a motion for new trial, arguing he was not entitled to expunction because the 2001 and 2016 convictions comprise a “criminal episode” out of which the 2018 offense arose. After its motion was denied, the State appealed.

ISSUE: Can a third alleged offense of Delivery of a Controlled Substance be taken together with a first 17-years prior to comprise a criminal episode sufficient to deny expunction? YES.

OPINION by Justice Kevin Jewell: Expunctions, though codified in the Code of Criminal Procedure (Ch. 55), are a civil remedy and a privilege defined by the Legislature, not a constitutional or common-law right. Statutory rights are mandatory, exclusive, and cannot be equitably expanded by the courts. Ex parte R.P.G.P., 623 S.W.3d 313 (Tex. 2021).

Courts are prohibited from ordering expunctions if the offense for which the petitioner was acquitted arose out of a “criminal episode.” Tex. CCP Art. 55.01(c). A “criminal episode” can mean, among other things, the repeated commission of the same or similar offenses, and there is no requirement that the offenses be close in temporal or geographic proximity. Tex. P.C. § 3.01.

Here, D.D.M.’s offenses were violations of the same Penal Code provision. Thus, the 2018 offense arose out of the same criminal episode as the 2001 and 2016 offenses. Reversed and rendered!

DISSENT by Justice Charles Spain: This Court is reversing and rendering judgment based on evidence that was not before the trial court, but merely attached to the State’s motion for new trial. In fact, there was not even a trial below at which evidence was admitted. He says, "Lawyers my age remember when a trial judge could grant a new trial on no grounds or coffee grounds. Those days are gone, or so I thought. Today the court resurrects the power to grant a new trial when there was nothing wrong with the trial.”

Martinez v. State, 652 S.W.3d 485 (Tex.App. San Antonio 7/13/22) 2022 Tex. App. LEXIS 4754

TOPIC: Right to a Public Trial per TX CCP Art. 1.24

FACTS: Martinez’s probation revocation hearing was livestreamed via YouTube during and due to the COVID-19 pandemic. Martinez did not object at the time of the hearing. In fact, his counsel affirmatively stated he had no objection.

NOTE: Martinez did not bring his complaint under the Sixth Amendment to the U.S. Constitution, nor under the Texas Constitution, Art. I, §§ 10, 13.

ISSUE: To preserve error on the issue of the right to a public trial afforded by statute, must one object at the time of a probation revocation hearing? YES.

OPINION by Justice Liza A. Rodriguez: A complaint that the statutory right to a public trial was violated by livestreaming via YouTube is subject to forfeiture and must be preserved by a timely and specific objection.

NOTE: The court specifically did not determine whether holding the revocation hearing via livestream on YouTube complied with the pubic trial requirement of Art. 1.24.

Mark J. Hocker, Judge Lubbock County Court at Law No. 1 MHocker@LubbockCounty.gov

(806) 775-1305 Office (806) 438-8222 Mobile

Texas Criminal Defense Lawyers Association

42nd Annual Prairie Dog Lawyers Seminar

Co-Sponsored with LCDLA

January 6-7, 2023 Texas Tech School of Law Lubbock, TX

Topic: Politics and Parole

Speaker: Allen Place

Place Law Office 109 S 7th St Gatesville, TX 76528 254.865.8475 phone 254.865.5274 fax Allen.place@allenplacelaw.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TexasBoardofPardons&Paroles

•Mostcasesdecidedby3memberregional offices

•2/3voterequiredforapproval –exceptforSB45caseswhichrequire2/3rdsof boardmembersonly

ParoleEligibility

•Someoffenseshavenonebutmostcases requireeither50%oftimeor25%oftime (figuringflat,good,andworktimecredits)

GovernmentCode508.145

•Sec.508.145.ELIGIBILITYFORRELEASEONPAROLE;COMPUTATIONOFPAROLE ELIGIBILITYDATE.

•(a)Aninmateisnoteligibleforreleaseonparoleiftheinmateisundersentence ofdeath,servingasentenceoflifeimprisonmentwithoutparole,orservinga sentenceforanyofthefollowingoffensesunderthePenalCode: –(1)Section20A.03,iftheoffenseisbasedpartlyorwhollyonconductconstitutinganoffense underSection20A.02(a)(5),(6),(7),or(8); –(2)Section21.02;or –(3)Section22.021,iftheoffenseispunishableunderSubsection(f)ofthatsection.

•(b)AninmateservingalifesentenceunderSection12.31(a)(1),PenalCode,fora capitalfelonyisnoteligibleforreleaseonparoleuntiltheactualcalendartimethe inmatehasserved,withoutconsiderationofgoodconducttime,equals40 calendaryears.

•(c)AninmateservingasentenceunderSection12.42(c)(2),PenalCode,isnot eligibleforreleaseonparoleuntiltheactualcalendartimetheinmatehasserved, withoutconsiderationofgoodconducttime,equals35calendaryears.

GovernmentCode508.145

•(c-1)(1)ExceptasprovidedbySubdivision(2),aninmate servingasentenceforanoffenseunderSection 20A.02(a)(5),(6),(7),or(8),PenalCode,isnoteligiblefor releaseonparole.

•(2)Aninmateservingasentenceforanoffensedescribed bySubdivision(1)forwhichthejudgmentinthecase containsanaffirmativefindingunderArticle42.01991, CodeofCriminalProcedure,isnoteligibleforreleaseon paroleuntiltheinmate'sactualcalendartimeserved, withoutconsiderationofgoodconducttime,equalsonehalfofthesentenceor30calendaryears,whicheverisless, butinnoeventistheinmateeligibleforreleaseonparole inlessthantwocalendaryears.

GovernmentCode508.145

•(d)(1)Thissubsectionappliesonlytoaninmatewhoisservingasentencefor: –(A)anoffensedescribedbyArticle42A.054(a),CodeofCriminalProcedure,otherthanan offenseunderSection19.03,PenalCode,oranoffenseunderChapter20A,PenalCode,thatis describedbySubsection(a)(1)or(c-1)(1); –(B)anoffenseforwhichthejudgmentcontainsanaffirmativefindingunderArticle42A.054(c) or(d),CodeofCriminalProcedure;or –(C)anoffenseunderSection71.02or71.023,PenalCode.

•(2)AninmatedescribedbySubdivision(1)isnoteligibleforreleaseonparole untiltheinmate'sactualcalendartimeserved,withoutconsiderationofgood conducttime,equalsone-halfofthesentenceor30calendaryears,whicheveris less,butinnoeventistheinmateeligibleforreleaseonparoleinlessthantwo calendaryears.

•(3)NotwithstandingSubdivision(2),aninmatewhoisservingasentenceforan offenseunderSection22.021,PenalCode,isnoteligibleforreleaseonparoleif theinmateisservingasentenceforanoffenseforwhichpunishmentwas enhancedunderSection12.42(c)(4),PenalCode.

GovernmentCode508.145

•(d-1)NotwithstandingSubsection(d),forevery12monthsthatelapsebetween thedateanarrestwarrantisissuedfortheinmatefollowinganindictmentforthe offenseandthedatetheinmateisarrestedfortheoffense,theearliestdateon whichaninmateiseligibleforparoleisdelayedbythreeyearsfromthedate otherwiseprovidedbySubsection(d),iftheinmateisservingasentenceforan offenseunderSection19.02,22.011,or22.021,PenalCode.

•(e)Aninmateservingasentenceforwhichthepunishmentisincreasedunder Section481.134,HealthandSafetyCode,isnoteligibleforreleaseonparoleuntil theinmate'sactualcalendartimeserved,withoutconsiderationofgoodconduct time,equalsfiveyearsorthetermtowhichtheinmatewassentenced,whichever isless.

•(f)ExceptasprovidedbySection508.146,anyotherinmateiseligibleforrelease onparolewhentheinmate'sactualcalendartimeservedplusgoodconducttime equalsone-fourthofthesentenceimposedor15years,whicheverisless.

Caveats

GovernmentCode508.146

•Sec.508.146.MEDICALLYRECOMMENDEDINTENSIVESUPERVISION.

•(a)Aninmateotherthananinmatewhoisservingasentenceofdeathor lifewithoutparolemaybereleasedonmedicallyrecommendedintensive supervisiononadatedesignatedbyaparolepaneldescribedby Subsection(e),exceptthataninmatewithaninstantoffensethatisan offensedescribedinArticle42A.054,CodeofCriminalProcedure,oran inmatewhohasareportableconvictionoradjudicationunderChapter62, CodeofCriminalProcedure,mayonlybeconsideredifamedicalcondition ofterminalillnessorlong-termcarehasbeendiagnosedbyaphysician,if:

•(1)theTexasCorrectionalOfficeonOffenderswithMedicalorMental Impairments,incooperationwiththeCorrectionalManagedHealthCare Committee,identifiestheinmateasbeing:

GovernmentCode508.146

–(A)apersonwhoiselderlyorterminallyill,apersonwithmentalillness,anintellectual disability,oraphysicaldisability,orapersonwhohasaconditionrequiringlong-termcare,if theinmateisaninmatewithaninstantoffensethatisdescribedinArticle42A.054,Codeof CriminalProcedure;or

–(B)inapersistentvegetativestateorbeingapersonwithanorganicbrainsyndromewith significanttototalmobilityimpairment,iftheinmateisaninmatewhohasareportable convictionoradjudicationunderChapter62,CodeofCriminalProcedure;

•(2)theparolepaneldeterminesthat,basedontheinmate'sconditionanda medicalevaluation,theinmatedoesnotconstituteathreattopublicsafety;and

•(3)theTexasCorrectionalOfficeonOffenderswithMedicalorMental Impairments,incooperationwiththepardonsandparolesdivision,hasprepared fortheinmateamedicallyrecommendedintensivesupervisionplanthatrequires theinmatetosubmittoelectronicmonitoring,placestheinmateonsuperintensivesupervision,orotherwiseensuresappropriatesupervisionoftheinmate.

GovernmentCode508.146

•(b)Aninmatemaybereleasedonmedicallyrecommendedintensivesupervisiononlyifthe inmate'smedicallyrecommendedintensivesupervisionplanunderSubsection(a)(3)isapprovedby theTexasCorrectionalOfficeonOffenderswithMedicalorMentalImpairments.

•(c)TheparolepanelshallrequireasaconditionofreleaseunderSubsection(a)thatthereleasee remainunderthecareofaphysicianandinamedicallysuitableplacement.Atleastonceeach calendarquarter,theTexasCorrectionalOfficeonOffenderswithMedicalorMentalImpairments shallreporttotheparolepanelonthereleasee'smedicalandplacementstatus.Onthebasisofthe report,theparolepanelmaymodifyconditionsofreleaseandimposeanyconditiononthe releaseethatapanelcouldimposeonareleaseereleasedunderSection508.145,includinga conditionthatthereleaseeresideinahalfwayhouseorcommunityresidentialfacility.

•(d)TheTexasCorrectionalOfficeonOffenderswithMedicalorMentalImpairmentsandtheTexas DepartmentofHumanServicesshalljointlyrequestproposalsfrompublicorprivatevendorsto provideundercontractservicesforinmatesreleasedonmedicallyrecommendedintensive supervision.Arequestforproposalsunderthissubsectionmayrequirethattheservicesbe providedinamedicalcarefacilitylocatedinanurbanarea.Forthepurposesofthissubsection, "urbanarea"meanstheareainthisstatewithinametropolitanstatisticalarea,accordingtothe standardsoftheUnitedStatesBureauoftheCensus.

GovernmentCode508.146

•(e)Onlyparolepanelscomposedofthepresidingofficeroftheboardandtwo membersappointedtothepanelbythepresidingofficermaymake determinationsregardingthereleaseofinmatesonmedicallyrecommended intensivesupervisionunderSubsection(a)orofinmatesreleasedpending deportation.IftheTexasCouncilonOffenderswithMentalImpairmentsidentifies aninmateasacandidateforreleaseundertheguidelinesestablishedby Subsection(a)(1),thecouncilshallpresenttoaparolepaneldescribedbythis subsectionrelevantinformationconcerningtheinmateandtheinmate'spotential forreleaseunderthissection.

•(f)AninmatewhoisnotacitizenoftheUnitedStates,asdefinedbyfederallaw, whoisnotunderasentenceofdeathorlifewithoutparole,andwhodoesnot haveareportableconvictionoradjudicationunderChapter62,CodeofCriminal Procedure,oraninstantoffensedescribedinArticle42A.054,CodeofCriminal Procedure,maybereleasedtoimmigrationauthoritiespendingdeportationona datedesignatedbyaparolepaneldescribedbySubsection(e)iftheparolepanel determinesthatonreleasetheinmatewouldbedeportedtoanothercountryand thattheinmatedoesnotconstituteathreattopublicsafetyintheothercountry orthiscountryandisunlikelytoreenterthiscountryillegally.

Callalawyerversedinparoleif questionsarise PlaceLawOffice AllenPlace,SheaPlace 254-865-8475

Texas Criminal Defense Lawyers Association

42nd Annual Prairie Dog Lawyers Seminar

Co-Sponsored with LCDLA

January 6-7, 2023 Texas Tech School of Law Lubbock, TX

Topic:

Developing a Trial Story Using the Techniques of the Storyteller

Speaker: Tyrone C. Moncriffe

Attorney at Law 1001 Texas Avenue, Ste. 720 Houston, TX 77002 713.224.6628 phone 713.224.6475 fax tyronemoncriffe@yahoo.com email www.website.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

DEVELOPING A TRIAL STORY

USING THE TECHNIQUES OF THE STORYTELLER

I realize quite early in my practice, that I was talking to jurors, but I was not talking with them. I asked myself one question when I first started practicing law; why were some trial lawyers more effective in the courtroom than others? But that simple question lead me on a journey or quest for an answer. The answer turned out to be as simple as the question; the better trial lawyers were those who were master storytellers. Why were the storytellers the better trial lawyers? Why were stories so impactful? It turns out that the answer to those questions were not so simple. The answer to those questions was like asking someone to describe how it feels to be in love or describe the feeling you get if you saw the sun rise over ice capped mountains or that your child was named the valedictorian of his or her high school class.

You can feel it; but you cannot describe it. There are parts of my presentation; I must admit that cannot be described, but I know that lawyers are trained to analyze. This paper is my attempt to analyze the methods of the master storyteller’s and how we can use those methods in our presentations.

Without a doubt, one of the most important inventions of western civilization was Johannes Gutenberg’s Press. The mass production of the bible allowed people to read for themselves, and thus stimulated the greatest power in the world, according to Einstein, the human imagination. The use of words and how they stir the imagination is the real theme of this paper. Storytelling is a critical tool for trial lawyers and it’s the use of this tool that’s critical.

I’ve traced the use of words by history’s master storytellers. In an attempt to see how we as trial lawyers can use words, to create drama, to set scenes, connect viscerally with jurors, and place jurors in a trance state. How can we tell our clients story better?

Every trial lawyer knows the importance of primacy and recency, what a jury first hears and last hears are critical to persuasion. Let’s analyze how some of the master storytellers use primacy to set scenes.

Let’s analyze the opening words of history’s greatest stories to see how scenes are set immediately:

“…He has successfully avoided meeting his landlady on the staircase. His garret was under the roof of a high, five stored house, and was more like a cupboard than a room. The landlady, who provided him with garret, dinners, and attendance lived on the floor below, and every time he went out he was obliged to pass her kitchen, the door of which invariably stood open. And each time he passed, the young man had a sick, frightened feeling, which made him scowl and feel ashamed. He was hopelessly in debt to his landlady and was afraid of meeting here.”

Fyodor Dostoevsky, Crime and Punishment, 1866

The gripping opening of Edgar Allan Poe in The Tell-Tale Heart:

“True! Nervous very, very dreadfully nervous I had been and am! But why will you say that I am mad? The disease had sharpened my senses not dulled them. Above all was the sense of hearing acute. I heard all things in the heavens and earth. I heard many things in hell. How, then am I mad. Hearken! And observe how healthily how calmly I can tell you the whole story.”

Edgar Allan Poe, The Tell-Tale Heart, 1843

“It was the best of times, it as the worst of times, it was the age of wisdom, it was the age of foolishness it was the epoch of belief, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way in short, the period was so like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree comparison only. “

Charles Dickens,

A Tale of Two Cities, 1859

Ernest Hemingway inexorably pulls you into the life of Robert Cohn in The Sun Also Rises with short pointed sentences.

“Robert Cohn was once middleweight boxing champion of Princeton. Do not think that I am very much impressed by that as a boxing title, but it meant a lot to Cohn. He cared noting for boxing in fact he disliked it, but he learned it painfully and thoroughly to counteract the feeling of inferiority and shyness he had felt on being treated as a Jew at Princeton. He was really very fast. His nose permanently flattened. In his last year at Princeton he read too much and took to wearing spectacles. I never met anyone of his class who remembered him. They did not even remember that he was middleweight boxing champion.”

Ernest Hemingway

The Sun Also Rises, 1926

“I sent one boy to the gas chamber at Huntsville. One and only one. My arrest and my testimony, I went up there and visited him two or three times. Three times. The last time was the day of his execution. I didn’t have to go but I did. I sure didn’t want to. He’d killed a fourteen year old girl and I can tell you right know I never did have no great desire to visit with him let alone go to his execution but I done it. The papers said it was a crime of passion and he told me there wasn’t no passion to it… he told me that he had been planning to kill somebody for about as long as he could remember. Said that if they turned him out he’d do it again. Said he knew he was goin to hell… I watched them strap him into the seat and shut the door. He might of looked a bit nervous about it but that was about all. I really believe that he knew he was goin to be in hell in fifteen minutes. What do you say to a man that by his own admission has no soul?”

Cormac McCarthy

No Country for Old Men, 2005

Ted Sorenson the brilliant advisor and speech writer for John Kennedy made an observation of the 1960 election between Kennedy and Nixon. He said this is the first time in American history were images became more important than words. These authors used words to create riveting images:

“A huge red transport truck stood in front of the little roadside restaurant. The vertical exhaust pipe muttered softly, and an almost invisibly haze of steel – blue smoke hovered over its end. It was a new truck, shining red, and in twelve inch letters on its side Oklahoma City Transport Company. Its double tires were new and a brass padlock stood straight out from the hasp on the big back doors. Inside the screened restaurant a radio played quite dance music turned low the way it is when no one is listening. A small outlet fan turned

silently in its circular hole over the entrance, and flies bussed excitedly about the doors and windows, butting the screens. Inside, one man, the truck driver, sat on a stool and rested his elbows on the counter and looked over his coffee at the lean and lovely waitress. He talked the smart listless language of the roadside to her. “I seen him about three months ago. He had a operation cut somethin out. I forgot what.” And she “doesn’t seem no longer ago than a week I seen him myself. Looked fine then. He’s a nice sort of a guy when he ain’t stinko” now and then the flies roared softly at the screen door.”

Upton Sinclair uses descriptive words to create images that turn your stomach in The Jungle as he illustrates of how sausages were made in the early 20th century.

“There would be meat stored in great piles in rooms; and the water from leaky roofs would drip over it, and thousands of rats would race about on it. It was too dark in these storage places to see well, but a man could run his hand over piles of meat and sweep off handfuls of the dried dung of rats. These rats were nuisances and the packers would put poisoned bread out for them; they would die, and then rats, bread, and meat would go into the hoppers together. This is no fairy story and no joke; the meat would be shoveled into carts, and the man who did the shoveling would not trouble to lift out a rat even when he saw one there were things that went into the sausage in comparison with which a poisoned rat was a tidbit. There was no place for the men to wash their hands before they ate their dinner, and so they made a practice of washing them in the water that was to be ladled into the sausage. There were the butt ends of smoked meat, and the scraps of corned beef, and all the odds and ends of the waste of the plants that would be dumped into old barrels in the cellar and left there…some of it they would make into smoked sausage but as the smoking took time, and was therefore expensive they would call upon their chemistry department, and preserve it with borax and color it with gelatin to make it brown. All of their sausage came out of the same bowl, but when they came to wrap it they would stamp some of it “special” and for this they would charge two cents more a pound.”

Upton Sinclair The Jungle, 1906 With words Claude Brown describes the horrors of heroin as it invades Harlem in Manchild in the Promised Land.

Heroin had just about taken over Harlem. It seemed to be a kind of plaque. Every time I went uptown, somebody else was hooked, somebody else was strung out. People talked about them as if they were dead. You’d ask about an old friend and they’d say “Oh well, he strung out.” It wasn’t just a comment of an answer to question. It was a eulogy for someone. He was just dead, though. At that time, I didn’t know anybody who had kicked it. Heroin had been the thing in Harlem for about five years and I don’t think anybody knew anyone who had kicked it. They knew a lot of guys who were

John Steinbeck The Grapes of Wrath, 1939

going away getting cures, and coming back, but never kicking it. Cats were even going into the army or to jail, coming back, and getting strung out again. I guess this was why everybody felt that when somebody was strung out on drugs, he was through. It was almost the same as saying he was dying. And a lot of cats were dying.”

Claude Brown

Manchild in the Promised Land, 1965

In Cold Blood by Truman Capote should be a must read for every trial lawyer. It is the first nonfiction story written in narrative structure. His funeral scene is poignant and moving:

“The four coffins, which quite filled the small, flower – crowded parlor, were to be sealed at the funeral services very understandably, for despite the care taken with appearances of the victims, the effect achieved was disquieting. Nancy wore her dress over cherry – red velvet, her brother a bright plaid shirt; the parents were more sedately attired Mr. Clutter in navy-blue flannel his wife in navy-blue crepe; and it was this especially that lent the scene an awful aura the head of each was completely encased in cotton, a swollen cocoon. Twice the size of an ordinary blown-up balloon and the cotton because it had been sprayed with a glossy substance twinkled like Christmas tree snow.”

Truman Capote

In Cold Blood, 1966

How do the great artists use the concept of recency in their writings and what can we learn as trial lawyers? Let’s examine some of the legendary stories:

“She threw out hands to him palms up, in the age old gesture of appeal and her heart, again, was in her face. “No”, she cried “all I know is that you do not love me and you are going away! Oh, my darling, if you go, what shall I do?” …“Scarlett, I was never one to patiently pick up broken fragments and glue them together and tell myself that the mended whole was as good as new. What is broken is broken – and I’d rather remember it as it was at its best than mend it and see the broken places as long as I lived. Perhaps, if I were younger – “he sighed”. But I’m too old to believe in such sentimentalities as clean slates and starting over… I couldn’t live with you and lie to you and I certainly couldn’t lie to myself. I can’t even lie to you now. I wish I could care what you do or where you go, but I can’t. He drew a short breath and said light but softly “my dear, I don’t give a damn.”

Margaret Mitchell

Gone with the Wind, 1936

Harper Lee’s To Kill a Mockingbird should be required reading for every criminal defense lawyer. Atticus Finch speaks eloquently about equality in his final summation:

“One more thing gentleman, before I quit, Thomas Jefferson once said that all men are created equal, a phrase that the Yankees and the distaff side of the executive branch in Washington are fond of hurling at us. We know all men are not created equal in the sense

some people would have us believe – some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cakes than others – some people are born gifted beyond the normal scope of most men. But there is one way in this country in which all men are created equal there is one human institution that makes a pauper equal of a Rockefeller the stupid man the equal of Einstein, and the ignorant man equal of any college president, that institution, gentleman, is a court.”

Harper Lee

To Kill a Mockingbird, 1960

Jim Perdue says in I Remember Atticus,

“The moral of a trial story is about empowerment. Inspiring the jury to do something for someone who is weak, vulnerably, and not able to make things right without the jury’s help. Legal education denies emotion; students are taught the cold logic of inductive reasoning. But inductive analysis is a faulty road map for the courtroom. Ordinary citizens resolve conflicts by deciding first what seems right and the making the facts fit their sense of justice.”

Jim Perdue

I Remember Atticus, 2004

Trial lawyers have one of the most unusual occupations of mankind. We tell stories to 12 people who we have never seen in our lives about a past event that they have absolutely no personal interest in. We can use riveting words to capture our jurors’ imaginations in opening statements, paint pictures in direct and cross-examination, and use the concept of recency in final summations

What do we do with the story after we have our techniques and story line in order though? After we have identified the universal theme in our client’s story, one that jurors can identify with, what next?

Its one thing to read the words of great artist, but it’s quite another to transfer those words, with effect, to a live audience. A trial lawyer must be able to stand before a live audience and tell a compelling story. We must develop skills of the writer and actor.

Every trial lawyer should take an acting course as horrible as this sounds to logical thinkers. We need to learn how to use space and create rhythm in our presentation, project our voices, create tension or drama with pauses and gestures, developed stage presence, and learn how to tell a story to create a trance state in your audience.

The techniques of storytelling are so powerful because they bring motion and

Suggested Reading

•

•

•

Black Water – Joyce C. Oates

In Cold Blood – Truman Capote

The Grapes of Wrath – John Steinbeck

• To Kill a Mockingbird – Harper Lee

• Moby Dick – Herman Melville

• Animal Farm – George Orwell

• Guns of August – Barbara Tuchman

• Native Son - Richard Wright

• Fire the Next Time – James Baldwin

• Crime and Punishment – Fyodor Dostoevsky

• The Tell -Tale Heart – Edgar Allen Poe

• A Tale of Two Cities – Charles Dickens

• The Sun Also Rises – Ernest Hemingway

• No Country for Old Men – Cormac McCarty

• The Jungle – Upton Sinclair

• Manchild in The Promise Land – Claude Brown

• Gone with the Wind – Margaret Mitchell

• I Remember Atticus – Jim Perdue

emotion to the courtroom. The key to storytelling is telling your story in the present tense; as though it is happening now. The emotional state will transfer you and your audience to that critical time and place. The story takes you and your jury to another world; a world and an experience that you and your jury will share together. It begins with doing something that’s counterintuitive for the trial lawyer, reading literature.

A GREAT TRIAL LAWYER W. MARK LANIER TELLS US WHY AND HOW WE SHOULD TELL STORIES

WHY TELL STORIES? In short, people learn better with stories. Why is that so? A number of reasons:

Stories are attention getters. People get involved in stories and pay better attention to stories as opposed to factual dissertations.

People remember stories. If you ever take a memory course, the fundamental method for memorization is to take one or more facts and turn them into a story. Stories plug into the mind much better than facts.

Stories by-pass defense mechanisms.

Defense mechanisms, we are told, are psychic mechanisms we use to resist feeling guilt, anxious, and a variety of other unpleasant emotions. It may be easier to think of it in terms of if you or someone close to you “get defensive”. Think about what triggers defensiveness in you.

For example, if someone says “I think you are a bad trial attorney because you (blank),” you start, at least in your mind, planning a defense to the accusation (i.e., “I’m not a bad attorney because (blank)”). What a story or metaphor accomplishes is an end run around the defense mechanism. Like an Aesop fable, “Once upon a time, there were two bunnies. A fast one and

one who was a good jumper”. The person hearing the metaphor does not initially know where the identification attaches. Therefore, the message is digested before the identification and or defense happens.

Here is another example that may help clarify this point. If a therapist were to say to a couple referred to her for marital problems, “It’s useless to blame one another in a marital tiff,” then one person in the couple will think of a time the other was clearly wrong. Ammunition is stockpiled for a strong defense. He or she will surely be focused on the particulars of their problems and miss the point. Instead, you could say. When you mix vinegar and baking soda, you will get bubbles. It is useless to dwell on who’s at fault – the baking soda or the vinegar. Neither person in the couple can immediately identify with the vinegar or baking soda; so, the point about the futility of blame is digested rather than diverted by a defense mechanism.

People identify with stories.

When most folks hear a story, they grab a hold of some aspects of the story and begin to cast themselves into the story/experience. Empathy, understanding, anger – the full panoply of emotions can be transferred from a story into a personalized experience for the listener.

Stories simplify difficult concepts and issues.

Use stories to “un-complicate” things. Stories make it possible to easily understand complex rules of law and legal positions. Jurors, after all, have not been to law school. They want to apply what they know about right and wrong to the facts of your case. You are not going to implant your law degree into their brains no matter how hard you try. You can read definitions of “proximate cause” or preponderance of the evidence” all day long and all you will receive back are blank stares! So, if you want to get your point across, then put your legal definitions into the same stories and themes they already understand. For example, in civil business dispute, you could say, “My client may be the tortoise, but the other is the hare. He can have all the potential in the world but my client did all the work! Just because we simply did our job and trusted he would do his part, which does not mean we should be cheated through his laziness.” It is almost impossible to oversimplify you case for a jury- the simpler, the better.

HOW TO TELL STORIES

Mock Trial Research

Watching ordinary people make sense of your case is something you really need to experience. It is also one of the best sources of trial themes and stories. Research jurors will take the facts of your case and try to understand them. In order to do this feat, they will simplify your facts and use their own home-spun analogies. They put the facts into a conceptual framework in which they are able to make sense of it, all you have to do is listen.

We mock trial almost all of our cases. No major manufacturing company today would release a new product without focus testing. Could you imagine the folks at Pepsi saying “You know let’s just try hot pink cans for a while and see if our sales go up!” Sounds ridiculous, yet I still meet trial attorneys who take a case to court without knowing whether they are going to win or lose it first!

When it is time for people to convince one another, like during deliberations, analogies will rampant. What you will hear is, “When he said that, it made me think of the time….”, or “That sounds like…..to me” or “My Papa used to always say….”

Use of “Household” Themes

Another idea I find useful is to look for what I call “anchors” in the stories I plan to use. An anchor is something that will help keep the analogy in the jurors’ mind. The anchor can trigger a memory of the point you want the jurors to remember.

For example, common household items that the jurors are likely to encounter during the trial are good anchors. In explaining the spread of Asbestosis in lungs over time, we used moldy bread. In telling the story, I note how my son can spot mold on bread before anyone else, but in a few days, everyone can see the mold. This method is simpler than trying to explain ‘A’ and ‘B’ readers to the jury. Plus, there is the added benefit of tying an “anchor” to the bread.

Hopefully, whenever a juror sees a piece of bread during the trial, the asbestosis story would be triggered by the anchor

TRANSFORMING WORDS INTO ACTION

Good lawyers communicate, Great Lawyers connect

“How does an entire room of people become a single body of thought?” asked Joshua Karton a communication expert.

Unlike a writer, a trial lawyer must use voice, body, eye contact, pauses, and gestures to paint a picture. A trial lawyer, just like an actor must be able to hold an audience with courtroom presence alone by using voice inflection and silence.

Joshua Karton makes a poignant point in Communication Arts for the Professional when he says, “Who we don’t trust, are actors who seem more concerned with presenting themselves, with protecting their performances, than with connecting with others.”

Ultimately, the objection of any trial lawyer should be to connect with the jury, using the tools of the storyteller is a valuable tool in facilitating that objective.

The great trial lawyer Gerry Spence says:

“The problem is that we, as lawyers have forgotten how to speak to ordinary folks… lawyers long ago abandoned ordinary English. Worse, their minds have been smashed and serialized, and their brain cells restacked so that they no longer can explode in every direction with joy, love, and rage. They cannot see in the many colors of feeling. The passion is gone replaced with the deadly drowning of intellect, and the sounds we make are all alike. Like machines mumbling and grinding away, because what was once freethe stuff of storytelling – has become rigid, flags and gears that convey nothing…” Sandra Zimmer of The Self Expression Center trains presenters to find their core being, their authentic self before they transfer information to others. She trains you to be comfortable just being yourself.

The jury wants to hear our client’s story and we are the narrators. We cannot read the story, we have to create it like theater, in the courtroom. The jurors will forgive us for being inarticulate, forgetful, blurry eyed, but they will never forgive us for not being authentic.

In the end, we are all storytellers, but the story is not just about our clients. It is the story of our country and what it stands for. It is the story of ourselves and what we stand for. It is the story of guilt and innocence. It is a story of just punishment when guilty. It is a story of due

process. Ultimately, it is always a story about the price of freedom. We can all find creative ways to pay that price.

TYRONE C. MONCRIFFE

January 6-7, 2023

Texas Tech School of Law Lubbock, TX

Topic:

Ethical Considerations in Representing Indigent Defendants

Speaker: Lynn Pride Richardson

Dallas County Chief Public Defender 133 N. Riverfront Blvd. 9th Floor Dallas, TX 75207 214.653.3554 phone 214.653.3593 fax lrichardson@dallascounty.org email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

MissionStatement

TheDallasCountyPublicDefender’sOffice (DCPDO)provideseffectiveclientcenteredlegal representationforindigentclientsintheDallas Countycourts.

VisionStatement

TheDallasCountyPublicDefender’sOfficeseeksto ensureconsistent,effectiverepresentationandequal accesstojusticeforourclientsintheDallasCounty courts.

CoreFunction

TheDallasCountyPublicDefender’sOfficerepresents clientswithskilledlegalteamstoensurethatjusticeis servedinafair,justandbalancedmanneratareasonable costtoDallasCountygovernmentandtothetaxpayersof DallasCounty.

PUBLICDEFENDER’SOFFICEVS.COURTAPPOINTEDATTORNEYS

DallasCountyusesbothpublicdefendersandcourtappointedcounselfromtheprivatebar.TheTexasLegislaturehas madeprovisionsforthisthroughtheFairDefenseActof2001.TheFairDefenseActdictateshowattorneysshouldbe appointedforindigentdefendants.

PUBLICDEFENDERASSIGNMENTS

EachjudgeinDallasCountydecideswhatsystemheorshewishestoaccessforprovidingindigentdefenseservices.Once thatdecisionismade,thejudgesubmitsawrittenrequesttotheChiefPublicDefenderandtheDallasCountyBudgetand EvaluationDepartment.BudgetevaluatestherequestandmakesrecommendationstotheDallasCountyCommissioners Court.TheCourtthendecideswhethertoapprovetheallocationofcountyfundstopayforthesalaryandcosts associatedfortheuseofthatPublicDefender.

CASESASSIGNED

OncethePublicDefenderisassignedtothecourt,thejudgedetermineswhattypeofcasestheAssistantPublicDefender willhandle.TheAssistantPublicDefendersareassignedtoeverytypeofcasethatcomesthroughthesystemwithout regardtocomplexityordegreeofoffense.

WhyDoCourtsUsethePublicDefender’sOffice?

Areportentitled“StudytoAssesstheImpactsoftheFairDefenseActonTexasCounties”conductedbythePublicPolicyResearch InstituteatTexasA&MUniversitymadethefollowingobservations:

TheappointmentsmadethroughSB7(TheFairDefenseAct)canbecumbersometoeffectivelymanage.Therotationsystemrequired bytheActisdifficulttomaintain(minimumstandards,reviewofmandatoryCLE,ongoingreviewofperformanceandbilling,etc.). Therotationsystemrequiresaconcentratedefforttoassignandnotifycounselofappointments.

Bycontrast,useofapublicdefendersimplifiestheprocesseswithasinglepointofcontact.Italsoensuresthedefendant-attorney relationshipisestablishedwithintheprescribedtimeframeandclientshaveaccesstocounselinthebeginningstagesoftheprocess.

Decidingwhattopayacourtappointedattorneyfortheirworkisdifficultandtimeconsumingforjudges.Ifappointedcounselbills outofcourthoursabovethefeeschedule,thejudgemustdecidewhichcostswillbepaidandatwhatrate.Thejudgemusteffectively becomeanaccountant,makingdeterminationsaboutallowabledefensecostsandappropriateratesofreimbursement.

Bycontrast,thePublicDefendercostsaredefinedcostsandareallinclusivewiththeexceptionofsubjectmatterexperts.

Ifthejudgehasquestionsaboutanassistantpublicdefender,thejudgehassomeonetospeakto(theattorney’ssupervisororthe Chief).ItisthejobofthesupervisorsandtheChiefPublicDefendertomonitorthejobperformanceoftheattorneysinthecourts.

AcourtcoordinatorknowstheAssistantPublicDefenderassignedtothecourtisgoingtobethereeverymorning.Thecourt coordinatordoesnothavetotracktheattorneydownorwaithoursfortheattorneytoappear.IfthePublicDefenderisabsent,then thereiscoverageavailablefromothermembersoftheoffice,i.e.courtpartner,orsupervisor.

Centralizeddefenseservicesinasingleofficecreatesaninfrastructureandproceduralroutinesuitableforprocessingalargevolume ofcasesinanefficientmanner.

Useofapublicdefenderhasbeenfoundtobemorecosteffectivethanuseofanappointedattorney.

ManagedAssignedCounsel

Privateattorneysareappointed,supportedand paidbyadefensemanagementorganizationon arotatingcasebycasebasis.

ContractAttorneys

Privateattorneyscontractwiththecountyfora volumeofcases.

EthicalConsiderationsin RepresentingIndigentClients

Theethicalconsiderationsinrepresentingindigent clientsarethesameastheethicalconsiderations requiredforthoserepresentingindividualswhocan payforlegalrepresentationandservices.

ALawyer’sResponsibilities

1.Alawyerisarepresentativeofclients,anofficerofthelegalsystemandapubliccitizen havingspecialresponsibilityforthequalityofjustice.Aconsequentobligationoflawyers istomaintainthehigheststandardsofethicalconduct.

2.Asadvocate,alawyerzealouslyassertstheclient’spositionundertherulesofanadversary system.

3.Inallprofessionalfunctions,alawyershouldzealouslypursueaclient’sinterestswithinthe boundsofthelaw.Indoingso,alawyershouldbecompetent,promptanddiligent.A lawyershouldmaintaincommunicationwiththeclientconcerningtherepresentation.A lawyershouldkeepinconfidenceinformationrelatingtorepresentationofaclientexcept sofarasdisclosureisrequiredorpermittedbytheTexasDisciplinaryRulesof ProfessionalConductorotherlaw.

ALawyer’sResponsibilities

4.Asapubliccitizen,alawyershouldseekimprovementofthelaw,theadministrationofjustice andthequalityofservicerenderedbythelegalprofession.

5.Alawyershouldrenderpublicinterestlegalservice.Thebasicresponsibilityforprovidinglegal servicesforthoseunabletopayultimatelyrestsupontheindividuallawyer,andpersonal involvementintheproblemsofthedisadvantaged.Theprovisionoffreelegalservicestothose unabletopayreasonablefeesisamoralobligationofeachlawyeraswellastheprofession generally.Alawyermaydischargethisbasicresponsibilitybyprovidingpublicinterestlegal serviceswithoutfee,oratasubstantiallyreducedfee

6.Eachlawyersownconscienceisatouchstoneagainstwhichtotesttheextenttowhichhisor heractionsmayriseabovedisciplinarystandardsprescribedbytheRulesofProfessional Responsibility.Solongaspractitionersareguidedbyethicalprinciples,thelawwillcontinueto beanobleprofession.Thisisitsgreatnessanditsstrengthwhichpermitnocompromise.

ScopeofRepresentation&Allocationof AuthoritybetweenClientandLawyer

Client-LawyerRelationship

Alawyershallabidebyaclient’sdecisionwhethertosettleamatter.Inacriminalcase, thelawyershallabidebytheclient’sdecision,afterconsultationwiththelawyer,asto thepleatobeentered,whethertowaivejurytrialandwhethertheclientwilltestify.

Alawyershallnotcounselaclienttoengage,orassistaclientinconductthatthe lawyerknowsiscriminalorfraudulent,butalawyermaydiscussthelegal consequencesofanyproposedcourseofconductwithaclientandmaycounselor assistaclienttomakeagoodfaithefforttodeterminethevalidity,scope,meaningor applicationofthelaw.

Diligence

Client-LawyerRelationship

Alawyershallactwithreasonablediligenceandpromptnessinrepresentinga client.

Communications

Client-LawyerRelationship

Alawyershallpromptlyinformtheclientofanydecisionorcircumstancewithrespectto whichtheclient’sinformedconsentisrequired.

Keeptheclientreasonablyinformedaboutthestatusoftheclient’scase. Promptlycomplywithreasonablerequestsforinformation.

Consultwiththeclientaboutanyrelevantlimitationonthelawyer’sconductwhenthelawyer knowsthattheclientexpectsassistancenotpermittedbytheRulesofProfessionalConductor otherlaw.

Alawyershallexplainamattertotheextentreasonablynecessarytopermittheclienttomake aninformeddecisionregardingtherepresentation.

ConfidentialityofInformation

Client-LawyerRelationship

Alawyershallnotrevealinformationrelatingtotherepresentationofaclient unlesstheclientgivesinformedconsentorthedisclosureisimplicitly authorizedinordertocarryouttherepresentation.

ConflictofInterest

Client-LawyerRelationship

1.Alawyershallnotrepresentopposingpartiestothesamelitigation.

2.Alawyershallnotrepresentapersoniftherepresentationofthatperson involvesasubstantiallyrelatedmatterinwhichthatperson’sinterestsare materiallyanddirectlyadversetotheinterestofanotherclientofthe lawyerorthelawyer'sfirm.

ClientwithDiminishedCapacity

Client-LawyerRelationship

Whenaclient’scapacitytomakeadequatelyconsidereddecisionsinconnectionwith representationisdiminished,whetherbecauseofage,mentalimpairmentorforsomeother reason,thelawyershall,asfarasreasonablypossible,maintainanormalclient-lawyer relationshipwiththeclient.

Thelawyermaytakereasonablynecessaryprotectiveactionifthelawyercannotadequatelyin theclient’sowninterestbyconsultingwithindividualsorentitiesthathavetheabilitytotake actiontoprotecttheclientand,inappropriatecasesseektheappointmentofaspecialized attorney,guardianadlitem,attorneyadlitemorbysubmittinganinformationlettertoacourt withappropriatejurisdictiontoproceedwithguardianshipproceedings.

DecliningorTerminationofRepresentation

Alawyershalldeclinetorepresentaclient,orwhererepresentationhascommenced shallwithdrawfromtherepresentationofaclient,if

1.TherepresentationwillresultinviolationofRule3.08orotherapplicableRules ofProfessionalConductorotherlaws;

2.Thelawyer'sphysical,mental,orpsychologicalconditionmateriallyimpairsthe lawyer’sfitnesstorepresenttheclient;or,

3.Thelawyerisdischargedwithorwithoutgoodcause;

4.Theclientpersistsinacourseofactioninvolvingthelawyersservicesthatthe lawyerreasonablybelievesmaybecriminalorfraudulent.

Co-Sponsored with LCDLA

January 6-7, 2023

Texas Tech School of Law Lubbock, TX

Topic: Basics of Mental Health and the Law

Speaker: Robert Sullivan

The Robert Sullivan Law Firm 1217 Avenue K Lubbock, TX 79401 806.741.0000 phone 806.765.8150 fax Sullivan.law@live.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

BASICS OF MENTAL HEALTH AND THE LAW

Robert Sullivan

The Robert Sullivan Law Firm 1217 Avenue K Lubbock, Texas. 79401 Phone # (806)-741-0000 Fax # (806)-765-8150 sullivan.law@live.com LCDLA Annual Prairie Dog CLE January 7th, 2023 Lubbock, Texas

TABLE OF CONTENTS

Epigraph and Introduction pg. 3

The Science, An Overview of Mental Illness pg. 5

The Science, An In-Depth Look at Common Disorders pg. 8

1. Bipolar Disorder pg. 8

2. Major Depressive Disorder pg. 9

3. Schizophrenia pg. 11

** A Note about Psychosis pg. 11

4. Schizoaffective Disorder pg. 12

5. Intellectual Deficiency Disorder pg. 13

Tips and Tricks to Keep in Mind as You Get Started pg. 14

The Law, Selections of CCP Chapter 46B “Incompetency” pg. 17

The Law, Selections of CCP Chapter 46C “Insanity” pg. 23

“You were made as well as we could make you.”

-Blade Runner (1982)

INTRODUCTION

We cannot begin to tell our client’s story to a District Attorney, Judge, or Jury if we do not understand them ourselves For more than half of the past thousand years of human history it was common for mental health disorders to be hidden away in an attic or an asylum somewhere,1 and people suffering from it were seen as dangerous or else facing divine punishment for their wicked ways.2 3 4 In many respects the practice of psychiatry is a medical field still in its infancy. The first Diagnosticand Statistical Manual ofMentalDisorders Volume I(DSM), was not even published until 1952.

Think of this like our Texas Code of Criminal Procedure: The Bible for the practitioner. But the first DSM listed homosexuality as a sociopathic personality disturbance5 and in everyday practice lobotomies were still being performed in an attempt to cure mental disorders.6 7 8 To say the science of psychiatry has come a long way since the 1950’s is an understatement.

1 Essentials of Abnormal Psychology, 1st Edition, Alexis Bridley Ph.D. and Lee Daffin Jr. Ph.D., 2018.

2 A Brilliant Madness, Timeline: Treatments for Mental Illness, PBS American Experience, https://www.pbs.org/wgbh/americanexperience/features/nash-treatments-mental-illness/ (last accessed on November 10th, 2020)

3 The Roots of the Concept of Mental Health, Jose Bertolote, World Psychiatry, June 2008, 7(2), pg. 113-116.

4 The History of Mental Illness: From Skull Drills to Happy Pills, A.M., A.M. Foerschner, http://www.inquiriesjournal.com/articles/1673/4/the-history-of-mental-illness-from-skull-drills-to-happy-pills, (last accessed on November 10th , 2020)

5 Diagnostic and Statistical Manual of Mental Disorders, 1st Edition, American Psychiatric Association, 1951.

6 A Brief Reflection on the Not-So-Brief History of the Lobotomy, Michael Gallea, British Columbia Medical Journal, vol. 59, no. 6, August 2017, pg. 302-304.

7 Violence, Mental Illness, and the Brain A brief History of Psychosurgery: Part 1 From Trephination to Lobotomy, Miguel Faria Jr., Surgical Neurology International, 2013; 4:49.

8 Psychiatry and its Discontents, Andrew Schull, 2019.

While the stigma associated with mental health disorders has lessened over the years9 (The National Institute of Mental Health Information Resource Center reported that in 2017 one in five Americans lived with a mental illness), the incidence of those with a serious mental illness is still relatively small: 11.2 million adults or just 4.5% of the adult population.10 So when you read that one in six Americans is on mental health medication11 or that we are a “Prozac Nation”12 it is easy to think this a commonplace issue that everyone has some experience with. What is left unsaid is this is a general statistic for all mental health issues to include things like everyday anxiety.13

We will begin by looking at the basics of mental illness, separating the facts from the fiction, and then focusing on the most common and serious disorders that a lawyer is likely to come across in their clients. Once we have an understanding of the science, I will give you some general tips and tricks that I have learned throughout the years. Finally, we will move into the law, discussing selections from Chapter 46B and 46C of the Texas Code of Criminal Procedure (CCP). This will teach you how to do basic things like have a client evaluated for incompetency, what to do with the Doctor’s report when you get it, and timelines to keep in mind going forward.

9 Survey: Americans Becoming More Open About Mental Health, American Psychological Association, May 2019, https://www.apa.org/news/press/releases/2019/05/mental-health-survey, (last accessed on November 10th, 2020)

10 Mental Illness, National Institute of Mental Health, https://www.nimh.nih.gov/health/statistics/mentalillness.shtml, (last accessed on November 10th, 2020)

11 Rate of Psychiatric Drug Use Increased by Age, Advisory Board, December 2016, https://www.advisory.com/daily-briefing/2016/12/14/what-psychiatric-drugs-are-americans-taking, (last accessed on November 10th, 2020)

12 Prozac Nation: Young and Depressed in America, Elizabeth Wurtzel, 1994. (see also Prozac Nation, directed by Erik Skjoldbjaerg, performances by Christina Ricci and Anne Heche, Miramax Films, 2001).

13 Understand the Facts, Anxiety and Depression Association of America, https://adaa.org/understanding-anxiety, (last accessed on November 10th, 2020).

I. THE SCIENCE

A. MENTAL ILLNESS, AN OVERVIEW

Mental health is the ability of an individual to effectively function in the daily activities of personal and public life.14 That can be seen in their productivity (such as school or work), meaningful relationships, or their ability to adapt and overcome obstacles 15 Therefore, mental illness is a diagnosable disorder that causes significant changes in thinking, emotion, or behavior with said changes interfering with the functioning of those activities that make up personal and public life.16

Science does not yet have a definitive answer for what triggers mental illness, but we know there is a strong link to biological factors (such as genetics)17 18 as well as psychological factors such as trauma or neglect 19 Through the years, research has shown connections between physical

14 See generally, Mental Health, Centers for Disease Control and Prevention, https://www.cdc.gov/mentalhealth/learn/index.htm, (last accessed on November 10th, 2020), and National Institute of Mental Health, https://www.nimh.nih.gov/index.shtml, (last accessed on November 10th, 2020), and What is Mental Health?, US Department of Health and Human Services, https://www.mentalhealth.gov/basics/what-ismental-health, (last accessed on November 10th, 2020)

15 Id.

16 Id.

17 Common Genetic Factors Found in 5 Mental Disorders, National Institutes of Health, March 2013, https://www.nih.gov/news-events/nih-research-matters/common-genetic-factors-found-5-mental-disorders (last accessed on November 10th, 2020)

18 Protein Misassembly and Aggregation as Potential Convergence Points for Non-Genetic Causes of Chronic Mental Illness, Nicholas Bradshaw and Carsten Korth, Molecular Psychiatry, January 2018.

19 What Is Posttraumatic Stress Disorder?, American Psychiatric Association, August 2020, https://www.psychiatry.org/patients-families/ptsd/what-is-ptsd, (last accessed on November 10th, 2020)

and environmental factors20 such as substance abuse,21 brain injuries,22 and exposure to certain toxins23 which can all cause mental illness as well.

The typical onset of mental disorders can vary wildly based on the diagnosis.24 For example, impulse control disorders and phobias begin to show symptoms in childhood, whereas most mood disorders do not develop until adulthood.25 Attention-Deficit/Hyperactivity Disorder (ADHD) almost exclusively develops in children.26 Then there is psychosis which rarely develops before fourteen and has most cases beginning in the late teens to early twenties.27 Discounting physical trauma or environmental factors, there can still be a rare late-in-life occurrence of mental illness, which in men and women can be past their forties.28

If you have represented more than three clients in jail during your career, then statistically you have represented at least one person with a mental illness. Shockingly, you may have represented two. There is no national standard for reporting mental illness,29 and what scientific studies that have been undertaken have been sporadic, but the numbers go all the way up to 65% of the jail population in any given state or county facility and up to 45% of the Federal inmate

20 See generally, Environmental and Economic Factors Associated with Mental Illness, Kacey Heekin and Larry Polivka, November 2015.

21 Alcohol Abuse, Other Drug Abuse, and Mental Disorders in Medical Practice, Douglas Kamerow MD, Harold Pincus MD, Donald MacDonald MD, April 1986.

22 Mental Health Implications of Traumatic Brain Injury (TBI) in Children and Youth, L. Park and R. Schachar and M. Dennis, Journal of the Canadian Academy of Child and Adolescent Psychiatry, 2015, 24(2), pg. 100-108.

23 Missed Diagnoses and Misdiagnoses of Environmental Toxicant Exposure, David Hartman Ph.D., Psychiatric Clinics of North America, September 1998, vol. 21 is. 3, pg. 659-670.

24 Age of Onset of Mental Disorders: A Review of Recent Literature, Ronald Kessler Ph.D. and Paul Amminger MD and Sergio Aguilar-Gaxiola MD and Jordu Alonso MD and Sing Lee MD and Bedirhan Ustun MD, Current Opinion in Psychiatry, July 2007, 20(4), pg. 359-364.

25 Id. 26 Id. 27 Id.

28

Schizophrenia in Late Life: Emerging Issues, David Folsom MD and Barry Lebowitz Ph.D. and Laurie Lindamer Ph.D. and Barton Palmer Ph.D. and Thomas Patterson Ph.D. and Dilip Jeste MD, Dialogues in Clinical Neuroscience, March 2006, 8(1), pg. 45-52.

29 See generally Mental Health Record Reporting, Giffords Law Center, https://giffords.org/lawcenter/gunlaws/policy-areas/background-checks/mental-health-reporting/, (last accessed on November 10th, 2020)

population.30 31 32 33 34 In fact, for many years the largest provider of mental health services in the State of Texas was… the Harris County Jail.35 36 In a year, the Texas Department of State Health Services maintained direct operational control of less than 2,500 beds.37 On one specific day (June 12th of this year), the Harris County Jail housed 8,117 inmates.38 In 2017, the Harris County Sherriff’s Office spent $22 million dollars alone on mental health care in its jail.39

In Lubbock, where I practice, a study was undertaken and the results showed the same approximate statistical trend over the previous four years: 36% of people in our local jail suffered from a mental illness severe enough to get a court-appointed mental health lawyer, and the remaining 64% of the jail population did not.40 It is important to note, not all of the people in the latter category were free from a mental disorder. Only those suffering from the five disorders listed in this paper were considered to have a qualifying diagnosis.

30 Imprisoning America’s Mentally Ill, Edward Lyon, Prison Legal News, February 2019, https://www.prisonlegalnews.org/news/2019/feb/4/imprisoning-americas-mentally-ill/, (last accessed on November 10th, 2020)

31 Jailing People with Mental Illness, National Alliance on Mental Illness, https://www.nami.org/Advocacy/PolicyPriorities/Divert-from-Justice-Involvement/Jailing-People-with-Mental-Illness, (last accessed on November 10th , 2020)

32 Incarceration Nation, American Psychological Association, October 2014, vol 45, no. 9

33 The Treatment of People with Mental Illness in the Criminal Justice System, Alexander Black and Kylie Davis and Kenneth Gray and Connor O’Shea and Alexander Scheuer and Samantha Walther and Nico Yardas, Levitt Center for Public Affairs, Hamilton College, 2019.

34 Mental Health Problems of Prison and Jail Inmates, James Dors and Lauren Glaze, Department of Justice Office of Justice Programs, Bureau of Justice Statistics Special report, September 2006

35 Findings Summary: Issues Facing County Jails, Texas Criminal Justice Coalition, https://www.texascjc.org/system/files/publications/Findings%20Summary%20%20Issues%20Facing%20County%20Jails%20%28Apr%202012%29.pdf, (last accessed on November 10th, 2020).

36 Houston’s Biggest Jail Wants to Shed Its Reputation as a Mental Health Treatment Center, Renuka Rayasam, July 2018, https://www.politico.com/story/2018/07/09/houstons-biggest-jail-wants-to-shed-its-reputation-as-a-mentalhealth-treatment-center-650264, (last accessed on November 10th, 2020).

37 State Hospital System Long-Term Plan, Department of State Health Services, January 2015.

38 Harris County Jail Is Creeping Back Up to Pre-Covid Capacity, Officials Warn, Gabrielle Banks and Samantha Ketterer, June 12th, 2020, https://www.houstonchronicle.com/news/houston-texas/houston/article/Harris-CountyJail-is-creeping-back-up-to-15337247.php, (last accessed on November 10th, 2020).

39 Id.

40 Current Trends in Lubbock County Indigent Defense, Megan Thoen Ph.D., October 2016

The current version of the American Psychiatric Association’s DSM (Version 5) lists a little over one-hundred and fifty disorders.41 For this paper, I have chosen to focus on five of the most challenging disorders that a lawyer is likely to encounter in their practice: Bipolar Disorder, Major Depressive Disorder, Schizophrenia, Schizoaffective Disorder, and Intellectual Deficiency Disorder (IDD). IDD is what used to be known as Mental Retardation (MR)42 and though the term has fallen out of service,43 you will sometimes still see it in use.

I. THE SCIENCE

B. AN IN-DEPTH LOOK AT COMMON DISORDERS

44

1. Bipolar Disorder

Therearedifferent subsetsofBipolarDisorder(whatusedtobecalledmanic-depressive),45 but the persistent symptoms are a manic mood episode followed by a depressive mood episode. For the mania, it must last for at least a week and be present most all of the day, most every day During this time the patient will experience an abnormal and elevated mood (but it doesn’t have to be pure euphoria, they can be irritable), increased goal-directed activity, and/or energy. Like all the disorders we will discuss, these symptoms must showcase a change in the patients day-to-day functioning and the changes must not be attributable to any medication or other substance.46 They will also experience at least three of the following symptoms:

41 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, American Psychiatric Association, 2013.

42 Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, American Psychiatric Association, 1994.

43 See generally Rosa’s Law, 82 C.F.R. 31910.

44 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, American Psychiatric Association, 2013, pg. 65-66, 71-72

45 Bipolar Disorder, National Institute of Mental Health, January 2020, https://www.nimh.nih.gov/health/topics/bipolar-disorder/index.shtml, (last accessed on November 10th, 2020).

46 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, American Psychiatric Association, 2013, pg. 65-66, 71-72.

inflated self-esteem or grandiosity; decreased need for sleep; more talkative than normal; racing thoughts; distractibility; increase in goal-directed activity; and excessive involvement in activities that have a high potential for painful consequences.

This will be followed, though not necessarily immediately so, by a depressive episode. (It is also possible for these two mood episodes to appear concurrently.) This depression is where a person may feel overwhelming sadness or emptiness inside, coupled with feelings of worthlessness. Their symptoms may be the inverse of when they were manic: for example, they may sleep too much whereas they previously slept too little.

2. Major Depressive Disorder47

A person suffering from Major Depressive Disorder, (sometimes referred to as clinical depression)48 has five or more of the following symptoms, which have been present for at least two-weeks, for most if not all of the day: a depressed mood;

47 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, American Psychiatric Association, 2013, pg. 94-97.

48 Depression, National Institute of Mental Health, February 2018, https://www.nimh.nih.gov/health/topics/depression/index.shtml, (last accessed on November 10th, 2020).

noticeably diminished interest or pleasure in daily activities;

significant weight gains or losses not attributable to a diet; insomnia; objectively rapid movements (suchas pacing or rapid speech)orobjectively slowed down movements; fatigue; feelings of worthlessness or inappropriate guilt; diminished thinking or concentration; and recurring thoughts of death, to include thoughts of suicide, with or without a plan, all the way to actual suicide attempts.

A proper diagnosis must have as one of the five symptoms the depressed mood or diminished interest.

Every single person reading this paper has experienced some personal pain or suffering in their own life. While a significant loss will usuallycause grief and most, if not all, of thesymptoms above may then manifest themselves, the patient diagnosed with Major Depressive Disorder isn’t just merely feeling emptiness or loss: day-in and day-out they are lacking the experience of happiness or pleasure.

3. Schizophrenia49

This is arguably one of the more serious and severe disorders to be discussed in this paper. A person suffering from Schizophrenia will have at least two of the following symptoms, for a significant part of at least one month (and which at least one of the symptoms is one of the first three listed): delusions; hallucinations; incoherent or disorganized speech; grossly disorganized or catatonic behavior; and “negative symptoms” such as diminished motivation or reduced feelings of pleasure. These symptoms will be so severe that they will cause a marked decline in the level of functioning of the patient and for a significant portion of time.

** A Note About Psychosis

Though Bipolar Disorder and Major Depressive Disorder can have psychotic features, said psychosis is persistent throughout schizophrenia. Misrepresented throughout the years, thanks in no small part to Alfred Hitchcock’s seminal classic Psycho (1960), psychosis is merely a defect of the mind that causes it to lose contact with reality in some way.50 Norman Bates believing that his

49 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, American Psychiatric Association, 2013, pg. 50-52.

50 What is Psychosis?, National Institute of Mental Health, https://www.nimh.nih.gov/health/topics/schizophrenia/raise/what-is-psychosis.shtml, (last accessed on November 10th, 2020).

Mother was still alive when she had passed away is an example of psychosis. Norman Bates grabbing a knife and becoming a serial killer is something completely different. That is more closely associated with antisocial personality disorder 51 There is absolutely no large-scale correlation to violence and mental illness of any kind!52 53 In fact, a person who is mentally ill is 30% more likely to be a victim of a crime than a perpetrator.54

Psychosis is, simply put, a person who is experiencing hallucinations or delusions. The hallucinations can be auditory or visual (statistically more likely to be auditory, though scientists do not yet know why this is55). Often times there is an accompanying sense of grandeur about the delusions, a persecution belief, and/or there may be a religious ideation about them as well.56

Hallucinations or delusions are not by themselves dipositive of incompetency or are evidence of an inability to have rational thoughts. While suffering, some patients remain lucid enough to know what they are experiencing is a byproduct of their illness and that others are not seeing or hearing what they are.

4. Schizoaffective Disorder57

Another incredibly serious disorder, it is not to be confused with schizophrenia. This disorderis different becauseit has all the samesymptoms duringanuninterruptedperiodofillness,

51 Antisocial Personality Disorder, Psychology Today, https://www.psychologytoday.com/us/conditions/antisocialpersonality-disorder, (last accessed on November 10th, 2020).

52 Violence and Mental Illness: An Overview, Heather Stuart, World Psychiatry, June 2003, 2(2), pg. 121-124.

53 Violence and Mental Illness: What Is the True Story?, Mohit Varshney and Ananya Mahapatra and Vijay Krishnan and Rishab Gupta and Koushik Sinha Deb, Journal of Epidemiology and Community Health, March 2016, vol. 70 is. 3.

54 Community Violence Perpetration and Victimization Among Adults with Mental Illnesses, Sarah Desmarais and Kiersten Johnson and Richard Van Dorn and Kevin Grimm and Kevin Douglas and Marvin Swartz, American Journal of Public Health, February 2014.

55 Hallucinations: Clinical Aspects and Management, Suprakash Chaudhury, Industrial Psychiatry Journal, January 2010, 19(1), pg. 5-12.

56 Surviving Schizophrenia: A manual for Families, Patients, and Providers, E. Fuller Torrey, 1983.

57 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, American Psychiatric Association, 2013, pg. 53-54.

but is then combined with a major mood episode, either major depressive or manic. This is the rarest ofthedisordersdiscussedtoday,58 andit is oftentimes first mistakenlydiagnosed forBipolar Disorder.59

5.

60

Intellectual Deficiency Disorder

A person suffering from IDD (sometimes also referred to as Intellectual Disability or ID) must satisfy each of the following three criteria: deficits in intellectual functions (like problem solving or abstract thinking), confirmed by clinical assessment and standardized IQ testing; failure to meet developmental or social/cultural standards for independence and responsibility (without ongoing support this leads them to suffering limited functioning in their daily life); and an onset during the developmental period. There are four different levels to this disability, and they are mild, moderate, severe, and profound.

A person with Mild IDD has an IQ in the range of 50-69 and they are generally able to live an independent life, both at home and work, with minimum levels of support.61 Moderate IDD is an IQ in the range of 36-49 and these individuals will require a greater level of support, usually through a group home setting, but they may still be able to achieve some level of independence in 58 Id. 59 Id.

60 Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, American Psychiatric Association, 2013, pg. 17-22.

61 Table 9-1, Classification of Intellectual Disability Severity, National Center for biotechnology Information, 2015, https://www.ncbi.nlm.nih.gov/books/NBK332877/table/tab_9-1/?report=objectonly, (last accessed on November 10th, 2020).

their life.62 Severe IDD is an IQ between 20-35 and these individuals require daily supervision, not just for self-care, but safety as well. Often times they will have difficulty communicating, and their abilities maybe limited to mere root memorization of simple routines.63 Finally, those with an IQ below 20 are considered Profound IDD and they require around the clock care. They are often times limited in mobility and have underlying health conditions.64 While someone with a severe diagnosis may yet still be able to communicate, the profound patient may not even be able to communicate at all.

Now that we have gone over a general background on mental health, as well as some of the most common disorders, let’s take a quick detour to go over some practical suggestions before we discuss the law.

II. HELPFUL TIPS AS YOU GET STARTED

In my practice, I have found it useful to start the discussion about mental health during my very first client meeting. While I am introducing myself, going over their charges, and getting to know them, I always ask the same series of questions, meant to subtly transition the discussion to their mental health.

“Do you have any health concerns that you think I need to know about: do you have high blood pressure, asthma, diabetes, anything like that?” …… 62 Id. 63 Id. 64 Id.

“What about any major accidents in your life: have you ever been in a car crash, had broken bones, a concussion, lost consciousness, anything to do with major head trauma?”

“You know, sometimes medical issues aren’t just physical, sometimes they are in our minds. Have you ever seen a psychiatrist or therapist? Do you take any medication? Do you feel like you need to? Maybe think that you have a little anxiety or depression? After all, jail can be a really shitty place to be.”

This is a conversation that you most likely will need to loop around to in subsequent meetings, because there are those clients that will not tell you about their mental health history. This could be because they are afraid it will have an adverse impact on their criminal case, or because they are ashamed of it, or maybe they are simply too delusional to even know they have an illness. The good news is, I have found the people unwilling to talk are fairly rare, and most people are open to discussing their mental health issues if they know that you are engaged on the topic and are ready to help them work through those issues as well.

And throughout the entire case, investigation is key. Not just in speaking with your client, but constantly observing and monitoring them, talking to their friends and family, and getting your hands on every possible record that you can! This cannot be emphasized enough. Not only will the records prove helpful in your defense, any Doctor involved in the case will need as much supporting evidence as they can get.

Records to look out for include 1. Police Reports and Discovery on this case and all previous cases, regardless of the disposition; 2. Complete Jail (Adult and Juvenile) and Civil

Commitment Records with dates; 3. Inpatient and Outpatient Medical Records; 4. Discharge Summary and Dates of Hospitalization; 5. Medications Proscribed and History of Compliance or Adverse Reactions; 6. Other Medical Information, Medications, and Procedures Not Involving Mental Health; 7. Screenings, Competency Evaluations, and All Other Psychological Testing Materials and Results; 8. Restoration History; 9. Education Records (with an emphasis on Behavioral/Special Education); 10. Military Records; 11. Employment Records; and 12. Social Security or Disability Records.

Sincethere is no national system formental health records collection (and there exists great conflict between what laws there are),65 it is entirely possible you get a very recent set of records that is incomplete and missing pertinent information that can only be found in older records. Never forget that the turnover rate for employment in the mental health field is exceedingly high (sometimes reaching 50% annually).66 Because of this, things fall through the cracks all the time.

I am reminded of a client who, after being assessed by the local jail for mental illness (something triggered by “credible information” on all new arrivals under CCP Article 16.22), I was told they were free of any mental disorders. Turns out they were involuntarily held in a psychiatric hospital less than three weeks prior. How did such important information get overlooked? The local jail was only able to review records kept in that county. So, if you even have the slightest suspicion your client has a mental health issue, never stop investigating, even if initial signs point to there not being any issues

65 See generally, Health Insurance Portability and Accountability Act, 45 C.F.R. § 164.502, 1996. 66 The Role of Staff Turnover in the Implementation of Evidence-Based Practices in Mental Health Care, Emily Woltmann and Rob Whitley Ph.D. and Gregory McHugo Ph.D. and Mary Brunette MD and William Torrey MD and Laura Coots and David Lynde and Robert Drake MD, Psychiatric Services, July 2008, vol. 59 is. 7, pg. 732-737.

In the enclosures, I have included the mental health client history questionnaire used by the Lubbock Private Defender’s Office, my local assigned-counsel office. This is a good starting point for gathering baseline information on your client. Also, the most common medical release forms for trying to get your client’s records have been attached While most of these are accepted throughout the state, some places will require you to fill out their own set of paperwork.

And you will often need to send these request forms to many different departments even within the same agency. In my experience, it is usually county jails and school districts that have different forms they want filled out, and, even then, the administrative records are kept separate and apartfrom themedical/behavioral records(or specialeducationrecords).Sending your request to just one department will almost never get you the other set.

II. THE LAW

A. A SELECTION OF CHAPTER 46B, INCOMPETENCY TO STAND TRIAL

The majority of the law concerning mental health (and the most vital provisions) are contained within Chapter 46 of the CCP. More specifically, Chapter 46B deals with incompetency and Chapter 46C deals with insanity. Often times incorrectly portrayed in movies and television, incompetency is, in the crass colloquial, the answer to the question “Is my client crazy today?” Insanity, meanwhile, begs the question “Was my client crazy at the time of the alleged offense?”

However simplistic those two questions may be, the different chapters incorporate a wide range of criteria that are ultimately looking for very different things under their separate standards. For incompetency, we will go through the typical process of competency restoration.

46B.003 Absent a prior Court order,67 everyone is presumed competent to stand trial. While a person may not know the law, that doesn’t mean they don’t have the capacity to learn from their lawyer, to meet and discuss the facts of the case, and to assist in the preparation of their defense. For a person to be presently incompetent a Court will be looking for two things: 1. do they have a sufficient present ability to talk with their lawyer, with a reasonable degree of rational understanding, or 2.do theyhave a rational and factual understanding ofthe proceedings?68 Unless your client has both factors, he is incompetent. It is not enough that he has the potential capacity to learn these things in the future: your client must have them both in the present. These factors must be present throughout all the stages of the proceedings69 and the standard to prove the defendant is incompetent is merely by a preponderance of the evidence.

46B.004 While many different people can file a motion suggesting incompetency (theProsecuting Attorney,Defense Attorney,orJudge,)in practiceit will oftencome down to you. Some attorneys file a sworn affidavit with the motion while others do not. Merely raising the issue triggersaninformalinquirytoseeifthereiscredibleevidence,fromanysource,thatwouldsupport a finding of incompetency. If so, all proceedings are stayed and the Judge is to order an examination. Failure to do so is a violation of Due Process Rights.70 71 72 73

TIP: If you have any doubt as to whether or not your client is presently incompetent then

FILEA MOTIONFOR ACOMPETENCYEXAMINATION!The standardmotion Iusehas been provided in the enclosures to this paper.

67 Arnold v. State, 873 S.W.2d 27, (Tex. Crim. App. 1993).

68 Dusky v. United States, 362 U.S. 402 (1960).

69 Godinez v. Moran, 509 U S 389 (1993).

70 Owens v. State, 473 S.W.3d 812 (Tex. Crim App. 2015).

71 Cooper v. Oklahoma, 517 U S 348 (1996).

72 Medina v. California, 505 U.S. 437 (1992).

73 Morales v. State, 587 S.W.2d 418 (Tex. Crim. App. 1979).

The case law on Chapter 46B and 46C is almost non-existent. It is common for me to go into Court with a handful of cases, and you can review any article and shepardize the history on it in less than half an hour. Why? There is very little litigation that has been done over the decades, and most of it you will read concerns people now on death row. Arguments based on this article arelargely thesame:thatincompetencyshould havebeen raisedpriorto trial. However, attempting to raise mental health issues for the first time on appeal is almost always too late.74 75 76 77 Remember, so great was the zeal of the State of Texas to kill a man suffering from IDD that our Court of Criminal Appeals was rebuked twice in the past three years by the United States Supreme Court.78 79

46B.0024 Once a Doctor is appointed (the process and their qualifications laid out in Article 46B.021 and 46B.022 respectively) they will meet with your client to examine them. You need to be there in order to adequately advise your client of their rights because this examination report will be made returnable to the Court, and it will be discoverable by the District Attorney. While the statements made and information learned during this examination are generally barred from becoming evidence at trial under Article 46B.007, like all prohibitions on the State, this rule is only as strong as the Judge willing to enforce it.

74 Mata v. State, 632 S.W.2d 355 (Tex. Crim. App. 1982).

75 Thompson v. State, 915 S.W.2d 897 (Tex. App. Houston (1st District) 1996).

76 Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999).

77 Tadlock v. State, 484 S.W.3d 560 (Tex. App. Texarkana 2016).

78 Moore v. Texas, 581 U.S. ___ (2017).

79 Moore v. Texas, 586 U.S. ___ (2019).

The factors that can be considered in an expert’s examination are not merely limited to the ones laid out below. Indeed, an expert may consider any issue they deem relevant. However, it is mandatory that they consider the following, in full:80

(1) the capacity of the defendant during criminal proceedings to:

(A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;

(B) disclose to counsel pertinent facts, events, and states of mind;

(C) engage in a reasoned choice of legal strategies and options;

(D) understand the adversarial nature of criminal proceedings;

(E) exhibit appropriate courtroom behavior; and

(F) testify;

(2) as supportedby current indications andthe defendant's personal history, whether the defendant:

(A) is a person with mental illness; or

(B) is a person with an intellectual disability;

(3) whether the identified condition has lasted or is expected to last continuously for at least one year;

80 Turner v. State, 570 S.W.3d 250 (Tex. Crim. App. 2018); Morris v. State, 301 S.W.3d 281 (Tex. Crim. App. 2009).

(4) thedegreeofimpairmentresultingfromthementalillnessorintellectual disability, if existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner; and

(5) if the defendant is taking psychoactive or other medication:

(A) whether the medication is necessary to maintain the defendant's competency; and

(B) the effect, if any, of the medication on the defendant's appearance, demeanor, or ability to participate in the proceedings.

You will see there is a temporal factor here that is not present in 46B.003. While competency is very much a present concern, one of the factors the Doctor will be examining is whether or not your client, if they are incompetent, can be restored in the immediate future or if they are so sick as to be likely not restorable. The Doctor’s report is due within thirty days of the examination (Article 46B.026) and the findings and observations that are required to be discussed in the report are laid out in Article 46B.025.

TIP: This report is not binding on the Court and under Article 46B.051 the Judge will most likely be the ultimate fact finder in regards to your client’s competency. Often times, this can be accomplished through something as simple as an agreed judgment. However, if there is a disagreement between the parties, a bench trial is the default option. Either party can request a jury trial though. If you get a report that you feel like has just come out of left field, something so egregious you are in total disagreement with it, then now is the time to fight it. It is entirely permissibleforyoutoseekoutyourownexpert,eitherthroughyourlocalassignedcounsel’soffice

or asking the Court for money to hire your own expert.81 Under 46B.021(f), you have the right, upon timely request, to have your own expert examine the Defendant.

46B.071 If your client is incompetent to stand trial, what happens next will largely depend on their charge, if they were found to be restorable or not, and what the District Attorney on the case is wanting to do. The State could, of course, dismiss all charges at any time. For those Defendants who are charged with a Class B Misdemeanor, and who are deemed to be restorable, they can either be released on bond, committed to a jail-based restoration program, or sent to a mental health or residential care facility. For a Class A Misdemeanor and above, if found to be restorable, they could be released on bond or committed to a facility or a jail-based restoration program.(Regardingbond,alwayschecktoseeiftheDefendantqualifiesforcertain circumstances under 46B.0711 and 46B.072 which would mandate their release.) Often times the Defendant will be committed locally for treatment, however there are certain charges listed under 46B.073(c) that will require them to be committed to a maximum-security facility, which here in the State of Texas is the North Texas State Hospital, commonly referred to as Vernon. To those with a qualifying charge (commonly called “violent offenses” or those involving a deadly weapon), your client will goonawaitlistandthenitwilltakeapproximatelyayearandahalfbeforetheyevengettransferred to begin restoration services. While the Courts have ruled that the wait list for Vernon is itself constitutional, the implementation of it and the long wait times we are currently experiencing are certainly a potential area for constitutional challenge.82

46B.073 The period that a Defendant can be committed to a restoration program is 60-days for a misdemeanor and 120-days for a felony. This can be extended by only one time, and

81 Ake v. Oklahoma, 470 U.S. 68 (1985).

82 Lakey v. Taylor, 435 S.W.3d 309 (Tex. App. Austin 2014).

the Court can grant this additional 60-day extension under 46B.080, upon proper request from the head of a facility or program provider. Article 46B.085 makes it clear that for the same offense the Court may only ever order one initial period of restoration (with the possibility of one extension). 46B.084 After the restoration period is up, and when the Defendant is “returned to Court,” the Court shall notify all parties of the return within one business day. You then have three business days to go and meet with your client and determine whether you concur with the most recent Doctor’s assessment. If you want to contest their finding, a written objection must be filed within fifteen days of the date that the Court first got notice of the report itself under Article 46B.079, meaning you will be working with a very small timeframe, especially if they send the report ahead of your client’s physical return. The Court itself is under a deadline to enter an order adjudicating competency within twenty days of getting that first notice, or five days after the Defendants return to Court, whichever is sooner. This means that you will likely have some sort of truncated hearing where the Judge may base his finding solely on the report itself, but then an actual objection hearing will be held at a later date, if you so request it.

II. THE LAW

B. A SELECTION OF CHAPTER 46C, THE INSANITY DEFENSE

The insanity defense is rare in the State of Texas. We use the old English M’Naghten Rule which defines insanity as “at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong,” Texas Penal Code, Article 8.01. This defense does not allow for a Jury to consider a lacking impulse control, nor an inability to confirm to the law. And in this context, wrong means knowing that it was illegal.83

83 Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. 2008).

So rare is the insanity defense that I have yet to have a case where I was able to use it at trial. To start, under Article 46C.051,you must give notice to the State of your intent to raise the insanity defense at least twenty days prior to trial. Failure to do so will act as a bar except for good cause shown (Article 46C.052). While it is possible you have your own retained expert, it is more likely the Court will get involved at this time like it would with competency and then appoint an expert under 46C.101. The Defendant must be competent at the time of the assessment, and if they are not, then you will have to proceed first under a 46B restoration.

If you do make it to a jury trial, they only get to rule on the issue if there has first been shown “competent evidence” to support the insanity defense (46C.151). And you cannot tell a prospective juror or actual juror the consequence of a finding of not guilty by reason of insanity (46C.154). Whatever misconceptions or false beliefs on the law they may have, apparently, they gettokeepthem.Ifyou aresuccessful,yourclientisconsideredacquittedforallpurposes…except then they are specifically barred from getting an expunction (46C.155).

This was meant as a very basic selection of articles in Chapter 46B touching on restoration and 46C with insanity. But there remains a myriad of issues left undiscussed. What if your client was found incompetent and not restorable? Generally, the civil commitment process comes into play. That will ultimately take you to the Health and Safety Code, Title 7, Subtitle C, Chapter 500. What if your client refuses to participate or take his medication? A forced medication hearing may be requested by the restoration program What do you do if the Defendant was found not guilty by reason of insanity but the case involved dangerous conduct? The Court retains jurisdiction and inpatient or out-patient treatment can be mandated. To better help guide you in dealing with mental health clients and the legal process, I have provided a chart in the enclosures which gives a more detailed overview on incompetency, and TCDLA has a new Mental Health Trial Notebook, by

Nicky Boatwright, which is currently free to all members. What assistance I may be able to give, please feel free to call or e-mail me, anytime, and I will be happy to brainstorm ideas and solutions with you too.

42nd Annual Prairie Dog Lawyers Seminar

Co-Sponsored with LCDLA

January 6-7, 2023

Texas Tech School of Law Lubbock, TX

Topic:

A Quick Guide

to

Incompetency Under Texas CCP, Chapter 46B

Speakers: Robert Sullivan

The Robert Sullivan Law Firm 1217 Avenue K Lubbock, TX 79401 806.741.0000 phone 806.765.8150 fax Sullivan.law@live.com email

Nicky Boatwright

P.C. Attorney at Law 1005 Broadway St Lubbock, TX 79401 806.747.8002 phone 806.747.8110 fax nickboatwright@mylubbocklawyer.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

IfyouHaveEverRepresentedmorethan ThreePeopleinJailatthesametime…

IfyouHaveEverRepresentedmorethan ThreePeopleinJailatthesametime…

ThenStatisticallyyouhaveRepresented SomeonewithaMentalIllness!

ThenStatisticallyyouhaveRepresented SomeonewithaMentalIllness!

CCP46B

INCOMPETENCY

◦46B.003(a)(1)Sufficientpresentabilitytotalk withtheirlawyer,withareasonabledegreeof rationalunderstanding

CCP46B

INCOMPETENCY

◦46B.003(a)(1)Sufficientpresentabilitytotalk withtheirlawyer,withareasonabledegreeof rationalunderstanding

OR

CCP46B

INCOMPETENCY

◦46B.004Merelyraisingtheissuetriggersan informalinquiry

◦Isthereevidence,fromanysource,thatwould supportafindingofincompetency?

CCP46B

INCOMPETENCY

◦46B.004Merelyraisingtheissuetriggersan informalinquiry

◦Isthereevidence,fromanysource,thatwould supportafindingofincompetency?

(Canbefromanycrediblesource…likefiler)

CCP46B

INCOMPETENCY

◦Isthereevidence,fromanysource,thatwould supportafindingofincompetency?

CCP46B

INCOMPETENCY

◦Isthereevidence,fromanysource,thatwould supportafindingofincompetency?

IftheanswerisYES,andtheJudgedoesnot appointanexperttoexamine…

CCP46B

INCOMPETENCY

◦46B.005EitherProsecutionorDefensecan (46B.051)askforaTrial(JudgeorJury)to DecideIssueofCompetency BurdenProponentandStandardcanShift!

CCP46B

INCOMPETENCY

◦46B.005EitherProsecutionorDefensecan (46B.051)askforaTrial(JudgeorJury)to DecideIssueofCompetency

CCP46B

INCOMPETENCY

◦46B.005EitherProsecutionorDefensecan (46B.051)askforaTrial(JudgeorJury)to DecideIssueofCompetency

CanWaiveTrialandAgreeIfInitialFindingis “NotCompetent”

CCP46B

INCOMPETENCY

◦46B.005EitherProsecutionorDefensecan (46B.051)askforaTrial(JudgeorJury)to DecideIssueofCompetency

CanNOTWaiveTrialandAgreeIfInitialFindingis “Competent”

CCP46B INCOMPETENCY

(2)assupportedbycurrentindicationsandthedefendant'spersonalhistory,whetherthe defendant:

(A)isapersonwithmentalillness;or

(B)isapersonwithanintellectualdisability;

(3)whethertheidentifiedconditionhaslastedorisexpectedtolastcontinuouslyforatleastone year;

CCP46B INCOMPETENCY

(4)thedegreeofimpairmentresultingfromthementalillnessorintellectualdisability,ifexistent, andthespecificimpactonthedefendant'scapacitytoengagewithcounselinareasonableandrational manner;and

(5)ifthedefendantistakingpsychoactiveorothermedication:

(A)whetherthemedicationisnecessarytomaintainthedefendant'scompetency;and

(B)theeffect,ifany,ofthemedicationonthedefendant'sappearance,demeanor,orability toparticipateintheproceedings.

CCP46B INCOMPETENCY

CCP46B

2022–2023

TCDLA Committee Expression of Interest

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Join today and become part of a long history of providing services and assistance in the great state of Texas, while accessing valuable resources, services, support and discounts on seminars, travel, and technology.

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